This action was the climax of a series of clashes between James Steel of Haverhill, Massachusetts, and Asa Porter, a merchant and trader from the upper Connecticut Valley Coös region of New Hampshire.1 In September 1767 Steel had sold Porter and his partner Andrew Savage Crocker a consignment of 1600 barrel hoops. After Porter accepted settlement against him in another matter, Steel sued out a writ for the value of the hoops returnable at the December 1769 term of the Essex County Inferior Court.
Porter traveled south into Massachusetts in the fall of 1769, settling his accounts with various correspondents. At the beginning of November he told Jacob Rowell to leave a note of Porter & Crocker, which he held, at Walker’s Inn in Haverhill, where Porter would settle it. On 29 November Porter stopped at Walker’s and left Rowell a letter, reporting that he was unable to pay the note now but that satisfaction could be had from a correspondent in Newburyport. On the next day Porter and Steel met at Harriman’s Inn at Plaistow, New Hampshire. Here, Porter paid Steel’s claim for the hoops and, according to Porter, also gave Steel the sum owed to Rowell with instructions that it be paid over to the latter. Porter took a receipt and then departed for Coös.2
Whatever the agreement, Steel did not make payment to Rowell. Accordingly, Porter & Crocker brought suit against Steel at the July 1770 Essex Inferior Court. The declaration contained two counts: (1) That Steel had “received of the Plaintiffs the sum of five pounds ten shillings and in consideration thereof promised the plaintiffs to pay the same sum to one Jacob Rowell on their account and to procure the same sum to be endorsed on a note of hand which the said Rowell had of the plaintiffs payable to the said Rowell.” (2) A count in indebitatus assumpsit for the same amount, “had and received by said James for the use of the Plaintiffs.” On a plea of the general issue entered by Nathaniel Peaslee Sargeant, counsel for Steel, the case went to the jury, which returned a verdict for Porter in the sum sued for and costs.3
Steel appealed to the Superior Court, where at the June term 1771 he obtained a verdict reversing the prior judgment.4 Porter now sought a writ of review. In November 1772 the case came on in the Superior Court at Salem, with Adams joining Sargeant as Steel’s counsel, and John Lowell appearing for Porter. The form of Steel’s receipt and the nature of the pleadings suggest some interesting possibilities in the law of contracts, but no issues in this field seem to have been raised.5 Adams’ minutes of the evidence (Document I), and minutes of a portion of the argument in Wetmore’s hand (Document II) indicate that Steel’s basic contentions were factual: he had not signed the memorandum of the contract urged against him; he had not received the sum sued for. As to the first point, the plaintiffs introduced the original memorandum and a handwriting sample to establish Steel’s signature. Steel then urged that the instrument had been altered after he had signed it, but the court ruled that he bore the burden of proof on this issue. The jury apparently found that he had not met this burden and that circumstantial evidence indicated that he had received the money, because the verdict was for Porter & Crocker.6
1. The following statement of the case is derived from the testimony on review in the Superior Court (Doc. I), and the files of the case, SF 132063, 132246, pertinent extracts of which appear in footnotes below.
2. The receipt on file in the case provides, “Plastow 30th Novr. 1769. Received of Porter & Crocker five pounds ten shilling which I promise to pay to Jacob Rowell of New Salem on their Account and to endorse it on their note payable to him, and also received of said Porter & Crocker five pounds eighteen shillings & 8d. LM in full for hoops and all demands. James Steel.” SF 132246.
3. See pleadings and judgment, SF 132246.
4. SCJ Rec. 1771, fols. 94–95; Min. Bk. 93, SCJ Ipswich, June 1771, C–12. The following minutes of the trial appear in the Wetmore Notes, No. 2, Adams Papers, Microfilms, Reel No. 184:
“Steel and Porter. Assumpsit. Special declaration, and Count for money received to plaintiffs use.
“The 1. Count is for a promise to pay a Sum he had received of the plaintiff on their account to B.  and to procure it to be indorsed on a Note given by the Plaintiffs to said B. yet he hath not paid it to said B. nor procured it to be indors’d on said note tho requested.
“The written promise is that he had received £– of Plaintiffs which I promise to pay to B. of —— on their account and to endorse it on their note payable to him. Sewl. objects the variance between Count and writing.” (“Sewl.” is David or Jonathan Sewall, of counsel for Steel with Sargeant at this stage.)
5. The theory of the first count seems to have been that the action lay on Steel’s promise to pay over the money and procure the endorsement, with Steel’s receipt of the money as consideration. Such a contract has been upheld against a defense of no consideration on the theory that there was detriment to the promisee in handing over the money and trusting the promisor. Wheatly v. Low, Cro. Jac. description begins George Croke, Reports of Cases in King’s Bench and Common Bench. Part 2, James, London, 1683. description ends 668, 79 Eng. Rep. 578 (K.B. 1624), cited with approval by Holt, C.J., in Coggs v. Bernard, 2 Ld. Raym. description begins Robert, Lord Raymond, Reports, King’s Bench and Common Pleas, 3d edn., London, 1775; 3 vols. description ends 909, 920, 92 Eng. Rep. description begins The English Reports; 176 vols. A collection and translation into English of all the early English reporters. description ends 107, 114 (Q.B. 1703). Modern theorists have sought to limit this recovery to bailment situations, indicating that otherwise the remedy lies in tort, but it is analogous in at least some respects to the remedy provided by the Restatement of Contracts, §90, for breach of a gratuitous promise which induces a reasonable reliance. See Samuel Williston and George J. Thompson, Selections from Williston’s Treatise on the Law of Contracts §138 (N.Y., rev. edn., 1938); G. C. Cheshire and C. H. S. Fifoot, Law of Contract 68–71 (London, 4th edn., 1956). There is the further possibility that the receipt as proved, but not pleaded (note 2 above), might have been read to recite a consideration in Porter’s settlement of Steel’s claim for the hoops, although there is serious question whether payment of an existing debt is consideration. See Williston and Thompson, Selections §120. Since the approach under the first count could have involved problems of proof of negligence, damages, and perhaps even reasonable reliance, it is quite possible that the case went off on the count for money had and received, in which the equities of the plaintiff’s case were more directly in point. See Fifoot, History and Sources description begins C. H. S. Fifoot, History and Sources of the Common Law, London, 1949. description ends 365–367.
6. SCJ Rec. 1772, fol. 190; Min. Bk. 93, SCJ Salem, Nov. 1772, C–12.