#### JAMES W. FULKE v. AUGUSTINE FULKE.

Where the obligor and obligee in a bond, conditioned for the conveyance of land, agreed to rescind the contract, and in pursuance of such agreement, the obligee gave up the bond, and the obligor the notes taken for the price of the land, it was Held that a promise afterwards made by the obligor, to pay back a sum of money which had been paid towards the land, was a nudum pactum.

Action of assumpsit, tried before Osborne, J., at tbe last Spring Term of Surry Superior Court. In 1855 the defendant covenanted to convey to tbe plaintiff a tract of land, on the *498payment of certain notes given as the price thereof. The plaintiff paid towards the land $106 79 ; but becoming involved beyond his ability to make further payment, the contract, in 1856, was rescinded ; the plaintiff giving up his bond for title, and the defendant surrendering the notes. Three months afterwards, the plaintiff asked the defendant if he would pay him the $106 79, which he had received towards the'land, to which the defendant replied that he had got the land back and had received the $106 79 towards the same, and it was wrong for the plaintiff to lose it, and he, the defendant, promised to pay back the said sum. On this special promise the suit was brought. The defendant contended that that was a promise without consideration, and that no action would lie on it; and asked his Honor so to instruct the jury. The Court held to the contrary, and instructed the jury, that if they believed the evidence, the plaintiff was entitled to recover. Defendant’s counsel excepted.

Verdict .for the plaintiff. Judgment and appeal.

Clement, for the plaintiff.

Ba/rber, for the defendant.

Battle, J.

We entertain a different opinion from that expressed by his Honor in the Court below, as to the sufficiency of the consideration, upon which the defendant’s promise was made. The contract entered into by the plaintiff, for the purchase of the defendant’s land, had been completely rescinded, and two or three months had elapsed, before the defendant agreed to return the money which he had received in part performance of the contract. The promise was, therefore, founded upon an executed or past consideration, and was, consequently, a nudwn pactwn: McDugald v. McFadgin, 6 Jones’ Rep., 89 ; Hatchell v. Odom, 2 Dev. & Bat. Rep., 302; Felton v. Reid, 7 Jones’ Rep., 269. But the plaintiff’s counsel insists that the action for assumpsit for money had and received, is an equitable action, and that it is against equity and good conscience, for the defendant to keep this money. *499If the action could be supported upon that ground, it could be maintained as well without, as with, an express promise of the defendant to pay it. For instance, if one take nay horse and sell him, without my consent, and receive the price, I can sue him in assumpsit upon the count for. money had and received to my use, whether he has promised to pay me or not. The law, in such a case, will imply a promise to pay, not however solely upon the ground that it would be iniquitous in him to withhold the price from me, but because there is a consideration of loss to me which is sufficient to imply a promise from him to pay what justly belongs to me. The true test of a consideration, is to be found in the enquiry, whether there was any benefit to the party promising, or any loss or inconvenience to the other party when the promise was made; for if there were, the promise is binding, but if not, then it is a nudum pac/tum and' not binding. See Findlay v. Ray, 5 Jones’ Rep., 125. In the present case, the contract for the purchase of the land having been fully and effectually rescinded by the delivering up of the papers on each side, the plaintiff lost nothing, and the defendant gained nothing, as the foundation of the defendant’s promise. It was, therefore, without a consideration and void. The judgment must be reversed and a venire de novo awarded.

Per Curiam,

Judgment reversed*