¶1This is an ordinary action by appellee against appellant, on an open account for goods sold and delivered. Answer in set-off. Reply said to be by general denial, but it is not in the record. Special findings, conclusion of law, and judgment in favor of appellee. The evidence is not in the record. The question for decision arises upon the conclusion of law and motion to modify the judgment.
¶2The special findings disclose the following facts: Prior to the commencement of this action there was owing the plaintiff (appellee), a resident of New York, from the appellant, $249, for goods sold and delivered. There was also owing the plaintiff from William Mount, a former merchant of Elwood, for goods sold and delivered prior and subsequent to June 10, 1897, $432. On said June 10, 1897, Mount was in the employ of the defendant on a fixed salary, and had charge of the defendant’s jewelry store in Elwood. On the latter date the plaintiff’s agent, knowing that Mount had no interest in the defendant’s said store except as salesman, called upon Mount therein for a settlement of his indebtedness to the plaintiff, and during the call assisted Mount in making a sale of a diamond belonging to the defendant, and received $35 of the proceeds, which he credited to the account of Mount, and turned it over to the plaintiff. The balance of the account was arranged by Mount’s executing to the plaintiff and delivering to said *257agent Ms notes for the amount, payable in monthly instalments of $20 each, beginning October 31, 1899. The notes were delivered to the plaintiff in ISTew York, and, as they severally became due, were placed by the plaintiff in a hank in New York for collection, and by that hank forwarded to a hank in Elwood, at which latter bank eight of said notes first maturing were paid by Mount from money belonging to the defendant, which he had received from sales made from said store. The plaintiff had no knowledge of the ownership of the money used in the payment of his notes. As they were paid the Elwood bank remitted a like sum of money to the New York bank, where it was credited to plaintiff’s account, hut there was no evidence that any part of the identical money paid by Mount was remitted to ISTew York or received by the plaintiff.
¶3The conclusion of law is that the defendant is entitled to a set-off for the $35 knowingly received by the plaintiff’s agent from the sale of the defendant’s diamond, and that the plaintiff is entitled to recover the balance of his claim.
¶4The facts pleaded as an answer and equitable set-off are substantially the same as those found to be true in the special findings, and the exception reserved tó the conclusion of law raises the question: Do these facts show appellant to he entitled to set off against the claim of appellee an amount equal to the sum of appellant’s money found to have been converted and used by Mount in payment of the latter’s debt to the appellee? The $35 received directly by appellee’s agent from the purchase money for the diamond, with knowledge that it was appellant’s money, was allowed by the court as a proper set-off, hut the sum converted by Mount in the payment of his notes to the bank, to wit, $160, was disallowed, presumably, because (1) the identical money converted was not traced to appellee; and (2) when received appellee had no knowledge of the conversion. Was the conclusion of law right ?
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¶8*259Appellee thus having in his possession money which ex aequo et bono belonged, and ought to have been returned, to appellant, an action for money had and received might have been well brought for its recovery; and it was not material how the money came into his hands, if the plaintiff is justly entitled to receive it. In such a case, the law implies a promise to pay. Daily v. Board, etc. (1905), ante, 99, and authorities cited; Glascock v. Lyons (1863), 20 Ind. 1, 83 Am. Dec. 299; 15 Am. and Eng. Ency. Law (2d ed.), 1096, 1098, and cases collated.
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¶11It is recognized by the courts of this State, and perhaps all other American states, that a court of equity will take cognizance of cross-claims between litigants, though wholly disconnected and wanting in mutuality, and set off one against the other whenever it becomes necessary to effect a *260clear equity or prevent irremediable injustice. Keightley v. Walls (1866), 27 Ind. 384; Carter v. Compton (1881), 79 Ind. 37; Cosgrove v. Cosby (1882), 86 Ind. 511; Sefton v. Hargett (1888), 113 Ind. 592, 594; Eigenmann v. Clark (1898), 21 Ind. App. 129.
¶12In Barbour, Law of Set-Off, 190, it is said: “If a court finds a case of natural equity, not within the statute, it will permit an equitable set-off, if from the nature of the claim, or from the situation of the parties, it is impossible to obtain justice by a cross-action.” To same effect, see Bispham, Prin. of Eq. (6’th ed.), §27.
¶13Some of the conditions and circumstances recognized by the courts as invoking an equitable set-off are where joint credit has been given on account of individual indebtedness, and where the joint debt is a mere security for the separate debt of tbe principal, and when tbe action is upon a note or other contract against several defendants, any one of whom is principal and tbe others sureties, and in cases of insolvency and nonresidence.
¶14With respect to nonresidence as a ground for an application of tbe principle, Erazer, J., in Keightley v. Walls (1865), 24 Ind. 205, says: “Tbe rule in equity seems to be, not to grant tbe relief where tbe demands are wholly disconnected, as in this case, unless there are some special circumstances, such as tbe insolvency or nonresidence of tbe defendant, or other extraneous facts, to form tbe basis of equity jurisdiction.” See, also, Hannon v. Hilliard (1882), 83 Ind. 362, 366. Nonresidence is recognized as a basis for tbe remedy in tbe following cases: Forbes v. Cooper & Co. (1889), 88 Ky. 285, 11 S. W. 24; Bibb Land-Lumber Co. v. Lima Machine Works (1898), 104 Ga. 116, 30 S. E. 676, 31 S. E. 401; Quick v. Lemon (1883), 105 Ill. 578, 587; Edminson v. Baxter (1817), 4 Hay. (Tenn.) 112, 9 Am. Dec. 751; Davis v. Milburn (1856), 3 Iowa 163; North Chicago, etc., Co. v. St. Louis, etc., Steel Co. (1894), 152 U. S. 596, 616, 14 Sup. Ct. 710, 38 L. Ed. 565.
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¶16It is said in Forbes v. Cooper & Co., supra: “It is certainly unconscientious for an insolvent party to coerce the payment of his claim when he is owing the other party an equal or larger sum, and thus leave the latter remediless; nor should a nonresident be allowed, under like circumstances, to enforce, through the agency of the courts, the collection of his debt, and compel the other party to seek a foreign jurisdiction for relief, and then perhaps find the debtor insolvent. If the object of litigation be the attainment of justice, assuredly such results should be prevented. Indeed, the doctrine of equitable set-off, to the extent it was formerly applied, was based upon moral justice, and to meet such cases as the above, thus preventing wrong. It was then not uncommon to stay an insolvent or nonresident debtor in the collection of his claim until damages, to which the complainant might be entitled against him, were liquidated under the order of the chancellor, and then apply them in satisfaction of his independent debt.”
¶17In Quick v. Lemon, supra,the following language is used: “It would seem to be inequitable to require the corporation to go to another state to collect its demand in an action at law, and we are inclined to hold that the nonresidence of the complainant, in connection with the fact he calls upon a court of equity to enforce his judgment, is sufficient to allow the defendant corporation to prove and set off its demand set up in the cross-bill against the judgment of the complainant.”
¶18These considerations lead us to the decision that the conclusion of law drawn from the facts proved under the answer of set-off was erroneous. The special findings are *262so indefinite and uncertain in some important particulars that we are led to believe that the ends of justice may be best subserved by ordering a new trial.
¶19The judgment is therefore reversed, with instructions to grant appellant a new trial.