Brown v. Rutledge & Summerour, 20 Ga. App. 118

Brown v. Rutledge & Summerour

20 Ga. App. 118 | Ga. Ct. App. | 1917

Bloodworth, J.

(After stating the foregoing facts.) 1. According to the allegations in the petition, Milton county had-no connection whatever with the collection of the money for which suit was brought. The allegations in the petition state a case against the defendants, and the court did not err in overruling the demurrer. “When money is received by one and belongs to another, the party entitled to it may maintain action for its recovery.” Norway v. Clear Lake, 11 Iowa, 506. “In such an action, it was not essential that any privity of contract between the plaintiff and . defendant should have been shown. If the plaintiff’s right to the money received by the defendant was established, and the defendant was shown to have received it under such circumstances that it ought not to have retained it, the law implied a promise to pay it to the party who ought to have had it.” Bates-Farley Savings Bank v. Dismukes, 107 Ga. 212 (2) (33 S. E. 175); M. & W. R. Co. v. Holt, 8 Ga. 166; Merchants Bank of Macon v. Rawls, 7 Ga. 195 (50 Am. D. 394); B. & W. R. Corporation v. Dana, 1 Gray (Mass.), 83; Calais v. Widden, 64 Me. 249; 4 Waite’s Actions and Defenses, 469, 506.

2. The court admitted in evidence, over objection of the defendant, a writing of which the following is a copy: “Georgia, Gwinnett County: For value received we, the undersigned Board of County Commissioners of said county, hereby transfer arid assign to A. M. Bell, Eutledge & Summerour, D. W. Wilson, Knox, Lewis & Company, Lowe, Pittard & Company, and D. E. Bennett any and all claims and liability which the county of Gwinnett may have or may have had against E. A. Eobertson, deceased, former Ordinary of Milton county, Georgia,- growing out of ‘the bonus guaranteed to the county in connection with the building of the bridge across Chattahoochee river at Eogers ferry in the year 1911. This August 2nd, 1915, J. A. Deaton, W. J. Tribble, E. E. Hill, C. A. McDaniel, J. H. Britt. Board of Commissioners of Gwinnett County.” The objections urged to the admission of this evidence were as follows: “I object to it upon the ground that *121it doesn’t appear to be a transcript of the proceedings of the board of county commissioners, or any certified copy. It doesn’t appear it was ever a proceeding of the board of county commissioners, because it is not a transcript of the record of the minutes. The -mere fact that it is signed by the county commissioners amounts to nothing. They sign it as having been acted upon by the commissioners. Before it goes into evidence it must come up properly as being a copy of the minutes or a certified copy of the proceedings of the board. It is objectionable because it is a mere statement by which a cause of action, it looks like, was sought to have been made against this defendant. I object to it upon this ground: even if they had authority to make such transfer, they exceeded their authority. I object to it upon those grounds. I don’t think it is admissible.”

The plaintiff in error relies on section 386 of the Political Code of -1910 to sustain his contentions. The writing admitted in evidence was not such a contract as is contemplated by that section. Before admitting the evidence, it was shown that , the paper was signed by the board of county commissioners of Gwinnett county when in regular session, and it was further shown that it had never been entered upon the minutes of the board. There was no error in allowing the paper in evidence. Bank of Garfield v. Clark, 138 Ga. 799 (7) (76 S. E. 95); Caudell v. Athens Savings Bank, 140 Ga. 713 (79 S. E. 776).

3. This ease was, by agreement, tried by the judge without a jury. There is evidence to support his finding, and this court will . not interfere therewith. Small v. Charleston Bagging Mfg. Co., 102 Ga. 585 (27 S. E. 763); Victor v. Broad Street Hotel Co., 19 Ga. App. 592 (91 S. E. 931).

Judgment affirmed.

Broyles, P. J., and Jenkins, J., concur.