68 So. 363 | Ala. | 1916
Suit by appellant against appellee. The complaint, as originally framed, contained three counts seeking recovery upon a bill of exchange, and was amended by adding common counts for money had and received and open account.
It seemed to be conceded by counsel in briefs that the material facts of the ease are without substantial conflict. The record, we think clearly establishes the following: On or about September 4, 1912, defendant advanced for one J. W. Lee the purchase money, to wit, $2,974.43, for certain standing timber, took Lee’s note for said sum, payable to the defendant’s order on demand, which note was secured by a mortgage of the purchased timber. At the same time it was agreed that Lee should cut, sell and deliver to defendant, Shut & Keihn, the said timber so purchased at named prices,
Out of the second shipment of - logs arises this, suit, and the facts as clearly established in reference thereto are as follows: It was December 20, 1912. Lee and Shafer were at the place where the timber was being cut and where the logs were inspected by Shafer. As it was so near the holiday season, Lee wanted to pay his men off at that time and requested Shafer to malte out a draft then, so he could then send it to plaintiff-bank and get'the money on it to' pay the men off, rather than have to wait until Shafer went to the office to do so. This Shafer did, making out the draft as shown in the report of the case, which represented the balance due to Lee out of the 236 inspected logs after the credit of $4 per thousand feet was given on Lee’s note. Shafer gave the draft then for the purpose of assisting Lee in getting the money at that time to pay off his
It is insisted by counsel for appellee that'the draft not being payable unconditionally, but only upon condition that the bill of lading for the logs be attached thereto, was not negotiable, and further that the num
From, the view we take of this case, this insistence is without influence upon the result reached, as the decision of the case does not rest upon any theory of innocent purchaser of negotiable paper.
It is next urged, in support of the. judgment rendered in favor of appellee, that, before defendant had any notice of a transfer of said draft, it made demand on Lee for balance due. on his note secured as previously stated herein, and such balance was unpaid and a part thereof still remains so, and that therefore the same may be set off against this claim. This is the question of greatest importance in the case, as we.view it.
In the case of Archer v. People’s Savings Bank, 88 Ala. 253, 7 South. 53, the president of the bank was largely indebted to it, and while so indebted was elected to such position at an agreed salary, payable monthly, in advance; but there was no contract between him and the bank as to whether said salary would be subject to such indebtedness, and no effort was made by the bank to so apply the salary. A judgment creditor of the president garnished the bank, and in its answer the indebtedness of the president to it was set up as a matter of defense by way of set-off as against the salary claimed by the garnishing creditor to be subject to the judgment. It was held that the salary was paid by the bank without any consideration of the set-off, and that the contract showed there was an implied
In the instant case, the agreement between the defendant and Lee provided for a credit on each, shipment of $4 per thousand feet on Lee’s indebtedness. The price of the logs, which Lee was thus selling to defendant, was fixed by their contract, and the defendant was to give Lee a draft for the difference — to pay Lee the difference in money. In the first shipment this was done and plaintiff bank cashed the draft, which also had attached the bills of lading for logs sold by Lee to defendant under said agreement.
In the Archer Case, supra, it is stated in the opinion that doubtless the motive that induced the payment of the salary in advance may have been the implied need of the money for the maintenance of the debtor.
There is much room for the same character of argument, under the agreement herein shown, to the effect that the parties contemplated such payment to Lee in view of the evident need of the money by him in getting out the timber he was selling defendant, and thereby impliedly agreed that such cash sum should not be subject to be set off by balance due on his note. The note was due upon demand, and to construe the contract otherwise might place in the power of the defendant, by a demand for payment, to pay no more money to Lee at all and in fact defeat the very purpose of the contract itself. What is here said, however, as to the result of such construction of such contract as between Lee and this defendant, is merely argumentative only, for the suit is not between the original parties to the contract, and we are convinced as against this plaintiff the defendant is not in a position to set off Lee’s indebtedness in defeat of this suit.
“An action for money had and received is appropriate, whenever the defendant has money in his possession, which belongs of right to the plaintiff. Privity of contract is not necessary to support the count. Chamberlain & Co. having received money for the purpose of paying the notes, when payable, the law implies a promise to pay it to the person entitled to receive it — to the plaintiff, if the rightful holder of the notes.” —Levishon v. Edwards, 79 Ala. 293.
“Such an action (money had and received) is appropriate whenever the defendant has monéy in his possession which belongs of right to' the plaintiff. * * * This right in the plaintiff to the money which bestows on him the right to maintain the action for it must arise in some form, where the law implies a promise on the part of defendant that he will pay it to the plaintiff, and the' only privity between the parties that needs be shown arises from this promise, implied by law, that the defendant, having money in his hands that belongs, ex aequo et bono to the' plaintiff, will pay it over to.*61 him.” — Hudson v. Scott et al., 125 Ala. 172, 28 South. 91.
See, also, Potts & Potts v. First Natl. Bank, 102 Ala. 286, 14 South. 663; Burton Lumber Co. v. Wilder, 108 Ala. 669; 18 South. 552; Huskabee v. May, 14 Ala. 263, 27 Cyc. 849.
(4, 5) These are no new principles, but are familiar and quoted merely for convenience in giving them application here. The facts of this case show that defendant had authorized Shafer to inspect the logs and draw the draft for the balance in cash which was due to Lee. This he had previously done, and the draft had been handled by this plaintiff and paid by defendant. Shafer, the duly authorized agent of defendant, drew the draft in this case payable to Lee, and delivered the same to Lee with a knowledge that Lee was going to discount the same with plaintiff bank to secure the money to pay off the laborers, and Lee, in his presence, forwarded the same to the bank for this purpose. Under such circumstances, knowledge to Shafer, the authorized agent acting within the line and scope of his employment, Avas knowledge to- defendant. The defendant receives and accepts the logs contained in the bills of lading attached to the drafts and sells them, or otherwise disposes of them. Defendant, with full knowledge of the facts, has armed Lee with the draft by which he acquired the purchase money due him on those logs from an innocent third party, and we are clear in the opinion that this defendant cannot now be heard to say, under such circumstances as here disclosed, that Lee has, in the meanAvhile, become indebted to it in'excess of the draft by reason of the fact that his note has matured by demand for payment made. Clearly, so far as this plaintiff is concerned, defendant must he held to have impliedly Avaived the right to set
(6) It is one of the familiar maxims of the law that, where one of two innocent persons must suffer by the acts of a third person, he who has enabled such third person to occasion the loss must sustain it. There is an old quotation found among the legal maxims, “What is just and right is the law or laws,” and while, because of necessary regard for conformity to fixed rules, and principles, it may, unfortunately perhaps, be doubted that this can be said to have universal application,
(7) Under the facts as herein disclosed, we are of the opinion that the defendant has money in its hands which in equity and good conscience belongs to the plaintiff. It has received the consideration for the portion of the purchase money represented by the draft acquired by plaintiff with knowledge of defendant, and, in an action for money had and received where equitable principles are given influence and effect, no mere, legal niceties should be permitted to defeat ends of common justice and fair play and prevent a recovery. Under such (a count, we are not so much concerned as to' whether or not plaintiff acquired legal title to the logs by the bills of lading not indorsed to the plaintiff, nor the fact that by defendant’s mortgage and a maturity of the note it had a legal title thereto' and a right to the possession thereof, but to whether or not under the facts as disclosed by this record the defendant has in its hand money which in equity and good conscience belongs to the plaintiff.
We are therefore persuaded that, under the facts of this case, plaintiff was entitled to a judgment upon the count for money had and received. The principle herein announced was given full application in the case of Potts v. First Nat. Bank, supra, and we are of the opinion that a careful reading of the facts of that case will disclose that the decision fully supports the conclusion we have here reached.
By what is here said we do not mean to indicate that no recovery could be had upon count 3, which sets up the facts in reference to the draft, and also the common count as upon an open account which by reference therein to the bill of exchange shows that plaintiff was assignee thereof.
The judgment of the court below is, accordingly, reversed, and one here rendered against the appellee in favor of the appellant upon the common count as herein indicated for the full amount sued for, to wit, $1,-319.72, with interest thereon from July 10, 1913.
Reversed and rendered.