13 Ga. App. 288 | Ga. Ct. App. | 1913
This was an action in assumpsit for money had and received, brought against the Great Southern Accident & Fidelity Company, a corporation, and R. H. Cantrell, W. G. Chipley, and Lockridge & Tanner, a firm composed of J. D. Lockridge and E. L. Tanner. The corporation was alleged to have an agency and place of business in Berrien county, where the suit was brought; Cantrell and Chipley were alleged to be residents of Fulton county, and Lockridge and Tanner to be residents of Coffee county. Neither
An action for money had and received lies against one who holds the money of another which he ought in equity and good conscience to refund. Where more than one person is sued, a joint recovery of the whole amount against all will not be authorized, unless it appears that all received the money jointly. If it was not so received, the plaintiff can only recover from each defendant separately the amount shown to have come into his hands. In such an action, where the tort is waived, conspiracy and fraud may be proved merely for the purpose of showing that those who received the money are not entitled to keep it, and not for the purpose of recovering from one of the conspirators the whole amount received by all, unless it actually came into his hands. All this is settled by the Supreme Court in Cowart v. Fender, 137 Ga. 586 (73 S. E. 822, Ann. Cas. 1913A, 932), where the nature of the action is discussed and the distinction between it and an action sounding in tort is shown.
The evidence discloses, however, that Cantrell and Chipley did not receive the whole amount paid by the plaintiff to Lockridge & Tanner, but that some amount, not disclosed by the evidence, was deducted by these parties and the balance paid over to Cantrell and Chipley. If Lockridge & Tanner were also the agents of the corporation, this would make no difference, but if they were merely the agents of Cantrell and Chipley, the company would not be bound to refund to the plaintiff the money which they received but did not pay over to any agent of the corporation authorized to receive it. We find no evidence which would have authorized, certainly none which required, a finding that Lockridge & Tanner were agents of the corporation. They so describe themselves, but their conclusion is not supported by the evidence. They were employed by Cantrell and Chipley to sell stock for them. They had no contract with the corporation, were not liable to it in any way, and were not authorized by it to bind it by any sale of stock or collection of money therefor. Cantrell and Chipley had no authority from the corporation to appoint other agents for the corporation. Cantrell was vice-president of the company when it was organized, and afterwards president, but this did not give him authority to appoint agents to sell stock for the corporation. Minnesota Lumber Co. v. Hobbs, 122 Ga. 25 (49 S. E. 783); Swindell v. Bainbridge
It is competent for a person to testify that he acted as agent for another, though mere hearsay evidence of declarations of agency is inadmissible. No demand on the company for the stock was necessary, and hence testimony as to such demand was immaterial. Testimony of Lockridge & Tanner and Moore, that Lockridge & Tanner were agents of the corporation, stated a mere conclusion, not supported by the proven facts. Standing alone, it would be