50 Ga. App. 769 | Ga. Ct. App. | 1935
Lead Opinion
L. B. Herrington, executor of the estate of H. S. Herrington, deceased, brought an action against the City of Dublin
Defendant in error insists that the proceeding was an action for money had and received, which showed that the plaintiff had waived the tort and sued in contract, and that as the transfer of
It is stated in the bill of exceptions that the general demurrer was sustained on the authority of Bates v. Forsyth, 64 Ga. 232, and same case, 69 Ga. 365, “that in as much as tax executions were transferred without recourse, plaintiff’s only right of action would be for false representation or deceit, and that, the same being an action based on a tort, was not assignable so as to give the plaintiff a right of action for money had and received.” It will be noted that in the Bates case in the 69 Ga., supra, Bates & Co. sued Hawkins and garnished Mitchell. Mitchell answered not indebted, and this answer was traversed. Mitchell was indebted to a firm, Colclough, Harkins & (Mover, and paid the firm by assigning and transferring to them certain fi. fas. owned by him which were due and collectable, the transfer containing these words: “without any liability on my part whatever, they paying and settling all fees and costs due on said fi. fas.” These fi. fas. were in the hands of an attorney for collection and he had collected a named sum on them, which he refused to pay over to the firm, the transferees, but claimed .that Mitchell was due him this amount as fees. At the direction of Mitchell, the transferees sued the attorney and failed to recover. The firm was then dissolved and the claim of the firm fell to Harkins, and hence it was claimed that Mitchell, the garnishee, owed Harkins and should be held to respond to plaintiff’s garnishment. In the case as reported in 64 Ga. it was held that the right of action against Mitchell was an action in deceit, which, being a tort, was not assignable. In 69 Ga. it was said that a fi. fa. endorsed without recourse would give to the assignee no right based on the transfer against the assignor because of a failure to realize the money from the debtor. His right of action, if any, would be in deceit, which is not assignable, and, “the transfer of fi. fas. being to a firm,” one of its members, though the real creditor, would have no right to bring action in deceit in his own name. It will thus be seen that the right of action for deceit, if there was any, was in the firm, the alleged false representation being made to it, and its assignee could not maintain an action thereon. Had
It is contended that the transfer of the fi. fas. having been made on May 15, 1928, and suit not having been filed until October, 1933, the action for money had and received, being an action
The court erred in sustaining the general demurrer.
Judgment reversed.
Rehearing
ON MOTION FOR REHEARING.
This court is not unmindful of the fact that this suit was brought by the executor of the transferee of the tax fi. fas. Neither are we unmindful of the ruling made in Alexander v. Dean, 157 Ga. 280 (121 S. E. 238), nor of code section 4421, and that this section is applicable to actions pending at the time of the death of one of the parties. A representative of a deceased tortfeasor may not be sued in an action of trover, where the action is brought after the death of the testator, “yet the law would afford •the plaintiff some form of action.” “No mischief is done, for, so far as the cause of action does not arise ex delicto, or ex maleficio of the testator, but is founded in a duty which the testator owes the plaintiff upon principles of civil obligation, another form of action may be brought, as an action for money had and received.” Alexander v. Dean, supra. As was said in Citizens & Southern National Bank v. Hendricks, 176 Ga. 692 (168 S. E. 313, 87 A. L. R. 230), “The provisions of code section 4421 do not apply to causes of action, but merely to actions.” This code section does abate the right of actions in trover or tort by the death of either party, but does not abate an action already started. “It would be otherwise if the plaintiff, waiving the tort, had sued as for money had and received.” Citizens &c. Bank v. Hendricks, supra. That is exactly what was done in the present case. The plaintiff elected to sue for money had and received. An action for money had and
Viewed in this light, it becomes immaterial whether the transfer or assignment of the judgment was made “without recourse.” If it was fraudulently made and one party has money which under the principles of natural justice belongs to another, a right or cause of action exists for money had and received. The writing of the words “without recourse” was only a part of the transaction which gave rise to the natural equity to repay the money implied by law, and, as already shown, it can have no effect on the plaintiff’s right to recover in this case. If the suit were on the fi. fas. a different question might have been presented, under the ruling made in Thompson v. First State Bank, 102 Ga. 696 (29 S. E. 610). However, in the Thompson ease, which was the assignment of a judgment without recourse, no question of fraud, through forgery or fictitious issuance, was involved and what was said therein does not mean that any person or municipality may issue a duplicate fi. fa. against a taxpayer, when it has prior to that time already issued the same fi. fa. and ■ collected the full amount due thereon, and then sell such duplicate fi. fa. which is worthless and fictitious, and protect itself by a transfer without recourse. The action against the municipality here is not an action on the fi. fa. and its transfer, but is an action that arises out of the natural equity of the plaintiff’s case.
The allegation with respect to the reasons why plaintiff and his testator did not discover the alleged fraud are sufficient to with
With regard, to the statute of limitations, if money is procured by fraud and plaintiff waives the tort and sues in contract, the statute of limitations will commence to run from the time the fraud was discovered, in the same manner as if the action was in tort. Penobscot R. Co. v. Mayo, 68 Me. 470. Rehearing denied.
Concurrence Opinion
concurring specially. The action of assumpsit for money had and received is comprehensive in its scope and is favored under the law. Although the action is in reality one at law the right to recover is equitable in its nature. Construing this action in its entirety so as to uphold the right of the plaintiff’s cause of action, no demurrer for duplicity having been filed to the petition, I do not think this case is founded upon the idea of a contract, for the plaintiff received no consideration, but is one founded purely “in the equity of the plaintiff’s case, as if it were upon contract.” Culbreath v. Culbreath, supra. This case is somewhat different from those classes of eases in which services are rendered and there arises an implied promise to pay, for in those cases there is a consideration, the services rendered, and the implied promise to pay completes the contract. In the instant case money was paid to the defendant by reason of its fraud and there existed no consideration between the parties. The defendant, therefore, would be under an obligation from the ties of natural justice to refund the money to the plaintiff, not because of a contract but purely because of the “equity of the plaintiff’s case,” from which the law raises a debt. The endorsing of the fi. fa. “without recourse,” was only a part of one of the acts that went to make up the fraud on account of which the defendant received the money to which he was not justly and legally entitled and which he ought not in good conscience retain. Such endorsement was only a part of the transaction which goes to make up the obligation, which gives rise to the equity, and therefore could have no effect upon the action as I construe it. It would then follow that the statute of limitations would not begin to run against the obligation of the defendant until plaintiff either knew or could by the exercise of ordinary diligence have discovered the fraud or facts giving rise to the obligation. For this reason I am of the opinion that the plaintiff is entitled to proceed and the court erred in dismissing his petition on demurrer.
Dissenting Opinion
dissenting. In my opinion the general demurrer to the petition was properly sustained. As the plaintiff elected to sue for money had and received, it was an action on an implied contract; and, the transfer of the tax executions having been made by the defendant “without recourse,” all implied warranties were eliminated, and a recovery could not be had in the suit brought. Furthermore, I think that under the facts of the case as shown by the pleadings the action was barred by the statute of limitations.
