Houston v. Frazier

8 Ala. 81 | Ala. | 1845

COLLIER, C. J.

The action for money had and received,, has been assimilated to a bill in equity ; and it is said, that whenever the defendant has received money, to which the plaintiff is in justice and equity entitled, the law implies a debt, and gives this action quasi ex contractu. Hence it has been held, that the plaintiff is entitled to recover, where he can show, that, the defendant has received money belonging to him under any fraud, or pretence, [Cowp. Rep. 795; 2 Burr.Rep. 1008; 4 M.&S. Rep. 478; Bogart v. Nevins, 6 Sergt. & R. Rep. 369; Mowatt, et al. v. Wright, 1 Wend. Rep. 360; The Union Bank v. The U. S. Bank, 3 Mass. Rep. 74; Murphy v. Barron, 1 H. & Gill’s 258; Tevis v. Brown, 3 J. J. Marsh. Rep. 175; Guthrie v. Hyatt, 1 Harr. Rep. 447.] And there need be. no privity of contract between the parties, in order to support the action, except that which results from one man having another’s money, he has not a right, conscientiously, to retain, [Eagle Bank v. Smith, 5 Conn. Rep. 71; Hall v. Marston, 17 Mass. Rep. 579; Mason v. Waite, id. 563.]

Where one receives money, to which a third person, whose agent he professes to be, has no right, and he. have notice not to pay it over to him, an action for money had and received lies against such agent. [Garland v. Salem Bank, 9 Mass. Rep. 408.] But if it is paid over, with intent to pass it to the credit, of the principal, before notice is given to the agent, in general, no action will lie against the latter for its recovery. [Frye v. Lockwood, 4 Cow. Rep. 454; Fowler v. Shearer, 7 Mass. Rep. 14; Pool v. Adkisson, 1 Dana’s Rep. 117; Dickens v. Jones, 6 Yerger’s Rep. 483; Elliott v. Swartwout, 10 Pet. Rep. 137; Edwards v. Hadding, 5 Taunt. 815; see also, 8 Taunt. Rep. 136; Cowp. Rep. 565; 3 M. & S. Rep. 344.]

So it is laid down generally, that the plaintiff may recover in any case where the defendant has, by fraud or deceit, received money belonging to him; for he may waive the tort, and rely upon the contract, which the law implies for him. [2 Starkie’s Ev. 109, 110, and cases there cited.]

We will now consider the case in reference to the principles we have stated. It may be assumed that the note on Abbott became the property of the plaintiff, by the agreement between Lavender and himself; assumed, we say, because, whether such was the fact, was an inquiry which was submitted to the jury, and their verdict is an affirmation of its truth. This question being disposed of, it is, clear that the plaintiff became entitled to the money collected on the note; and this although the action brought for its recovery, was in the name of Lavender, without indicating upon the record the plaintiffs interest. The money in the hands of Mann, was the property of the^ plaintiff, and his right to it was not divested by the payment of the defendant. If the latter had received it in his representative character, and it had been appropriated in the regular course of administration, before he received notice of the plaintiff’s claim, then he would not have been liable, upon the principle, that an agent, who receives money in that character, is not answerable for it to a third person, if he has paid it over to his principal before he has notice of the adverse claim.

Here, the plaintiff not only demanded the money of Mann, but informed the defendant that it was his property, and he should claim it from him, if he received it. True, the defendant had not then administered, but he was about administering, and the remark was made to him in view of such a state of things. This was quite sufficient to protect the interest of the plaintiff, and should have induced the defendant not to treat the money as assets of his intestate’s estate. Such an appropriation of it was a conversion, clearly manifesting a disregard of the plaintiff’s claim, and amounted to a refusal to account with him.

It is a principle of law recognized by us, whenever the point has been made, that an agent who collects money, in the course of ■some lawful employment, is not liable to an action, until a demand has been made, or something equivalent has been done. But the notice in the present case, and the appropriation of the money was equivalent to a demand, or, rather, showed a conversion of it, and a determination not to pay it to the plaintiff; and in such case the law holds a demand to be unnecessary.

In respect to the objection that the defendant should have been charged in his representative character, we think it is not well taken. If an administrator becomes possessed of personal property, as a part of his intestate’s estate, and after demand made, converts it, either to his own purposes, or in the course 'of administration, an action of trover will lie against him, personally. This rule is too well established to require the citation of authority to support it. If the law were otherwise, and an administrator could only be charged in his fiduciary character, the rightful owner of a chattel might lose it, without remuneration, if the estate were insolvent. The principle, in respect to a wrongful appropriation of money by an administrator, is precisely the same.

From this view, it results that the County Court did not misapprehend the law to the prejudice of the defendant below, and its judgment is therefore affirmed.