184 Ga. 756 | Ga. | 1937
Pickens County Bank, by and through E. E. Gormley, superintendent of banks, brought its petition in the superior court against Jasper School District, a local school district of said county. The petition was brought in two counts. The first count was on certain notes alleged to have been executed by the board of trustees of the school district for money loaned by the plaintiff. In the second count the execution of the notes was again alleged, and the further allegation was made that the defendants had refused payment of the notes “because of certain alleged technicalities in connection with the execution thereof,” and that if petitioner has no right to recover on the notes it is “entitled to recover from the defendant the principal amounts as specified in said notes, for the reason . . that the sums of money . . described in said notes were . . used by said defendant . . in payment and discharge of .liabilities legally incurred by the trustees in operating the schools of such district, and in defraying the lawful current expense of 'operating schools in such district;” that by reason of these facts the defendant has taken to its use money which in justice and fairness and in equity and good conscience belongs to plaintiff; that the plaintiff advanced said sums to the defendant “in good faith and in the belief that the defendant had a legal right to borrow same and on the expectation that the same was to be repaid; and defendant
This court is of the opinion that the second count of the petition, properly construed in accordance with previous decisions of this court, is not one seeking to set up a claim “based solely upon Tegal5 subrogation,55 but is one seeking a money judgment only in an action at law as for money had and received. An action for money had and received was, under the common law, one of the common counts of general assumpsit, and brother to the other money counts, money lent and money paid. 57 Am. D. 544, note. The action of general assumpsit is of an equitable character, and had its origin in a conception of a tort liability primarily based upon the element of deceit, by which one at
Does the fact that the cause of action as set forth in an action for money had and received arises out of circumstances which give rise also to a right of subrogation make the action for money had and received one cognizable only in a court of equity? Subrogation is the substitution of another person in the place of the
While the action for money had and received is often referred to as an “equitable action” (Butts County v. Jackson Banking Co., 129 Ga. 801, 60 S. E. 149, 15 L. R. A. (N. S.) 567, 121 Am. St. R. 244); McCay v. Barber, 37 Ga. 423, 424; Whitehead v. Peck, 1 Ga. 140), it is nevertheless an action at law (Brightwell v. Oglethorpe Telephone Co., 176 Ga. 65, 166 S. E. 640); and even though the transaction out of which arises the right to an “equitable action” for money had and received may also give rise to a right of subrogation, the claimant may proceed upon his legal right for a recovery of the sums received by the defendant under such circumstances that in equity and good conscience the defendant ought not to retain it, and ex aequo et bono it belongs to the claimant. Under the ruling in Butts County v. Jackson Banking Co., supra; (3), that “An action for money had and received may be maintained by one who has loaned money to a county, and which has been used by it to discharge a legally incurred liability for a current expense, although the governing official or officials of a county have no authority to borrow the money or to give a note therefor,” it is not necessary that the right to subrogation be established before a recovery can be had in an action for money had and received. The remedy in equity to enforce the right to subrogation, and the remedy at law for money had and received are separate and distinct remedies, though they may $rise out of the same transaction. See Thomas v. Lester, 166 Ga. 274 (5, 6) (142 S. E. 870). The only basis on which the second count of the petition in the instant case could be held to be one seeking the right to subrogation is by reason of the allegation therein that the “plaintiff is entitled to be subrogated
Remanded to the Court of Appeals.