30 S.E.2d 214 | Ga. Ct. App. | 1944
1. A petition alleging that the president and general manager of a corporation deposited into the general funds of the corporation, knowing it was insolvent, earnest money paid by the plaintiff to the corporation, and that the said officer disbursed the funds by signing all checks drawn against the deposits "in order to further the interests of that corporation and himself," set forth a cause of action against the officer for money had and received, and it was not necessary to set up and attach any written instruments other than the contract on which the earnest money was paid.
2. The evidence on the trial before the judge without a jury did not authorize a finding that the defendant individually received the money or its equivalent, and the court erred in rendering judgment for the plaintiff, and in overruling the defendant's motion for new trial.
The defendant interposed a general demurrer and several special demurrers. The general demurrer and all of the special grounds *76 of demurrer were overruled except the one relating to the plaintiff's failure to attach to his petition a copy of the sales contract upon which the plaintiff allegedly paid the earnest money. The plaintiff was given time within which to amend, and within the allowed time, he amended by setting up a copy of the last sales contract executed by the plaintiff and A. F. King Son. It does not appear that any further objection was made as to the plaintiff's compliance with the terms of amendment allowed by the court. The defendant filed exceptions pendente lite to the overruling of his demurrers. The case was tried before the judge without a jury and he found for the plaintiff, and entered judgment accordingly. The defendant made a motion for new trial upon the general grounds, which was overruled and a new trial denied. The defendant excepted, and also assigned error upon his exceptions pendente lite.
1. The court did not err in overruling the demurrers of which the defendant complains. As to the general demurrer, the petition alleges that the defendant deposited the plaintiff's earnest money into the general funds of the corporation, knowing it was insolvent, and disbursed the funds by signing all checks drawn against the deposits "in order to further the interests of that corporation and himself." (Italics ours.) Such allegations set forth a cause of action against the defendant, and proof that the defendant thus furthered the interest of himself would authorize a recovery. The special grounds of demurrer that were overruled are without merit, in that none of them call for an allegation or copy of a writing required by law for maintaining such an action as brought by the plaintiff.
2. The action against E. D. King individually was apparently predicated upon the ruling in Alexander v. Coyne,
In the instant case it appears that A. F. King Son, a corporation, was engaged in the business of selling real estate. The plaintiff undertook to buy certain property through the corporation and signed a sales contract and delivered it with his check for $250 as earnest money to a salesman and agent of A. F. King Son. E. D. King did not handle the transaction. The check was payable to A. F. King Son and was indorsed by it and deposited with its general funds in the bank. The trade for the realty was not consummated, and after the insolvency of A. F. King Son became apparent, the plaintiff brought this action against E. D. King to recover the $250. Since the evidence shows that the original transaction was made by the plaintiff with the corporation, and not with or through E. D. King personally, and that the check was delivered to the corporation and placed to its credit in the bank, and was not handled by E. D. King individually, merely because E. D. King was the president and general manager of the corporation when the transaction took place, and disbursed the corporation's funds on checks drawn by him while it was operated as a going concern, does not in our opinion make him liable personally and individually for the amount of the earnest-money check in an action for money had and received.
The plaintiff expressly waived the tort and sued for money had and received. "An action for money had and received is founded upon the equitable principle that no one ought unjustly to enrich himself at the expense of another, and is maintainable in all cases where one has received money under such circumstances that in equity and good conscience he ought not to retain it, and ex aequo et bono it belongs to another. [citing cases] Thus an action for money had and received is a substitute for a suit in equity." Jasper School District v. Gormley,
The court erred in rendering judgment against the defendant, and in overruling his motion for new trial.
Judgment reversed. Sutton, P. J., and Felton, J., concur.