82 So. 648 | Ala. Ct. App. | 1919
The plaintiff's theory of the case is that defendant extorted the payment of the amount claimed as demurrage, as a condition precedent to the delivery of the two carloads of lumber to plaintiff's consignee, George C. Brown Co., that the consignee paid the demurrage under protest, deducted the amount so paid from the price due plaintiff, and in consideration thereof assigned the claim to plaintiff. Therefore, if the plaintiff was entitled to recover at all, he was entitled to recover under the first count of the complaint as for money had and received. Gulf City Construction Co. v. L. N. R. R. Co.,
The action for money had and received is denominated "a liberal and equitable action, and lies whenever the defendant has money which ex. æquo et bono belongs to the plaintiff." And privity of contract "except that which arises by implication of law from the fact that the defendant has money belonging to the plaintiff which he has no right to retain" is not essential to the plaintiff's right to maintain the action. Houston v. Frazier, supra; Branch Bank of Montgomery v. Parish,
The action is subject to equitable defenses, and the defendant may show that "he is in equity and good conscience entitled to retain" the money. 2 Mayf. Dig. p. 250, § 206, and authorities there cited.
The defendant on the trial by its course of the cross-examination of the plaintiff's witnesses, and by the offer of affirmative testimony offered to show that the plaintiff's possession of the lumber when delivered to the defendant for transportation to George C. Brown Co. was tortious, and that plaintiff had no title thereto, that it was accepted *159 by defendant without knowledge of these facts, and while in transit defendant was given notice by the owners, Stout Irwin, of these facts before the lumber could be delivered to plaintiff's consignee, and soon thereafter Stout Irwin filed suit against the defendant for a conversion of the lumber; that pending an investigation of the title the defendant offered to deliver the lumber to plaintiff's consignee, if indemnified, and plaintiff failed to furnish indemnity; that thereafter, by negotiations between the plaintiffs and Stout Irwin, plaintiff acquired the title to the lumber from them, and the suit against the defendant brought by Stout Irwin was dismissed, and plaintiff paid the costs therein. Pending the controversy between Stout Irwin and plaintiff over the title to the lumber, the lumber remained on the defendant's cars, and the charges for demurrage here involved, which defendant offered to show was reasonable and just, accrued. By the rulings of the court the defendant was denied the right to make this proof, and in this the court committed error.
If the plaintiff's possession of the lumber was tortious, and he had no title thereto, after notice by the true owner, the defendant could not deliver the lumber to plaintiff's consignee without liability, and so far as the plaintiff was concerned, the defendant was within its legal rights in refusing to make such delivery until the plaintiff acquired the title, and in the meantime to make reasonable charges for the use of the cars, unavoidably withheld from use as a result of the plaintiff's wrong. Merchants' Bank v. Bales,
While it was incumbent on the defendant to use reasonable and convenient care to minimize the damages that resulted from plaintiff's wrong (Strauss v. Merteif,
On the other hand, if Stout Irwin were not the owners of the lumber when it was delivered to the defendant, or if the plaintiff's possession thereto was rightful and he had a right to ship it to his consignee, the mere fact that Stout Irwin made claim thereto and sued the defendant therefor would not justify the demurrage charges.
For the error pointed out, the judgment is reversed, and the cause remanded.
Reversed and remanded.
