1 Ga. App. 426 | Ga. Ct. App. | 1907
The plaintiff, Meager, sued Linder Lumber Company, alleging that the defendant was indebted to him in a named sum “on account for lumber cut and shipped by petitioner to Eosendo Torras, Brunswick, Ga.,'by directions given petitioner by the said Linder.” An account in the shape of lumber bills was attached. The defendant’s plea amounted to the general issue. Upon the hearing Meager testified, that he and Linder were both sawmill men, operating in the same community; that not having orders ahead sufficient to employ his mill to its full capacity, he spoke of the matter to Linder, who informed him that he (Linder) had accepted an, order from Torras containing more'bills than he would be able to cut and ship with ordinary effort, and that if he
Linder testified, that he, being “loaded” with orders, agreed to' divide the Torras order with Meager; that he said to Meager, “Yon can have all or a part of it. You see the price. I will have no interest in it. They will render an account to you and pay you for what you cut.” He took a part of the order. Afterwards he came back and said, “I have drawn on these people for that lumber, and they have turned it down.” He (Linder) did not collect any of the money for this lumber from Torras, but instructed Torras to pay the same to Meager. Torras testified, that he received the lumber testified about, but as he had no contract with Meager and did have a contract with Linder as to the same, he paid Linder for it; that he knew of no contract between Meager and Linder,, whereby he was to pay the former, and, as he had received the lumber under Linder’s contract, he paid Linder in full for it and declined to pay Meager; that he never assented to any contract whereby he was to pay Meager instead of Linder. There -was,
Under this testimony the direction of a verdict was error. The court below probably took the view that Meager’s action should have been against Torras, and not against Linder; but the evidence does not demand a finding that this is so. It must be borne in mind that in order to support an action in favor of Meager against Torras, it would be necessary for the former-to show a contract, either express or implied, on the latter’s part to pay for the lumber. No express contract is shown, and while, under the doctrine of implied assumpsit (Civil Code, §4936), the law would ordinarily imply a promise on Torras’s part to pay Meager the reasonable value-of the lumber upon the delivery and acceptance thereof, still this implication does not necessarily arise, for under one tenable theory of the evidence he received the lumber under the express contract which he had with Linder, under which he was obligated to pay Linder and not another. If it be conceded or proved that Torras re-' ceived this lumber under the Linder contract, it follows that no agreement or arrangement between Meager and Linder, unassented to by Torras, could change his original promise so as to obligate him to pay one portion of the purchase-price of the entire order of lumber to Linder, and the remainder to Meager. Otherwise a partial assignment of Linder’s chose in action against Torras would result; and this is not legally possible without the latter’s consent. Torras had the right to stand upon the singleness of the original contract. Central Ry. Co. v. Dover, ante, 240; Rivers v. Wright, 117 Ga. 81; Western Union Tel. Co. v. Ryan, 126 Ga. 191 (1).
The present action being in a court of law, the above legal principle was applicable, and not the equitable doctrine upon this subject, which may be enforced only in a court of equity having all necessary parties before it. The evidence was not only consonant with the theory that Torras was not bound, but also was not inconsistent with a finding that Linder was under implied contract to pay Meager for the lumber. Although our simpler and less technical system of practice has operated to abolish many of the ancient forms of action, yet every right which could have been asserted under common-law procedure will still be recognized and protected by our courts. At common law the existence of a form for the
There were portions of the evidence which, if believed by the jury, would have authorized a recovery by the plaintiff on this theory.. If- the lumber went to Linder’s credit on his contract frith Torras, he received the benefit thereof. Of course, if Linder collected for it, as Torras testified he did, the benefit was direct; if he did not 'collect for it, he none the less received the benefit of it, irrespective of the question of Torras’s solvency or insolvency; for if he be solvent (and there is no intimation in the record to the contrary), Linder can still collect the amount; if he be insolvent, Linder’s condition is no worse than if he had furnished his own lumber under the contract, and he is benefited to the extent that Meager’s lumber was used instead of his own. If Linder did collect the money, certainly Meager could have sued him for money had and received; and the defendant in error calls attention to the fact that this suit is not predicated upon that cause of action. However, it does not follow that, because the plaintiff has not sued for money had and received, he may not sue for the value of the lumber and use the fact of the defendant’s receipt of the money as evidence