delivered the opinion of the court.
Concisely stated, the question presented for our determination is: Is Pracht legally liable to Daniels for so much of the money paid towards the satisfaction of the note held by the bank as he, Daniels, was compelled to refund to Jenkins and Edwards ? In other words, did the transaction constitute a payment of money by Daniels for the use of Pracht under such circumstances as would imply a promise on Pracht’s part to repay the same? It is forcibly and plausibly argued by counsel for appellant that since Pracht directed Daniels to pay the proceeds of the sales of the horses into the bank only as agent of Case, and in pursuance of his instructions, and the money so paid not being the money of Daniels, but was understood to be the money of Case, which was intended to be and'was applied to the satisfaction of his note, no promise by Pracht to repay it can be implied. It is very evident that such a promise was not in contemplation by the parties; but, on the contrary, the circumstances rebut any intention on the part of Pracht to bind himself by such an implied agreement. If, therefore, a promise is to be implied on the
It appears from the uncontradieted evidence that the money received from the sales of the stock in question was in part applied by Praeht’s direction to the payment and discharge of the note upon which he was surety, and the balance paid to him directly, that his obligation as such surety was thereby extinguished, and the money so used was repaid to the purchasers of the stock by Daniels. Upon this state of facts it seems to us that, while the case presented may not fall clearly within the doctrine announced in any of the adjudged cases wherein a right to recover money paid for another’s use has been upheld, the law did, regardless of the intention of the parties, impose the obligation upon Pracht to save Daniels harmless upon the theory that he, having received a benefit from the payment of the money is, in equity and good conscience, bound to answer to Daniels, who received no benefit from its application, but was compelled to refund the same.
The amount of the judgment rendered in the court below indicates that Pracht’s liability was placed upon other and different grounds than that above stated, and he was held liable evidently on the theory that his liability to Daniels sprang from some implied warranty of title to the horses. We think if too clear for argument that his liability springs solely from the fact that the money was paid by his instruction in satisfaction of his obligation as surety, and not on account of any connection'that he had with the control or sale of the horses in question; and the -judgment, in so far as it includes any of the costs or expenses that appellee was compelled to pay in and about the suits instituted by Jenkins and Edwards, is erroneous and he should be held liable only for $200, the amount of money paid for his use, with interest from the date of such payment until the trial of the case.
The judgment of the court below is therefore reversed and the cause remanded, with direction to enter judgment for the
Reversed and modified.