30 Ga. App. 162 | Ga. Ct. App. | 1923
This was a suit to recover $615.35 alleged to have been paid to the defendant for the benefit of the plaintiff. We are indebted to counsel for. defendant in error for the following summary of the allegations of the petition: “ Smalling was a contractor engaged in the construction of the Adams building. Smalling, by contract, engaged one Kicks to lay the roof. Under the terms of said contract Kicks, was to cover the building with a standard asphalt roofing material manufactured by the Barber Asphalt Paving Company. The defendant, Dunlap, was the local agent" and distributor of the Barber Asphalt Paving Company for roofing material. Kicks tried to buy the material specified in his contract with Smalling from Dunlap on credit. Dunlap refused to extend credit to Kicks, whereupon Kicks obtained the necessary money from Smalling and paid cash for the roofing material.' This fact was known to Dunlap. Kicks completed the roofing job according to his contract with Smalling, and was paid by Smalling. Shortly after Kicks completed the .roofing work it developed that the material.used was defective, whereupon Smalling, in order to satisfy the owner of the building, and without calling upon either Kicks or Dunlap to make good the defective material, and without notice to either Kicks or Dunlap, repaired the roof him
A general demurrer to the petition was sustained, and the plaintiff excepted.
The petition alleges that the defendant is indebted to plaintiff “for money had and received” for the use and benefit of petitioner. In Citizens Bank of Fitzgerald v. Rudisill, 4 Ga. App. 37 (2) (60 S. E. 818), this court held: “An action for money had and received lies, in case the defendant has taken to his use money which ex ssquo et bono belongs to the plaintiff. It' needs for! its
To whom should the money collected by Dunlap be paid, to Ricks or to Smalling’s Sons? Certainly, in equity and good con
Under the broad rule announced in the cases referred to above, the petition sets out a cause of action, and the judgment must be
Reversed.