45 So. 649 | Ala. | 1908
There is but one question presented on this appeal for our consideration, and that is whether or not, on the undisputed facts, the plaintiff was entitled to recover on the common count for money had and received. The complaint contained, besides the common money count, counts on special contract. These latter counts were eliminated on plea of ultra vires, and judgment rendered by the trial court, from which, judgment the defendant appeals, and here assigns the same as error.
The money sought to be recovered was received by the defendant from the plaintiff under the special contract declared on, which was held to be an ultra vires contract; that is, as to that provision in the contract which promised to pay back to the plaintiff at the end of 10 years in the manner and under the conditions stipulated in the contract. The consideration expressed in the contract, on which the money was paid, is of that class
Here there was neither fraud nor imposition. The money was paid with a full knowledge of all the facts, and, as we have said, if there was any mistake, it was one of laAV, and not of fact. Nor was there a Avant or total failure of consideration. It is not denied that for the term of 10 years the plaintiff was, in case of sickness, entitled to sick benefits stipulated for in the contract on which the money was paid. This was a consideration sufficient to support the contract, and it is of no importance that the plaintiff as a matter of fact was never sick during the period, and consequently received no money under that provision of the contract. Our conclusion is that the trial court erred in rendering-judgment for the plaintiff; and, as the case was tried by
Reversed and rendered.