Sherrod's Executors v. Hampton , 25 Ala. 652 ( 1854 )

CHILTON, C. J.

1. There was no discontinuance by reason of failing to make F. A. 0. Sherrod a party defendant; for, although a scire facias issued against him as one of the executors, the record fails to show that he ever qualified as such ; but conceding that he did, it is shown that he died many terms previous to that at which the trial was had, and the cause was treated as regularly in court by all the parties in changing the venue, and divers continuances. We should be inclined to hold, that this was a waiver of the irregularity, if it was one ; but the death of F. A. 0. Sherrod, before any objection was taken, frustrated it; and as the proper parties were before the court when the case was tried, and for many times previous, the supposed irregularity has injured no one, and cannot avail as error.—See 18 Ala. 211.

2. There was no conflict of the proof, and the facts were undisputed ; hence the court charged the jury, that if Hampton had paid off the note for $1000, upon which he was surety for the railroad company, he was entitled to recover. The •charge presents the legal question, whether the collection of the money from the Government by Sherrod, after the demand had been transferred to the plaintiff Hampton, by.the resolution of the company, of which they were both members, enti-titles the plaintiff below to maintain this action.'

The rule is, where one person receives money which, ex ceguo et bono, belongs to another, an action of assumpsit for money had and received can be maintained by the latter. We. think there can be no question, that Hampton is in justice and equity entitled to this money — that is, to the extent of the amount paid by him upon the demand which it was transferred to secure. The subsequent transfer to Sherrod was. subordinate to the claim of Hampton ; and when the money was received by him, he held it in trust for the purpose declared by the resolution of the company of the 18th of September, 1841. — ■ Sherrod must be presumed to have notice of the resolution of the company, of which he was a director, and to have taken the transfer, which was subsequently made to him, subject to the rights-of Hampton, the prior transferree: The recovery by Hampton of this fund, coupled with the resolution of the company which transfers it to him, is a complete protection to Sherrod against any future liability to the company for the same ; and as the plaintiff is, as we have seen, in equity and good conscience entitled to it, this action — as-sumpsit for money had and received — lies for 'its recovery. If the resolution created no privity, the law itself would create both the privity and the promise, as may be gathered from numerous authorities both in this and other courts.—See the cases cited in Huckabee v. May, 14 Ala. 263 ; Hitchcock v. Lukens, 8 Port. 333 ; Price v. Pickett et al., 21 Ala. It. 741 ; Clark v. Dignam, 3 Excheq. R. 478.

Let the judgment be affirmed.

LiGON, J., did not sit in this case.