Overstreet v. Nunn's Executors , 36 Ala. 666 ( 1860 )

B. W. WALKEN, J.

Putting out of view the evidence tending to show that the endorsement -was made subject to the condition, that the note was to be returned to the plaintiffj on his repayment of the money borrowed from the defendant, it is plain that, on the undisputed facts, as disclosed by the bill of exceptions, the plaintiff was entitled to the money which the defendants had collected of Wagner. The note was endorsed and delivered to Nunn, as collateral security for the repayment of the money which he had loaned to the plaintiff. If this borrowed money had been repaid, before the defendant received the one thousand dollars paid by Wagner, this latter sum would very clearly have been considered as so much money deposited with the defendant, to be paid to the plaintiff. The right of the plaintiff to the sum thus received by the defendant, is not loss perfect, because the borrowed money was repaid after the payment made by Wagner to the defendant. As soon as the sum loaned was repaid by the plaintiffj he became entitled, in justice and equity, to the amount which the.defendant had collected from Wagner. The case falls clearly within the rule, that when one man has money in his possession, which, ex mqao et bono, belongs to another, the latter may maintain an action'in his own name to recover it, and the law implies the privity and promise. — Sherrod v. Hampton, 25 Ala. 652; Hitchcock v. Lukens, 8 Porter, 333 ; Huckabee v. May, 14 Ala. 263; Boyd v. Taliaferro, 13 Ala. 424; Vincent v. Rogers, 30 Ala. 475; Thompson v. Merriman, 15 Ala. 168; Price v. Pickett, 21 Ala. 741 ; Sessions v. Sessions, 33 Ala. 522; Williamson v. Culpepper, 16 Ala. 211, 213.

Judgment reversed, and cause remanded.