Myers v. Byars , 99 Ala. 484 ( 1892 )

McCLELLAN, J.

It seems clear to us that the evidence in this case, aside from the agreement between Landrum ■and Byars and between their attorneys, Myers and Fellows, the plaintiff below was entitled ex (equo et bono to one thousand dollars of the five thousand dollars recovered from the Louisiana State Lottery Company. If Myers had the money to which plaintiff was entitled he was liable to an action for money had and received. If Myers did not have the money, but represented to plaintiff that he did have it, but would not pay it over until conflicting claims thereto were adjudicated by the courts, and by such representation induced plaintiff to believe the money was held by him, and the plaintiff brought this suit on the faith of such representation, and thereby subjected himself to the costs and expenses incident to the prosecution of the action, all of which we find to be facts, Myers was estopped to say in the action thus induced, if not indeed invited, that he did not in fact have the money.-Bigelow on Estoppel, 550; Meister v. Birney, 24 Mich. 435; Robb v. Shephard, 50 Mich. 189; Stevens v. Ludlum, 13 L. R. A. 270, note.

The agreement referred to, that of February 13, 1890, contemplated and provided for a contest in the courts of Jefferson county to determine certain conflicting claims of the plaintiff in this action and one Landrum to the fund now in controversy, and a decision thereof in plaintiff’s favor as a condition upon which the defendant would pay the money to plaintiff. We are of the opinion that this suit, in which Landrum might have supervened as a claimant, fills the terms of this agreement, and is the contestation contemplated therein.

It appears, however, that plaintiff had received one hundred of the thousand dollars to which he was entitled in the payment of a fee which he owed to J. L. Meade. The judgment below should have been, therefore, for nine hundred, instead of one thousand, dollars. It will be so modified here ; and, as modified, will be affirmed.