Southern Express Co. v. Bank of Tupelo , 108 Ala. 517 ( 1895 )

COLEMAN, J.

The litigation in the present case grew out of a state of facts almost identical with those, which arose in the case of Southern Express Co. v. Jasper Trust Co., decided and reported in 99 Ala. 416. In the present ca-e the Bank of Tupelo is plaintiff, and in that case, the Jasper Trust Company was plaintiff. D. R. Sanford was the agent in each of the cases, and resorted to precisely the same means to perpetrate a fraud upon the plaintiff in the case before us. In the case at bar, tbe defendant pleaded speed dly to the ivhole complaint, which consisted of two coums, that the money was received under a .contract evidenced by a bill of lading, which provided that ‘‘in no event should the defendant be liable for any loss, unless a claim therefor should be made in writing at the office of the defendant where the money is alleged to have been shipped from, within thirty-two days from the date of said contract,” &c. A demurrer was sustained to this plea.

In the case of the Southern Express Co. v. Caperton, 44 Ala. 101, a similar provision in a receipt given for money as in the present case, was held to be unreasonable and that it tended to fraud and was inoperative. No reason is given in the argument of counsel why the rule is not sound. In fact the exception to this ruling of the court is not insisted upon in argument. It is unnecessary to consider whether the facts stated in the plea, without further averment, constitute an answer to the common count for money had and received to plaintiff’s use, ■ as the plea is insufficient in any event.

The instructions of the court given in behalf of the plaintiff were applicable to the facts and in accord with the principles declared in the case of the Jasper Trust Go., supra. The charges refused to the defendant in-the latter case, and which on appeal were declared to have been correctly refused, considered in connection with the principles decided to be applicable, cover the present case in almost every essential particular. The charge requested by the appellant, the defendant below, which asserts the liability of the railroad company upon its bill of lading which purported to have been given for cotton received from the fictitious firm of R. H. Sanford & Co., may assert correct propositions of law. The writer did not sit in the case in which that question was determined (Jasper Trust Co. v. K. C., M. & B. Co., 99 Ala. 416), but that is an abstract question in the present case, and the charges were properly refused on this account. The liability of the Express Company, we think, was declared in that case, and we cannot distinguish in principles the two cases.

One other point is made, and that is that the plaintiff should have surrendered the bill of lading for the cotton and the draft in order to maintain the action on the second count for money had and received. The Express Company never owned nor had any right to the bill of lading or the draft drawn on the supposed consignee of the cotton. 'The Express Company parted with nothing in consideration of the receipt lay it of the money. The count for money had and received was maintainable, if at all, upon the ground that the agent of the Express Company, D. R. Sanford, fraudulently induced the plaintiff to send the money by express to R. H. Sandford & Co., a fictitious firm, which money was received in due course of its business by its agent, the said D. R. Sandford, and by him embezzled. The evidence fully sustains the contention that there was no such real firm as R. H. Sandford & Co. in fact; on this point we are. of opinion the court might have instructed the jury to this effect. There ivas nothing to surrender to the defendant. The money received by it and embezzled by its agent, ex equo et bono, belonged to theplaintiff, and could be recovered in assumpsit as money had and received for the plaintiff. The question was fully considered in the Jasper Trust Co. case, supra.

We find no error in the record.

Affirmed.