Bessler Movable Stairway Co. v. Bank of Leakesville , 140 Miss. 537 ( 1925 )

^* Headnotes 1. Money Received, 27 Cyc., p. 866; Payment, 30 Cyc., pp. 1320, 1321; 2. Pleading, 31 Cyc., p. 218; 3. Appeal and Error, 3 C.J., Section 639; Trial, 38 Cyc., p. 1375. [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The appellant sued the appellee to recover a sum of money which it paid the appellee by mistake, and, from a judgment that it take nothing by the suit, it has brought the case to this court. The case was submitted to the judge of the court below, to be tried by him without a jury on an agreed statement of facts which the reporter will set out in full.

The appellant's contentions are: First, the court should not have taken into consideration the fact that the appellee paid to the Continental Lumber Company the money it had received from the appellant in excess of the amount which the appellant should have paid it; second, and if mistaken in this, that the payment of this money by the appellee to the Continental Lumber Company does not relieve it of liability to the appellant therefor. Both of these contentions are without merit, and for convenience will be taken in their inverse order.

Money paid to another by mistake of fact, although such mistake may have been caused by the payer's negligence, may be recovered from the person to whom it was paid, in an action for money had and received. Bank of Louisiana v. Ballard, 7 How. 371;Holden v. Davis, 57 Miss. 769; 21 R.C.L. 167; 30 Cyc. 1321. The ground on which such recovery is allowed is that one receiving money paid to him by mistake should not be allowed to enrich himself at the expense of the party who paid the money to him by retaining it, but in equity and good conscience should refund it. In order that this rule may apply, the party to whom the payment by mistake was made must be left in the same situation after he refunds it as he would have been had the payment to him not been made. Holden v. Davis, supra; 21 R.C.L. 170; Keener on Quasi-Contracts, 59 et seq. To require him to refund the money would be to throw a loss upon him which he would not have suffered had it not been for the mistake or negligence of the person who paid the money to him; and to require him to suffer the loss instead of the person through whose negligence or mistake it was caused would be highly inequitable. The assignment under which the appellee collected the money here in question was not absolute, but was to secure the payment of a debt by the assignor, and, under it, it was the appellant's duty to pay the assignor any money it received from the appellant in excess of the debt due it by the assignor. The appellant having discharged its duty, the loss resulting therefrom must be borne by the appellant, through whose mistake it was caused.

This brings us to the appellant's contention that the evidence of what disposition the appellee made of the money received by it from the appellant is incompetent, and therefore, under the agreed statement of facts, should not have been considered by the court below. The only plea filed by the appellant was the plea ofnil debit and no notice was given therewith of any affirmative matter which it might seek to introduce in evidence. The ground of the appellee's contention is that the disposition made by the appellee of the money paid it can be availed of only as an affirmative defense and that, consequently, evidence thereof is not admissible under a plea of general issue. At common law, any fact which negatived the right of a plaintiff to recover could be given in evidence under a plea of nil debit; but by section 744, Code of 1906 (Hemingway's Code, section 527), the scope and effect of pleas of general issue have been narrowed and "every defense not merely consisting of a denial of the allegations of the declaration must be pleaded specially, or given notice of [must be given] under the general issue." Tittle v. Bonner,53 Miss. 578.

Assuming for the purpose of the argument that the evidence of what disposition the appellee made of the money paid to it by the appellant in no way denies the allegations of the appellant's declaration, but is affirmative matter in avoidance thereof, nevertheless the objection made thereto in the agreed statement of facts cannot here be considered, for it is a general and not a specific objection. The rule, first announced by the old High Court of Errors and Appeals in Helm v. Natchez Insurance Co., 8 Smedes M. 197, is that a general objection to evidence overruled will not be considered in the supreme court. Routh v.Agricultural Bank, 12 Smedes M. 161; Wesling v. Noonan,31 Miss. 599; Morris v. Henderson, 37 Miss. 492; Monk v.Horne, 38 Miss. 101, 75 Am. Dec. 94; Railroad Co. v. Moye,39 Miss. 374; Mississippi Mills v. Smith, 69 Miss. 299, 11 So. 26, 30 Am. St. Rep. 546; Wagner v. Ellis, 85 Miss. 422, 37 So. 959. The grounds of this rule are that objections to evidence should be specific, first, so that the party introducing it may remove the objection, if he can do so, and that the court may be enabled to rule intelligently thereon; and, second, in order that an appellant may be confined in the supreme court to the same ground of objection made by him in the court below, the supreme court being a court of appellate jurisdiction only. The one exception to this rule is that when "on the face of the evidence, in its relation to the rest of the case, there appears no purpose whatever for which it could have been admissible, then a general objection, though overruled, will be deemed to have been sufficient." 1 Wig. on Evidence, section 18; MississippiMills v. Smith, 69 Miss. 299, 11 So. 26, 30 Am. St. Rep. 546.

The evidence of the disposition made by the appellee of the money paid it established the defense which it was seeking to make, and, if incompetent because notice thereof was not given with the plea, such notice could have been given, and the evidence thereby made competent, when the objection thereto was raised in the court below.

Affirmed.