Farmers' Nat. Bank of Cooper v. Allard , 1924 Tex. App. LEXIS 548 ( 1924 )

LEVY, J.

(after stating the facts as above).

The appellee’s suit was in the nature of assumpsit, and the' recovery allowed was as for a debt owing and unpaid. The facts fully authorized the recovery. The Farmers’ National Bank specially directed Fenner & Beane to make the remittance to the Security National Bank, and its request was complied with. The money was placed to the credit of the Farmers’ National Bank, and, by its consent' and acquiescence, was applied to its benefit. The Farmers’ National Bank knew that the amount belonged to appellee, and that it had undertaken to perform the act of collecting the money for and in behalf of the appellee. In the facts an implied promise arises therefrom to pay over to the appellee the money remitted to it in its name under its direction. Accordingly the Farmers’ National Bank would be in the relation of a debtor to ap-pellee when the money was credited to its account by the Security National fSank, as much so as if the Farmers’ National Bank had originally so entered the credit in its favor on its own books. L. G. Moore & Co. had no claim on the money, as the appellant bank knew. And if the Security National Bank did appropriate the money, it was done with consent of appellant bank, the latter having knowledge at the time, as shown without dispute; that appellee’s money was included in the aggregate sum of the remittance by Fenner & Beane. The' assignment of error is overruled.

The further proposition stated in appellants’ brief in effect present the point in view that a recovery should have ,been allowed for the $2,000 pleaded in their cross-action, since the uncontroverted .evidence showed that the Farmers’ National Bank advanced that sum of money for the appellee to Fen-ner & Beane, and that they credited him with that amount, and there is no evidence showing that said sum of money was ever repaid to the bank. It can be conceded, we think, that the evidence conchlsively shows that the Farmers’ National Bank, on July 29, 1919, credited to Fenner & Beane for the account of appellee $2,000 as a cash margin on cotton conttacts, and telegraphed that fact .to Fenner & Beane; and that Fenner & Beane “received the amount of $2,000 from. the Farmers’ National Bank of Cooper, Tex., for' the credit of, L. G. Moore & Co., account J. B. Allard,” and that they “credited the'account of L. G. Moore & Co., account .T. B. Allard, for the said sum of $2,000.” But the appellee testified, and there is no evidence tending to show differently, that he did not borrow any money from that bank, and did not direct nor authorize the bank to advance or remit the money; and he had no knowledge or information that the bank had made the remittance or that the money had been placed to his credit with Fenner & Beane until after this suit was filed; and he had never bought any cotton contract calling for that cash margin, and did not owe that sum of money on cotton contracts; and that he never got the $2,000, and never received any actual benefit from the advancement. In the light of the foregoing facts the advancement and payment of the $2,000 to Fenner & Beane “for the credit of B. G. Moore & Co., account J, B. Allard,” was, as appears, a payment in cash margin of -a cotton contract made either by direction of L. G. Moore & Co. without authority or consent from appellee, or purely voluntary on the bank’s part without reguest or direction from appellee. And in the facts the appellee never knew that the advancement was made until after suit was filed, and never sanctioned nor ratified it.

The elements of a contract, either express in terms or implied in fact, with appellee, are not evident in the facts. The advancement was not made, as alleged, “at the special instance and reguest of the plaintiff.” It is well settled that money advanced and paid by one person to a third party for the benefit of another does not necessarily impose a liability upon the latter; for one person cannot of his own will pay another’s debt or advance money for his benefit without his consent and thereby convert himself into a creditor. In order to warrant a recovery in a suit of assumpsit for money paid out and expended, it devolved upon the bank either to allege an express contract, or specially allege facts and circumstances from which a .contract legally sufficient to sustain the recovery will be implied. It is the settled rule that the plaintiff cannot recover on an implied contract in a suit counting on an express contract, and that he will not be allowed to show an express contract if he is suing on an implied contract. However, in some cases, under certain conditions appearing, the law imposes a personal liability against the person sought to be charged, where the advancement or payment of the money was beneficial. In such case it must be alleged and proven that the money advanced and paid was beneficial to the party sought to be charged, and that he, knowing that the money was advanced and paid for him, actually adopted, received, or took advantage of the consideration beneficial to him. In such circumstances the person benefited would then become liable because of consent or ratification of the advancement and payment, having the legal effect of a promise to repay it. He must assent with knowledge of the appropriation. And the rule of imputed consent or ratification of the advancement and payment from receiving the benefits of the advancement and payment by another applies only when it appears that the party sought to be charged may accept or reject without serious inconvenience. Bigelow on Estoppel (6th Ed.) p. 747.

The rule is positive that if the party sought to be charged received benefits in ignorance of the fact of advancement, the party advancing the money not being under compulsion of law to pay it, ratification cannot be imputed, nor can estoppel by conduct be predicated. In the present record it appears that if appellee received any benefits from the advancement they were only indirect, and not direct benefits. He testified that he received’ no actual advantage or benefit from the advancement, and there is no evidence to the contrary. Fenner & Beane kept the account as “B. G. Moore & Go., account J. B. Allard,” and the monthly statements and remittances were to “B. G. Moore & Go., account J. B. Allard.” The remittances, it appears, were sent to appellant bank in the name of “B. G. Moore & Go., account J. B. Allard,” and the appellee’s account In that bank was not, it appears, charged or debited with the $2,000. The bank officials do not testify that appellee received the remittance or any part of it, and Fenner & Beane do not testify that they remitted it to appellee himself; and it does not appear that B. G. Moore & Co. turned the $2,000, or any part of it, over to appellee. As the record stands the inference is as reasonable that the appellee never received and appropriated the remittance of thb $2,000 from Fenner & Beane, or any part of it, as the bank never received it. If any part of the $2,000 was applied by Fenner & Beane to liabilities of cotton dealings by ’“B. G. Moore & Go., account J. B. Allard,” it does not appear in the evidence. Ratification or adoption on appellee’s part through appropriation of the $2,000, or. any part of it, does not appear in these facts. The mere fact that the $2,000 was used by Fenner & Beane to make • profits for appellee would not entitle the bank to recover the $2,000 of appellee, especially in view of the undisputed evidence that appellee was in ignorance of the advancement until after suit was instituted. We must assume, in support of the trial court’s judgment, that he found, as he was fully warranted in doing, that the appellee never received or appropriated the $2,000, or any part of it, actually or in payment of liabilities to Fenner & Beane, and did not ratify or consent to the advancement as such.

The judgment is affirmed.