Dorsey v. Peppers

It is insisted upon this appeal by counsel for appellants that reversible error was committed by the trial court in admitting proof as to the second bale of cotton referred to in the statement of the case, and in instructing the jury that the defendants should account to plaintiff therefor. The argument is based upon the theory that there is no proof that defendants have in fact received the proceeds of this bale of cotton; and that therefore the same should not be taken into consideration in a suit of this character for money had and received and work and labor done. It appears, however, that the proceeds of this second bale was returned to the purchaser, who is the garnishee in this suit, one Curry, by the plaintiff because of a suit instituted by defendant Mattie B. Dorsey against said Curry for the conversion of said bale of cotton; and that the money is now held by said Curry subject to said judgment.

In addition to this, it further appears without dispute that Mattie B. Dorsey, the owner of the judgment against Curry, has transferred the judgment to a third party. As to what was paid to said Mattie B. Dorsey in said transfer is not disclosed by the record.

"A suit for money had and received is in the nature of an equitable action, and is maintainable whenever one person has money which ex æquo et bono belongs to another; * * * and it is not always necessary that actual money shall have been received. If property, or anything else, be received as the equivalent of money, by one who assumes to cancel or dispose of a property right, for which, by contract, or liability, legal or equitable, it is his duty to account to another, the latter may treat the transaction as a receipt of money, and sue for it as such." Barnett v. Warren, 82 Ala. 557, 2 So. 457; Farmers Bk. Tr. Co. v. Shut Keihn, 192 Ala. 53, 68 So. 363; 9 Cyc. 849 et seq.

Under the circumstances as disclosed by this record, we are of the opinion there was no error in the court admitting this evidence, and instructing the jury that the defendants were liable to account for the second bale of cotton. This question is treated as the only one of any importance upon this appeal; and, finding no reversible error, the judgment of the court below will be affirmed.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.