Dorsey v. Peppers

80 So. 403, 202 Ala. 321, 1918 Ala. LEXIS 405

• Court: Supreme Court of Alabama
• Decided: December 19, 1918
• Docket: 8 Div. 140.
• Status: Published

Opinion

GARDNER, J.

It is insisted upon tbis 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, who1 is the garnishee in this suit, one Gurry, by the plaintiff because of a suit instituted by defendant Mattie B. Dorsey against said Gurry 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 Gurry, 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 tequo 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 South. 457; Farmers Bk. & Tr. Co. v. Shut & Keihn, 192 Ala. 53, 68 South. 363; 9 Cyc. 849 et seq.

Under the circumstances as disclosed by tbis record, we are of tbe opinion there was no error in tbe court admitting this evidence, and instructing the jury that the defendants were liable to account for the second .bale of cotton. Tbis question is treated as tbe 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 SOMERYIDDE and THOMAS, JJ., concur.