Farrell v. Anderson-Dulin-Varnell Co.

100 So. 205, 211 Ala. 238, 1924 Ala. LEXIS 500

• Court: Supreme Court of Alabama
• Decided: April 17, 1924
• Docket: 8 Div. 644.
• Status: Published

Opinions

ANDERSON, C. J.

The affidavit to the account was sufficient to render it admissible as evidence under section 3970 of the Code of 1907 as amended by the Act of 1915, p. 609. The affiant was bookkeeper of the plaintiff, and the affidavit sets up this fact and that he has personal knowledge of the correctness of the account after the allowance of all credits, of which the said J. R. Farrell is entitled “as he verily believes.” Of course, the affidavit1 must be based upon personal knowledge, but we think this one shows that it was and that the same was sufficiently positive notwithstanding the addition of the words “verily believes.” 1-Iis belief is not based upon information, but upon his personal knowledge. “Where the essential facts have been stated positively, an additional statement of information and belief is harmless.” 2 C. J. 355. Here the additional statement does not contain the word “information,” but is a positive statement of belief based upon personal knowledge. Moreover, this was not the exclusive method of proving the account, and Willis proved the correctness of same in his deposition which preceded the introduction of said account. Sullivan Timber Co. v. Brushagle, 111 Ala. 114, 20 South. 498.

Assignment of error 3 goes to the failure of the court to exclude the answer to the following interrogatory to witness De Groat:

“Do you know of your own personal knowledge that J. M. Willis was indebted to the plaintiff at the time of said transaction between himself and J. R. Harrell?”

The answer was:

“X M. Willis was indebted to the plaintiff at the time the transaction took place.”

This was, in effect, an affirmative answer to the question and the only ground assigned for the exclusion of same was that it was “not responsive to the question.”

Assignment of error 2 goes to the refusal of the court to exclude the entire deposition of W. A. De Groat. It is sufficient to say all of said testimony was not illegal, even if any of it was, and if any of it was proper the trial court cannot be put in error for overruling" the general motion. For like reason the trial court cannot be put in error under assignment of error 4, which goes generally to all of the interrogatories to witness De, Groat.

As to whether or,not defendant had paid other people that Willis stated he owed was not material as the trial court offered to let him prove that the plaintiff’s account was not included.

There was no error in giving the plaintiff’s requested charge 1. It did not invade the province of the jury, but hypothesized and presented to them the real issue in the. case whether or not defendant agreed as a part of the consideration of the trade to pay plaintiff the claim as embraced in the statement Exhibit A, as testified by Willis and which’was denied by the defendant.

It is next urged, in brief of appellant’s counsel, that the defendant’s general charge should have been given for the reason that the proof does not justify the right to maintain an action for money had and received, that the facts do not establish an implied contract, and if there was a contract at all it was an express one between defendant and Willis to which the plaintiff was neither a party nor privy. It was held in our early case of Huckabee v. May, 14 Ala. 263, which has been often cited and followed, that, when one sold or traded a thing of value to another, and -the consideration or a part thereof was the assumption of a debt owing from the vendor to a third person by the vendee, and the third person assented thereto while the promise remained in force, the third person may sue in his own name for money had and received though he may not have been otherwise a party to the contract. The price the defendant agreed to pay included the debt due from Willis to the plaintiff, and as to this extent it could have been considered in no other light than as a fund in the defendant’s hand for this purpose. Having in his hands money to which the plaintiff was entitled it may declare in assumpsit for same. See, also, Moore v. First National Bank of Florence, 139 Ala. 595, 36 South. 777, and cases there cited.

“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 s?quo 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 & Co., 82 Ala. 557, 2 South. 457.

An acceptance by the plaintiff of the arrangement between defendant and Willis while the contract was in force could well be implied from the letter to defendant demanding the payment of its claim as well as • by bringing the present suit.

The case of Westmoreland v. Davis, 1 Ala. 299, is quite unlike the present ope. There the court held there was no implied contract as the defendant was a lunatic, nor was there an express one made by one sui juris for the benefit of a third person as in the present case.

The judgment of the Circuit Court is affirmed.

Affirmed.

SOMERVILLE, THOMAS, and MILLER, JX, concur.