Rockett v. Edmondson

51 So. 143, 164 Ala. 478, 1910 Ala. LEXIS 1

• Court: Supreme Court of Alabama
• Decided: January 13, 1910
• Status: Published

Opinion

DOWDELL, C. J.

This cause originated in the justice of the peace court, and was commenced by summons and complaint. From a judgment there rendered against the defendant, an appeal was taken to the city court of Bessemer. In the city court a demurrer was interposed to the complaint, and was by the court overruled. This ruling is here assigned as error. What was said in the case of Bessemer Ice Delivery Co. v. Brannen, 138 Ala. 157, 35 South. 56, as to the ruling of the court on the demurrer to the complaint in that case, is applicable here. Moreover, the demurrer in the present case is general. The action of the court in overruling the demurrer is free from error.

Pleas 2, 3, 4, 5, and 6, to which demurrers were sustained, were each bad, and subject to demurrer. The complaint, contained a single count “for money had and received.” The matter set np in these several pleas constituted no defense to such complaint.

The case was tried by the court without the intervention of a jury, and a judgment ivas rendered for the plaintiff. There was evidence on the part of the plaintiff which tended to show that one Lacy insured his life, making the policy payable to the defendant, and in doing so stated to the defendant that he (Lacy) wanted him (the defendant) to pay the plaintiff $100 out of said insurance if the plaintiff survived him (Lacy) and that the defendant agreed to do so. The plaintiff survived Lacy, and on the death of Lacy the defendant collected the amount of the policy, which was $2,000, and then refused to pay the plaintiff the $100. So far as the record shows, both defendant and plaintiff were donees of the said Lacy in the insurance so taken out by him. .

On the foregoing phase of the evidence, the defendant, when he collected the insurance, became a trustee as to the $100 which he had promised the insured he would pay to plaintiff. It was money which ex sequo et bono belonged to the plaintiff, and for which the plaintiff could maintain his action “for money had and received.” In principle, the whole transaction was the same as if the said Lacy had delivered to the defendant $2,000 as a gift, with the reqnest — and a promise on the part of the defendant to comply — that he pay the plaintiff, out of the sum, $100. In such case no one would question tliát the $100 was money had and received for the benefit of the plaintiff.

The evidence on the part of the defendant was contradictory to the plaintiff’s evidence. The trial court, however, had the witnesses before him, and saw them and heard them deliver their testimony, and COnsequently was better able to judge of their credibility than are Ave. If the plaintiff’s evidence Avas true, and the court so held, then the plaintiff was entitled to the judgment rendered. We have examined and considered the rulings of the court on the introduction of evidence, to which exceptions were reserved, and we do not find that any reversible error was. committed.

What Ave have already said as to the trial court having the Avitnesses before it is sufficient to indicate our vieAvs as to the action of the court in overruling the motion for a new trial. We think the motion Avas without merit, and Avas therefore properly overruled.

Finding no reversible error in the record, the judgment will be affirmed.

Affirmed.

Anderson, Sayre, and Evans, JJ., concur.