Allen v. M. Mendelsohn & Son

• Decision Date: 27 April 1922
• Docket Number: 6 Div. 632.
• Parties: ALLEN v. M. MENDELSOHN & SON.
• Court: Alabama Supreme Court

93 So. 416

207 Ala. 527

ALLEN v. M. MENDELSOHN & SON.

6 Div. 632.

Supreme Court of Alabama

April 27, 1922

Rehearing Denied May 18, 1922.

Appeal from Circuit Court, Jefferson County; J. B. Aird, Judge.

Action in assumpsit by Maurice Allen against M. Mendelsohn & Son. From a judgment for defendants, plaintiff appeals. Transferred from Court of Appeals under Acts 1911, p. 450, § 6. Reversed and remanded.

William Henry Beatty, Jr., of Birmingham, for appellant.

Leader & Ullman and David R. Solomon, all of Birmingham, for appellee.

SAYRE J.

The Illinois Central Railroad Company in its office in Chicago prepared a check on a bank in St. Louis, payable to appellant, and forwarded it to its disbursing agent at Birmingham to be delivered to appellant in payment for services performed by him for the company. In some way unknown to the company or its employé, appellant, but probably by larceny or fraudulent impersonation of the payee plaintiff, the check fell into the hands of a stranger, an imposter, who forged appellant's indorsement, and passed the check to appellees in payment for merchandise. Appellees collected the money from the bank in St. Louis, and appellant sued appellees in common assumpsit for money had and received. The trial court gave judgment for defendants, after which this appeal.

Reason why the judgment should be sustained is expressed in several forms, but may be fairly stated as follows: Without delivery of the check to appellant or his agent, appellant acquired no title, and cannot maintain his action.

Assumpsit is an action of an equitable character, liberal in form, and greatly favored by the courts as a remedy. Westmoreland v. Davis, 1 Ala. 299. No agreement is necessary; assumpsit will lie wherever the circumstances are such that the law, ex debito justitiæ, will imply a promise. Nor is any privity in fact between the parties necessary. Where one man has money which ex equo et bono belongs to another, if there be no contract modifying the general liability, the person entitled to the money may recover it in an action for money had and received, and this although he knows nothing of the party who has the right; the law itself creates the privity and the promise. Hitchcock v. Lukens 8 Port. 333. This is the settled law of this state. Farmers' Bank v. Shut, 192 Ala. 53, 68 So. 363. But the defendant must have money, or its equivalent (192 Ala. 53, 68 So. 363), in his possession which belongs of right to the plaintiff (Levinshon v. Edwards, 79 Ala. 293). It is not denied that a forged indorsement passes no title; but plaintiff must recover on the strength of his own title. To repeat, the question, then, is whether plaintiff had any legal right to the check or its proceeds. Steiner Bros. v. Clisby, 103 Ala. 181, 15 So. 612. The foregoing are statements of the familiar law of this jurisdiction; they are reiterated here on account of some discord in the briefs.

It remains to determine whether the fact that the check failed to reach the hands of plaintiff is fatal to his recovery. In the circumstances stated, it may be thought hard that defendants, if they were duly cautious, should be liable at all; but on the law and the facts heretofore recited, it is entirely clear that defendants had no property in the check have none in the proceeds, and are liable to be sued by somebody for the money which they have received. Moreover, if plaintiff is allowed to recover from defendants, his election will put an end to the matter, for the drawer of the check intended it for plaintiff, and defendants, however innocently, received the money as upon plaintiff's indorsement, and, but for their intermeddling, however innocently, it would have reached plaintiff. Therefore defendants do not appear to be in a position to deny plaintiff's ownership. Shaffer v. McKee, 19 Ohio St. 526, is a case in point. There a draft payable to plaintiff's order, and mailed to him, was stolen en route, and the thief, having...