Carmichael Tile Co. v. C.A.D. Bayley & Co., Inc.

• Decision Date: 19 December 1930
• Docket Number: 20806.
• Parties: CARMICHAEL TILE CO. v. C. A. D. BAYLEY & CO., Inc.
• Court: Georgia Court of Appeals

156 S.E. 319

42 Ga.App. 408

CARMICHAEL TILE CO. v. C. A. D. BAYLEY & CO., Inc.

No. 20806.

Court of Appeals of Georgia, First Division

December 19, 1930

Syllabus by Editorial Staff.

Written contract for materials, signed by contractor as agent for owner, directly obligated for order, showed contractor was owner's agent and not liable as independent contractor.

Petition by materialman against contractor ordering materials as agent of owner, alleging owner paid contractor money to be paid materialman, held good against general demurrer.

Petition by materialman against contractor to recover money due for materials furnished to contractor as agent of owner of building alleged that during erection of building on orders from contractor materialman furnished additional materials to that called for in original contract; that on completion of building owner paid contractor money for purpose of being paid to materialman for materials; and that contractor in receiving money was acting as agent of materialman.

Action for money had and received lies against another receiving money to which plaintiff is entitled.

In action for money had and received, law implies promise by person receiving money of another to pay money on demand.

Error from Superior Court, Fulton County; John D. Humphries, Judge.

Action by the Carmichael Tile Company against C. A. D. Bayley & Co Inc. Judgment for defendant, and plaintiff brings error.

Reversed.

Geo. B Rush, of Atlanta, for plaintiff in error.

Spalding MacDougald & Sibley and Sumter M. Kelley, all of Atlanta, for defendant in error.

Syllabus OPINION.

BROYLES C.J.

This was a suit in two counts against a contractor, to recover a sum of money alleged to be due the plaintiff on a written order to it, signed by the defendant as the agent of the owner of a building to be erected by the defendant, for certain material to be furnished and made a part of the building by the plaintiff. The petition alleged that the plaintiff complied with all the provisions of the order, furnished and installed the material, and that the building was completed and turned over to the owner, who paid the defendant what was due it under a written contract signed by the defendant and the owner. A copy of this contract was attached to the petition, and it appears therefrom that the defendant, in erecting the building, was acting as the agent of the owner. The petition further alleged that a certain sum of money was still due the plaintiff under the provisions of the two contracts, and that this sum the defendant refused to pay. The order for the material, signed by the defendant, contained the following provision: "Liability: This order is a direct obligation upon Mr. H. J. Dynes [the owner]."

The first count of the petition was based upon the theory that the defendant was an independent contractor and...