Finney v. Studebaker Corp. of America

• Decision Date: 18 May 1916
• Docket Number: 8 Div. 919
• Citation: 196 Ala. 422,72 So. 54
• Parties: FINNEY v. STUDEBAKER CORP. OF AMERICA.
• Court: Alabama Supreme Court

72 So. 54

196 Ala. 422

FINNEY v. STUDEBAKER CORP. OF AMERICA.

8 Div. 919

Supreme Court of Alabama

May 18, 1916

Appeal from Circuit Court, Madison County; R.C. Brickell, Judge.

Action by the Studebaker Corporation of America against D.C. Finney. From a judgment for plaintiff, defendant appeals. Transferred from the Court of Appeals under section 6, Act April 18 1911, p. 449. Affirmed.

S.S Pleasants, of Huntsville, for appellant.

Lanier & Pride, of Hunstville, for appellee.

ANDERSON C.J.

It can scarcely be contended that it was not the understanding between all parties concerned that the three automobiles were to be shipped C.O.D.; that is, the bill of lading was to be attached to draft for purchase price, and was to be delivered to the consignee upon payment of the draft. It is also in effect admitted that in drawing the draft the plaintiff omitted from the same, by mistake, the price of one of the machines covered by the bill of lading, being the particular machine sold through the Athens agency to Gladish, and there is little or no doubt but what the appellant, Finney, as well as Owen Graham, not only knew of the terms of sale, but knew when paying the draft and getting the bill of lading, under which possession was obtained of all three of the motor cars that the price of this one had been omitted from the draft, by accident or mistake, and that the plaintiff had not therefore parted with the title to said car. The plaintiff not having parted with the title to the car in question, the sale of same either by Graham or Finney was a conversion of the plaintiff's property, and for which it could have maintained trover, or could waive the tort action and recover upon the common counts after a disposition of the car for money or other property by Graham and Finney, or either of them. Moody v. Walker, 89 Ala. 619, 7 So. 246; Lytle v. Bowdon, 107 Ala. 363, 18 So. 130; Bradfield v. Patterson, 106 Ala. 397, 17 So. 536. There is no dispute over the fact that the car was sold through an Athens agency, Graham claiming that Finney made or authorized the sale, while Finney claimed that he had nothing to do with the sale of the car in question, but admits that Graham turned over to him $777 of the purchase money, which he knew was the proceeds of the sale of the car, less the commission of $100 retained by Graham.

"It is well understood everywhere that the action for money had and received is a liberal and equitable action, and upon principles of natural justice and equity will be supported, when the defendant has received money which in good conscience he ought not to retain, and which, ex equo bono, belongs to the plaintiff. The law implies a promise that he will pay it; and the only privity between the parties that need be shown in such an action arises from this promise implied by law that the defendant, having in his hands money which belongs to the plaintiff, will pay it over to him." Steiner Bros. v. Clisby, 103

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