Great Southern Acc. & Fidelity Co. v. Guthrie
| Decision Date | 25 August 1913 |
| Docket Number | 4,909. |
| Citation | 79 S.E. 162,13 Ga.App. 288 |
| Parties | GREAT SOUTHERN ACCIDENT & FIDELITY CO. v. GUTHRIE et al. |
| Court | Georgia Court of Appeals |
Syllabus by the Court.
A direct bill of exceptions may be sued out from the direction of a verdict against the plaintiff in error.
The record does not disclose such a flagrant disregard of the rule of practice in reference to briefing the evidence as to require the conclusion that no bona fide attempt has been made to comply with the rule.
In an action for money had and received, brought against several defendants, where it appears that the defendants received different amounts of the plaintiff's money, a verdict against one defendant for the aggregate amount paid to all is not authorized, unless the money was jointly receded by all of the defendants or some of them as agents for the defendant against whom the verdict is rendered.
Payment to an authorized agent is in law payment to his principal and if the money ought in equity and good conscience to be returned, an action for money had and received may be maintained, at the option of the owner of the money, either against the agent, or the principal, or both.
A appointed an agent to sell for cash. The agent, without authority from A., employed B. to assist him. B. made a sale collected the proceeds, deducted a portion for his services and remitted the balance to the agent, who paid none of it to A. A. refused to deliver the property sold. Held, that the purchaser could recover from A. the amount received by his agent, but not the sum retained by B.
Such of the special rulings as need to be passed upon are referred to in the opinion.
(Additional Syllabus by Editorial Staff.)
That the agent of a corporation was vice president and afterwards president of the corporation did not authorize him to appoint other agents to sell corporate stock.
Where a part of a witness' testimony was clearly admissible, an objection to it in solido was properly overruled.
While mere hearsay evidence of declarations of agency is inadmissible to establish agency, a person may testify that he acted as another's agent.
Error from City Court of Nashville; W. D. Buie, Judge.
Action by S. F. Guthrie against the Great Southern Accident & Fidelity Company and others. Judgment for plaintiff, and the defendant named brings error. Reversed.
Jones & Chambers, of Atlanta, and Hendricks & Christian, of Nashville, for plaintiff in error.
Wm. R. Smith, of Nashville, and Chastain & Henson, of Douglas, for defendant in error.
This was an action in assumpsit for money had and received, brought against the Great Southern Accident & Fidelity Company, a corporation, and R. H. Cantrell, W. G. Chipley, and Lockridge & Tanner, a firm composed of J. D. Lockridge and E. L. Tanner. The corporation was alleged to have an agency and place of business in Berrien county, where the suit was brought. Cantrell and Chipley were alleged to be residents of Fulton county, and Lockridge and Tanner to be residents of Coffee county. Neither Cantrell nor Chipley was served or filed a defense. The other defendants pleaded to the merits, without demurring or objecting to the jurisdiction of the court. A verdict was directed against the corporation and in favor of Lockridge & Tanner. The corporation excepted to the direction of a verdict against it, and complains also of numerous rulings upon the admission of evidence.
1. A motion is made to dismiss the writ of error, upon the ground that the only remedy of the losing party was a motion for a new trial, and a direct bill of exceptions would not lie. This point of practice has been settled against the defendant in error. Haskins v. Throne, 101 Ga. 126, 28 S.E. 611.
2. It is also suggested that we ought not to review the evidence, because the brief thereof set out in the bill of exceptions is not a compliance with the rule of practice as announced in previous decisions of this court. As to this point it is sufficient to say that, while the brief is not as succinct a compendium of the material facts as might have been prepared, it does not show such a flagrant disregard of the rule of practice as to justify the conclusion that the plaintiff in error has made no bona fide attempt to brief the evidence.
3. Cantrell and Chipley organized the defendant corporation and acted as its fiscal agents in disposing of its stock. In pursuance of the plan agreed on, these agents subscribed for all of the stock except 5 shares; but this was done to facilitate the same, and they were not expected to pay for the stock until they sold it. They were authorized to sell only for cash or its equivalent, which was understood to be a time interest-bearing certificate in some solvent bank or New York exchange. The fiscal agents were to pay for the stock as sold, at $110 per share. The selling price was $200 per share. The plaintiff subscribed for 5 shares through Lockridge & Tanner, who were representing Cantrell and Chipley in making the sale, and gave his note for $1,000, payable to Lockridge & Tanner. The certificate of stock was issued and attached to the note, which was forwarded to a bank for collection. The note was not paid at maturity, and it and the stock were returned to the company. Thereupon the stock was canceled and the note returned to Lockridge & Tanner. Subsequently the plaintiff paid the amount to Lockridge & Tanner. After deducting the amount to which they were entitled under their contract for making the sale, the balance was forwarded to Cantrell and Chipley. None of the money was paid to the corporation; Cantrell and Chipley claiming that the company owed them more on other transactions than the sum which came into their hands from plaintiff's subscription. The company refused to reissue the stock, upon the ground that it had not been paid therefor, and the plaintiff contends that the corporation and Lockridge & Tanner are indebted to him jointly in the amount paid for the stock.
The action for money had and received lies against one who holds the money of another which he ought in equity and good conscience to refund. Where more than one person is sued, a joint recovery for the whole amount against all will not be authorized, unless it appears that all received the money jointly. If it was not so received, the plaintiff can only recover from each defendant separately the amount shown to have come into his hands. In such an action, where the tort is waived, conspiracy and fraud may be...
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