Ingram Land Co. v. Moore

• Decision Date: 16 April 1925
• Docket Number: 6 Div. 348
• Parties: INGRAM LAND CO. v. MOORE.
• Court: Alabama Supreme Court

104 So. 134

213 Ala. 19

INGRAM LAND CO. v. MOORE.

6 Div. 348

Supreme Court of Alabama

April 16, 1925

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action on the common counts by T.A. Moore against the Ingram Land Company. Judgment for plaintiff, and defendant appeals.

Transferred from Court of Appeals under Acts 1911, p. 449, § 6. Reversed and remanded.

J.S McLendon, of Birmingham, for appellant.

Arlie Barber, of Birmingham, for appellee.

THOMAS J.

The suit was an equitable action, on the common counts. Form 10 Code 1907, p. 1195. The general issue was pleaded and special pleas 3 and 4, to which demurrers were sustained.

The substance of plea 3 was that defendant was in the real estate business, and Dean listed with it for sale his house and lot and defendant procured plaintiff to enter into the written contract (exhibited) of sale and purchase with Dean. It is averred that defendant "accepted as per the terms of contract above set out the $250 as purchase money as the agent of W.R. Dean, and that the said W.R. Dean complied with the terms of the said contract, and was at all times willing ready, and able to comply with all the terms thereof, but that the plaintiff, T.A. Moore, refused to comply with his part of said contract of purchase and sale without any fault on the part of the seller, W.R. Dean, and that the said $250 is held by Ingram Land Company as part purchase money paid to the said W.R. Dean."

That pleading declares that the money in controversy was paid by plaintiff to and held by defendant as the agent of Dean, and this fact was known to plaintiff when the payment was made under the contract set out in haec verba. Plaintiff should have made a party to his suit the principal, who was known to him. The agency being known to plaintiff, and the payment being duly and properly made to the agent, without fraud, duress, or mistake, the remedy for the return of the money is against the principal, and the plaintiff "cannot hold the agent individually liable for its return." 2 C.J. p. 821, § 495, subhead 47, for general authorities on the subject.

The statements of the rule in Upchurch v. Norsworthy, 15 Ala. 705, and Thompson v. Stickney, 6 Ala. 579, were where the agent receives money for his principal which the latter is not entitled to receive as against a third person. It is recited in the Upchurch Case that, at the time the proceeds of the crop were received from the commission merchant, "there was no person in esse who had the right to receive it from him, except the widow of the deceased, and he was legally bound to pay it to her, for he had received it as her agent." If he "did pay it over to her, he discharged his legal obligation, and he is not responsible to any one else, unless the money had been demanded of him, or notice given him, not to pay it over, by some one, whilst he had possession of the money, whose title to it was superior to the title of the principal." (Italics supplied.) In Thompson v. Stickney, supra, the subject was money collected on illegal assessments. Thus was the right of its receipt in the first instance for consideration. A compilation of the foregoing and other decisions found in 23 L.R.A. (N.S.) 555, was to the effect that, where the money was paid the agent by mistake or under circumstances entitling the payer to recall it, it may be recovered from the agent, if not paid to the principal without notice. In the case of Upchurch v. Norsworthy, supra,...