Ingram v. Posey

• Decision Date: 27 May 1911
• Parties: INGRAM v. POSEY.
• Court: Texas Court of Appeals

Page 421

138 S.W. 421

INGRAM v. POSEY.

Court of Civil Appeals of Texas. Ft. Worth.

May 27, 1911.

Appeal from District Court, Lubbock County; L. S. Kinder, Judge.

Action by W. S. Posey against W. R. Ingram. From a judgment for plaintiff, defendant appeals. Affirmed.

Bean & Klett, for appellant. W. S. Posey, pro se.

CONNER, C. J.

Appellee sued for and recovered against appellant a judgment for $523, with interest thereon from May 21, 1909, at the legal rate upon a state of facts (omitting those not now material) substantially alleged and proven, as follows: That appellee as the agent for one Bird, in due course of business and for a valuable consideration, and before its maturity, purchased from J. H. Johnson a certain promissory note for the sum of $425 executed by W. H. May and payable to the order of appellant, W. R. Ingram; that after the maturity of said note May paid the same through the Lubbock State Bank of Lubbock, Tex., of which appellee was the cashier, and "by and through the negligence and oversight of plaintiff and by and through his mistake" the proceeds of said note so collected amounting to the sum of $523 was deposited in said bank to the credit of the defendant, W. R. Ingram, instead of to the credit of Arthur Bird, the owner of the note, as it should have been; that, knowing that said money was the property of Bird, Ingram checked the money out of the bank and appropriated it to his own use and benefit; that, by reason of said negligence and mistake, appellee was required to and did pay the said sum of $523 to Arthur Bird and later demanded of appellant the return of the money so wrongfully drawn out by him, but which demand was refused. The evidence further authorizes the conclusion evidently arrived at by the trial court that Johnson was authorized to sell the note as alleged, and there is substantially but a single question presented on this appeal.

Appellant, by assignments of error to the action of the court in overruling his general demurrer and to the judgment as not supported by sufficient evidence, insists that the facts alleged and proven fail to show that appellee had any right of subrogation. The contention, of course, proceeds on the theory that the right of recovery, if any, was in Arthur Bird, the owner of the note at the time of its payment, and that appellee cannot be subrogated to this right without an agreement to that effect, express or implied, and no such agreement appears. While the remedy of subrogation is generally applied in behalf of a surety or a subsequent lienholder who discharges an obligation in his own protection, and appellee's remedy, therefore, not one of subrogation, we think that regardless of distinctions in the forms of action that the facts alleged and proven support the recovery.

It is a well-established doctrine, both by courts of law and of equity, that, where one person has received money of another which in honesty and good conscience he cannot retain, an action will lie by the party entitled to recover it back, and whether the...