J. C. Penney Co., Inc. v. West, 52752

• Decision Date: 05 October 1976
• Docket Number: No. 52752,No. 3,52752,3
• Citation: 230 S.E.2d 66,140 Ga.App. 110
• Parties: J. C. PENNEY COMPANY, INC. v. C. B. WEST
• Court: Georgia Court of Appeals

Page 66

230 S.E.2d 66

140 Ga.App. 110

J. C. PENNEY COMPANY, INC. v. C. B. WEST.

No. 52752.

Court of Appeals of Georgia, Division No. 3.

Oct. 5, 1976.

Rehearing Denied Oct. 22, 1967.

Barham & Bennett, Ed G. Barham, Valdosta, for appellant.

Blackburn & Bright, J. Converse Bright, Valdosta, for appellee.

DEEN, Presiding Judge.

Appellee West, after working some months for J. C. Penney Co. became eligible and elected to join its profit sharing plan on April 1, 1972. He further chose to allow the employer to deduct six percent from his monthly wages, which sum was to be placed in the plan with matched funds of the employer at the rate of fifty percent, the interest to be vested after a year. West terminated his employment October 13, 1972, having paid in slightly over $200. In November and December he received from the company a check for $1,415, a check for $213 and a closing statement showing personal contributions of $4,102, and shares of J. C. Penney stock which he sold for $11,244. In March the employer plaintiff discovered that the records of the appellee, whose employment had been in Georgia and Florida, had been confused with the records of a California employee also named Charles B. West, and that the pension plan fund sent him was in error as computed on funds accruing to the other employee, who had enjoyed a long tenure of service. Upon West's refusal to return the money the appellant sued him for money had and received. At the close of the plaintiff's evidence, the defendant moved for a directed verdict on the grounds that the plaintiff's mistake is not one for which equity will grnat relief, that the subject of the action is not the property of the plaintiff, and, third, that not being money it cannot be recovered. The motion was granted and plaintiff appeals. Held:

1. It is true that a part of the pension fund sent the defendant was not money but stock which was immediately converted into money. The right to maintain an action for money had and received can be maintained to recover either money or the equivalent of money. Cutright v. National Union Fire Ins. Co., 65 Ga.App. 173, 177, 15 S.E.2d 540. Stock which has an established value, is readily convertible into money, and is in fact converted before the action is brought, may be the subject of this form of action. 58 C.J.S. Money Received § 2, p. 911. See also Barlow v. Stalworth, 27 Ga. 517.

2. An action for money had and received lies in all cases where another has received money which the plaintiff ex aequo et bono is entitled to recover and which the defendant is not entitled to retain. Fain v. Neal, 97 Ga.App. 497, 103 S.E.2d 437. Although legal in form, being an action in implied assumpsit, it is founded on the equitable principle that no one ought to unjustly enrich himself at the expense of another, and it is a substitute for a suit in equity. Davis v. Holloway, 81 Ga.App. 158, 58 S.E.2d 234. It is the appropriate remedy where one wrongfully receives and retains the money of another. Dell v. Kugel, 99 Ga.App. 551, 109 S.E.2d 532. 'The negligence of the complaining party, preventing relief in equity, is that want of reasonable prudence, the absence of which would be a violation of legal duty. Relief may be granted even in cases of negligence by the complainant, if it appears that the other party has not been prejudiced thereby.' Code § 37-212. Thus, where one was overpaid for stock, and action accrued to the party who had been forced to pay the difference in value in Dobbs v. Perlman, 59 Ga.App. 770, 2 S.E.2d 109. And where a nursing home was through inadvertence refunded money from the Georgia Medicaid Program to which it was not entitled, the state had a right to demand repayment of the amount. Dept. of Public Health v. Perry, 123 Ga.App. 816, 182 S.E.2d 493. In the present case the defendant, because of confusion between the identical names of two employees, received a large sum of money to which he had no claim of right, and which he could not possibly in good conscience retain, at least so far as the plaintiff's...