Mutual Building & Loan Ass'n v. Watson

• Decision Date: 27 April 1933
• Docket Number: 1 Div. 764.
• Citation: 226 Ala. 526,147 So. 817
• Parties: MUTUAL BUILDING & LOAN ASS'N v. WATSON.
• Court: Alabama Supreme Court

147 So. 817

226 Ala. 526

MUTUAL BUILDING & LOAN ASS'N v. WATSON.

1 Div. 764.

Supreme Court of Alabama

April 27, 1933

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Action for money had and received by Will E. Watson against the Mutual Building & Loan Association. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals.

Affirmed.

Outlaw & Seale, of Mobile, for appellant.

Harry T. Smith & Caffey, of Mobile, for appellee.

GARDNER Justice.

The suit is on the common count for money had and received.

Plaintiff paid to defendant's agent $500, and received a certificate of membership in the corporation with a right to complete the purchase of two hundred shares of its stock. He did not read the certificate, and insists he was led to understand he was purchasing ten shares of the stock, and other alleged fraudulent representations closely akin to those found in Bynum v. So. Bldg. & Loan Ass'n, 223 Ala. 392, 137 So. 21, Southern Bldg. & Loan Ass'n v. Dinsmore, 225 Ala. 550, 144 So. 21, and Southern Bldg. & Loan Ass'n v. Bryant, 225 Ala. 527, 144 So 367, details of which are here unimportant. His evidence discloses a prompt repudiation, upon discovery of the alleged fraud, an offer to return what had been received, and a demand for the money paid.

This suit was not instituted, however, until some time thereafter and defendant filed pleas setting up the statute of limitations of one and three years. An action for money had and received is one in assumpsit based upon a promise to repay implied by law, and has been treated, so far as the matter of limitations is concerned as a stated or liquidated account, and controlled by the statute of limitations of six years. Section 8944, subd. 5, Code 1923; Tolleson v Henson, 207 Ala. 529, 93 So. 458; American Bonding Co. v. Fourth National Bank, 205 Ala. 652, 88 So. 838; Hairston v. Sumner, 106 Ala. 381, 17 So. 709; Bradford v. Barclay, 39 Ala. 33; Boynton v Sawyer, 35 Ala. 497; Martin v. Branch Bank, 31 Ala. 115; Lipman v. Ph nix Assur. Co. (C. C. A.) 258 F. 544; 37 Corpus Juris, 764, 765.

In Bankers' Mortgage Bond Co. v. Rosenthal (Ala. Sup.) 145 So. 456, the court, in discussing the special statute of limitations under article 5, chapter 274, Code 1923 (section 7014), made reference indicating a three-year limitations to actions for money had and received, which is properly to be interpreted as a mere inadvertent dictum. The case of Southern Bldg. & Loan Ass'n v. Waldrop, 24 Ala. App. 362, 135 So. 418, cited by appellant, was a tort action, and therefore not in point. Nor do we construe the case of Smith & Sons v. Gay, 21 Ala. App. 130, 106 So. 214, as holding to a contrary conclusion.

Demurrer to these pleas was properly sustained.

Pleas 2 and 3 were amended as to matter concerning which there was no controversy, and which was to all practical purposes of this case entirely unimportant. As amended, the demurrer to them was overruled. As to original pleas 2 and 3 defendant has received the benefit thereof in their amended form, and there is therefore no occasion to review the ruling thereon.

Any other comment aside, the refusal of charge 1, requested by defendant, may well be rested upon the inclusion therein of the word "contentions" instead of "intentions." The latter was the word used in the charge considered in Montgomery-Moore Mfg. Co. v. Leith, 162 Ala. 246 (see charge 1, page 250), 50 So. 210, 212, and on second appeal (Montgomery-Moore Mfg. Co. v. Leeth, 2 Ala. App. 324, 56 So. 770, 775), the opinion discloses the Court of Appeals considered as "exactly the same charge passed on by the Supreme Court * * * on the former appeal," and it is evident that this observation was a mere inadvertence and oversight, or else a clerical error was made in the report of the case.

The question considered by appellant's counsel as of major importance relates to the denial of the motion for a new trial rested upon two grounds, the first of which concerns newly discovered evidence. The receipt plaintiff claims to have received acknowledging payment of $500 for ten shares of stock was offered in evidence by plaintiff during his cross-examination of defendant's witness Vaughn, the salesman charged with having issued it, and who denied that he issued any receipt for ten shares, but for membership fee only. Defendant insists this receipt had been altered in material respects, particularly as to the matter above mentioned.

While it may appear that from evidence on a former trial defendant may have been led to conclude the receipt was lost and was to that extent surprised at its production on this trial, yet the receipt was in evidence and attention of defendant drawn thereto during the trial's progress in ample time to address any motion or request to the court for opportunity to secure expert testimony concerning any such change. And, indeed, the evidence so discloses, and it would seem the affidavit of Scott, defendant's secretary, submitted on the motion in effect so admits. It is the rule of our decisions that "a party cannot speculate upon the results of a trial, and then become surprised at the result" (Baker v. Boon, 100 Ala. 622, 13 So. 481, 482), and that it is "the first duty of a party surprised at the trial, or upon the discovery of a mistake that will prejudice his interest * * * to take proper legal steps to continue or delay the cause; for 'he cannot neglect this in the hope of securing a verdict in spite of the surprise, (or mistake), and then obtain a new trial."' Hoskins v. Hight, 95 Ala. 284, 11 So. 253, 254; Geter v. Central Coal Co., 149 Ala. 578, 43 So. 367; Simpson v. Golden, 114 Ala. 336, 21 So. 990; Bayonne Knife Co. v. Umbenhauer, 107 Ala. 496, 18 So. 175, 54 Am. St. Rep. 114; Central of Ga. Co. v. Ashley, 160 Ala. 580, 49 So. 388.

Nothing was said during the trial as to any surprise in the matter of the receipt or of any desire on defendant's part for postponement that additional evidence might be produced, though witness Vaughn's testimony, if believed, disclosed this alteration.

The cited authorities, under the circumstances here shown support the ruling of the trial court in denial of the motion upon this ground. The case of Ohme v. Bisimanis, 222 Ala. 262, 132 So....