Quitman County v. Miller

• Citation: 150 Miss. 841,117 So. 262
• Decision Date: 21 May 1928
• Docket Number: 27170
• Court: United States State Supreme Court of Mississippi
• Parties: QUITMAN COUNTY v. MILLER, STATE REVENUE AGENT. [*]

117 So. 262

150 Miss. 841

QUITMAN COUNTY v. MILLER, STATE REVENUE AGENT. ^[*]

No. 27170

Supreme Court of Mississippi

May 21, 1928

Division B

ELECTION OF REMEDIES. Where borrower from county fund, sued by state revenue agent, repays money to county without paying plaintiff's commission, plaintiff may sue borrower therefor or county after demand; state revenue agent obtaining judgment for commissions against borrower from county fund, whom he sued, cannot sue county therefor.

Where the state revenue agent brings suit against the borrower of money from a county fund on the theory that the loan is unlawful, and, during the pendency of the suit, the borrower repays the money into the county treasury without paying the revenue agent his commissions, such revenue agent has the right to sue the borrower for his commissions, or the alternative right to sue the county after demand made of it and in such case, if he elects to pursue the borrower and prosecutes his suit to judgment, he is bound by the election so made and cannot thereafter sue the county for the commissions.

HON. W A. ALCORN, JR., Judge.

APPEAL from circuit court of Quitman county, HON. W. A. ALCORN, JR. Judge.

Action by W. J. Miller, state revenue agent, against Quitman county. From a judgment for plaintiff, defendant appeals. Reversed, and judgment entered for defendant.

Judgment reversed.

Gore & Gore, for appellant.

The liability of Gore arose when the loan was made by the board of supervisors. The liability of the county for this money did not arise out of that transaction, if there is or was any liability, but arose on January 9, 1925, as alleged in the declaration. Hence the obligation is not joint or joint and several. See Gillam v. McLamore, 106 106 So. 99.

Although the revenue agent might have recovered from either Gore or the county, or recovery can be had against both. When the revenue agent dismissed the supplemental bill in the first lawsuit, he thereby irrevocably committed himself to the remedy against Gore, which remedy he pursued to its ultimate conclusion. He had his choice of one of the inconsistent remedies and he made it. A person entitled to a savings bank deposit which has been paid, without authority, to another person, has a right of action against the latter for money had and received, or against the bank as a debtor for the deposit; but by electing to bring either action, he loses the right to the other, and a judgment against the person who received the money, although uncollectible is a bar to any action against the bank. Fowler v. Bowery Savings Bank, 4 L. R. A. 145, and note, 10 Am. St. Rep. 479 and note; Crook v. First Ntl. Bank of Baraboo, 35 Am. St. Rep. 17; Terry v. Munger, 18 Am. St. Rep. 803; O'Bryan v. Glenn, 30 Am. St. Rep. 862; Note to Thomas v. Joslin, 1 Am. St. Rep. 627; also, Sanger v. Wood, 3 Johns Ch. 416; Note, Field v. Great Western Elevator Co., 66 Am. St. Rep. 612; Wood v. Caliborne, 118 Am. St. Rep. 92; Murphy v. Hutchinson, 93 Miss. 643, 48 So. 178, 21 L. R. A. (N. S.) 786; Rives v. McNeil, 127 Miss. 839, 90 So. 595; Bank v. Hilson (Fla.), 60 So. 189; 7 Encyc. Pl. & Pr. 364; 20 C. J. 4; Warriner v. Fant, 114 Miss. 1, 74 So. 822; Claysen v. Head, 84 Am. St. Rep. 936.

Lowery & Lamb and E. E. Boone, for appellee.

At the time this money was paid into the county treasury the suit against Mr. Gore, et al., had been instituted and then pending with the contention on the part of the defendant, that the indebtedness was entirely satisfied by the payment, and that no attorneys' fees could be collected, and that the revenue agent had brought the suit without authority and was not entitled to any commissions or compensation for his services. This situation required the prosecution of that suit to final judgment. It was a suit by the revenue agent in his representative capacity for the use and benefit of the county. The payment of the whole principal and interest of the debt to the county through the board of supervisors did not change the character of that suit, but only entitled the debtor to credit on the whole debt for the amount which had rightfully gone into the county treasury, being only eighty per cent of the amount actually paid, leaving the suit for the balance of the principal and interest of the note, and for the attorneys' fees on the note, still pending by the revenue agent as the representative of the county and for the use and benefit of the county.

It was necessary to continue the litigation in order to settle the right of the revenue agent to bring and maintain the suit and to recover the attorneys' fees and also to settle the question of liability of the defendant, W. E. Gore, for the amount of the principal and interest which he had wrongfully paid directly to the county.

This present suit, while by the revenue agent in his capacity as an officer, is for the recovery by him from the county of that part of the payment which the county wrongfully received, and which should have been paid to him instead of to the county. It is not a suit to recover the sum sued for out of the general county funds, but to recover twenty per cent of the specific amount paid into the courthouse and jail sinking fund, on the note for which suit was pending by him at the time. We think this distinction is important, being especially emphasized in Adams v. Bolivar County, 75 Miss., at the middle of page 157.

We broadly differ from the view of the appellant, that a suit against a defendant for money had and received (even if this is technically such a suit), recognizes the rightfulness of the payment to, and the receipt by, the defendant of the sum sued for. This is not the theory upon which the suit is founded. A. & E. Encyclopedia of Law (2 Ed.), 1096; Legard v. Gholson, 24 Miss. 691. It makes no difference whether the money comes into the hand of the defendant rightfully or wrongfully, and such a suit does not, in theory or in fact, rest upon the rightfulness of the receipt of the money by the defendant. There is, therefore, no inconsistency in demanding and suing for money had and received both from and against the person who pays and the one who received it. In the case at bar, the liability of the defendant for the payment of this money to the plaintiff is grounded upon the wrongful receipt of the money by the defendant, and the demand against the defendant, W. E. Gore, in the former suit, was upon the theory that he had wrongfully paid the money to the defendant in this suit, instead of to the plaintiff in this suit, 20 C. J. 2.

While the brief of the appellant cites some authorities, which seem to give color to his contention, particularly the case of Fowler v. Bowery Savings Bank, 113 N.Y. 450, which seems to have been followed by the courts of Arkansas and Wisconsin, we do not think this case and those following it are strictly in point, or that they apply to the case at bar. There are important differences between the "election" in those cases and the one at bar, but if they hold to the extent claimed by the appellant, they are not sound in principal and tend to injustice rather than justice. Madden v. Railroad Co., 66 Miss. 273; Finch v. Park (S. D.), 76 Am. St. Rep. 588; Soderberg v. King County, 55 Am. St. Rep. 878 Wash.; Pimental v. San Francisco, 21 Cal. 352.

That the defendant in this case is liable to the plaintiff, and that the plaintiff may maintain an action against the defendant for this specific money out of this specific sum, is established beyond controversy by Adams v. Bolivar County, 75 Miss. 154; Garrott v. Robertson, 120 Miss. 731; Bright v. Ross, 11 S. & M. 289; Goodyear v. Caduc (Mass.), 10 N.E. 483; Mills v. Parkhust (N. Y.), 26 N.E. 1041; First State Bank v. Lang (Mont.), 9 A. L. R. 1139; Livingston v. Bishop (N. Y.), 3 A. D. 330; Hyde v. Noble (N. H.), 38 A. D. 508; Russell v. McCall, 38 Am. St. Rep. 807; Robertson v. Bank of Batesville, 116 Miss. 501, 77 So. 318;

It seems to us that the appellant, Quitman county, as then and now represented by its board of supervisors, who then sought to defeat the recovery by the revenue agent of money then due to the county, and refused to pay to him his part of the money actually collected, seeking to retain it for the county which was not entitled to it and actually canceling all security which the county had for it, would, if allowed now to defeat the payment because the revenue agent prosecuted that suit to a final judgment would be, "taking advantage of its own wrong."

Argued orally by W. E. Gore, for appellant, and P. H. Lowrey, for appellee.

OPINION

ETHRIDGE, P. J.

This is an appeal from a judgment awarding the revenue agent the sum of two thousand six hundred six dollars and ten cents as the commission of said revenue agent in bringing suit against W. E. Gore and wife for the return of money by W. E. Gore and wife into the county treasury, being money borrowed by them from a certain fund of the county and alleged to have been unlawfully loaned to them.

It appears that in a former suit against Gore and wife the revenue agent also sued the members of the board of supervisors of Quitman county as individuals and on their bonds for the money so loaned to Gore...