Smith v. Baldwin

• Decision Date: 16 February 1939
• Docket Number: 4 Div. 75.
• Citation: 237 Ala. 423,187 So. 192
• Parties: SMITH v. BALDWIN.
• Court: Alabama Supreme Court

187 So. 192

237 Ala. 423

SMITH v. BALDWIN.

4 Div. 75.

Supreme Court of Alabama

February 16, 1939

Rehearing Denied March 16, 1939.

Appeal from Circuit Court, Covington County; Robt. S. Reid, Judge.

Action on common counts by E. O. Baldwin against T. C. Smith. From a judgment for plaintiff, defendant appeals. Transferred from Court of Appeals under Code 1923, § 7326.

Affirmed.

Whaley & Whaley, of Andalusia, for appellant.

Powell & Fuller, of Andalusia, for appellee.

FOSTER Justice.

This is a suit by appellee against appellant on the common counts naming them all except for money had and received, but including that of an "account."

The basis of plaintiff's claim is that he made a contract with defendant to drill a well on plaintiff's land, to furnish the labor and material including a cast iron pipe casing extending to marl or rock, and a galvanized pipe inside the casing extending to the bottom of the well.

After the well was completed, defendant claimed to have drilled it three hundred one and four-tenths feet, and made claim for that amount at the contract price of one dollar and fifteen cents a foot. There was a controversy between them about the amount which should be paid, plaintiff claiming that he did not owe that amount. He had made application to the Federal Land Bank for a loan on the land, and he could not secure it without discharging all liens. Defendant had filed notice of a lien, and had filed a bill in equity to enforce it. At the time of closing the loan, the amount of defendant's claim was paid.

There was evidence tending to show that when this was done plaintiff told defendant that he did not owe that much, but he would pay it under protest because he had to close the deal with the Federal Land Bank to pay off some mortgages and that his land had to be freed of all liens at the time he closed the loan, and that he was going to sue defendant for the amount of the overpayment, and that defendant assented.

The money was paid, the suit dismissed, the transaction with the land bank closed, all at the same time, and this suit followed immediately, resulting in a verdict and judgment for plaintiff, assessing his damages at two hundred dollars, and defendant has brought this appeal.

Numerous contentions are made by appellant. We will discuss some of them.

1. That the complaint on common counts, without one for "money had and received" will not support the judgment. Assuming that the count for money had and received would be the one usually regarded as most appropriate, that which claims an amount due by "account" is sufficient, even though we were disposed to discriminate in this respect at all. Knight Iron & Metal Co. v. Orr, 202 Ala. 677, 81 So. 633: Denson v. Kirkpatrick Drilling Co., 225 Ala. 473, 144 So. 86; 7

Corpus Juris Sec. 110; 5 Corpus Juris 1381.

2. That a demand for a refund of the sum is necessary to maintain the claim. But if we assume that a demand is necessary, ( Duke v. Southern Hardware Co., 163 Ala. 477, 50 So. 892), the filing of the suit is such a demand. Jackson v. Sample, 234 Ala. 75(5), 173 So. 510, and cases cited.

3. That plaintiff should have been required to elect on which count he would rely for a recovery. An election is not necessary under the circumstances for reasons disclosed in our cases. Sovereign Camp, W. O. W. v. Carrell, 218 Ala. 613, 119 So. 640; Southern Building & Loan Ass'n v. Wales, 24 Ala.App. 542, 138 So. 553, certiorari denied, 224 Ala. 40, 138 So. 556.

4. Was the affirmative charge due defendant because plaintiff made a voluntary payment of the amount sued for? It is quite true that a payment which is voluntary and unconditional, though under alleged protest, cannot be recovered. Bailey v. Minge, 16 Ala.App. 269, 77 So. 419; 48 Corpus Juris 751; 21 R.C.L. 141, section 165; Welch v. Marion, 48 Ala. 291.

But it is also pointed out in Bailey v. Minge, supra, that when there is a controversy between persons and money is paid in protest of its correctness and with the assurance of a suit for...