Sparrow v. John Morrell & Co, 386.

Decision Date19 April 1939
Docket NumberNo. 386.,386.
Citation215 N.C. 452,2 S.E.2d. 365
CourtNorth Carolina Supreme Court
PartiesSPARROW. v. JOHN MORRELL & CO.

Appeal from Superior Court, Lenoir County; H. A. Grady, Judge.

Action by I. J. Sparrow against John Morrell & Co. to recover money alleged to have been overpaid by the plaintiff to the defendant on a running account for merchandise sold and delivered. From a judgment dismissing the action, the plaintiff appeals.

Reversed.

John G. Dawson and J. A. Jones, both of Kinston, for appellant.

Wallace & White and L. I. Rubin, all of Kinston, for appellee.

SCHENCK, Justice.

This is an action to recover money alleged to have been overpaid by plaintiff to defendant on a running account for merchandise sold and delivered.

The complaint alleges that the plaintiff, a merchant, "had a number of transactions with the defendant, through which transactions he purchased merchandise, chiefly meats, from the defendant, * * *" and "by said transactions of purchase and payments therefor, this plaintiff paid unto the defendant the sum of $2,925.74 in excess of the amount purchased from the defendant, and, therefore, in excess of the indebtedness of this plaintiff to the defendant, " that defendant, through its agent, represented to the plaintiff that "said sum of $2,925.74, was due by the plaintiff to the defendant on account of goods and merchandise purchased by the plaintiff from the defendant, which said statements and representations * * * were false and inaccurate, and said statements * * * were either made through inadvertence and mistake on the part of the said defendant * * * or with the fraudulent design and purpose on the part of the said defendant to obtain from this plaintiff the said sum of $2,925.74 * * * when in truth and in fact the said amount was in excess of all amounts rightfully due to the defendant by the plaintiff * * *; that said amount so paid either through fraud or mistake should in law and in good conscience be refunded to him by the said defendant and that the said defendant should not be permitted in law or equity to take advantage of either its fraud, mistake or inadvertence in the collecting and receiving from the plaintiff of funds to which it was not rightfully entitled;" and that demand has been made by plaintiff upon the defendant for the payment of "said sum so overpaid, " which demand has been refused.

The defendant filed a demurrer to the complaint upon the ground that it failed to state facts sufficient to constitute a cause of...

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17 cases
  • Weavil v. Myers
    • United States
    • North Carolina Supreme Court
    • January 13, 1956
    ...justice between the parties', G.S. § 1-151, and with every reasonable intendment made in favor of the pleader, Sparrow v. John Morrell & Co., 215 N.C. 452, 2 S.E.2d 365, it is manifest that the complaint alleges a cause of actionable negligence against the corporate defendant sufficient to ......
  • U.S. Fidelity & Guaranty Co. v. Reagan, 666
    • United States
    • North Carolina Supreme Court
    • December 13, 1961
    ...68 N.C. 134, 135, 12 Am.Rep. 627; Simms v. Vick, 151 N.C. 78, 65 S.E. 621, 24 L.R.A.,N.S., 517, 18 Ann.Cas. 669; Sparrow v. John Morrell & Co., 215 N.C. 452, 2 S.E.2d 365; National Bank of Sanford v. Marshburn, 229 N.C. 104, 47 S.E.2d 793; Tarlton v. Keith, 250 N.C. 298, 108 S.E.2d 621. 'An......
  • Roberson v. Swain, 451
    • United States
    • North Carolina Supreme Court
    • February 1, 1952
    ...to repel the attack of the demurrer. Wiscassett Mills Co. v. Shaw, Com'r of Revenue, 233 N.C. 71, 62 S.E.2d 487; Sparrow v. John Morrell & Co., 215 N.C. 452, 2 S.E.2d 365; Meyer v. Fenner & Beane, 196 N.C. 476, 146 S.E. 82; Deaton v. Deaton, 234 N.C. 538, 539, 67 S.E.2d 626; Guerry v. Ameri......
  • Alamance Lumber Co. v. Edwards
    • United States
    • North Carolina Supreme Court
    • March 6, 1940
    ... ... Insurance Company v. McCraw, 215 N.C. 105, 1 S.E.2d 369; ... Sparrow v. John Morrell & Co., 215 N.C. 452, 2 S.E.2d ...           We ... ...
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1 books & journal articles
  • Chapter 26 MONEY HAD & RECEIVED
    • United States
    • North Carolina Bar Association Elements of Civil Causes of Action in North Carolina (NCBA)
    • Invalid date
    ...and action to recover excess payment is one in assumpsit for money had and received to use of plaintiff); Sparrow v. John Morrell & Co., 215 N.C. 452, 2 S.E.2d 365 (1939) (trial court erred in dismissing complaint for money had and received where plaintiff alleged he overpaid defendant merc......

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