Stein Steel & Supply Co. v. K. & L. Enterprises, Inc., 36962

• Decision Date: 22 January 1958
• Docket Number: No. 2,No. 36962,36962,2
• Citation: 102 S.E.2d 99,97 Ga.App. 71
• Court: Georgia Court of Appeals
• Parties: STEIN STEEL & SUPPLY COMPANY v. K. & L. ENTERPRISES, Inc

Page 99

102 S.E.2d 99

97 Ga.App. 71

STEIN STEEL & SUPPLY COMPANY v. K. & L. ENTERPRISES, Inc.

No. 36962.

Court of Appeals of Georgia, Division No. 2.

Jan. 22, 1958.

Rehearing Denied Jan. 31, 1958.

Syllabus by the Court

The petition, as amended, being an action for money had and received, affirmatively showed that the plaintiff, with full knowledge of all the facts, and while under no immediate or urgent necessity to do so, voluntarily paid to the defendant the sum of money sued for in settlement of a disputed claim, and it thus failed to set forth a cause of action and the trial court erred in overruling the general demurrer thereto.

K. & L. Enterprises, Inc., filed suit in the Superior Court of Fulton County against Stein Steel & Supply Company. The petition as finally amended alleged the following material facts: that the plaintiff is engaged in the business of improving real property by erecting houses thereon and by developing subdivisions in Clayton County, Georgia; that the defendant furnished plumbing material to be used in houses erected by the plaintiff on certain described lots in a subdivision located in Clayton County; that this material was furnished pursuant to a contract entered into between the plaintiff and one Gregory, a plumbing contractor, who agreed in said contract to furnish labor and material for the plumbing in the houses on the described lots for the sum of $455 per house; that under the contract, the plaintiff was to make payments for the plumbing jobs by means of checks drawn jointly payable to Gregory and to the defendant; that, on March 14, 1955, all of the material used in the houses built on the described lots had been furnished and on that date and on April 11, 1955, the petitioner issued checks jointly payable to Gregory and to the defendant, said checks reciting on their face that they constituted payment in full of the contract insofar as the described lots were concerned; that the defendant accepted the checks, indorsed and cashed them; and that, thereafter, on August 4 and on September 16, 1955, and more than three months after all the material had been furnished for the improvement of the described real estate, the defendant filed in the Clerk's office of the Superior Court of Clayton County liens on the described lots; that at the time said liens were filed and recorded, all lien rights had expired and no material had been furnished for the improvement of said property within three nonths prior thereto; that, thereafter, when the plaintiff sought to close the sale of certain of the described lots and the houses thereon, it was required to pay to the defendant out of the funds provided by the loan company sums totalling $1,091.88 in order to discharge the liens on said property and enable it to close the sales thereof, although the petitioner owed the defendant nothing at the time; that said amounts were paid out of funds provided by the finance company by checks of the attorneys handling the closing, which sums would otherwise have been paid to the plaintiff as a part of the sale price of said property; and that, as the result of these facts, the defendant is indebted to the petition in the amount of $1,091.88 for said sums, as money had and received. The defendant filed general and special demurrers to the original petition and an answer in which it admitted furnishing the material for the jobs referred to in the petition and filing the claims of lien as alleged but denied all other material allegations. The trial court entered an order overruling the general demurrer to the petition and overruling certain of the defendant's special demurrers. The plaintiff amended the petition, the defendant renewed its general demurrers and the trial court overruled them. The case came on for trial before a Judge of the Fulton Superior Court sitting without a jury, and after hearing evidence the court entered an order and judgment in favor of the plaintiff. The defendant filed a motion for new trial which was amended by the addition of three special grounds, and to the overruling of that motion it excepted, and it also assigns error on the overruling of its demurrers to the amended petition.

Joseph J. Fine, D. W. Rolader, Atlanta, for plaintiff in error.

Augustine Sams, Grigsby H. Wotton, Atlanta, for defendant in error.

CARLISLE, Judge.

1. While the bill of exceptions assigns error on the order overruling the original general demurrer and certain of the special demurrers, this order allowed the plaintiff time in which to amend and is not subject to review. Therefore, we have only for our consideration with respect to the demurrers the question of whether the petition, as finally amended, was sufficient to withstand the general demurrer. Code (Ann.) § 81-1001. Kirk v. Shaffer, 91 Ga.App. 358(1), 85 S.E.2d 629.

An action for money had and received lies in all cases where money is in the hands of the defendant which the plaintiff ex aequo et bono is entitled to recover and which the defendant in good conscience is not entitled to retain. Whitehead v Peck, 1 Ga. 140; Rudisill v. Handley, 9 Ga.App. 789, 72 S.E. 189. This form of action sounds in assumpsit and grows out of privity of contract either express or implied, but it needs for its support no actual contractual relationship for the law will imply a quasi contractual relation to uphold it wherever the circumstances so require, and "it is immaterial how the money may have come into the defendant's hands, and, the fact that it was received from a third person will not affect his liability, if, in equity and good conscience, he is not entitled to hold it...