Estes v. Thompson

• Decision Date: 17 January 1893
• Citation: 90 Ga. 698,17 S.E. 98
• Parties: ESTES. v. THOMPSON.
• Court: Georgia Supreme Court

17 S.E. 98

90 Ga. 698

ESTES.

v.THOMPSON.

Supreme Court of Georgia.

Jan. 17, 1893.

Pleading —Amendment—Adding Party Plaintiff—Pleading and Proof—Assumpsit—Money Had and Received—Evidence—Duress.

1. A party who brings a suit upon a chose in action, though it be an open account, and he has only the equitable title thereto, may amend his declaration by adding the name of the person who has the legal title, suing for his use. Code, § 3486. Such amendment does not make a new cause of action, nor is it demurrable because of want of privity between the usor and usee.

2. Where the action was by a defendant in fi. fa. against an attorney of the plaintiff in fi. fa. for the recovery of fees which he alleged the attorney had collected from him illegally, and an amendment to the declaration alleged that the attorney had made a special contract with the plaintiff to reduce the claim to judgment for a certain fee in order to protect the defendant and save him from paying the full amount of fees specified in the note, but that the attorney had collected more than the fee agreed upon, and was not entitled to the excess over the amount agreed upon, he must, in order to recover on the amendment, prove the contract alleged.

3. Where a plaintiff sues another for money had and received for his use, he must prove that it was his money. Proof that the money was paid by the agent of a loan company is not sufficient, nor is proof that it was the money of his son sufficient.

4. If the agent of the loan company was acting also as the agent for the plaintiff in paying off the judgment, and he and the attorney who obtained the judgment disputed about the amount of the fees, and the dispute was compromised by the agent's paying the attorney one half of his claim, the plaintiff cannot recover the money thus paid, although his agent paid it under protest. There was no such duress as to make the payment illegal.

5. The verdict was not warranted by the evidence.

(Syllabus by the Court.)

Error from superior court, Hall county; C. J. Wellborn, Judge.

Action by O. B. Thompson against J. B. Estes on an account for money had and received. Judgment for plaintiff. Defendant brings error. Reversed.

W. F. Findley, H. H. Dean, and M. L. Smith, for plaintiff in error.

H. Thompson, F. M. Johnson, and S. Dunlap, for defendant In error.

SIMMONS, J. O. B. Thompson sued J. B. Estes for $141.83 upon an account for money had and received, and was allowed to amend, over objection of the defendant, by making the suit in the name of Jacob Phinizy, executor of Ferdinand Phinizy, for his use. The verdict was for the plaintiff. A new trial was denied, and the defendant excepted.

The first exception Is to the allowance of the amendment. The amendment alleged that the defendant took from the plaintiff $190.83, as attorney's fees for services rendered to Jacob Phinizy as executor of Ferdinand Phinizy, when, by special contract, he had agreed to render the services for $50; and that Ferdinand Phinizy made the con tract "in order to protect said O. B. Thomp son, and save him the excess of $50 as attorney's fees; and said contract was made for the sole interest of said O. B. Thompson." The court did not err In allowing this amendment. Where a person brings suit upon a chose in action, though it be an open account, and he has only the equitable tl tie thereto, he may amend his declaration by adding the name of the person who has the legal title, suing for his use. Sea Cogs, § 3486; Winter v. Matthews, 41 Ga. 652; Adams v. Barlow, 69 Ga. 302, (2,) and cases cited. Such an amendment...