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Money had and received. Before Judge Parker. Fulton Civil Court. January 29, 1954.
In a petition for money had and received, it is necessary to allege facts showing that another has received money which the plaintiff, ex aequo et bono, is entitled to recover, and which the defendant is not entitled in good conscience to retain. The petition here, while sufficiently alleging a legal wrong done the plaintiff by someone as a result of a breach of warranty of personal property purchased by him, failed to allege facts showing that the defendant finance company was not entitled in good conscience to retain sums received by it in payment of notes executed as a part of the purchase price. Accordingly, the trial court did not err in sustaining the general demurrer to the petition.
H. D. Swafford filed an action in the Civil Court of Fulton County against Certified Finance Company, the material allegations of the petition being as follows: "2. Defendant is indebted to petitioner in the sum of $975 for money had and received, which sum in equity and good conscience it ought not to be allowed to retain. 3. That on April 22, 1953, petitioner purchased on a conditional-sales contract one 1949 Hudson convertible automobile . . . and signed a note and conditional-sales contract for the remaining balance of $864. 4. That the said conditional-sales contract is in the possession of the defendant and is not accessible to nor is a copy of the same in the possession of petitioner. 5. That the said conditional-sales contract provided for monthly installments of $36.00 per month and vendor [warranted] that the title to the said automobile was in the vendor and free from all encumbrances. 6. Petitioner shows that he made his payments promptly, at one time having paid the sum of $300 to the defendant on the contract, and has since the date of the execution of the said contract paid to the defendant $480 in cash upon the said contract. 7. Subsequent to the sale . . . the Central Bank & Trust Company of Miami, Florida, holding a superior lien upon the said automobile . . . recorded its lien and foreclosed the same, thereby depriving defendant of his automobile. 9. Petitioner shows that the defendant did not have title to the said automobile, and has never had title free from encumbrances as warranted in the conditional-sales contract, and as a consequence thereof petitioner has been deprived of his 1941 Dodge automobile of the value of $495, together with the sum of $480 paid in cash to the defendant herein. 10. That on demand defendant has failed and refused to pay the same."
A general demurrer was interposed to the petition on the ground that it failed to set forth a cause of action, which demurrer was sustained and the petition dismissed. The judgment dismissing the petition is here assigned as error.
" 'An action for money had and received lies in all cases where another has received money which the plaintiff, ex aequo et bono, is entitled to recover and which the defendant is not entitled in good conscience to retain.' Zapf Realty Co. v. Brown, 26 Ga. App. 443 (106 S. E. 748); Whitehead v. Peck, 1 Ga. 140 (3); Knight v. Roberts, 17 Ga. App. 527 (87 S. E. 809). In such an action 'the law implies a promise on the part of any person who has received the money of another to pay that person on demand. The reception of money by one and the demand by the other makes all the privity that is necessary to maintain this action.' Central R. v. First Nat. Bank, 73 Ga. 383 (2a), 385; Bates-Farley Savings Bank v. Dismukes, 107 Ga. 212 (2), 218 (33 S. E. 175). '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 against the true owner.' Citizens Bank v. Rudisill, 4 Ga. App. 37 (2), 41 (60 S. E. 818, 820); 27 Cyc. 864, 857; 2 Rul. Case Law, 778." Haupt v. Horovitz, 31 Ga. App. 203 (1) (120 S. E. 425); Porter v. Hancock, 76 Ga. App. 534, 537 (46 S. E. 2d 597). Although a suit for money had and received is a legal action, it is founded upon the equitable principle that no one ought unjustly to enrich himself at the expense of another, and thus it is a substitute for a suit in equity. Jasper School District v. Gormley, 184 Ga. 756, 758 (193 S. E. 248).
Applying these rules of law, the petition here, to set out a cause of action, must allege facts sufficient to show that the defendant, in equity and good conscience, is not entitled to retain the money paid to it as a part of the purchase price of the Hudson automobile, and that it has received, and is not entitled to retain, the value of the plaintiff's Dodge automobile which was traded in on the Hudson. While the demurrer to the petition admits all well-pleaded facts, it does not admit mere conclusions of the pleader where no facts are alleged justifying the conclusion being drawn therefrom as a natural inference. Code 81-304; Callan Court Co. v. Citizens & Southern Nat. Bank, 184 Ga. 87 (190 S. E. 831); Presley v. Presley, 77 Ga. App. 99 (47 S. E. 2d 647); Ford v. S. A. Lynch Corp., 79 Ga. App. 481 (54 S. E. 2d 320). Construed, as it must be, against the pleader, the allegation in the petition that the defendant "in equity and good conscience ought not to be allowed to retain" the sum of $975 must be disregarded unless facts are alleged showing that the defendant is not entitled to the money as against the plaintiff. It definitely appears that the plaintiff has suffered a breach of warranty by which he has been wronged, but it does not appear that it was the defendant which did him the wrong. The petition fails to allege that the defendant sold the plaintiff the Hudson automobile or warranted title thereto or received the Dodge automobile or the proceeds thereof, and fails to allege, as to the purchase-money notes on which the payments were made, that the defendant was not a bona fide holder in due course. A failure of consideration cannot be urged against the holder in due course of a negotiable instrument. Code 14-507, 14-509; Latimer v. Peoples Loan & Finance Corp., 53 Ga. App. 323 (2) (185 S. E. 573). The facts alleged here, disregarding mere unsupported conclusions, are as consistent with the theory that the defendant is entitled to retain the sums received as payments on the notes as they are consistent with the theory that it is not entitled to do so.
therein. Code 14-506 provides: "To constitute notice of all infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect or knowledge. of such facts that his action in taking the instrument amounted to bad faith." See Hengstler v. Huguley-Scott Auto Co., 39 Ga. App. 287 (2) (146 S. E. 645); Reid v. Marsol Credit Co., 53 Ga. App. 356 (185 S. E. 836); Wall's Odorless Cleaners v. Allen, 49 Ga. App. 512 (2) (176 S. E. 93); Florence v. Commercial Bank, 34 Ga. App. 329 (1) (129 S. E. 560). It follows, therefore, that the breach of warranty contained in the bill of sale to secure debt constitutes a failure of consideration which cannot be pleaded against an innocent purchaser of the notes thereby secured, who is a holder thereof in due course without notice of the infirmity, since there is no allegation in the petition that the holder had actual knowledge of this breach of warranty or knowledge of such facts that his action in taking the instrument amounted to bad faith. See Bank of Commerce v. Knowles, 32 Ga. App. 800 (2a) (124 S. E. 910).
Accordingly, the petition failed to set out a cause of action, and the trial court properly sustained the general demurrer.
Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.
Noah J. Stone, contra.
Thomas E. Moran, Frances G. Millican, for plaintiff in error.
Saturday May 23 03:51 EDT

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