the title PAYMENT. As to recovery on usurious contract, see the title USURY. As to recovery of excess of freight charges paid, see the title CARRIERS. As to recovery of money paid on contract void under the statute of frauds, see the title FRAUDS, STATUTE OF. As to recovery of money paid on contract for purchase of land, see the title VENDOR AND PURCHASER. As to recovery of price paid for goods, see the title SALES. As to recovery on setting aside judgment of money paid thereunder, see the title JUDGMENT. As to money received in a representative or fiduciary capacity, see the titles ATTORNEY AND CLIENT; EXECUTORS AND ADMINISTRATORS; GUARDIAN AND WARD; PRINCIPAL AND AGENT.

See also, the titles MONEY LENT; MONEY PAID.

§ 1. Nature and Grounds of Obligation in that, the property conveyed having been General.

The law implies a promise to pay whenever one has money in his hands belonging to another which ex æquo et bono he has not the right to retain. Wilson v. Sergeant, 12 Ala. 778; Sherrod v. Hampton, 25 Ala. 652; Hitchcock v. Lukens & Son, 8 Port. 333; Huckabee v. May, 14 Ala. 263; Boyd v. Taliaferro, 13 Ala. 424; Vincent v. Rogers, 30 Ala. 471, 475; Thompson v. Merriman, 15 Ala. 166, 168; Price v. Pickett, 21 Ala. 741; Sessions v. Sessions, 33 Ala. 522; Williamson v. Culpepper, 16 Ala. 211, 213; Overstreet v. Nunn, 36 Ala. 666, 667.

An action for money had and received is an equitable action, and lies for all money which in justice and good conscience the defendant ought to repay to plaintiff. Barnett v. Warren, 82 Ala. 557, 2 So. 457; Rushton v. Davis, 127 Ala. 279, 28 So. 476, 479.

§ 2. Money or Equivalent Thereof.

accepted as money, one of the creditors secured could maintain assumpsit for money had and received for the amount due him. Huckabee v. May, 4 Ala. 263.

An action in assumpsit for money had and received can not be maintained unless defendant receives money, or property in lieu of money, which ex equo et bona belongs to plaintiff, or unless he is shown to have held the property long enough to raise the presumption that it has been converted into money. Moody v. Walker, 89 Ala. 619, 7 So. 246.

check

Examples. A tenant having taken the rent contracts of his subtenants payable in cotton, and deposited them, as collateral security, with a merchant who made advances to him for supplies, and who had notice of the original landlord's lien. and having deposited the cotton, as received, in the warehouse of a factor, who had notice of the merchant's lien, but not of the landlord's, and drawn a against it in favor of the merchant, which In an action for money had and rewas paid by the factor, and charged to ceived, it is not always necessary that the general account of the tenant before actual money shall have been received. the cotton was sold, held, that the landIf property or anything else, be received lord might maintain an action for money as the equivalent of money by one had and received against the merchant who assumes to cancel or dispose of a for the money received on the check. property right, for which, by contract or Barnett v. Warren, 82 Ala. 557, 2 So. liability, legal or equitable, it is his duty 457. to account to another, the latter may treat the transaction as a receipt of money, and sue for it as such. Barnett v. Warren, 82 Ala. 557, 2 So. 457, 459; Stewart v. Conner, 9 Ala. 803; Cameron v. Clarke, etc., Co., 11 Ala. 259; Strickland v. Burns, 14 Ala. 511.

A debtor conveyed to defendant, one of his creditors, land and slaves in trust to pay his debts. The deed named the creditors and the amount of their debts which defendant promised to pay. Held

Where plaintiff puts defendant in possession of a draft for money, to secure him as endorser on a note, and plaintiff afterwards pays the note and releases the liability of defendant as endorser-defendant is not liable to plaintiff in an action for money, unless the actual receipt of money on the draft, or its equivalent, is shown. Owen v. Ashlock, 9 Port. 417,

When Action Lies against Receiver of Bank Bills.-The action for money had and received lies against one who receives

current bank bills for another's use, to himself and others, and takes promis

he has used and treated them as money. Hill v. Kennedy, 32 Ala. 523; Stewart v. Conner, 9 Ala. 803.

sory notes therefor to himself alone, payable on time, and transfers the notes for his own benefit, an action will immediately lie for money had and received." Burton Lumber Co. v. Wilder, 108 Ala. 669, 18 So. 552, 554.

Where plaintiff and defendant enter into a contract under which defendant is to cut and saw timber on plaintiff's land, defendant to receive three-fourths of the lumber and plaintiff one-fourth, plaintiff can not maintain assumpsit for money had and received on defendant's refusal to turn over plaintiff's fourth, the title to which has always remained in him, and no part of which has ever been sold. Snodgrass v. Coulson, 90 Ala. 347, 7 So. 736.

Negotiable Paper. Where a principal delivers a draft to his surety as security for his liability, after a discharge of that liability the principal can not maintain assumpsit for the draft for money had and received, unless the surety has actually received the money on the draft. Owen's Adm'rs v. Ashlock, 9 Port. 417. Where a plaintiff in execution receives of the purchaser of property at a sale a bill payable at a future day, he can not object, in an action for money had and received, brought by defendant on reversal of the judgment, that he received in payment of his debt a bill, instead of the money. Stewart v. Conner, 9 Ala. 803. Where a lumber dealer purchased goods Where a deed of trust for the benefit from his debtor, to be credited on the of creditors requires the trustee to sell debt, and the debtor ordered the goods to for cash, and he takes notes in lieu of be shipped by another, who, supposing money, an action for money had and re- the order was from the dealer, shipped ceived can be maintained against him by a creditor to recover the amount due such creditor from the trust fund. Hughes v. Stringfellow, 15 Ala. 324; Hitchcock v. Lukens & Son, 8 Port. 333; Huckabee v. May, 14 Ala. 263; Stewart v. Conner, 9 Ala. 803; Strickland v. Burns, 14 Ala. 511,

515.

Credit on Account or in Settlement. A public officer may recover in assumpsit for money had and received, money which, by mistake, he has acknowledged to have received in his official character of the defendant, as where a public receiver allows to the defendant, as paid to him in his capacity of receiver, a sum that ought not to have been allowed. Smith v. Seaton, Minor 75.

Where the drawer of a bill, who has placed funds in the hands of the drawee to meet it, has been discharged by want of due presentment and notice of dishonor, the subsequent application of such funds by the drawee to a balance due from the drawer to the drawee, without the knowledge or consent of the drawer, will not render him liable to the holder as for money had and received. Smith v. Rowland, 18 Ala. 665.

§ 3. Property Other Than Money or Proceeds Thereof.

the goods to him, and the dealer received them thinking they were from the debtor, and sold them, in the course of his business, on short credit, which had expired when this suit was brought, the dealer is liable to the

shipper in an action for money had and received for his own use, for the price for which they were sold, though such dealer had not collected such price. Burton Lumber Co. v. Wilder, 108 Ala. 669, 18 So. 552.

Where "a plaintiff in execution receives of the purchaser of property at a sale thereunder to be made a bill payable at a future day, the plaintiff can not object to an action for money had and received, brought by the defendant in execution, upon the reversal of the judgment, that he received in payment of his debt a bill instead of the money." Burton Lumber Co. v. Wilder, 108 Ala. 669, 18 So. 552, 554; Stewart v. Conner, 9 Ala. 803. § 4. Nature of Right to Money.

Where a defendant had a fund in his possession, the equitable title to which for money had and received was an apwas in plaintiff, an action of assumpsit propriate remedy. Rushton v. Davis, 127 Ala. 279, 28 So. 476.

Plaintiff's assignor made certain advances to G., but by mistake the mortgage "Where one sells property belonging securing the money was made in favor

of defendant, who sold the property thereunder, whereupon plaintiff sued him for money had and received. Held that, although the legal title to the property under the mortgage passed to defendant, plaintiff had an equitable right to the money realized from the sale that would enable him to maintain the action. Boyett v. Potter, 80 Ala. 476, 2 So. 534.

When Assumpsit Lies against Trustee or Bailee.-Where money is deposited in the hands of a trustee or bailee for the use and benefit of a minor, to be expended by him in defraying the charges of her clothing, schooling, and other necessary expenses, under a contract which would authorize the minor, on attaining majority, to maintain an action for money had and received if a balance had been ascertained against him on settlement, or if he never entered on the discharge of the fiduciary duties devolved on him, the fact that the trustee, in a former action brought against him by the minor, under appropriate issues, proved all the expenses incurred by him under the contract, and the plaintiff then recovered a judgment on verdict against him, which judgment is unreversed, restores the plaintiff's right of action on the contract as if the trustee had never entered on the discharge of his duties or a balance had been ascertained against him on settlement. Vinon cent v. Rogers, 33 Ala. 224.

A. agreed by parol with R., who owned a Tavern, that he should pay him $600; B. was to convey to him one half the premises, and they were to keep the houses jointly; A. paid $400, and they commenced business. B. refusing to execute the conveyance, A. refused to pay the residue, and withdrew. No settlement of the joint business had taken place. It was held, that A. could not recover at law the $400, as money had and received, and that the aid of chancery was not necessary as for unliquidated partnership accounts. Maddera v. Smith, 3 Stew. 119. When Assumpsit for Money Had and Received Does Not Lie.-Assumpsit the common counts can not be maintained Failure of Consideration for Payment. to recover money received by the defend--An action for money had and received ant from an insurance company, under a policy effected by him, in his own name, on certain property, some of which belonged to the plaintiffs, when the money was not received either in whole or in part on account of plaintiffs' property, Where the indorser of a bill pays a judgand their property was not in fact cov-ment against himself on his indorsement, ered by the policy. Turner v. Stetts, 28 and takes from the holder an assignment Ala. 420. of a separate judgment against the acceptor, and it is afterwards ascertained, in a suit in chancery between the holder and the acceptor, that the latter is entitled to a credit on the judgment against himself, which decree is in full force the holder, to the extent to which the judgment against the acceptor is made unavailable by his acts or omissions, is liable to an indorser, in an action for money had and received. Knox v. Abercrombie, 11 Ala. 997.

will lie for money paid by the plaintiff to the defendant upon a contract which the defendant has failed to execute on his part. Maddera v. Smith, 3 Stew. 119. Partial Failure of Consideration.

Necessity That Claim Be for Determinate Amount.-Where money is deposited in the hands of a receiver or bailee for the use and benefit of a minor, under a contract authorizing him to defray out of it the charges of her schooling, clothing, and other probable expenses which he might deem necessary, the minor may, on attaining majority, maintain an action against him for money had and received after a balance has been ascertained Right of Tenant in Common to Recover against him on settlement, or if he never from Cotenant His Share of the Proentered on the discharge of the duties im- ceeds of the Common Property.—Pending posed on him by the contract; but if such proceedings in Louisiana by M., an heir, trustee assumed the fiduciary duties to annul the will of a resident thereof who which devolved on him under the con- died in Alabama, the executor converted tract, and has never had a settlement of the property into money and brought it accounts with the beneficiary, an action to Alabama and delivered it to A. and J., at law can not be maintained. Vincent who were also heirs. The Louisiana su

v. Rogers, 30 Ala. 471. See the title preme court declared the will void. Held TRUSTS. that, under Louisiana laws, the interest of

10 Ala Dig-5

the three heirs were as of co-tenants, and M. could, in Alabama, recover her share in assumpsit against A. and J. respectively for money had and received. King v. Martin, 67 Ala. 177.

§ 5. Privity between Parties.

proper remedy. McDuffee v. Collins, 23 So. 45, 117 Ala. 487.

A railroad company, of which both plaintiff and defendant were directors, transferred to the former, by resolution of the board of directors, a quarter's pay due from the post office department on a contract for carrying the mail (which contracts was in defendant's name), as

There need be no privity of contract between the parties in order to support the action for money had and received, collateral security for his indorsement of except that which results from one man's a note for the benefit of the company, having another's money, which he has which he subsequently paid, and afternot a right conscientiously to retain. wards, by another resolution, transThompson v. Merriman, 15 Ala. 166; Har-ferred the same quarter's pay to defendper v. Claxton, 62 Ala. 46; Levinshon v. Edwards, 79 Ala. 293.

When Privity Created by Law. When ever one man has in his hands the money of another, which he ought to pay over, he is liable in action for money had and received, although he has never seen or heard of the party who has the right; if he can not show that he has the legal or equitable grounds for retaining it, the law creates the privity and the promise. Hitchcock v. Lukens & Son, Port. 333, 338; Huckabee v. May, 14 Ala. 263, 269.

Privity of contract is not necessary to support an action for money had and received; the law implies the promise to pay, whenever the defendant has money in his hands, the property of the plaintiff, and which the defendant has no legal right to retain. Harper v. Claxton, 62 Ala. 46.

ant for the purpose of paying other debts, which defendant accordingly paid. Held, that plaintiff might maintain assumpsit for money had and received against the defendant to the amount paid on the note. Sherrod's Ex'rs v. Hampton, 25 Ala. 652.

Surplus Arising on Sale of Security for Debt. When mortgaged property has been sold in foreclosure, and the proceeds have been paid to the mortgagee, the mortgagor may maintain an action

for money had and received to recover any balance in the mortgagee's hands above the mortgage debt and reasonable costs of foreclosure. Hayes v. Woods, 72 Ala. 92.

Where a mortgagee has received from the sale of the mortgaged property more than enough to satisfy his mortgage, subsequent mortgagees may maintain an action against him for money had and reLandlord and Tenant.-A tenant gave ceived for the surplus in his hands. Weba rent note to his landlord, who transster v. Singley, 53 Ala. 208; Hitchcock v. ferred it before maturity. After the trans-Lukens & Son, 8 Port. 333; Huckabee v. fer the premises were sold under an execution against the landlord. The purchaser, without notice of the transfer of § 6 (2) Necessity of Actual Reception of the note collected the rents. Held, that Money by Defendant. the transferee of the note was entitled to recover, in an action for money had and received, the rents collected by the purchaser. Young v. Garber, 42 So. 867, 149 Ala. 196.

May, 14 Ala. 263.

Where the plaintiff in an action for money had and received, which ex æquo et bono belonged to plaintiff, failed to show that defendant had actually received such money, he can not recover.

§ 6. Consideration or Purpose for Which Nelson v. First Nat. Bank, 36 So. 707, Money Was Received.

§ 6 (1) In General.

Where a tax collector sold a mortgaged mule for the mortgagor's taxes, and paid the surplus to the mortgagor after demand therefor by the mortgagees, an action, for money had and received, by the mortgagees against the collector, was the

139 Ala. 578.

Where a widow converts into money an exemption allowed her and a minor child of decedent, an action by such child for money had and received is proper. Lanford v. Lee, 24 So. 578, 119 Ala. 248.

Where an intestate dies, leaving money deposited in a bank, and his administra

§ 6 (3) Proceeds of Property Converted will pay, he is bound to the same extent by Defendant.