Opinion
37091.
DECIDED APRIL 17, 1958.
Money had and received. Franklin Superior Court. Before Judge Clinkscales from Piedmont Circuit. January 20, 1958.
R. Howard Gordon, for plaintiff in error.
Linton S. Johnson, Clete D. Johnson, contra.
In the present case, the petition having alleged that the plaintiff earned and was entitled to the sum sued for and that the defendant was in possession of this money, which he in good conscience is not entitled to retain, it set forth a cause of action for money had and received.
DECIDED APRIL 17, 1958.
Hubert Fain filed a suit against Martin Neal for money had and received. The petition alleged in part that: the plaintiff leased a filling station from the defendant; the rent was based on the number of gallons of gasoline sold by the plaintiff; the plaintiff operated the station for several months and purchased $45,131.11 worth of gasoline from The Texas Company; the plaintiff operated the station on a 24 hour per day basis; The Texas Company pays the operator of the filling station a discount of 1.4 cents per gallon on all gasoline sold in excess of 10,000 gallons per month; this discount was paid because the plaintiff ran the station on a 24 hour a day basis; the plaintiff sold enough gasoline in excess of 10,000 gallons per month to earn the sum sued for; The Texas Company paid the sum which represented the discount to the defendant who is not entitled in good conscience to retain it because it belongs to the plaintiff.
The defendant made an oral motion to dismiss the petition. This motion was sustained and it is to this ruling exception is taken.
In Haupt v. Horovitz, 31 Ga. App. 203 (1) ( 120 S.E. 425) it is well stated: "`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."
Applying the above rule to the present case the petition set forth a cause of action for money had and received. The petition, while somewhat vague as to the contract between the plaintiff and The Texas Company, stated in substance: that in consideration of staying open 24 hours per day the plaintiff was entitled to receive a 1.4 cent per gallon refund on all gasoline which he sold in excess of 10,000 gallons per month; that he earned the amount sued for by performing the above acts. The definition of "earned" is commonly known as the price of services performed. 28 C.J.S. 610. The petition having alleged that the plaintiff earned and was entitled to the sum sued for and that the defendant was in possession of this money, which he in good conscience is not entitled to retain, it set forth a cause of action, and the trial judge erred in sustaining the oral motion to dismiss.
Judgment reversed. Felton, C. J., and Nichols, J., concur.