Opinion
6 Div. 623.
April 13, 1922.
Appeal from Circuit Court, Blount County; W. J. Martin, Judge.
Ward, Nash Fendley, of Oneonta, for appellant.
The evidence did not justify the recovery on any count except the third, and that clearly did not state a cause of action. 132 Ala. 235, 31 So. 512. Counsel discuss other assignments, but without further citation of authority.
Russell Johnson, of Oneonta, for appellee.
There was evidence to sustain the first and second counts. 89 Ala. 619, 7 So. 246; 72 Ala. 142. Count 3 was good as against a general demurrer. Section 5340, Code 1907; 58 Ala. 570; 52 Ala. 528.
The first assignment of error refers to action in overruling a demurrer to "amended count 3," and the only demurrer found in the record is to count 3 "as amended." We find no amended count 3 in the record, and we find no ruling as to count 3 "as amended." We may add, however, that count 3, as found in the record, whether subject to a specific ground of demurrer, did not fail to state a cause of action, so as to render it subject to the general ground of demurrer interposed.
The trial court did not err in refusing the defendant's general charge as to the count upon a stated account or the one for money had and received. Davidson testified that defendant admitted the account, less a credit for a feed bill. There was also evidence that the defendant bid in the stock for the plaintiff, and subsequently sold some of it for the plaintiff, and if he collected for same and failed to turn it over to the plaintiff, he was liable as for money had and received for such sums so collected and not turned over to the plaintiff.
As to the statement from the bank, it is questionable as to whether or not this point is so argued in brief of counsel as to amount to an insistence under the rule; but it was not subject to the only objection suggested in brief against same, as defendant claimed to have turned over to the bank all notes and proceeds for stock sold by him, which he bid in for plaintiff, and it was relevant and competent to show the status of his bank account, and whether or not the bank had gotten the benefit of these items on defendant's individual account, or whether they were applied to the copartnership debt, or whether or not they were received at all.
The judgment of the circuit court is affirmed.
Affirmed.
McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.