Opinion
36476.
DECIDED FEBRUARY 27, 1957. REHEARING DENIED MARCH 13, 1957 AND MARCH 27, 1957.
Money had and received. Before Judge Jones. Albany City Court. September 17, 1956.
Smith, Gardner Kelley, for plaintiffs in error.
Farkas, Landau Davis, Leonard Farkas, contra.
An action for money had and received will lie for money paid under mistake of a material fact, and which in equity and good conscience belongs to the party who paid it; and cannot be justly retained by the party who received it.
DECIDED FEBRUARY 27, 1957 — REHEARING DENIED MARCH 13, 1957 AND MARCH 27, 1957.
The Citizens Southern Bank of Albany filed an action in the City Court of Albany for money had and received against William P. Cloppas and R. K. Richardson, doing business as Richardson Auto Sales.
The petition alleged in substance that: The defendants sold to one Henry J. Maynard a 1953 Cadillac which was delivered to him on or prior to December 16, 1955; the car was sold to Maynard for the sum of twenty-four hundred ninety-five ($2,495) dollars; eight hundred fifty ($850) dollars to be paid in cash which was evidenced by check drawn on The Citizens Southern Bank of Albany, dated December 9, 1955, payable to Richardson Automobile Sales, signed Henry J. Maynard, in the sum of $850; the balance of said purchase price was financed by the Atlantic Discount Company, Inc.; the check was presented to the bank on December 27, 1955, and was paid to the payee named thereon; the payment to the defendants was through a mistake of fact in that the said Henry J. Maynard did not have said sum on deposit in the bank; petitioner, on December 28, 1955, discovered the error made by the teller and bookkeeper in paying said check and immediately notified Henry J. Maynard and the defendants of the error; petitioner, The Citizens Southern Bank of Albany, demanded a return of said eight hundred fifty ($850) dollars from the defendants less any expense or loss they might have incurred by the transaction due to the error of petitioner, and the defendants declined and refused to return any part of said money, even though, after deducting the expenses incurred, a very substantial amount was due the bank, to wit: approximately seven hundred fifty ($750) dollars; the car after notice was returned to defendants by Henry J. Maynard on December 29, 1955, and the defendants took possession of it and remained in possession of it until it was sold by them to a new purchaser; petitioner shows that on January 21, 1956, when the first instalment was due to the Atlantic Discount Company, Inc., defendants sold said Cadillac above referred to and paid to the Atlantic Discount Company, Inc., eighteen hundred ninety-eight ($1,898.90) dollars and ninety cents, which represented the sixteen hundred forty-five ($1,645) dollars obtained by the defendants when the Maynard note was discounted or handled by the Atlantic Discount Company, Inc., and eighty-nine ($89) dollars, which was placed to the reserve account of the defendants; the balance of $173 was retained by the finance company for various charges and interest; payment of said check having been made under a mistake of fact that the check drawn by Maynard on the California bank had been paid, the defendants in good conscience and in equity should be made to refund to said bank the $850 less whatever loss they may have incurred by reason of the plaintiff's mistake; on December 19, 1955, Henry J. Maynard deposited a check in the amount of $942, drawn on a California bank, to his account in the plaintiff's bank, and same was entered on his account with the notation "Hold $942.00 uncollected for 7 days" written opposite the total on said sheet; eight days after the deposit of this check drawn on a California bank, defendants presented the check in question to the plaintiff and same was paid, the 7 days having expired; on the morning of the 8th day, the plaintiff bank received a telegram from the California bank that payment had been refused on the $942 check, but the plaintiff had cashed the check in question immediately upon the opening of the bank and a short time before the bookkeeping department could be notified that the check deposited by the plaintiff on the California bank had not been paid and that payment was refused; the check deposited with the plaintiff and drawn on the California bank should have reached the California bank in time for that bank to wire plaintiff in ample time before the expiration of the 7 days whether the check was paid or payment refused; the wire was not received by the plaintiff until the morning of the 8th day from the date the check was deposited with the plaintiff; the check given to the Richardson Auto Sales and signed by Henry J. Maynard in the amount of $850 had been turned down by the plaintiff bank awaiting instructions from the California bank whether the check of Henry J. Maynard dated December 19, 1955, for $942 had been paid or refused; the defendant knew that the check for $850 given by Maynard would be good only on condition that the check deposited with the plaintiff on December 19th in the amount of $942 was paid.
The defendants alleged in substance that: Defendants show that on December 19, 1955, the check referred to in said paragraph was deposited to its account at The Bank of Albany, Albany, Georgia; on December 22, 1955, The Bank of Albany notified the defendants by mail that The Citizens Southern Bank of Albany had returned the check of Henry J. Maynard because the check had been drawn against uncollected funds; on Friday, December 23, 1955, upon receipt of the notice from The Bank of Albany, the defendants called an agent of The Citizens Southern Bank of Albany to determine the status of the check, the agent of The Citizens Southern Bank of Albany advised the defendants that the check was not good on that day, to wit: December 23, 1955, but would be good on Tuesday, December 27, 1955; on December 27, 1955, the check was presented for payment in accordance with the instructions of The Citizens Southern Bank of Albany and was paid without qualification or condition; The Citizens Southern Bank of Albany notified The Bank of Albany on December 20, 1955, that the check of Henry J. Maynard was returned because the check had been drawn against uncollected funds; the identity of the agent of The Citizens Southern Bank of Albany to whom the defendants talked is unknown to the defendants but well known to the plaintiff.
The defendants filed general and special demurrers to the petition which were overruled. The plaintiff filed general and special demurrers to the answer and made a motion to dismiss the answer. The judge sustained the plaintiff's general demurrer and dismissed the answer. The defendants excepted to these rulings and the case is here for review.
1. We will first consider whether the trial judge erred in overruling the general demurrer to the petition. The petition alleged, that, upon learning that the check had been refused, the plaintiff notified Maynard, who immediately returned the automobile to the defendants; that the defendants took control and possession of the automobile and sold it to a new purchaser. The acceptance of the automobile and its resale to a new purchaser would constitute an abandonment of the sale contract and place the parties in their original positions. Eaves Collins v. Cherokee Iron Co. 73 Ga. 459; Ford v. Smith, 25 Ga. 675. Having accepted the return of the automobile, the defendants would not be entitled to also retain the purchase price of the automobile.
The plaintiff alleged that it cashed the check through a mistake of fact of its bookkeeper that the check, drawn by Maynard on a California bank had been paid. An action for money had and received will lie for money paid under mistake of a material fact, and which in equity and good conscience belongs to the party who paid it, and can not be retained justly by the party who received it. Werner v. Rawson, 89 Ga. 619, 629 ( 15 S.E. 813). A mistake of fact exists when a material fact which really exists is unknown or when some fact is supposed to exist which really does not exist. 27 Words Phrases 384. The petition clearly alleged that the check was cashed under the mistake of fact that the check had been paid by the California bank. The defendants having accepted the return of the automobile, they were not entitled to the retention of the proceeds of the check and could not justify retaining such money.
The petition set forth a cause of action for money had and received, and the judge did not err in overruling the general demurrer to the petition.
2. "An assignment of error on a judgment striking an answer can not be made in a bill of exceptions assigning error on a judgment overruling a general demurrer to a petition. Wright v. Morris, 50 Ga. App. 196 (3) ( 77 S.E. 365)." Cooledge v. Casey, 58 Ga. App. 134, 137 ( 198 S.E. 96). In this case there was no final judgment and this court is without jurisdiction to pass on whether the trial judge erred in sustaining the demurrer to the answer of the defendants.
3. The defendants' special demurrers are without merit and the judge did not err in overruling them.
Judgment affirmed. Felton, C. J., and Nichols, J., concur.