Opinion
7 Div. 660.
October 31, 1961.
Appeal from the Circuit Court, DeKalb County, W.J. Haralson, J.
The following charges were refused to defendant:
4. The court charges the jury that a rescission of the contract is required in order to sustain action for money had and received, and if you are reasonably satisfied from the evidence the plaintiff did not disaffirm his contract he made with Dave Stafford he was disaffirming his contract, he would not be entitled to a verdict under count number four of the complaint.
6. The court charges, the plaintiff before he can recover in this case he must disaffirm his contract with the person he made the contract with and if you are reasonably satisfied from the evidence the plaintiff never disaffirmed his contract with Dave Stafford, the plaintiff would not be entitled to recover.
Beck Beck, Fort Payne, for appellant.
Infant may disaffirm contract with person with whom he contracted, and if a minor seeks recourse beyond the party with whom he contracts, he must connect such third party in some manner by notice or otherwise with the contract which he disaffirms. Kuehl v. Means, 206 Iowa 539, 218 N.W. 907, 58 A.L.R. 1359; Smoot v. Ryan, 187 Ala. 396, 65 So. 828; 43 C.J.S. Infants § 56, p. 132. A rescission of the contract is required in order to sustain action for money had and received. Day v. Broyles, 222 Ala. 508, 133 So. 269; Kennedy v. Collins, 250 Ala. 503, 35 So.2d 92. The possession of money vests the title in the holder as to third persons dealing with him and receiving it in due course of business and in good faith upon valid consideration. The receipt of money in good faith for such payment of antecedent debt precludes its recovery by one from whom it was wrongfully taken, or diverted. Batson v. Alexander City Bank, 179 Ala. 490, 60 So. 313; 14 Ala.Dig., Money Received, 9; 41 C.J. 45, § 32; 114 A.L.R.2d 383; Railway Express Agency v. Luverne Bank Trust Co., 241 Ala. 352, 2 So.2d 790; Alabama Nat. Bank v. Rivers, 116 Ala. 1, 22 So. 580. The complaint was subject to demurrer for failure to allege that the several counts were based on the same transaction. Code 1940, Tit. 7, § 220.
Loma B. Beaty, Fort Payne, for appellee.
The essence of the action is that appellee, a minor, contracted to buy an automobile from appellant for the stated sum by offering to pay appellant that amount, and appellant offered to sell the car to appellee and delivered it upon appellee's paying that amount. Appellant clearly owned the automobile. Southern R. Co. v. Huntsville Lumber Co., 191 Ala. 333, 67 So. 695. Appellee was a minor and properly rescinded the contract and sued appellant to whom he had paid the purchase price. Southern Building Loan Ass'n v. Davis, 223 Ala. 222, 135 So. 164; Smoot v. Ryan, 187 Ala. 396, 65 So. 828; Wallace v. Francis, 39 Ala. App. 463, 103 So.2d 831.
Downey, a 19 year old bachelor, purported to disaffirm an alleged purchase of a 1954 Buick car from Pioneer. Trial of an action for the amount of the alleged purchase price resulted in a verdict and judgment for $510.
Act No. 313, October 29, 1959 (1959 Acts, p. 891) puts man and wife, 18-21, on equal footing at least as to the disability of nonage.
The evidence for Downey given by himself and his father was to the effect that Pioneer had repossessed the car from Mr. David Stafford. Jerry Downey (the son) paid Stafford $50 to "release any claim he might have."
Downey then went to the Pioneer Credit Company which had the car on a lot behind its place of business in Fort Payne. He paid the company $510 ($495 and $15 tow charge) and got a receipt as well as the keys.
On bringing the Buick back to Pioneer and asking for his money, young Downey was told that Pioneer had not received the money from him. Pioneer contended Downey had merely brought the $510 to it for Stafford.
The defense evidence tended to support the theory that Stafford was the seller.
No question under the Statute of Frauds, Code 1940, T. 57, § 10, is presented.
We consider there was sufficient evidence to submit the cause to the jury, Even one of Pioneer's employees admitted on cross-examination that the company had title to the car and "had taken it up under [Stafford's] failure to make the payments." This conflicting evidence was for a jury to resolve.
The trial court's denying the motion for new trial, one ground of which was that the verdict was against the great weight of the evidence, will not be disturbed on that point under the rule of Cobb v. Malone, 92 Ala. 630, 9 So. 738.
Appellate Rule 9 (Rev.Sup.Ct. 261 Ala. xix) provides (with respect to the make-up of an appellant's brief) in part as follows:
"* * * and if the insufficiency of the evidence to sustain the verdict * * is assigned, then the statement [Statement of the Facts] shall contain a condensed recital of the evidence given by each witness * * * bearing on the points in issue * * *." 261 Ala. xxi-xxiii.
Insufficiency raised below by motion for new trial seemingly falls within this requisite as much as does the refusal of the affirmative charge. Woodward Iron Co. v. Stringfellow, 271 Ala. 596, 126 So.2d 96.
Pioneer's Statement of the Facts contains no reference to the testimony of Messrs. Durham and Burgess, employees of Pioneer, both of whom, on cross-examination, testified, inter alia, as to a conditional sales contract held by Pioneer. There were other omissions of testimony which we consider material to the issue. It follows that we must treat as waived assignments of error 2, 3, 4, 6, 11 (as to weight of evidence) 12, 13 and 14. Woodward Iron Co. v. Stringfellow, supra.
As to assignments of errors 8 and 9 (overruling demurrers to the original and amended complaints), it is argued that the positing of the same claim under four counts without connective allegations as to the claims arising from the same transaction is contrary to Code 1940, T. 7, § 220. This section relates to (a) the joinder of all actions ex delicto and (b) the joinder of those ex delicto with those ex contractu "arising out of the same transaction, or relating to the same subject-matter."
Count 1 claims $1,000 "damages" for the defendant's failure and refusal to return the $510 paid it by the plaintiff, and the other counts variously ask for $510 e. g., for money received by defendant for the use of the plaintiff, money had and received, and for failure to pay after dis-affirmance with return of the car to defendant.
We consider all counts are ex contractu and their joinder is permissible within the influence of Code 1940, T. 7, § 219, rather than that of § 220.
Plaintiff requested and the court gave the following written charge:
"I charge you, Gentlemen of the Jury, that if you are reasonably satisfied from the evidence that the defendants owned the automobile in question and the Plaintiff as a minor, paid the money over to the defendants and avoided the contract, you must find the issues in favor of the Plaintiff."
In its argument of assignment of error 1, Pioneer asserts that it, at no time, had a contract with Downey. We consider the charge put to the jury the crucial issues, viz., "Are you reasonably satisfied (from the evidence) (1) that Pioneer owned the car, (2) that Downey, as a minor, paid Pioneer the money, and (3) that he avoided the contract?" While we might add the need for the minor's returning the car if possible — an undisputed point here — this charge was under the evidence here free of error. Its wording left it for the jury to find whether or not Downey and Pioneer had a contract for the buying and selling of the car.
Assignment of error 5 relates to the refusal of Pioneer's requested written charge 4. The refusal was proper because: (a) the charge assumes without evidentiary hypothesis that Downey made a contract with Stafford without mentioning a possible contract with Pioneer; and (b) the dangling clause "he was disafferming (sic) his contract" is misleading. Moreover, the use of a word of art such as "rescission" without explaining its make-up is sufficient to permit a trial judge to refuse the request.
Under assignment of error 6, Pioneer argues that the general affirmative charge requested by it should have been given. From Batson v. Alexander City Bank, 179 Ala. 490, 60 So. 313, Railway Express Agency v. Luverne Bank Trust Co., 241 Ala. 352, 2 So.2d 790, and Hall v. Hall, 241 Ala. 397, 2 So.2d 908, the appellant has formulated a proposition of law that, since money has "no earmark," possession vests title in its holder as far as third persons are concerned
The conflicting state of the evidence fails to make this proposition pertinent to the extent pressed. Whether Downey, in paying Pioneer, was principal or agent was a jury question. The burden of proving agency rests upon the party asserting the existence of the relationship. Bowman v. Watts, 38 Ala. App. 626, 91 So.2d 238.
Assignment of error 7 (refusal of Pioneer's charge 6) again assumes a contract between Stafford and Downey exclusive of one between Pioneer and Downey. This assumption was not warranted under the conflicting state of the evidence.
The judgment of the circuit court is due to be
Affirmed.