Adair & McCarty Bros. v. Central Bank & Trust Corp.

George, J. We are not prepared to say that the act of the plaintiff in cancelling the note and delivering it to the makers, with full knowledge of the foregoing facts, and its effort to collect the proceeds of the check from its agent, Powell; and its delay of several months in notifying the defendant of Powell’s lack of authority to indorse the check, did not amount to a ratification of the unauthorized indorsement. It is true that ratification is disclaimed, but one may disclaim and yet ratify. The issue was for the judge who heard and determined the facts of the case. Even though the facts be undisputed, yet, if different inferences may be drawn from the facts proved, the question is for the jury. Compare Dixon v. Bristol Savings Bank, 102 Ga. 461, 468 (31 S. E. 96, 66 Am. St. R. 193). On the question of ratification, it must be borne in mind that Powell was the admitted agent of the plaintiff, with authority to collect the note, and to receive in payment thereof either the cash or a cheek. He therefore merely exceeded his authority when he indorsed the check in the name of the plaintiff. If, under any view of the evidence, the question of ratification is one of fact, that question has been determined by the trial court adversely to the plaintiff. We do not, however, hold that the plaintiff ratified the indorsement of the check by its salesman. If the plaintiff did not ratify the unauthorized indorsement, it clearly elected to waive the tort and sue in assumpsit upon an implied contract for money had and received. This election is made manifest by the plain and unambiguous language of the petition filed on its behalf, wherein it is alleged that the defendant is “indebted” to the plaintiff in the principal amount of the check, together with legal interest from a date stated. Furthermore, it is expressly averred that “said proceeds of said check are held for the use of plaintiff as the rightful owner of said check, and this suit is brought to recover same.” The prayer of the petition is for the recovery of the amount of the check, with interest. The suit does not ask for “damages,” but is an action for money had and received. An action of this character is based on the theory of an unjust enrichment of the defendant, and upon an implied promise on the part of the defendant to pay to the plaintiff that which it has received, and which in law and in good conscience belongs to the plaintiff, and not to the defendant. It is inequitable that one should retain money which equitably belongs to another. It is un [814] disputed that, long before the defendant had notice or knowledge of the irregularity in the indorsement, the check had been duly collected and the proceeds fully paid to the Citizens Bank of Gaines-ville. The defendant was a mere collecting agent of the Citizens Bank of Gainesville. In an action for the wrongful conversion of the check the defendant would be liable. Since the plaintiff has elected to waive its action in tort, and has sued upon an implied contract, and since the defendant, without notice or knowledge of plaintiff’s rights in the premises, -has fully accounted to its principal for the proceeds of the cheek, the judge of the superior court, in our opinion, rendered the proper judgment. Pratt v. Foster, 18 Ga. App. 765 (90 S. E. 654); Rogers v. Durrence, 10 Ga. App. 657 (73 S. E. 1083); Alexander v. Coyne, 143 Ga. 696 (85 S. E. 831, L. R. A. 1916D, 1039); Cowart v. Fender, 137 Ga. 586 (73 S. E. 822, Ann. Cas. 1913A, 932). Judgment affirmed. Wade, G. J., and Luke, J., concur.