Hunt & Bobo v. Matthews

HARALSON, J. — The suit was instituted by Charles J. Matthews against A. J. Hunt and Wm. S. Bobo, partners as Hunt & Bobo, claiming |500 for goods, wares and merchandise sold by the plaintiff to defendants, and for money had and received by them for the use of the plaintiff. The evidence relates alone to money alleged to have been received by defendants for plaintiff. The defendants filed four pleas. The plaintiff filed replications to pleas 2 and 4. The court, as the judgment entry recites, sustained a demurrer “to all replications, except the replication to the 4th plea,” which was overruled. There is no assignment of error as to these rulings, except the one, that “the court erred in overruling defendants’ demurrer to plaintiff’s replication to the 4th plea.” This assignment, however, is not insisted on by appellant’s counsel. [291] The only other errors assigned, insisted on, are in the refusal of the court to give the written charges requested by defendants, except the 6th, and as to error in refusing this charge, no insistence is made. The case then, was tried on, 1st, the plea of the general issue; 2d, issue on the 2d and 3d pleas, and 3d, on replication to the 4th plea, on which pleas and replication issue was joined. The facts in the case show, as to the agreement between the parties, “that Hunt should furnish the land and stock and feed, and Matthews do the work, and that each was to have half the crop raised,” and, the bill of exceptions states, “that this cotton (13 bales) was raised under this agreement, had never been divided, and belonged to Hunt and Matthews jointly, share and share alike.” This agreement brings the parties directly under section 2712 of the Code, providing, “When one party furnishes the land and the team to cultivate it, and another party furnishes the labor, with stipulations, express or implied, to divide the crop between them in certain proportions, the contract of hire shall be held to exist, and the laborer shall have a lien upon the crop produced by his labor for the value of the portion of the crop to which he is entitled,” etc.—Ragsdale v. Kinney, 124 Ala. 454. Charges 1 and 4 are not insisted on. Charge 2 was the general charge for defendants, and under the evidence could not be given. Charges 3 and 5 were requested, as stated by counsel for defendants, on the theory, that the relation of landlord and tenant existed between the parties. This relation did not exist, Tinder the facts, as shown, but that of the hire of plaintiff by defendant, Hunt, existed, and there was no error on this account in refusing the charge. Charge 5 was properly refused. It is sought to be justified on the ground alone, that money paid voluntarily cannot be recovered back. But this principle does not apply when the money was paid by mistake, or in ignorance of a material fact, to which conditions the charge makes no reference.— Young v. Lehman, 63 Ala. 519. [292] Charge 7 should have been given. On the facts therein hypothesized, the plaintiff: had no claim against defendants for the proceeds of the cotton, since they had been applied by his direction to the payment of the debts which he owed defendants, and on these facts the defendants would be entitled to recover under the general issue. Charge 8 was properly refused. According to the contract, there was no partnership between the parties, where a settlement or a striking of a balance of accounts between them was necessary for plaintiff to maintain his action. Each was entitled to one-half of the cotton produced in kind, as his share thereof, and if the property was converted into money by either, he could sue the other in assumpsit for his portion of the money.—Marlowe v. Rogers, 102 Ala. 510. Charge 9 was abstract and may well have been refused on that account. There was no evidence that plaintiff delivered the cotton to Hunt & Bobo to be sold for the joint benefit of Hunt and himself. The charge also fails to hypothesize that the proceeds were turned over by Bobo to Hunt in payment of a debt of Matthews to him, by Matthews’ consent. Such a payment by Bobo to Hunt for Matthews, without the latter’s consent, would be unauthorized. Reversed and remanded.