United States Cast Iron P. & F. Co. v. Bailey

THOMAS, J. — The complaint as amended contained three counts. The pleas consisted of the general issue, and' special plea No. 2 of ultra vires, to which demurrer was sustained. (1) When the cause was submitted to the jury, count 1 was withdrawn, and the general charge was given for the defendant as to count 3. The remaining count, numbered 2, was for money had and received. The trial court correctly sustained plaintiff’s demurrer to plea No. 2. A corporation, other than an insurance company, may do an insurance business, as an incident to its general business, if the insurance is not contrary to the express terms of incorporation, and provided such insurance is for the protection of its properties, materi [264] als, works, machinery, plant, or employees used and engaged in the conduct of the corporate business. — Sales-Davis Co. v. Henderson-Boyd Lumber Co., 193 Ala. 166, 69 South. 527. (2) To maintain his action for money had and received, the plaintiff must show that the money came into the possession of the defendant, or show a state of facts from which this is inferable, and that at the time of the suit the plaintiff was entitled to as much of the moneys as the amount of the verdict of the jury. — Calvert v. Marlow, 6 Ala. 337; Turner v. Stetts, 28 Ala. 420; Moody v. Walker, 89 Ala. 619, 7 South. 246; Lytle et al. v. Bowdon, 107 Ala. 361, 18 South. 130; St. Louis & T. R. P. Co. v. McPeters, 124 Ala. 451, 27 South. 518; Young et al. v. Garber, 149 Ala. 196, 42 South. 867; 27 Cyc. 860, B. (3) The evidence on the trial showed the prevalence of a rule or custom of the defendant corporation to deduct a certain sum, about 50 cents per month, from the employee’s time, with the undertaking, in consideration therefor, to pay ‘half time’ to the employee, should he be injured in the defendant’s employment, during his disability from the injury. But the evidence fails to show how many employees of the defendant were subject to this rule or custom; nor is it shown during what period of time the rule or custom was in force, or that there was a sufficient fund so deducted and held by the defendant to discharge the judgment recovered. The plaintiff therefore failed to show that the defendant had received, and was holding, money in sufficient amount to respond to the demand of the judgment, or to show a state of facts from which a reasonable inference might be drawn that the defendant had an amount of money in its possession from this particular fund with which [265] to discharge the judgment. For this failure of proof written refused charge No. 3 should have been given. Reversed and remanded. Anderson, C. J., and Mayfield and Somerville, JJ., concur.