Opinion
39292.
DECIDED FEBRUARY 23, 1962. REHEARING DENIED MARCH 12, 1962.
Money had and received. Columbus City Court. Before Judge Land.
Ray, Owens Keil, Jack M. Thornton, Ralph M. Holleman, for plaintiff in error.
Foley, Chappell, Young Hollis, Charles M. Evert, contra.
The petition did not state a cause of action for money had and received and the trial court did not err in sustaining the general demurrer thereto.
DECIDED FEBRUARY 23, 1962 — REHEARING DENIED MARCH 12, 1962.
E. F. Howell filed suit against Muscogee County in the City Court of Columbus for money had and received. The petition as amended alleged that the petitioner was at all times mentioned therein the duly elected and serving Sheriff of Muscogee County, Georgia. As such Sheriff of Muscogee County, Georgia, petitioner was duly designated and was acting at all times mentioned therein as agent of the Revenue Commissioner of the State of Georgia; that, as agent for the said Georgia State Revenue Commissioner, petitioner was entitled to be compensated for the endorsement of delinquent applications for State vehicle license tags, the rate of such compensation being fixed by Georgia law. The petition further alleged that for services rendered as agent of the State Revenue Commissioner the petitioner received from said State Revenue Commissioner for the period from April, 1957, through March, 1960, $33,131.81, and for the period of April through August, 1960, $7,056.92.
The petition as amended then alleged as follows:
"5. Upon receipt of each check received from said Commissioner each of which checks are made payable to petitioner, petitioner endorsed such check and turned it over to defendant, through Paul Jones, Clerk of the Commissioners of Roads and Revenues of Muscogee, County, Georgia.
"(a) Said payments were made by plaintiff to defendant under and by virtue of a contract dated October 22, 1957, which said contract plaintiff has now discovered to be null and void and of no legal effect whatsoever, which fact defendant now well knows.
"(b) A copy of said contract is attached hereto and made a part hereof as Exhibit `B.'
"6. Said sums of money paid to defendant were retained by Muscogee County, Georgia. Said money has not been repaid to petitioner except in the sum of $5,850.00 and defendant has not accounted to petitioner for said money. Said figure $5,850.00 was paid according to the exhibit attached hereto as Exhibit `A.'
"7. Defendant has given no value to petitioner for said money, has no claim to such and has no property right or rights therein. Defendant because of the facts set out cannot in equity and good conscience retain said money as against the claim of plaintiff.
"8. Because of the state of facts hereinbefore set out defendant has been and presently is unjustly enriched by the sum of $34,338.73 which defendant has in its possession which belongs to and should be paid to the petitioner."
The contract, omitting the nonessential parts, attached to the petition as Exhibit B is as follows:
"Whereas, Sheriff E. F. Howell, as license tag agent and sheriff for Muscogee County, Georgia, has collected from April 1, 1956, to May 31, 1957, indorsement fees in the amount of three thousand one hundred twenty dollars ($3,120.00) and penalties in the amount of four thousand eight hundred fourteen and 25/100 dollars ($4,814.25) on delinquent license tag applications; and, he has collected the additional sum of one thousand ninety-five and 75/100 dollars ($1,095.75) in tag fees, the sum of four hundred eight dollars ($408.00) in indorsement fees, and the sum of six hundred eighty-nine and 98/100 ($689.98) dollars in penalties, from June 1, 1957, to September 30, 1957, all of said monies in the amount of ten thousand one hundred twenty-seven and 98/100 dollars ($10,127.98) now being retained by the sheriff; and,
"Whereas, the County Attorney for Muscogee County, Georgia, has advised the Board of Commissioners of Roads and Revenues of Muscogee County, Georgia, that it is his opinion that said funds are the property of Muscogee County, Georgia, and all of said funds should be paid to the county fiscal authorities by said sheriff; and,
"Whereas, the Attorney-General of the State of Georgia has rendered an opinion to the State Revenue Commissioner that the sheriff is entitled to retain said indorsement fees and penalties; and
"Whereas, in order to settle the differences of legal interpretation, the sheriff has offered to settle and adjust said matter on the following terms:
`a. That the board and the sheriff recognize the ruling of the Attorney-General insofar as it applies to the indorsement fees collected between April 1, 1956, and May 31, 1957, in the amount of $3,120.00.
`b. That the sheriff and the board recognize the ruling of the county attorney insofar as it applies to the penalties collected between April 1, 1956, and May 31, 1957; and insofar as said ruling applies to tag fees, penalties, and indorsements collected between June 1, 1957, and September 30, 1957, totalling seven thousand seven and 98/100 dollars ($7,007.98) which the sheriff will turn over to the county authorities.
`c. That the sheriff and the board recognize the ruling of the county attorney insofar as it applies to the tag fees, penalties and indorsements collected by the sheriff after June 1, 1957, and the sheriff will turn over to the county fiscal authorities all tag fees, indorsements and penalties collected by him as tag agent and as sheriff from this date forward on the first day of the month following the collection of said tag fees, indorsement fees and penalties, or as soon thereafter as an accounting can be made.
`d. That the sheriff willingly agrees to continue the strict enforcement of the license tag laws and he further agrees that he will continue the strict collection of tag fees as tag agent, and the strict collection of indorsements and penalties as sheriff, all as by law provided'; and
"Whereas, it is considered to the best interest of Muscogee County to settle and adjust this matter on the terms herein set forth;
"Now, therefore, be it resolved by the Board of Commissioners of Roads and Revenues of Muscogee County, Georgia, that said matter be settled and adjusted on the terms herein set forth.
"Be it further resolved that the contract heretofore authorized by this board to be executed by the chairman on behalf of Muscogee County, Georgia, with Honorable Albert W. Stubbs for attorney's fees in the proposed collection of said monies from the sheriff be, and the same is hereby, rescinded, and that said contract not be entered into.
"The foregoing resolution was introduced and read at the regular meeting of the Commissioners of Roads and Revenues of Muscogee County, Georgia, held on the 22 day of October, 1957, and regularly adopted at said meeting.
"`Georgia, Muscogee County:
`The foregoing resolution has been read, and the terms thereof agreed to. There is tendered this date the sum of $7,007.98 to Muscogee County, Georgia.
`This the 22nd day of October, 1957.
/s/ E. F. Howell, Sheriff'" The trial court sustained the defendant's general demurrer to the petition as amended, to which judgment the plaintiff excepted.1. The money here involved arises from fees and penalties charged and collected by the plaintiff as agent for the State Revenue Commissioner for endorsement of delinquent applications for motor vehicle tags under the provisions of Code Ann. § 68-201. The question arises as to whether such fees and penalties were paid to the plaintiff in his individual capacity or as Sheriff of Muscogee County. This question has been determined by the Supreme Court in the case of DeKalb County v. Broome, 215 Ga. 203 ( 109 S.E.2d 769), in which the court said of a similar fund: "It was paid to him by the State Revenue Commissioner for the performance of a service which the law authorized him to perform but did not require him to perform. Had he declined to render such indorsement service, as it was his privilege to do, the Commissioner had authority under Code Ann. § 68-201 to employ and pay an inspector to perform such indorsement service in his county — a person who would occupy the position of being only an agent of the Commissioner. . . While the section designates the sheriff as being one of the persons authorized to render and receive compensation for such indorsement service, nevertheless, he is for the performance of that service only an agent of the Commissioner and, as such an agent, he was personally paid for the services he rendered. It is not compensation which he earned in his official capacity as sheriff, but compensation which he received in his personal capacity as an agent of the State Revenue Commissioner." It is therefore clear from this ruling that the monies involved in this litigation belonged to the plaintiff individually and were not such funds as the defendant county would have been entitled to receive under the provisions of an act of the General Assembly placing the Sheriff of Muscogee County on a salary basis. Ga. L. 1952, p. 2180, as amended by Ga. L. 1957, p. 2266.
2. It is contended by the plaintiff that the contract entered into between him and the county is not valid under the decision of Owens v. Floyd County, 96 Ga. App. 25 (2) ( 99 S.E.2d 560), which states as follows: "Where the compensation of a public official is fixed by the General Assembly such public official is without authority, by express agreement or otherwise, to fix a different compensation for such public office." This principle of law does not apply to the situation in this case in view of the ruling in the Broome case, supra, to the effect that such compensation was received by the plaintiff in his personal and individual capacity as agent for the State Revenue Commissioner and not as compensation attaching to his office as Sheriff of Muscogee County. Since compensation "belonging to the office" is not involved, the contract cannot be said to be an agreement by a public official to fix a different compensation for his office other than that established by the General Assembly.
3. It appears from the pleadings that the payments made by the plaintiff to the defendant were made under the provisions of a contract voluntarily entered into between the plaintiff and the defendant for the purpose of settling and adjusting a controversy existing between the plaintiff and the defendant as to the ownership of these funds. The contract in question appears to meet all of the essentials of a valid contract and is enforceable between the parties even though the plaintiff was not aware of his legal rights at the time the contract was made. "Payments not made under duress, and made with knowledge of all the facts, without fraud or deception on the part of the person to whom payment is made, though in ignorance of the legal rights of the party paying, are voluntary, and cannot be recovered." McCarty v. Mobley, 14 Ga. App. 225 (3) ( 80 S.E. 523); Code § 20-1007. There are no allegations in the petition of fraud or deception on the part of the defendant or that the plaintiff was under an urgent and immediate necessity to enter into such an agreement. On the contrary, it appears that the terms of the contract were proposed by the plaintiff in order to settle and adjust the controversy then existing and that he received a portion of the collected fees under the agreement. It is also noted that he continued to abide by the terms of the contract for over 12 months after the decision in the Broome case, supra, on which he apparently based his allegation that he had discovered the contract to be null and void. We are therefore of the opinion that the contract between the plaintiff and the defendant was both valid and enforceable; and that the payments voluntarily made by the plaintiff to the defendant under said contract cannot be recovered in an action for money had and received. The petition therefore did not state a cause of action.
4. It is too well settled to require the citation of authority that on general demurrer the allegations of a petition will be construed most strongly against the pleader. Doing this, we must also conclude that the petition did not set forth a cause of action against the defendant, since it did not allege that the money was actually received by the defendant. The petition shows only that as the checks were received from the State Revenue Commissioner, the petitioner endorsed them and turned them over to the defendant through its clerk. "Bank checks and promissory notes are not payment until themselves paid." Code § 20-1004. "An action of assumpsit for money had and received is founded upon equitable principles, and the pleadings must allege and the proof must show that the money or its equivalent was actually received by the defendant or his agent. See King v. Forman, 71 Ga. App. 75 ( 30 S.E.2d 214). The proof did not show in the instant case that the defendant received the money." Carter v. Turbeville, 90 Ga. App. 367, 372 ( 83 S.E.2d 72).
The pleadings in the instant case fail to allege that the plaintiff has paid money or its equivalent to the defendant.
For the reasons set forth above, the trial court did not err in sustaining the general demurrer and dismissing the petition.
Judgment affirmed. Nichols, P. J., and Frankum, J., concur.
ON MOTION FOR REHEARING.
Counsel for the plaintiff in error contend in their motion for rehearing that the plaintiff in performing the duties set forth in the petition as agent of the State Revenue Commissioner was a public officer, entitled to the compensation fixed by the General Assembly for such duties, and therefore entitled to the benefit of the rule that no public officer can agree to accept less than the fees or salary allowed by law, the plaintiff relying on the cases of Johnson v. Brooks, 139 Ga. 787 ( 78 S.E. 37), and MacNeill v. Steele, 186 Ga. 792 ( 199 S.E. 99), in addition to Owens v. Floyd County, 96 Ga. App. 25, supra, for this contention.
Assuming, but not deciding, that such agent of the Revenue Commissioner is a "public officer," within the purview of the cases cited above, the present case is not a dispute between the plaintiff as such agent and the Revenue Commissioner, who under law is the authority required to pay such agent (or "public official") for his services, thereby distinguishing this case from those relied upon by the plaintiff.
There is no showing in the instant case that the plaintiff did not receive all the compensation from the Revenue Commissioner to which he was entitled as such agent, and it must be assumed that the plaintiff did receive said compensation. Accordingly, the principle of law relied upon by the plaintiff cannot be called to his assistance after he has been fully compensated by the proper authority as provided by law. What he then does with such compensation is purely a personal matter.
In the instant case, the plaintiff voluntarily entered into a contract with the defendant county concerning the disposition of the compensation which he received and which he seeks to recover in this suit. Under the circumstances in this case, the principle of law set forth in the Owens case, supra, does not avail the defendant.
Motion for rehearing denied.