Opinion
8 Div. 584.
January 17, 1928.
Appeal from Circuit Court, Lauderdale County; Charles P. Almon, Judge.
Action by Alex Locher against Robert N. Allen. Plaintiff takes a nonsuit and appeals from adverse rulings on pleading. Affirmed.
Defendant's pleas 2 and 3 are as follows:
(2) That the plaintiff purchased from the defendant and received a deed therefor an undivided one-half interest in a certain gin lot and gin machinery in Lauderdale county, Ala., on Jackson highway, in Greenhill precinct, for the consideration of $5,000. That he paid $500 of this cash and entered into a written contract on May 3, 1926, whereby the balance was to be paid by the assumption of $1,810.77 to the Continental Gin Company on a note and mortgage that it held against said property, and the further consideration of his agreement to pay the defendant the sum of $2,689.23 on or before the 1st day of December, 1926, for which he agreed to execute his balance purchase-money note, secured by mortgage on his interest in said gin lot. That the plaintiff thereafter took possession of his half interest in said gin lot, operated the gin machinery until, to wit, December 14, 1926, but has failed and refused to pay the balance due your defendant of $2,689.23 which is still due and unpaid; and the defendant, for answer to the complaint, pleads by way of recoupment and says that by the terms of said contract, which is the foundation of this suit, the plaintiff is indebted to the defendant in the aforesaid sum of $2,689.23, together with the interest thereon, from and after the 3d day of May, 1926, said date being the date upon which said contract was executed, and defendant claims judgment against the plaintiff in the aforesaid sum.
Plea No. 3. Plaintiff purchased from the defendant the lands described in the contract of May 3, 1926, and the defendant gave him a deed for said land. That said deed recited a $5,000 consideration but in fact only $500 was to be paid in cash, and it was agreed and understood between plaintiff and defendant that the balance was to be paid, $1,810.77, by plaintiff's assumption and agreement to pay a note and mortgage to Continental Gin Company, on said property, and the balance of $2,689.23 to be paid on or before December 1, 1926, which sum was to be secured by plaintiff's note and mortgage made in favor of the defendant, bearing interest at the rate of 8 per cent., with a further agreement that the defendant, in event the plaintiff was not able to pay the entire amount on December 1, 1926, would allow the plaintiff to pay the sum of $1,000 and thereupon would carry the balance of the indebtedness for a period of one year thereafter. That plaintiff, after receiving said deed, carried it to his attorney, W. C. Porter, and was advised that the one-half interest which defendant proposed to sell and convey to the plaintiff had a good title, but there was some cloud or doubt about one-half interest in said land, and, as plaintiff and defendant contemplated the establishment of a partnership gin business and intended to operate and use the land and the gin machinery in said partnership business, that it would be well to clear the title to the other one-half interest, which he thought he could do within a period of 90 days. Thereupon, at the suggestion of said attorney, the contract sued on was made, and then and there said attorney was employed by them to clear the clouds on the title to which he had called their attention. That said attorney filed papers in the federal court looking to the clearing of said title, but had not completed it when the ginning season approached, and thereupon plaintiff and defendant agreed to go ahead with their gin operation, and that there was no urgent reason for clearing the title within 90 days as set out in the contract, and the plaintiff waived the right to have it done in 90 days, and thereafter said plaintiff in person took possession of said property and operated said partnership until, on, to wit, December 14, 1926, at which time the plaintiff approached defendant and stated that there had been no money made by the partnership and offered to sell his one-half interest back to defendant. Defendant declined to purchase. Two days later plaintiff approached defendant and claimed that he had a right to get his $500 back and to turn the property back, and demanded his money therefor, which demand the defendant refused on the ground that he had waived his rights under said contract, accepted the property, and operated the business according to the original trade.
To each of these pleas plaintiff demurred as follows:
(1) It is no defense to this cause of action.
(2) That this plea sets up a contract, and alleges a breach thereof by the plaintiff which would not be any defense to this cause of action.
(3) It sets up a contract and a breach of the contract by the defendant and a waiver of that breach by the plaintiff and this would not be any defense to this cause of action.
(4) And the plaintiff demurs on the further ground that plea No. 2 sets up that this is a suit on a contract as therein set out, and that the plaintiff waived the defendant's breach to that contract, and that is not any defense to this cause of action.
Bradshaw Barnett, of Florence, for appellant.
A claim in recoupment must spring out of the contract or transaction on which the action is founded. A breach of contract on the part of plaintiff cannot be set up as a bar to the plaintiff's action for money had and received. Chandler v. Wilder, 215 Ala. 209, 110 So. 306; Washington v. Timberlake, 74 Ala. 259; Mayberry v. Leech, 58 Ala. 339; Hembree v. Glover, 93 Ala. 662, 8 So. 660; Mizell v. Farmers' Bank, 180 Ala. 568, 61 So. 272.
Mitchell Hughston, of Florence, for appellee.
Claims arising out of contracts may be set off, recouped, or counterclaimed. 34 Cyc. 476; 41 C. J. 2; Friddle v. Braun, 180 Ala. 556, 61 So. 59.
The complaint contained one count in Code form for money had and received.
The trial court overruled the demurrer to pleas 2 and 3. We are of the opinion that there was no error in this ruling. Friddle v. Braun, 180 Ala. 556, 61 So. 59; 34 Cyc. 476.
While the equitable action for money had and received is not founded upon the breach of a contract, a defendant in such action may plead facts showing that in equity and good conscience the plaintiff is not entitled to recover or is indebted to him in a sum greater than the sum claimed by plaintiff, if the indebtedness grows out of the transaction on which plaintiff's claim is based.
The ruling of the trial court is affirmed.
Affirmed.