Opinion
36942, 36943.
DECIDED MARCH 14, 1958.
Money had and received, etc. Fulton Civil Court. Before Judge Camp. September 20, 1957.
John L. Westmoreland, John L. Westmoreland, Jr., Claude R. Ross, for plaintiffs in error.
W. R. Bentley, J. Walter LeCraw, contra.
1. ( a) Where the purpose for which money has been advanced has failed or has been accomplished, the person advancing such money is entitled to the return of the money and may maintain an action for its recovery.
( b) If the effect of the transaction between the plaintiff and the defendants was to render the plaintiff a surety for her husband, she may recover the money advanced for the purpose of security or suretyship. Code § 53-503.
( c) The plaintiff did not make a "voluntary payment" of the claim, as the money was not given to the defendants as a payment of any kind but was given for the limited purpose of "security."
2. Where money belonging to a wife is used to pay her husband's debts, she may recover such money.
3-8. The court did not err in overruling special demurrers 4, 5, 6, 7, 8, 9 (a), 10, 11 (a), 11 (b), 12 (b), 13, 14, 15, 18 (b) and 19. The court erred in overruling special demurrers 9 (b), 9 (c), 12 (a) and 18 (a).
9, 10. Counts one and two both allege sufficient facts which if proved would authorize the recovery of expenses of litigation.
DECIDED MARCH 14, 1958.
Mrs. Malvina Creedon sued H. A. Whitaker, Sr., and H. A. Whitaker, Jr., to recover a certain sum of money. In count one of her petition the plaintiff alleged: "2. Said defendants are partners in the operation of a liquor store located at 1953 Moreland Ave., S.E., Atlanta, Ga. 3. Defendants, individually and as partners in said operation, are indebted to plaintiff in the sum of four thousand dollars ($4,000), and interest thereon, and expenses of litigation, by virtue of the following facts: 4. On October 18, 1956, plaintiff's husband, Paul A. Creedon, was arrested by city police of City of Atlanta upon the complaint of and at the direction of the defendants, the complaint being that he was charged with stealing money from said partnership from the above described liquor store operated by defendants as partners, over a period of time that Paul A. Creedon had been employed there as night manager and clerk in said store. 5. Following his arrest on said complaint he was incarcerated in the city police jail of the City of Atlanta without bond, that is: without being allowed the privilege of bail, and so held without bond for approximately 18 hours. 6. The time of said arrest of Mr. Creedon was after 11 p. m., and took place at that time because said time was selected by the defendants' agent, Charles H. Edwards, as the time to lodge said complaint and charge against him with the City of Atlanta police. 7. Said agent, Charles H. Edwards, was a lawyer and former F.B.I. officer, and as a result of his experience as a lawyer and an F.B.I. officer he knew that by causing Mr. Creedon's arrest at that hour of the night, he and the defendants, the operators of the liquor store, could get Mr. Creedon held for a considerable time without bond and that during such period of his incarceration without bond he and the defendants could `work upon' his wife, that is: influence said wife by fear and worry and concern for her husband while he was held as such prisoner without bond and thereby cause her to put money in their hands to obtain his release from custody. 8. During said period that Paul A. Creedon was so incarcerated without bond, plaintiff, his wife, was visited by H. A. Whitaker, Sr., acting for said partnership, and by the agent of said partners, Charles H. Edwards, together, and for a lengthy time extending past 2 a. m., in her home from which her husband was absent due to their actions above set forth, creating fear and worry and concern for her husband, and then again met with her during the daylight hours of said morning, continuing to create in her mind fear and worry and concern for her husband, and both of said named parties, Whitaker and Edwards, urged her to put up money in their hands or in the hands of said partnership in order to get her husband out of jail. 9. She was told by said parties that such money as she would put up would be put up as `security,' and she believed and relied upon said statement in turning over to them the money hereinafter described. 10. At said time plaintiff and her husband had a joint account in the Atlanta Federal Savings Loan Association, at Atlanta, Ga., with a balance of approximately $4,500 in said account. 11. Over 90 percent of said money, being over $4,000 of said account, had been put into said account by plaintiff and was her money, and the balance had been money of Paul A. Creedon when so put into said account at said institution. 12. Said H. A. Whitaker, Sr., and Charles H. Edwards, acting for said partnership in the said efforts to procure the said money herein referred to, told plaintiff that if she would put up the sum of $4,000 in their hands her husband would be released from jail very soon, otherwise he would be held in custody, and they urged her to put said money in their hands in order to obtain his release from jail. 13. Plaintiff was worried, distraught and upset by the arrest of her husband and by the fact that he was being held without bond, and fearful that his imprisonment without bond might be continued if she did not do like they said, and she desired very much to obtain her husband's release from jail, and the defendants and their agent Edwards knew this and used this wifely desire for her husband's release and her fear that his confinement without bond might be continued, as a means of influencing her to put the said money in their hands. 14. Under the above circumstances, and under the urgings, pressure and influence herein described, plaintiff acceded to their urgings, and on said date, October 19, 1956, turned over the sum of $4,000 to the said H. A. Whitaker, Sr., for the purpose of security as aforesaid, and to obtain the release of her husband from said imprisonment, which money she withdrew from said Atlanta Federal Savings Loan Association account by a withdrawal order signed by her and obtaining thereby a check drawn by said Association on the Citizens Southern National Bank, of Atlanta, payable to her in person, which check she indorsed and delivered to H. A. Whitaker, Sr., and upon which check he obtained the $4,000 in money herein referred to. 15. Thereupon within approximately an hour and a half the said H. A. Whitaker, Sr., procured the release of Paul A. Creedon from said city police jail. 16. In all of the acts done by H. A. Whitaker, Sr., and by Charles H. Edwards, described in this petition, they were each acting for and on behalf of said partnership above described. 17. There is no longer any need for the said money to remain in the hands of defendants, the complaint and case upon which Paul A. Creedon was so arrested having been completely terminated. 18. Paul A. Creedon has assigned and transferred to plaintiff his wife, his interest in this claim and chose in action against defendants, that is: whatever interest might vest in him by virtue of the fact that said account in the Savings Loan Association was a joint account as aforesaid. 19. Plaintiff shows that she is the sole owner of this claim and cause of action by virtue of the facts (a) that she had deposited in said account more than the sum of $4,000 of her own money of the money which was then in said account, and the Atlanta Federal Savings Loan Association issued its check on the Citizens Southern Bank to her personally and delivered said check to her, and she had said $4,000 check in her possession, control and ownership and indorsed and delivered it to defendant H. A. Whitaker, Sr., under the circumstances and for the reasons as set forth in this petition, and which check was subsequently cashed by the defendants and the proceeds used for their own benefit; and (b) that Paul A. Creedon has assigned and transferred to plaintiff any and all interest of his in this claim and chose in action. 20. Plaintiff has demanded the return of said $4,000 of said defendants and said return has been refused. 21. By said conduct defendants have obtained from plaintiff and withheld from her the money herein set forth and sued for which in equity and good conscience plaintiff is entitled to receive and which defendants are not entitled to retain, to wit: the sum of $4,000 with interest thereon at 7 percent since October 19, 1956. 22. In the above described transaction, in procuring from the plaintiff the $4,000 under above circumstances, the defendants have acted in bad faith, and by failing and refusing to deliver back said money to her they have further shown bad faith and have been stubbornly litigious, and they have thereby made it necessary for her to incur unnecessary expenses consisting of court costs and attorney's fees for the preparation of this suit and the prosecution of this action in court, which expenses at the time of a trial of this case will be at least $1,000."
In her second count the plaintiff adopted by reference paragraphs 1 through 16 of count 1 and further alleged: "17. Plaintiff was the sole owner of the $4,000 in money turned over by her to the defendants as aforesaid. She had deposited of her own money more than $4,000 of said money which was in said account at the Atlanta Federal Savings Loan Association. She alone signed the withdrawal order to said association, and a check was thereupon issued by said association for $4,000 payable to her for said amount so withdrawn and delivered to her by said association, it being drawn by said association on the Citizens Southern National Bank of Atlanta, which check was thereupon indorsed by her and delivered by her to H. A. Whitaker, Sr., to comply with his urging and in order to obtain her husband's release from imprisonment, and which check was subsequently cashed by the defendants and the proceeds used for their benefit. 18. Defendants applied the said $4,000 to their own use as a partnership operating said liquor store, claiming that Paul A. Creedon owed them that sum or more, and applying this money as a payment by Paul A. Creedon on the debt which they claimed he owed them. 19. Such an application of the $4,000 to the account and benefit of said partnership as a credit on the alleged debt of Paul A. Creedon to said partnership in the operation of said liquor store was an illegal and void application of said sum, in that to apply it so would be the payment by a married woman of her own money in payment of her husband's debt, in violation of the law of Georgia, Code §§ 53-502 and 53-503 and judicial decisions thereunder. 20. Defendants had knowledge of the facts set forth in paragraph 17 above, H. A. Whitaker, Sr., being present at the Atlanta Federal Savings Loan Association when she alone wrote said withdrawal order and was delivered the $4,000 check for the proceeds of the withdrawal, and when she indorsed said check and delivered it to him, H. A. Whitaker, Sr., he accepting said check from her so indorsed by her alone. 21. Plaintiff has demanded the return of said $4,000 of said defendants and said return has been refused. 22. In the above described transaction, in procuring from plaintiff the $4,000 under above circumstances, defendants have acted in bad faith, and by failing and refusing to deliver back said money to her they have further shown bad faith and have been stubbornly litigious, and they have thereby made it necessary for her to incur unnecessary expenses consisting of court costs and attorney's fees for the preparation of this suit and the prosecution of this action in court, which expenses at the time of a trial of this case will be at least $1,000."
The defendants filed general and special demurrers to the petition. The court overruled all of these demurrers except the special demurrers to paragraph 22 of count 1 and paragraph 22 of count 2 which relate to expenses of litigation and which special demurrers were sustained and these paragraphs of the petition were stricken.
In the main bill of exceptions the defendants except to the judgment of the court overruling their general and special demurrers. By cross-action the plaintiff excepts to the sustaining of the two special demurrers described above and to the striking of paragraph 22 of count 1 and paragraph 22 of count 2.
1.(a) Count 1 of the petition is based on money had and received and the plaintiff contends therein that she gave the money to the defendants for the limited purpose of "security" in order to have her husband released from jail. The plaintiff alleged that the complaint upon which her husband had been arrested and the case arising therefrom had been completely terminated and that the need for which the "security" had been placed in the hands of the defendants no longer existed. Where the purpose for which money has been advanced has failed or has been accomplished, the person advancing such money is entitled to the return of the money and may maintain an action for the recovery thereof. Fischesser v. Heard, 42 Ga. 531, 532; Zapf Realty Co. v. Brown, 26 Ga. App. 443 ( 106 S.E. 748); Hayslip v. Long, 86 Ga. App. 482, 492 ( 71 S.E.2d 852); Chappas v. Sandefur, 93 Ga. App. 67 ( 91 S.E.2d 46).
(b) If the effect of the transaction between the plaintiff and the defendants was to render her a surety for her husband, the plaintiff still may recover the money advanced for the purpose of security or suretyship. Code § 53-503 "will be enforced regardless of the form of the transaction or the cloak that enfolds it, if in reality the contract is based on a mere colorable transaction the purpose of which is to make the wife, to all intents and purposes, the husband's surety." Shoup v. Elliott, 192 Ga. 858, 863 ( 16 S.E.2d 857); Magid v. Beaver, 185 Ga. 669, 675 ( 196 S.E. 422); Gross v. Whitely, 128 Ga. 79, 82 ( 57 S.E. 94); Thompson v. Wilkinson, 9 Ga. App. 367 (3) ( 71 S.E. 678).
(c) The plaintiff did not make a "voluntary payment" of a claim as the money was not given to the defendants as a payment of any kind but was given for the limited purpose of "security." See Speed Oil Co. v. Aycock, 188 Ga. 46 ( 2 S.E.2d 666); Williams v. Gottlieb, 90 Ga. App. 438 (3) ( 83 S.E.2d 245).
2. Count 2 was the same as count 1 except it went further in that the plaintiff alleged therein that the defendants had taken the money which she had given to them as "security" and had applied the money to pay an alleged debt owed to them by the plaintiff's husband. Under the allegations of count 2 the money being held by the defendants belonged to the plaintiff and if that money was used by the defendants to pay a debt of the husband, the wife may recover the money from the defendants. "It plainly appearing that the property of the plaintiff, a married woman, was given up by her for the purpose of suppressing a criminal prosecution against her husband and son, and to settle a debt due by the husband, she was entitled to maintain an action for its recovery against the person who thus took it from her." (Emphasis supplied.) Mills v. Hudgins, 97 Ga. 417 ( 24 S.E. 146); Lewis v. Howell, 98 Ga. 428, 431 ( 25 S.E. 504); Code § 53-503.
3. The defendants' special demurrers 4 to paragraphs 4 of counts 1 and 2 are on the ground that it is not shown what the "complaint" and "direction" of defendants consisted of, who in behalf of the defendants made such "complaint" and gave such "direction" and how much money the plaintiff's husband was charged with stealing, what city policemen arrested the plaintiff's husband and when said arrest was made in point of time as related to said alleged "complaint" and "direction." The demurrers are without merit. The allegation that the plaintiff's husband was arrested upon the complaint of and at the direction of the defendants sufficiently alleges a fact and that the arrest was procured by the persons of the defendants. The plaintiff is not required to plead her evidence. How much money the plaintiff's husband was charged with stealing and which charge formed the basis of his arrest is immaterial as to that paragraph. It was also immaterial what city policemen arrested the plaintiff's husband and when the arrest was made in point of time as related to the alleged "complaint" and "direction." For the same reason special demurrers 5 to paragraphs 5 and special demurrers 13 to paragraphs 15 of counts 1 and 2 are without merit.
4. Special demurrers 6 to paragraphs 5 of counts 1 and 2 are on the ground that the allegation, ". . . he was incarcerated in the city police jail of the City of Atlanta without bond, that is: without being allowed the privilege of bail, and so held without bond for approximately 18 hours," is irrelevant and is not germane to the issues, are without merit as such is an allegation of fact and shows the background existing at the time the defendants approached the plaintiff concerning the depositing with them of the alleged "security."
5. A special demurrer being itself a critic must be free of imperfection. Therefore, the defendants' special demurrers 7 to paragraphs 6 of counts 1 and 2 on the ground that the allegations set forth constitute a conclusion of the pleader in that "no power or authority is shown in defendants' alleged agent, Charles H. Edwards, either in said paragraph or elsewhere in said petition, to select the time of arrest of plaintiff's husband at 11 p. m. or at any other time," will be construed as meaning that it is not shown that the agent did not have the power or authority from the police or by law to select the time of the arrest rather than as alleging that it was not alleged that the agent had authority from the defendants as principal to select the time of arrest. So construed the demurrers are without merit because whether or not the agent had such power and authority, the plaintiff alleges that he actually did cause the arrest at the time alleged. For the same reason special demurrers 8 to paragraphs 7 and special demurrers 10 to paragraphs 12 and special demurrers 11 (b) to paragraphs 14 of counts 1 and 2 and special demurrer 18 (b) to paragraph 17 of count 2 are without merit.
6. Special demurrers 9 (a) are without merit. Special demurrers 9 (b) and 9 (c) to paragraphs 8 are meritorious because the defendants are entitled to know by what means the defendants created fear, worry and concern in the plaintiff for her husband and what constituted the "urgings" by the defendants for the plaintiff to deliver the money to the defendants. For the same reason special demurrer 18 (a) to paragraph 17 of count 2 is meritorious.
7. Special demurrers 12 (a) to paragraphs 14 of counts 1 and 2 are meritorious. In these paragraphs the plaintiff alleged that she gave the $4,000 to the defendants for the purpose of security. The defendants by demurrer call upon the plaintiff to define or more fully explain what is meant by the word "security." If the plaintiff is in a position to more fully explain what was meant between the parties by the word "security" she must allege such. However, if she does not know what was meant by the term "security" and the defendants did not explain what the money was to secure, then the plaintiff by proper allegations may allege that she did not fully understand what the money was to secure, etc. If the plaintiff did not fully understand the full reasons or meaning of the security, she would not be required to allege something she did not know or fully understand.
8. Special demurrers 12 (b) are without merit for reasons already given. Special demurrers 11 (a), 14, 15 and 19 are without merit.
9. Under the allegations in count 1 the defendants have no right whatsoever to retain the plaintiff's money and refuse to deliver it to her on her demand. Since the purpose for which the money had been given to the defendants no longer existed, she was entitled to the return of the money. If in fact the transaction between the plaintiff and the defendants amounted to her becoming her husband's surety then the defendants received the plaintiff's money and are holding it under a void contract agreement. Under these allegations the defendants had no probable cause whatsoever in refusing the plaintiff's demand for the return of her money. Therefore, the court erred in sustaining special demurrer 16 to paragraph 22 of count 1 and in striking that paragraph.
10. Count 2 alleges sufficient facts if proved to authorize a recovery of expenses of litigation. The second count shows that at the time the defendants used the money entrusted to them for the purpose of "security" to satisfy the alleged debts of her husband the money still belonged to the plaintiff. Where defendants have taken money entrusted to them for a specific purpose and have without the consent of the plaintiff applied such money to a use prohibited by law and where the defendants refuse on demand to redeliver to the plaintiff such money but force her to resort to legal action for the recovery thereof, expenses of litigation may be recovered if the allegations are proved by the plaintiff.
The court did not err in overruling the general demurrers to counts 1 and 2 of the petition, and did not err in overruling special demurrers 4, 5, 6, 7, 8, 9 (a), 10, 11 (a), 11 (b), 12 (b), 13, 14, 15, 18 (b), and 19.
The court erred in overruling special demurrers 9 (b), 9 (c), 12 (a) and 18 (a), and erred in sustaining special demurrer 16 to paragraph 22 of count 1 and special demurrer 20 to paragraph 22 of count 2 and in striking these paragraphs.
Judgments on the main bill of exceptions affirmed in part and reversed in part. Judgments on the cross-bill of exceptions reversed. Quillian and Nichols, JJ., concur.