Action in assumpsit. From a judgment for plaintiffs, defendants appeal.
As all assignments of error not insisted on in brief of counsel are waived, for convenience we follow and consider questions raised as discussed in appellant's brief.
The defendant filed demurrers to the original complaint, which demurrers were by the court sustained. The plaintiff amended the complaint, and the demurrers were refiled, but no ruling of the court appears to have been made, and without this ruling the defendant pleaded to the complaint, in short by consent. This was a waiver on the part of the defendant as to the demurrer as refiled. Moreover, the third count conforms to the requirements of Code, § 5382, form 10, and is sufficient. Bush v. Moore,19 Ala. App. 88, 95 So. 62.
Counsel for appellant correctly state the rule that no recovery can be had under a common count for money had and received when it appears that the action is founded upon the breach of an executory contract, unless nothing remains to be done by the parties to it but the payment of a sum of money. Elrod Lumber Co. v. Moore, 186 Ala. 430, 65 So. 175. In the instant case, however, if the plaintiff's evidence is believed, then nothing remained to be done but the payment of money. This was a question for the jury, and charges instructing the jury affirmatively on this question were properly refused. Starks v. Comer, 190 Ala. 245,67 So. 440.
It is the rule, as stated by appellant in brief, that, under a count for money had and received, a recovery can only be had for and to the extent of money or its equivalent which actually came into the hands of the defendant and which he is bound ex equo *Page 38 et bono to turn over to the plaintiff. Barnett v. Warren, 82 Ala. 557,2 So. 457; Stewart v. Conner, 9 Ala. 803. On this theory defendant requested the following charge in writing, which was refused:
"The court charges the jury that if you are reasonably satisfied from the evidence that when the plaintiffs brought the car in question back for resale, that thereafter the defendant when it sold the car did not receive more than enough to cover the reasonable expense of selling and the indebtedness on the car, you should return a verdict for defendant."
The evidence for the plaintiff was that an upset price of $2,900 had been agreed upon at which the car was to be sold, and that the amount due from plaintiffs to defendant, as evidenced by their notes, was to remain in abeyance, and without interest. If the car had been sold at the $2,900 price as agreed, the defendant, even in the absence of an express agreement, would have been entitled to a reasonable commission for its sale; but if the defendant, in violation of agreement, sold the car for less than that amount, in making settlement as to the amount to which plaintiffs were entitled, defendant would be held to an accounting at the agreed price of $2,900, in so far as any compensation for reasonable expense for the sale of the car is concerned. In other words, according to the testimony of plaintiffs, which must be taken as true in passing on this charge, the plaintiffs and defendant agreed that the defendant was authorized to sell the car for $2,900, and not less; that the amounts due by plaintiffs to defendant, as purchase money, should be held in abeyance, without interest, until the car was sold. Whether this testimony was true or not was a question for the jury. If it is true, then defendant would only be entitled to compensation for selling the car, in accordance with the contract of agency, and if a less amount than $2,900 was received, such less amount must be deducted from such reasonable compensation found to be due defendant for its services in the sale of the car. 31 Cyc. p. 1451. The charge ignores this phase of the testimony.
What has been said above applies with equal force to charge 4 requested by defendant. Where a charge ignores a material part of the evidence, it is not error to refuse it. Riddle v. Webb,110 Ala. 600, 18 So. 323.
Under one phase of the testimony, the defendant held a retention title contract for the car in question; the amount due under this contract being evidenced by certain promissory notes with conditions in the notes and contract that when any default occurred in the payment of any note, the seller could repossess the car, forfeit the contract, and retain the car, etc., that when the car was delivered to defendant, one of these notes was due and payable, that there was no agreement by defendant to sell the car at $2,900, or to hold the notes in abeyance, but defendant simply agreed to take the car and sell it to the best advantage. If these are the facts, and that is for the jury to determine, then the duty resting on defendant was to sell the car to the best advantage, deduct the amount due by plaintiffs on the contract from the amount received, deduct a reasonable expense for service in selling, and pay the balance to plaintiffs. Under this phase of the case it became a material inquiry as to the market value of the car, and the court properly gave at the request of the defendant the following charge:
"The court charges the jury that the market value of the automobile in question was not what the plaintiffs or defendant thought it was worth, or would take or pay for same, but the market value was the price, the fair price, the auto would bring in the market in its then condition."
The court, after giving this charge as requested and reading it to the jury, immediately said:
"That is, in reference to recovering for the money that was originally paid. That is what would be recovered on, that proposition of law as set out in that charge I just read you."
We recognize and adhere to the rule as stated in T.A.G.R. Co. v. Rossell, 18 Ala. App. 17, 88 So. 362, and supported by Bailum v. State, 17 Ala. App. 679, 88 So. 200, and Pizitz v. Cusimano, 206 Ala. 689, 91 So. 779.
But the court may not qualify, limit, or modify such charge. Bailum v. State, supra; Acts 1915, p. 815. The trial court committed error in limiting the charge given to one phase of the evidence, when there was another phase to which it equally applied. There is no merit in the contention of appellee that proper exception was not reserved. The transcript shows that exception was "then and there" duly and legally taken.
The court, at the request of the defendant in writing, gave this charge:
"The court charges the jury that under the undisputed evidence in this case, the plaintiffs are indebted to the defendant on account of the purchase price of the automobile in question the sum of $2,155."
After this charge was read to the jury, the court, in the presence of the jury, merely repeated what was written in the charge. This was not error. Assignment 17.
Assignments 18 and 20 are not properly insisted on in brief, and are waived.
What was said as to assignment 17 applies to assignment 19. When a charge on the effect of the evidence has been requested and given, the party requesting such charge cannot complain that the court repeated the charge orally. The charge as requested by *Page 39 defendant was error, but it was error invited by him, and he cannot now complain.
The court in its oral charge and as a part thereof said:
"It is a question under this count whether they had money in their possession that in good morals belongs to plaintiff."
The decisions say, "which ex equo et bono he has not the right to retain," and, "which in justice and good conscience the defendant ought to pay to plaintiff." 10 Mich. Dig. p. 63, par. 1. The statement of this principle by the court was not error, or, if so, was favorable to defendant.
The plaintiff was permitted to prove, over the objection and exception of defendant, that plaintiff, in the purchase of the car in suit, gave as a first payment a Willys-Knight Overland car in perfect condition and $300 in cash. This testimony was not relevant to the issue here involved and did not tend to shed any light on the transaction. The evidence was clearly inadmissible.
The question as to whether the car in question was sold to plaintiffs as a new car was pertinent and relevant, as tending to show the true facts in the original transaction.
The remaining questions arising on the admission of testimony are either without error or, if technical error exists, such error was without injury.
On the motion of appellee to dismiss the appeal on account of the failure of appellant to file the transcript within 60 days from the date of taking the appeal, the appellant, by affidavit, acquits itself of any prejudicial negligence. The motion is overruled. Jacobs v. Goodwater G. Co., 205 Ala. 112, 87 So. 363.
For the errors pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.