The action is for the recovery of money paid under an alleged mistake of fact. The complaint contains a count for deceit and six common counts, but does not contain any count for "money had and received," the only common count specifically appropriate for recovery on the facts of the case. However, it has been settled in this state that money paid under a mistake of fact may be recovered under a common count, either for money had and received, or for money lent; the latter being declared on in the first count of the complaint. Young v. Lehman,63 Ala. 519.
The only one of these common counts submitted to the jury, the others being severally charged out, was No. 5, "for money paid by plaintiff for defendant at his request." Such a count can be supported only by proof that the plaintiff has paid money to some third person at the request of the defendant, express or implied. 14 Am. Eng. Ency. Pl. Prac. 53. The case made for plaintiff by the evidence not meeting that requirement, counsel for defendant requested in writing the general affirmative charge, and insists that it was improperly refused.
There are two sufficient answers to this contention. In the first place, the trial judge, in his oral instructions to the jury, interpreted count 5 as being in effect a count "for money had and received," and submitted it to the jury as such a count.
Counsel for defendant made no objection, and took no exception, to that interpretation of the count, nor to its submission in that form to the jury. We think that such an acquiescence by defendant was in practical effect an amendment of the count by consent of the parties to the preclusion of defendant's present contention.
Moreover, the right to the general charge could be grounded only on the theory of a variance between the case made by count 5 and the case made by the evidence. In that case the trial court will not be put in error for refusing the general charge unless it appears that the variance was brought to the attention of the court by a proper objection to the evidence. Cir. Ct. Rule 34, 175 Ala. xxi. The attention of the court was not directed to the variance, so far as the record shows.
Plaintiff's claim is based on testimony tending to show that he purchased a portion of a tract of mortgaged land from the mortgagor, and subsequently paid $1,000 to the defendant, who was the transferee of the mortgage, for a release of the purchased part from the lien of the mortgage; plaintiff's testimony tending to further show that at the time of plaintiff's said payment for said release the mortgage debt had in fact been paid, and the lien on the land discharged, though defendant had represented to plaintiff that the amount due on the mortgage was about $2,800, and that plaintiff made the payment believing that such was the case.
The controlling issue of fact was whether the mortgage debt had been paid, and, if not, what amount remained unpaid at the time of plaintiff's payment to defendant. On these questions the evidence was in dispute, and the issues were for the jury to determine as they believed the facts to be.
The trial judge correctly instructed the jury that, if there remained due on the mortgage debt a balance of $1,000 or more, the plaintiff could not recover on the common count; and that, if the balance due, if any, was less than that sum, the recovery would be limited to the difference between that balance and $1,000. He further instructed the jury that if they found that defendant represented to plaintiff that an indebtedness of nearly $3,000 was due on the mortgage, and threatened to sell the land thereunder, and that this statement was false, and that by it defendant fraudulently obtained from plaintiff the payment of $1,000, as charged, then plaintiff would be entitled to recover that sum, with interest, under count B for deceit.
Under count B, the existence of a mortgage indebtedness of $1,000, or of any amount substantially less than that represented, would not defeat the cause of action, since that situation would have been quite different from the one represented as true by defendant — an indebtedness of nearly *Page 633 $3,000. Refused charges D, G, and I ignore the issue under count B, and were for that reason properly refused. They were correct charges only as to the common count, and as to it they were fully covered by other instructions given.
Charge H was properly refused. The issues tried presented no question of estoppel. If no indebtedness was due on the mortgage, plaintiff was entitled to recover the money he paid, and he was entitled also to have the release. If the mortgage debt was less than $1,000, plaintiff was entitled to recover the difference between that sum and $1,000, and was entitled also to have the release. If the mortgage debt was $1,000 or more, plaintiff could recover nothing, being entitled only to the release. The trial judge so instructed the jury.
The assignment of error based on the refusal of charge J is not sufficiently argued to entitle it to consideration. However it was properly refused, since in some aspects of the evidence "the facts in the case," though known to plaintiff, would not defeat but would rather justify a recovery. The charge is at least misleading.
Defendant sought to show by his witness E. N. Blackwood that witness went over the mortgage debt account with Mrs. J. A. Tidwell, a joint mortgagor with her husband, and that she admitted it was correct. This was properly excluded by the court. So far as the issue of mortgage indebtedness was concerned, it was mere hearsay, and it was not competent for the contradiction of Mrs. Tidwell as a witness, because no predicate was laid therefor.
Defendant offered in evidence "a certain paper containing certain figures made by the defendant over at the home of Harvey Brown," at a time when the Tidwells and plaintiff and defendant were present, and which "were made with reference to the particular notes and mortgages in evidence at the time, and to which the evidence shows they all had knowledge of what the figures showed, and were made * * * for the express purpose of ascertaining the amount due on said mortgage at a meeting of the said parties for that express purpose."
Figures made by defendant are no more than written declarations by him, and this document was not admissible against plaintiff unless it appeared that with knowledge of the facts he admitted the correctness of the figures expressly or by silent acquiescence. There is nothing in the evidence to show that plaintiff admitted the correctness of the figures submitted by defendant on that occasion, nor, indeed, anything to show that he had any knowledge on the subject whatever; the transactions being between defendant and the Tidwells, and the figures being taken from defendant's own books. The document, apart from the uncertainty of its contents, was properly excluded.
We do not find any error in the rulings of the trial court, and the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.