It is conceded that the foregoing opinion mistakenly treated charge 11 as applicable to count five — the count for money had and received. That charge related to the trover count and there is no contention now that the trial court erred in refusing said charge.
It may be also conceded, as asserted in the application for rehearing, that Bentley *Page 233 bought from plaintiff's intestate and was entitled to a new automobile. Confessedly he was not entitled to take the alleged new automobile and the Plymouth which he traded in as part payment of the purchase price, and trade the two to his codefendant for a new automobile and cash.
The appellants now insist that the court erred in refusing special charge 5 — the affirmative charge as to count 5 — the count for money had and received. They first insist that there is a clear variance between the pleadings and proof, in that while the evidence shows that Bentley received money from the other defendant and the new automobile, there is no evidence showing or tending to show that the Jim Barnett Motors, Inc., had received any money out of the transaction when the suit was brought; that he still had the Plymouth in his possession.
Rule 34 of Circuit Court Practice answers the contention. Code 1923, Vol. 4, p. 906, Code 1940, Tit. 7, Appendix.
They next insist that the evidence is without dispute that the defendants did not receive the same money. The burden was on the plaintiff to show that the defendants received money or its equivalent. Farmers' Bank Trust Co. v. Shut Keihn,192 Ala. 53, 68 So. 363; Hughes v. Stringfellow, 15 Ala. 324; Huckabee v. May, 14 Ala. 263; 14 Ala.Dig. 584, Money Received 2.
The evidence is without dispute that both defendants received the Plymouth automobile and dealt with or traded the same as money or the equivalent of money.
Application for rehearing overruled.
GARDNER, C. J., and THOMAS and FOSTER, JJ., concur.