It is conceded in the opinion of the majority of the court that the claims were not legal obligations of the highway department under act 153 of 1929, or the Martineau road law. Therefore $21,714.13 was illegally taken from the state of Arkansas.
The only evidence relied on by the majority in holding that the trial court was correct in directing a verdict for the defendants is the testimony of Blackwood and Williams who were vitally interested in the result of the trial. This court has consistently held it is error to direct a jury to find according to the testimony of a witness, if he is interested in the result of the trial, or if his testimony contains such inconsistencies or inaccuracies as would have warranted the jury in declining to accept as established the existence of facts which depend entirely upon his testimony. Merchants' Fire Ins. Co. v. McAdams,88 Ark. 550, 115 S.W. 175.
This court has also consistently held that "where there is any substantial evidence to support the verdict *Page 649 the question must be submitted to the jury. In testing whether or not there is any substantial evidence in a given case, the evidence and all reasonable inferences deducible therefrom should be viewed in the light most favorable to the party against whom the verdict is directed, and, if there is any conflict in the evidence or where the evidence is not in dispute, but is in such a state that fair-minded men might draw different conclusions therefrom, it is error to direct a verdict." Smith v. McEachin, 186 Ark. 1132, 57 S.W.2d 1043.
Measured by these rules, I am of the opinion the evidence is amply sufficient to warrant a submission of this case to the jury on the issue of conspiracy on the part of the defendants.
Even though the evidence were not sufficient to warrant the submission of that question to the jury, since it is conceded that the money was paid out illegally and without authority of law, the state has the undoubted right to recover the money that each of the defendants received. The allegations in the complaint state a cause of action for money had and received, and that form of action is "maintainable in all cases where one person has received money or its equivalent under such circumstances that in equity and good conscience he ought not to retain it and ex aequo et bono it belongs to another." 2 R.C.L., page 778; Emery v. United States, 13 F.2d 658; Wisconsin Central Railroad Co. v. United States, 164 U.S. 190, 17 Sup. Ct. 45, 41 L. Ed. 399. It is only necessary to read the statement of facts set out in the opinion of the majority to determine that the appellees received money that in equity and good conscience they ought not to retain.
Mr. Justice HUMPHREYS and Mr. Justice MEHAFFY concur in the views here expressed. *Page 650