Appellee sued for and recovered against appellant a judgment for $523, with interest thereon from May 21, 1909, at the legal rate upon a state of facts (omitting those not now material) substantially alleged and proven, as follows: That appellee as the agent for one Bird, in due course of business and for a valuable consideration, and before its maturity, purchased from J. H. Johnson a certain promissory note for the sum of $425 executed by W. H. May and payable to the order of appellant, W. R. Ingram; that after the maturity of said note May paid the same through the Lubbock State Bank of Lubbock, Tex., of which appellee was the cashier, and "by and through the negligence and oversight of plaintiff and by and through his mistake" the proceeds of said note so collected amounting to the sum of $523 was deposited in said bank to the credit of the defendant, W. R. Ingram, instead of to the credit of Arthur Bird, the owner of the note, as it should have been; that, knowing that said money was the property of Bird, Ingram checked the money out of the bank and appropriated it to his own use and benefit; that, by reason of said negligence and mistake, appellee was required to and did pay the said sum of $523 to Arthur Bird and later demanded of appellant the return of the money so wrongfully drawn out by him, but which demand was refused. The evidence further authorizes the conclusion evidently arrived at by the trial court that Johnson was authorized to sell the note as alleged, and there is substantially but a single question presented on this appeal.
Appellant, by assignments of error to the action of the court in overruling his general demurrer and to the judgment as not supported by sufficient evidence, insists that the facts alleged and proven fail to show that appellee had any right of subrogation. The contention, of course, proceeds on the theory that the right of recovery, if any, was in Arthur Bird, the owner of the note at the time of its payment, and that appellee cannot be subrogated to this right without an agreement to that effect, express or implied, and no such agreement appears. While the remedy of subrogation is generally applied in behalf of a surety or a subsequent lienholder who discharges an obligation in his own protection, and appellee's remedy, therefore, not one of subrogation, we think that regardless of distinctions in the forms of action that the facts alleged and proven support the recovery.
It is a well-established doctrine, both by courts of law and of equity, that, where one person has received money of another which in honesty and good conscience he cannot retain, an action will lie by the party entitled to recover it back, and whether the action be in assumpsit or for money had and received under our Code is immaterial. Merryfield v. Willson, 14 Tex. 224, 65 Am.Dec. 117; Ph. Zang Brewing Co. v. Bernheim,7 Colo. App. 528, 44 P. 380; 4 Pomeroy's Equity (3d Ed.) § 1419.
These conclusions do not seem to be seriously contested, the contention apparently being that, while Bird might have a right of recovery, such right does not exist in appellee, but we see under the facts alleged and proven no sufficient reason for denying appellee's right in paying his principal, Bird, money that through his mistake he had in effect delivered to another, he but performed a legal obligation that Bird could have enforced in the courts, and whether by such payment equity, in order to afford appellee relief, will declare appellee subrogated to the right of Bird, or whether it should hold that the payment to Bird operated as *Page 422 an equitable assignment of Bird's right, can, we think, be of no consequence. The case of Houser v. McGinnas, by the Supreme Court of North Carolina, reported in 108 N.C. 631, 13 S.E. 139, is similar to the case we have before us. In that case the plaintiff, Houser, was the clerk of an agent for an express company. During the agent's absence he received a money package consigned to one Beam, and delivered the package to Beam, but failed to take receipt therefor, and failed to enter the transaction upon the books in the agent's office. Later the package was traced to Houser's possession, and Beam denied its receipt, whereupon the agent, McGinnas, repaid the shipper of the package, who, in turn, credited Beam with the amount theretofore charged against him. The agent thereupon required of his clerk, Houser, payment of the money received and the receipt of which Beam had denied. Later Houser was able to establish the fact of the receipt of the package by Beam, and sued both Beam and the agent for the amount that he had been required to pay. The court treated the transaction as in effect a second payment to Beam by the plaintiff, Houser, and held that the law under the circumstances implied a promise by Beam to repay it to Houser, citing Mason v. Waite,17 Mass. 563, and saying: "It is a general rule that, where the money of the principal has been wrongfully paid by his agent to a stranger, either the principal or the agent may maintain an action for its recovery" — citing 1 Lawson Rights, Rem. Per. § 121. We approve this decision as applicable to the case before us, and hold that, whatever may be said of the nature of appellee's right or remedy, a right or remedy undoubtedly existed and the judgment in his favor crystalizes the proper conclusion.
In saying this we have not overlooked appellant's further contention that appellee should be debarred because of his negligence, but negligence in fact is not relied upon, the point arising only under the general demurrer. In construing the petition under general demurrer, every reasonable intendment must be indulged in its favor, and it was alleged that the payment was by mistake. And to this rather than to the further allegation that it was through negligence we think effect should be given. Moreover, in the case of Houser v. McGinnas, already referred to, the point seems to have been there made and it was held to be unavailing in the absence of some showing that it resulted in damage to the defendant, and there can be no pretense in the case before us that appellant was damaged by the erroneous credit on the books of the bank in his favor whether done through negligence or by mistake.
We conclude that all assignments should be overruled, and the judgment affirmed.