The original complaint contained but one count, on a contract alleged to have been made by plaintiffs, Scott & Sons, with the defendant, Hudson, whereby the defendant, as guardian and trustee of Hattie Price, who lived in Massachusetts, agreed with plaintiffs, that if they would sell for him a certain piece of real estate in Montgomery, for the sum of five thousand dollars, he would pay the plaintiffs the regular, custom*176ary commissions of five per cent on the purchase price for so doing; that plaintiffs fully performed their part of the contract, and secured a purchaser for said real estate, at the price named; that the puixdiaser paid the defendant the full sum of five thousand dollars, and procured from him a deed for said land and also one from the said Hattie Price thereto, and that before this suit plaintiffs demanded of defendant the sum of $250, the same being five per cent on the $5,000 paid by the purchaser of said land to defendant, but he refused to pay them, etc.
The complaint was amended by adding a count claiming a like sum from defendant as money had and received by him for the use of plaintiff during the year 1898.
1. It is clear under the evidence, there could have been no recovery under the first count. The plaintiffs own evidence fails to make out the case as stated in this count in several material particulars, and shows that defendant acted throughout the transaction of the sale of said property, not for himself, but as the guardian of said Hattie Price; that he had no title or interest in the propérty other than as the agent or guardian of Miss Price, and that plaintiffs were fully advised of and knew all these facts. The proof also fails to show that defendant ever made any contract by which he individually, undertook to pay plaintiffs anything for making said sale. It is generally true and a familiar principle, that when a party acts and contracts avowedly as an agent of another, known as his principal, his acts and contracts are binding, if upon any one, solely on his principal, unless the agent goes beyond his authority and super-adds his individual responsibility by special stipulations. — Comer v. Bankhead, 70 Ala. 493; Ware v. Morgan, 67 Ala. 461; Roney v. Winter, 37 Ala. 278; 1 Am. & Eng. Encyc. Law, (2d ed.), 1119. The general charge, for anything appearing, might well have been given for the defendant on this count in the complaint.
2. It remains to inquire, upon what principle can the plaintiffs maintain an action against defendant for money had and received. Such an action is appropriate *177whenever the defendant has money in his possession which belongs of right to the plaintiff. — Levinshon v. Edwards, 79 Ala. 293. This right in the plaintiff to the money which bestows on him the right to maintain the action for it, must arise in some form, where the law implies a promise on the part of defendant that he will pay it to the plaintiff, and the .only privity between the parties that needs be shoivn, arises from this promise implied by law — that the defendant, having money in his hands that belongs, ex equo et bono to the plaintiff, will pay it over to him. — Steiner v. Clisby, 103 Ala. 190. The plaintiffs in the present case never had possession of the money sued for, out of which their right to it could spring. The money was never paid by the principal, Miss Price, to the defendant as her agent, to be by him paid to the plaintiffs; and if it had been left with him for such purpose, the paying of it to plaintiffs was a duty he would have owed primarily to the principal only; and in such case, unless the defendant paid it over to the plaintiffs, or assumed to the latter obligations to do so, his principal would have had the right to revoke or countermand the order to pay. — Mechem on Agency, § 567; Bank v. Miller, 77 Ala. 168; Coleman v. Hatcher, 77 Ala. 217, 220. Nor was there any lien in favor of plaintiffs, at common law or under statute, on the money in the hands of the defendant when paid to him by the purchaser of the property for his principal, out of which a right to any part thereof could arise to the plaintiffs. “This lien,” says Mechem, “-conferred by common law does not create an estate or title in the property over which it prevails. It is -a simple right of retainer, merely, and is neither a jus ad rem nor a jv,s in re . * j.j. follows, that the exclusive possession of the property by the person claiming the lien, is indispensable to its existence and continuance. If the person holds the property in subordination to the will of -another, no right of retainer attaches.”- — -Mechem on Agency, §§ 675, 676; 1 Jones on Liens, §§’20,21; Sawyer v. Lorvillard, 48 Ala. 332.
By the undisputed evidence, although it may appear that Miss Price owes the plaintiffs their commissions *178the projierty for her, it 'does not appear that defendant is liable therefor as for money had and received. The general charge as requested by defendant ought to have been given.
Reversed and remanded.