Opinion. Prepaid freight, upon failure of the carrier to perform the contract of carriage, may be recovered in an action for money had and received, no express contract to the contrary appearing. The consideration for the advance payment having failed, the money paid becomes ex equo et bono the property of the shipper, and the law raises an implied contract to refund. Norton-Crossing Co. v. Martin, 202 Ala. 569, 81 So. 71.
Appellant does not question this rule, but seeks a reduction for the amount paid out under conditions stated in plea 10. Count 5 alleges that the amount claimed was paid as freight for the transportation service to be performed. The plea is construed in connection with the complaint.
It nowhere avers plaintiff was informed that a portion of the money it was paying was to go to another for shipping space; that the money was so paid out at the shipper's instance, or with its knowledge and consent. Perchance the shipper would not have entered into the charter party if informed that he was not only paying freight to the carrier, but added charges to another for shipping space.
As for the rights of the shipper to recover the money paid for services never rendered, the credit claimed can stand on no higher ground than any other expense incurred by the carrier in undertaking to carry out his contract of affreightment.
Where money is received in trust to be delivered to another, and is so delivered before the trust is revoked, the trustee or agent cannot, as of course, become liable for a refund of the money. In such case, the plaintiff must aver and prove the money had not been delivered when demand for return was made. Haney v. Conoly, 57 Ala. 179. The same principle is involved in Wilson v. Sergeant, 12 Ala. 778.
If the charter party calls for certain outside charges to be paid out of the gross fund paid to the carrier, the recovery cannot include the funds so applied. This, under the like principle. The carrier is, in effect, an agent to pass the fund to another. The fact that the carrier has used the money in payment of his own obligations in no way defeats the claim of the shipper for his money back on failure to perform. The distinction is obvious.
There was no error in the ruling on demurrer.
Affirmed.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur. *Page 640