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EMPIRE OIL COMPANY v. LYNCH.
39454.
CARLISLE, Presiding Judge.
Money had and received, etc. Chatham Superior Court. Before Judge McWhorter.
1. " 'An action for money had and received lies in all cases where another has received money which the plaintiff, ex aequo et bono, is entitled to recover and which the defendant is not entitled in good conscience to retain.' Zapf Realty Co. v. Brown, 26 Ga. App. 443 (100 SE 748); Whitehead v. Peck, 1 Ga. 140 (3); Knight v. Roberts, 17 Ga. App. 527 (87 SE 809). In such an action 'the law implies a promise on the part of any person who has received the money of another to pay that person on demand. The reception of money by one and the demand by the other makes all the privity that is necessary to maintain this action.' Central R. v. First Nat. Bank, 73 Ga. 383 (2a), 385; Bates-Farley Savings Bank v. Dismukes, 107 Ga. 212 (2), 218 (33 SE 175). 'It is immaterial how the money may have come into the defendant's hands, and the fact that it was received from a third person will not affect his liability, if, in equity and good conscience, he is not entitled to hold it against the true owner.' Citizens Bank v. Rudisill, 4 Ga. App. 37 (2), 41 (60 SE 818, 820); 27 Cyc. 864, 857 [sic]; 2 Rul. Case Law, 778." Haupt v. Horovitz, 31 Ga. App. 203 (1) (120 SE 425). The petition in the instant case, as finally amended, when properly construed is plainly and simply an action for money had and received. Reduced to its simplest terms, it alleges that the defendant sold the plaintiff Diesel fuel at a price per gallon which, according to the understanding of the parties, included Federal excise tax in the amount of three cents per gallon, and that the plaintiff paid the price agreed upon with the understanding that the defendant was to pay the Federal excise tax due on behalf of the plaintiff; that the defendant failed to pay the sums thus due and the plaintiff was required to pay those sums in addition to the amounts already paid to the defendant. The petition was not subject to general demurrer.
2. In the order preceding the one finally overruling the defendant's demurrers, the trial judge sustained defendant's general demurrer with leave to the plaintiff to amend "adding a count setting out a cause of action for money had and received upon the same set of facts already set out in the petition." In the last amendment the plaintiff, instead of adding a count as directed by the court, merely struck the allegations after paragraph 6 of the original petition as amended and recast the petition in one count as set out in the statement of facts. The trial court did not thereafter abuse its discretion in holding that this was a sufficient compliance with the terms of the prior order. Central of Ga. R. Co. v. Sharpe, 83 Ga. App. 12, 15 (1) (62 SE2d 427).
4. The trial court did not err in overruling the defendant's demurrers to the plaintiff's petition as finally amended.
Launey Lynch, doing business as Launey Lynch's Truck Terminal, sued Empire Oil Company in the Superior Court of Chatham County. The defendant filed general and special demurrers to the petition and thereafter the plaintiff amended its petition four times and the defendant renewed its demurrers each time and filed additional demurrers to the petition as amended. As finally amended, the plaintiff struck all of the paragraphs of the original petition after paragraph 6 and substituted new allegations therefor. After the last amendment the trial court entered an order overruling the defendant's renewed and additional demurrers and the defendant filed a bill of exceptions assigning error on that judgment. In substance, the petition as finally amended alleged that the plaintiff leased certain premises from the defendant which he operated as Launey Lynch's Truck Terminal; that he purchased from the defendant Diesel fuel for resale to the owners of Diesel powered highway motor vehicles; that fuel so used is subject to a Federal excise tax of three cents per gallon which, under the law, the retail dealer must collect from the buyer and remit to the Government, the retail dealer being primarily liable therefor; that prior to January, 1955, the inception date of plaintiff's lease, plaintiff had not engaged in the business of selling at retail any fuel subject to said tax and that upon commencing the purchase of such fuel from the defendant he agreed with the defendant's agents that the price which he would pay for the fuel would include three cents per gallon to cover such tax, and the defendant's agents agreed to segregate the tax and pay the same to the Federal Government on behalf of the plaintiff; that at all times thereafter until April 17, 1959, plaintiff paid to the defendant the price per gallon charged, including an amount to cover the Federal excise tax; that he was reassured on at least two occasions by defendant's agents that the defendant was remitting the tax for him, but that on April 17, 1959, agents of the Internal Revenue Service came to petitioner's place of business, examined plaintiff's books and record relating to purchases and sales by plaintiff of Diesel fuel and informed plaintiff that the tax required had not been paid; that as the result of this audit of plaintiff's books, plaintiff was required to pay an additional principal amount of $9,874.01 to cover the tax on Diesel fuel previously purchased from the defendant and for which the plaintiff had paid the defendant an amount to cover such tax, and in addition thereto, plaintiff was required to pay additional sums as penalty and interest. The prayer in the petition as finally amended was for a judgment in the amount of the tax.
Findley, Shea, Friedman, Gannam, Head & Buchsbaum, Erwin A. Friedman, Bart E. Shea, contra.
Myrick & Myrick, Shelby Myrick, for plaintiff in error.
DECIDED MAY 3, 1962 -- REHEARING DENIED MAY 16, 1962.
Friday May 22 22:49 EDT


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