
    6047.
    Atlanta Telephone & Telegraph Co. v. Fain et al.
    
    Decided June 25, 1915.
    Complaint; from municipal court of Atlanta. October 9, 1914.
    The action was by W. L. & W. M. Fain against the Atlanta Telephone & Telegraph Company. The petition alleges, that on June 26, 1909, the plaintiffs entered into a contract with the defendant, for the installation of a desk extension telephone to be connected with telephone No. 487 at the plaintiffs’ place of business at No. 490 Marietta street in the city of Atlanta, at the rate of $15 per annum or a monthly rate of $1.25; that the said telephone has never been installed, but the plaintiffs have paid each month $1.25, through the month of July, 1914, for which they have received no consideration; and that by reason of these facts the defendant is indebted to them in the sum of $76.25 principal, with interest at 7 per cent, per annum on each payment; wherefore they pray that process issue, etc. By amendment it is alleged: The said contract was signed on behalf of the plaintiffs by W. M. Fain. Before the date of said contract the office and warehouse of the plaintiffs were at Nos. 1 and 3 North Forsyth street, at which place the defendant was furnishing plaintiffs with a main-line telephone and a desk extension, for which service plaintiffs were paying $46 per annum. W. M. Fain, for and in behalf of the plaintiffs, ordered the telephone moved to their present location at No. 490 Marietta street, and had entire charge of contracting for and securing telephone service at their new place, and did not notify W. L. Fain that he had signed the contract for additional service, and W. L. Fain did not know of the existence of said contract until August 6, 1914. At the time of the execution of the contract W. M. Fain was sick and unable to look after much of the business of the firm, and shortly after the execution of the contract he became so ill that he was thoroughly incapacitated for attending to any business whatever and did not attempt to do so, and he has not for more than three years been to the office of W. L. & W. M. Fain. On account of his illness his mind became affected, and until recently he has not been in a position to communicate to the said firm any knowledge that he might have had with reference to the contract. The bills rendered to plaintiffs by the defendant were not itemized and did not show how many telephones were being charged them, but were for a lump sum for telephone service. The checks given for payment of the telephone bills from month to month were signed by W. L. Fain, who did not know that the additional telephone had been ordered, and supposed that the higher rate was the result of the raising of rates by the company when the telephones were moved to their present location. For the foregoing reasons the monthly payments have been made as the result of a mistake of facts and of ignorance, and the defendant is not entitled to retain them, and in equity and good conscience should return the various sums with interest from the date of payment. The demurrer was on the ground that no cause of action was set forth in the petition.
   Broyles, J.

1. The petition, as amended, set forth a cause of action, and the court did not err in overruling the demurrer.

2. Where money is paid under a mistake of fact, or in ignorance of facts, it may be recovered, if the circumstances are such that the party receiving it ought not, in equity and good conscience, to retain it. Camp v. Phillips, 49 Ga. 455; Pine Belt Lumber Co. v. Morrison, 13 Ga. App. 453 (79 S. E. 363). In the instant case it is clear that the plaintiffs received nothing in return for the payments made by them, and there is nothing in the evidence which would render it inequitable for them to recover this money. See also Logan v. Sumter, 28 Ga. 242 (73 Am. D. 755); Georgia Railroad &c. Co. v. Grossley, 128 Ga. 35 (57 S. E. 97).

3. The evidence authorized the judgment. There was no error of law; and the court did not err in overruling the motion for a new trial.

Judgment affirmed.

Lewis W. Thomas, for plaintiff in error,

cited: 50 Ga. 310; 10 Enc. Dig. Ga. Eep. 299-303; 41 W. Ya. 742; 4 Harr. (Del.) 170; 72 Ark. 552; 101 Me. 17; 34 Mass. 134; 59 Mass. 115; 61 Mass. 125; 70 Ark. 5; 54 Ind. 337; 122 N. C. 569; 187 N. Y. 552; 21 Ky. L. Eep. 1186; 92 Mo. 239; 126 Mass. 465; 33 Neb. 98.

Simmons & Simmons, contra,

cited: Civil Code (1910), § 4317; 28 Ga. 242; 49 Ga. 455; 115 Ga. 70; 128 Ga. 35.  