
    16117.
    Fraser v. Smithwick.
   Stephens, J.

1. In a suit to recover for money had and received, where it was alleged that money due to the plaintiff by a third person had been paid to the defendant, and that the defendant refused to account to the plaintiff therefor, and where the defense interposed was that the money sued for had not been due to the plaintiff but had been due to the defendant by the third person, and was paid to the defendant under a contract between the defendant and the third person, to which the plaintiff was no party, and where there was evidence to the effect that the plaintiff had been employed by the third person to sell on commission certain timber belonging to the third person, and that the plaintiff associated the defendant with him for such purpose, and agreed to divide his commission with the defendant, that this agreement between the plaintiff and the defendant met with the approval of the third person, and that a new contract was entered into between the plaintiff and 'the defendant upon the one part and the third person upon the other part, by the terms of which the plaintiff and the defendant were given an option upon the timber, although the option was in fact taken only-in the name of the defendant and the third person, a finding in favor of the plaintiff for money had and received, as alleged in the petition, was authorized. The agreement between the plaintiff and the defendant, dividing the commission, was not the contract sued on. Its existence, however, was essential to the establishment of the plaintiff’s ease as laid in the petition.

Decided September 2, 1925.

Action for money liad and received; from Colquitt superior court. —Judge W. E, Thomas. November 11, 1924.

E. E. Whelchel, for plaintiff in error.

J. L. Dowling, contra.

2. Therefore, a charge by the court that the plaintiff could recover upon proof of an agreement and understanding between him and the defendant that they were to be associated as agents to sell the timber and to share the profits, and that they procured an option to sell the timber and did sell it and make the profits therefrom, was adjusted to the evidence. Such charge was not error.

3. The evidence authorized the verdict found for the plaintiff, and the court, fairly to the defendant, submitted the issues to the jury.

Judgment affirmed.

Jenkins, P. J.,- <md Bell, J., concur.  