Where a complaint declares on a contract as made with the plaintiff by one of the defendants as the agent of another defendant, it states no cause of action against the agent defendant.
When one contracts merely as the agent of a disclosed principal, he binds either his principal or himself, but not both; and a joint action against both involves a practical as well as a legal anomaly.
If the principal was bound, as intended, the agent cannot be held liable on any principle of law or justice. But if the agent, though assuming and intending to bind a designated principal, and not himself, fails for want of authority to do so, then the agent is himself liable upon the contract as if he were nominally a principal. Whiteside v. Jennings, 19 Ala. 784, 788; McCalley v. Wilburn, 77 Ala, 549, 552; Gillaspie v. Wesson, 7 Port. 454, 461, 31 Am. Dec. 715. This form of liability seems to be thoroughly established by our decisions, though in most jurisdictions such an assumption of agency gives rise only to an action for damages as for breach of an implied covenant that the agent is duly authorized, or as for a deceit practised by means of the false assumption of agency. 2 Corp. Jur. 806, § 479(d).
The demurrers interposed by Gillis to the special counts should have been sustained, whether as for misjoinder of parties, or because they failed to state a cause of action against him. This error must, however, be pronounced -harmless, if, upon the facts shown, plaintiff was entitled to recover under any one of the common counts.
By request, the trial court made a special finding of the facts, in substance as follows: The defendant Gillis was not in fact the agent of the defendant Campbell, Cleaver & Co., Inc., but, was an independent *23buyer of cotton, and the contract between him and plaintiff with respect to the handling of plaintiff’s 26 bales’ of cotton was an individual affair, although plaintiff believed and acted upon the impression that Gillis was the agent of Campbell, Cleaver & Co., Inc., and had the right to bind them in the transaction in question. There is no dispute as to the amounts of money received by plaintiff when the cotton was delivered, and after-wards from Gillis by way of advancement or restitution, nor as to the amounts paid by plaintiff to Gillis and to Campbell, Cleaver & Co., by way of margins on the cotton supposedly held by the latter for plaintiff’s benefit. The net amount due to plaintiff, after all credits, and including interest to the date of judgment, was $845.
Approving and supplementing these findings, it seems clear to us that the defendant Gillis induced plaintiff to believe that he was placing plaintiff in direct contractual relation with Campbell, Cleaver & Co., and that the latter would carry plaintiff’s cotton on the marginal basis stipulated, with the right in him to close the transaction on a cash basis whenever he chose to do so; that it was not contemplated that plaintiff’s cotton, or, more properly, his cotton contract with the brokers named, should be blended with any other transaction between Gillis and the brokers, and carried, thus incumbered, as a single contract in the name of Gillis; that Gillis in fact did that very thing; and that he thereby violated his undertaking with plaintiff, with the result that the margins supplied by plaintiff were unavailing to save the contract covering plaintiff’s cotton.
Under those conditions, the payment of $640, which Gillis induced plaintiff to make by drawing his check payable directly to the brokers, supposedly for the protection of plaintiff’s own cotton, but which was in fact designedly applied by Gillis to his own contract covering 86 bales (including plaintiff’s 26 bales), cannot be regarded as a voluntary or intended payment by plaintiff. Notwithstanding the form of payment, it was in equity and good conscience money had and received by Gillis to the use of plaintiff; and having used it unlawfully by diverting it from its proper and intended use, Gillis must be held as the custodian of the fund as though it still remained in his hands. As we view the law and morals of the case, Gillis must account to plaintiff for that money.
“A recovery may be had on the common counts although there is a special contract, whenever by its breach, the plaintiff is entitled to recover a sum in numero, or which can be rendered certain by a mere calculation.” Sprague v. Morgan, 7 Ala. 952; Farmers’ B. & T. Co. v. Shut & Keihn, 192 Ala. 53, 60, 68 So. 363.
The sum for which the trial court rendered judgment is manifestly, this payment of $640, with interest from December 8, 1919, to January SO, 1924. In this we find no error, and the judgment will be affirmed.
Affirmed.
THOMAS, BOULDIN, and MILLER, Jj., concur.