Bank of Belmont v. Judson Lumber Co.

• Decision Date: 17 May 1926
• Docket Number: 25692
• Citation: 108 So. 440,143 Miss. 86
• Court: Mississippi Supreme Court
• Parties: BANK OF BELMONT v. JUDSON LUMBER CO. [*]

108 So. 440

143 Miss. 86

BANK OF BELMONT v. JUDSON LUMBER CO. ^[*]

No. 25692

Supreme Court of Mississippi

May 17, 1926

Division A

1 PAYMENT. Action held to lie against bank to whom overpayment on invoice was made by mistake.

Where lumber company paid bank on invoice for lumber and by mistake paid for two cars when bank had assignment only for proceeds of one, held, that action would lie against bank for amount paid to it by mistake.

2 PAYMENT. Bank, having advanced more money on invoice than proceeds of sale actually were, held not entitled to retain money paid it by consignee by mistake.

Where lumber company by mistake paid invoice on two carloads of lumber, bank having assignment on proceeds of only one car held, that bank was not entitled to retain entire amount advanced by it on car assigned, where proceeds of sale did not amount to that much.

HON. C. P. LONG, Judge.

APPEAL from circuit court of Tishomingo county, HON. C. P. LONG, Judge.

Suit by the Judson Lumber Company against the Bank of Belmont. From the judgment, defendant appeals, and plaintiff cross-appeals. Affirmed on direct appeal, and on cross-appeal reversed and judgment rendered.

Affirmed on direct appeal. Reversed on cross-appeal.

Cunningham & Berry, for appellant.

The money was not paid to the Bank of Belmont, but a check was paid to the Nixon Lumber Company through the Bank of Belmont as per the instructions of Judson Lumber Company, and after the Bank of Belmont had received the money and applied it to the credit of the Nixon Lumber Company as per instructions from the Judson Lumber Company, the cause of action would be against the Nixon Lumber Company and not the Bank of Belmont.

The Bank of Belmont had no authority to withdraw from the account of the Nixon Lumber Company any money whatever to correct a mistake made by Judson Lumber Company in favor of the Nixon Lumber Company.

The Bank of Belmont did not profit by this error. The error was in favor of the Nixon Lumber Company and at the time the Bank of Belmont got notice of this error; it had not the authority nor the means to correct such error for the Judson Lumber Company out of the funds of the Nixon Lumber Company.

Therefore, we submit that this cause ought to be reversed and judgment entered here.

W. C. Sweat, for appellee.

It is admitted in the agreed statement of facts in this case that three hundred twelve dollars and twelve cents was paid by the Judson Lumber Company to the Bank of Belmont by mistake, and that this amount should have been remitted to the Corinth State Bank. While the Bank of Belmont only credited Nixon with two hundred seventy-eight dollars and thirty-five cents out of this check, the difference between the two hundred seventy-eight dollars and thirty-five cents and three hundred twelve dollars and twelve cents evidently went to make up the shortage in the car which was assigned to the Bank of Belmont on the same date.

Since this three hundred twelve dollars and twelve cents was paid to the Bank of Belmont by mistake, the appellee has a right to recover it. Bessler Movable Stairway Co. v. Bank of Leaksville, 140 Miss. 537, 106 So. 445; Holden v. Davis, 57 Miss. 769; Bank of Louisiana v. Ballard, 7 Howard 371, 21 R. C. L. 167, 30 Cyc. 1321. While the court only gave judgment for the plaintiff in the sum of two hundred seventy-eight dollars, the court was in error in not giving judgment for the whole three hundred twelve dollars and twelve cents.

This court has held in Bessler Movable Stairway Co. v. Bank, supra, that "The party to whom the payment by mistake was made must be left in the same situation after he refunds it as he would have been had the payment to him not been made." Also "but if circumstances exist which make such recovery inequitable, the burden of proving that fact rests upon the person resisting the payment." Hathaway v. Del. Co. (N. Y.), 113 Am. St. Rep. 909, 13 L. R. A. (N. S.) 273, 21 R. C. L., p. 170, pt. 201.

Instead of appellant showing that it would be inequitable for it to repay this money which it received by mistake, the record shows conclusively that appellant would not be injured at all, but would be in the same position as before it received the money.

The case should be affirmed on direct appeal and reversed on cross-appeal; and the judgment entered here for us.

OPINION

MCGOWEN, J.

The Judson Lumber Company brought its suit in the circuit court of Tishomingo county against the Bank of Belmont for three hundred twelve dollars and twelve cents paid by check on an invoice for lumber consigned by Nixon Lumber Company in an L & N. car, alleging that this check for this car of lumber had been assigned by the consignor to the Bank of Corinth; that there was only due the Bank of Belmont on Nixon's consignment of lumber in a G. M. & N. car shipped on the same date by the same consignor; that there was only due the Bank of Belmont the difference between three hundred twelve dollars and twelve cents and five hundred seventy-one dollars and forty-two cents, the amount of the check which the plaintiff, Judson Lumber Company, by mistake, remitted to the Bank of Belmont, which check included the amount due by it on both...