Bessler Movable Stairway Co. v. Bank of Leakesville

• Decision Date: 07 December 1925
• Docket Number: 25254
• Court: Mississippi Supreme Court
• Parties: BESSLER MOVABLE STAIRWAY CO. v. BANK OF LEAKESVILLE. [*]

106 So. 445

140 Miss. 537

BESSLER MOVABLE STAIRWAY CO. v. BANK OF LEAKESVILLE. ^[*]

No. 25254

Supreme Court of Mississippi

December 7, 1925

Division A

Suggestion of Error Overruled Jan. 4, 1926.

APPEAL from circuit court of Greene county, HON. C. C. MILLER Judge.

Action by the Bessler Movable Stairway Company against the Bank of Leakesville. Judgment for defendant, and plaintiff appeals. Affirmed.

The following is the agreed statement of facts on which the case was tried in the court below:

The following agreed statement of facts shall be taken and used as evidence in the above styled cause by both the plaintiff and the defendant, to be heard by the court, a jury having been waived, the court, however, to be the judge of that part of the agreed statement of facts which is competent as evidence; both the plaintiff and the defendant being in open court to said statement of facts, and both sides waiving the use of witnesses:

It is agreed that on the 28th day of September, 1923, the Continental Lumber Company shipped to the plaintiff, the Bessler Movable Stairway Company, at Akron, Ohio, a carload of lumber as shown by the invoice which is marked Exhibit A to the declaration. That by the terms of the order under which the said lumber was shipped to the Bessler Movable Stairway Company it was shipped f. o. b. Akron, Ohio. That the plaintiff was to pay the freight thereon and deduct same from the amount of the said invoice. A copy of the said invoice and marked Exhibit A is to be used as evidence on the hearing hereof. That the plaintiff did pay the sum of three hundred fifty dollars and nineteen cents freight, but through a mistake of fact neglected to deduct said freight from said invoice and erroneously remitted the full amount of said invoice less the two per cent. for cash, which made the amount actually remitted the sum of nine hundred fifty-nine dollars and sixteen cents, which was remitted to the Bank of Leakesville, and was by them received by check of the plaintiff, which is attached to this agreed statement of facts, and made a part of the same. That when plaintiff received said invoice it had been assigned to the Bank of Leakesville, as shown by the written assignment thereon, and remittance therefor was received by the Bank of Leakesville.

The Bank of Leakesville had for some time been handling invoices for the Continental Lumber Company, and it received a copy of the invoice here in question and advanced to the Continental Lumber Company five hundred and twenty dollars, and it also received the check that has been introduced here. The Bank of Leakesville, immediately upon receiving the check, paid the note of the Continental Lumber Company for five hundred and twenty dollars, together with interest, and placed the balance of the said check to the credit of the Continental Lumber Company, and the Continental Lumber Company checked out this balance before it received notice of an error being made. That the Continental had gone into bankruptcy before the Bank of Leakesville had any notice of the error being made, and the proceeds of the said invoice had all passed to the benefit of the Continental Lumber Company, and none of the said funds were in the hands of the Bank of Leakesville and all had passed out of the hands of the Bank of Leakesville before it had any knowledge of any error being made.

It is agreed that the plaintiff is objecting to that part of the agreed statement of facts as being competent evidence as to what the Bank of Leakesville did with the proceeds of the check received by them, said objection to be ruled on by the court in rendering his opinion. That the plaintiff had no notice of the transactions between the Continental Lumber Company and the Bank of Leakesville except the transaction of assigning or involving the assigning this invoice, and no knowledge of the manner of the assignment except that written notice contained in the invoice itself, and that as soon as it discovered the error it did notify the Bank of Leakesville and make demand for refund, which was refused.

Affirmed.

E. C. Fishel, for appellant.

J. W. Backstrom, for appellee.

OPINION

SMITH, C. J.

The appellant sued the appellee to recover a sum of money which it paid the appellee by mistake, and, from a judgment that it take nothing by the suit, it has brought the case to this court. The case was submitted to the judge of the court below, to be tried by him without a jury on an agreed statement of facts which the reporter will set out in full.

The appellant's contentions are: First, the court should not have taken into consideration the fact that the appellee paid to the Continental Lumber Company the money it had received from the appellant in excess of the amount which the appellant should have paid it; second, and if mistaken in this, that the payment of this money by the appellee to the Continental Lumber Company does not relieve it of liability to the appellant therefor. Both of these contentions are without merit, and for convenience will be taken in their inverse order.

Money paid to another by mistake of fact, although such mistake may have been caused by the payer's negligence, may be recovered from the person to whom it was paid, in an action for money had and received. Bank of Louisiana v Ballard, 7 Howard 371; Holden v. Davis, 57 Miss. 769; 21 R. C. L....