Garrison v. Murphy

• Decision Date: 19 March 1902
• Citation: 89 N.W. 766,2 Neb. [Unof.] 696
• Parties: GARRISON v. MURPHY.
• Court: Nebraska Supreme Court

2 Neb. [Unof.] 696

89 N.W. 766

GARRISON

v.MURPHY.

Supreme Court of Nebraska.

March 19, 1902.

Commissioners' opinion. Department No. 1. Error to district court, Cass county; Jessen, Judge.

“Not to be officially reported.”

Action by Ezra Murphy against George W. Garrison. Judgment for plaintiff. Defendant brings error. Affirmed.Byron Clark and C. A. Rawls, for plaintiff in error.

Matthew Gering and Geo. Risser, for defendant in error.

HASTINGS, C.

Two questions arise in this case. The first is whether or not the following allegation of payment by mistake is sufficient, after a verdict, to support a judgment for plaintiff. “That from said 22d day of January, 1896, until the month of December, 1898, the plaintiff paid to the defendant, for interest upon said $3,200, the sum of $1,323.45, and that the sum over and above the interest due upon said $3,200 was paid to said defendant at the defendant's special instance and request, and without any knowledge upon the part of the said plaintiff that such sum overpaid the defendant the interest upon said $3,200.” Plaintiff alleged a loan of $3,200, at 8 per cent. per annum, and its repayment, and in the above terms an overpayment of interest. It is insisted on the authority of Renfrew v. Willis, 33 Neb. 98, 49 N. W. 1095, that the foregoing allegation shows only a voluntary payment of money, and therefore is no basis for the verdict and judgment in favor of the pleader in this case. In the Renfrew Case the plaintiff set out a lease, the payment by cash and labor of $3,372.22 at defendant's request “by virtue of the lease,” and that the defendant was entitled to $1,600 and no more, and the rest was due plaintiff. The allegation of the petition in the present case distinctly alleges that the payments were for interest, and not only at defendant's request, but without knowledge on defendant's part that such sums overpaid the interest due. The difference between the two petitions seems to be that in Renfrew v. Willis no mistake nor lack of knowledge was apparent from the pleading, and the court adds that none was shown in the evidence, and on both grounds the case was reversed. In the present case there is no claim of any lack of evidence to sustain the verdict for plaintiff, either in the county court or on appeal in the district court. It seems to us that the statement in the present petition does amount to an assertion of mistake in the amount of interest, and of its payment at defendant's special request, under the mistaken supposition that it was a part of the...