James River Nat. Bank of Jamestown v. Weber
Decision Date | 27 January 1910 |
Citation | 19 N.D. 702,124 N.W. 952 |
Parties | JAMES RIVER NAT. BANK OF JAMESTOWN v. WEBER. |
Court | North Dakota Supreme Court |
The findings of the trial court in actions at law where a jury has been waived are entitled to the same weight as a verdict of a jury, and the same will be thus treated on appeal. Therefore such findings will not be disturbed, unless they are clearly against the preponderance of the evidence.
Evidence examined, and held clearly sufficient to support the findings.
Money paid under a mistake of fact to one not entitled thereto, and who cannot in good conscience receive and retain the same, may ordinarily be recovered back. Under such facts the law raises an implied promise on the payee's part to refund the amount of such payment.
The fact that plaintiff had the means of knowledge of the facts at his command, and negligently failed to avail himself thereof, will not defeat his recovery, where such negligence has not resulted in loss or damage to defendant.
Appeal from District Court, Stutsman County, Edward T. Burke, Judge.
Action by the James River National Bank of Jamestown, N. D., against Fried Weber. Judgment for plaintiff, and defendant appeals. Affirmed.
F. Baldwin, for appellant. John Knauf, for respondent.
This case originated in the district court of Stutsman county, and comes here on appeal from a judgment in plaintiff's favor. As the complaint discloses, the action is for the recovery of $319.71 with interest, which sum, it is alleged, was, on December 27, 1905, paid by plaintiff to defendant through mistake, induced by false representations made by defendant to plaintiff's officers. The answer puts in issue the material allegations of the complaint, and alleges facts tending to show that such payment was voluntarily made. A jury was expressly waived, and the cause submitted to the court, and after both parties had submitted their testimony, the court made its findings of fact and conclusions of law in plaintiff's favor, and ordered judgment accordingly. The material portions of the findings are as follows:
It is well settled that the findings of fact of the trial court in cases of this character are entitled to, and will be given, the same weight in this court as the verdict of a jury. As said by the present Chief Justice of this court in Ruettell v. Insurance Co., 16 N. D. 546, 113 N. W. 1029: An examination of the testimony serves to convince us that the findings of the trial court are amply supported by the evidence. Indeed, appellant's counsel does not seriously contend to the contrary.
The whole controversy arises over the item of $319.71, which, some time prior to October 7, 1905, was deposited in said bank to defendant's credit by one Ogilvie. Plaintiff contends that defendant drew two checks against his account for this sum, which were paid by it. One on October 7th, and the other on December 27th. Defendant admits drawing both of such checks, but contends that the one on October 7th was not paid. Whether this first check was paid or not is the vital question in dispute. If it was paid, as contended by plaintiff, then it is undisputed that the check of December 27th overdrew defendant's account, the exact amount of such check. Both of such checks were introduced in evidence, and are marked paid on their face, with the dates of such payments “October 7, 1905,” and “December 27, 1905,” respectively. In addition to this the witness Mattison,...
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