James River National Bank of Jamestown v. Weber

• Decision Date: 27 January 1910
• Citation: 124 N.W. 952,19 N.D. 702
• Court: North Dakota Supreme Court

124 N.W. 952

19 N.D. 702

JAMES RIVER NATIONAL BANK OF JAMESTOWN, NORTH DAKOTA, A U. S. CORPORATION v. FRIED WEBER

Supreme Court of North Dakota

January 27, 1910

Appeal from District Court, Stutsman county; Burke, J.

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.

One paying money without compulsion, claimed by another as a matter of right, and paying with full knowledge of the fact cannot recover it. Wyman v. Farnsworth, 3 Barb. 369; N.Y. & C. R. Co. v. Marsh, 2 Kern 308, 1 Wait's Law & P. 702; Mowatt v. Wright, 1 Wend. 355; Morton v. Ostrom, 33 Barb. 256; Forest v. Magor, 13 Abb. 350.

Money paid by one under a mistake of facts, which he had means of knowing, cannot be recovered. Winddiel v. Carroll, 16 Hun. 101 to 103; See Vol. 39 Cent. Dig. Col. 438, Sec 267; Peterborough v. Lancaster, 14 N.H. 382; Gooding v. Morgan, 37 Me. 419; Pensacola Ry. v Braxton, 16 So. 317; McArthur v. Luse, 5 N.W. 451; Wheeler v. Hatheway, 24 N.W. 780; Simmons v. Looney, 24 S.E. 677; Wiles v. McIntosh Co. 10 N.D. 594, 88 N.W. 710; Wessel v. Mortgage Co., 3 N.D. 160, 54 N.W. 922; Frederick v. Douglas Co., 71 N.W. 798; Anderson v. Cameron, 97 N.W. 1085.

John Knauf, for respondent.

Where one pays money under a mistake of right and duty, with no obligation to pay, and the recipient no right to receive, it may be recovered, whether the mistake is of law or fact. Northrup's Ex'rs. v. Graves, 19 Conn. 548, 50 Am. Dec. 264; U. N. Bank v. Sixth N. Bank, 43 N.Y. 452; Mfgrs. N. Bank v. Perry, 144 Mass. 313; 2 Morse on Banks and Banking, 272 Col. 426, Cent. Dig. Vol. 39.

Overdrafts created by mistake, where payee of check is not damaged, and has fraudulently induced the check to be honored, may be recovered. Mowatt v. Wright, 1 Wend. 355, 19 Am. Dec. 508; Bulow v. Goddard, 9 Am. Dec. 663; Bull v. City of Quincy, 52 Ill.App. 186; Reynolds v. Rochester, 4 Ind. 43; Sheard v. Sears, 119 Mass. 143; Ely v. Padden, 13 N.Y.S. 53; Sleep v. Heymann, 57 Wis. 495, 16 N.W. 17; Whiting v. Bank, 77 N.Y. 365; Continental Nat'l. Bank v. Tradesmen's Nat'l. Bank, 36 App.Div. (Hun N.Y.) 112; Burkhalter v. Second Nat'l. Bank, 42 N.Y. 538; Mutual Savings Institution v. Enslin, 46 Mo. 200; Citizens' Bank v. Graflin, 31 Md. 507.

Money received under a mistake of fact or law or which the recipient has no right in good conscience to retain, may be recovered. Kane v. Morehouse, 46 Conn. 300; Culbreath v. Culbreath, 50 Am. Dec. 375; City of Covington v. Powell, 59 Ky. 226; City of Louisville v. Henning, 64 Ky. 381; McMurtry v. Ky. Central Ry. Co. 1 S.W. 815; Foster v. Kirby, 31 Mo. 496.

OPINION

FISK, J.

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 a judgment accordingly. The material portions of the findings are as follows: "That on December 27, 1905, the defendant made a certain check against said bank for the sum of $ 319.71, and represented to the teller, an officer of said bank, that he had said sum on deposit in said bank. That said statement so made was false and fraudulent, and made with the intent to deceive the officials of said bank, and that upon said representations so made the plaintiff, through its teller, paid to the defendant the said sum of $ 319.71, and received the check of the defendant drawn against the said plaintiff for the payment of the said sum, and marked the same paid December 27, 1905. That the defendant did not have on deposit in said bank on December 27, 1905, the sum of $ 319.71, and that his representations to the plaintiff that he did have said sum on deposit in said bank were made with fraudulent intent to deceive the said bank, and to secure the said sum from the plaintiff. The court finds that the said plaintiff frequently demanded from the defendant the repayment of said sum, and that the said defendant refuses, and has wholly refused, the payment therefor. The court further finds that all the material allegations of the plaintiff's complaint are true. The court further finds that there is due the plaintiff, and against the defendant, the sum of $ 319.71, with interest thereon at the rate of 7 per cent per annum from December 27, 1905."

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: "The weight to be given to the trial court's findings, when that court is clothed with the same functions as a jury in determining questions of fact, has often been before this court, and the following rule was laid down in an early case, and adopted in later decisions: 'Rather it intended, and such, we think, is the effect of the Wisconsin decisions, that, when a finding of fact made by the trial court was brought into this court for review upon proper exceptions, it should come like a legal conclusion, with all the presumptions in favor of its correctness, and with the burden resting upon the party alleging error of demonstrating the existence of such error. He must be able to show this court that such finding is against the preponderance of the testimony, and, where the finding is based on parol evidence, it will not be disturbed, unless clearly and unquestionably opposed to the preponderance of testimony.' Jasper v. Hazen, 4 N.D. 1, 58 N.W. 454, 23 L.R.A. 58; Dowagiac Mfg. Co. v. Hellekson, 13 N.D. 257, 100 N.W. 717." 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 sometime 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, teller of plaintiff's bank, positively testified to the payment of both checks on the dates above mentioned. Regarding the first check, he testified: "I have seen that before; it is a check signed by the defendant in my presence. The written portion of the check is mine, and was made October 7, 1905. It was charged to the defendant's account in the bank ledger. I paid him at that time on the check $ 319.71. It was on account of moneys a Mr. Ogilvie left for the defendant." Regarding the other check this witness testified: "It is a check of $ 319.71, signed by defendant on December 27, 1905, and drawn on plaintiff bank, and I paid him on that date the sum mentioned in the check. On October 7th, or about that time, Ogilvie left $ 319.71 for defendant, and from that time neither Mr. Ogilvie nor any other person has left any money to be paid defendant. At the time the second check was paid I had a talk with the defendant about the payment of the Ogilvie...