Thompson v. Fullinwider
| Decision Date | 30 November 1879 |
| Citation | 5 Ill.App. 551,5 Bradw. 551 |
| Parties | W. T. THOMPSON ET AL.v.JOHN H. FULLINWIDER. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
APPEAL from the Circuit Court of Sangamon county; the Hon. C. S. ZANE, Judge, presiding. Opinion filed January 13, 1880.
Messrs. HAY, GREENE & LITTLER, and Messrs. STERLING & GROUT, for appellants; that where the verdict is not sustained by the evidence, a new trial will be granted, cited O. & M. R. R. Co. v. Schiebe, 44 Ill. 460; Koester v. Esslinger, 44 Ill. 477; Boudreau v. Boudreau, 45 Ill. 480; Booth v. Hynes, 54 Ill. 363; C. R. I. & P. R. R. Co. v. Herring, 57 Ill. 59; Kuhner v. Griesbaum, 59 Ill. 48; C. C. & I. C. R. R. Co. v. Tecumseh, 59 Ill. 155; Davenport v. Springer, 63 Ill. 276; Schwartz v. Lammers, 63 Ill. 500; Dalton v. Clough, 50 Ill. 47; Belden v. Innes, 84 Ill. 78; Lincoln v. Stowell, 62 Ill. 84; Smith v. Slocum, 62 Ill. 354; Peaslee v. Glass, 61 Ill. 94.
Usurious interest voluntarily paid cannot be recovered back: Hadden v. Innes, 24 Ill. 381; Tompkins v. Hill. 28 Ill. 519; Perkins v. Conant, 29 Ill. 184; Manny v. Stockton, 34 Ill. 306; Town v. Wood, 37 Ill. 512; Pitts v. Cable, 44 Ill. 103; Peddicord v. Connard, 85 Ill. 102.
Interest in this class of cases is recoverable only by force of the statute, and that should be strictly construed: Chicago v. Allcock, 86 Ill. 385; Pekin v. Reynolds, 31 Ill. 529; Ill. Cent. R. R. Co. v. Cobb. 72 Ill. 148; Aldrich v. Dunham, 16 Ill. 403; Sammis v. Clark, 13 Ill. 544; Hill v. Allen, 13 Ill. 592; Kennedy v. Gibbs, 15 Ill. 406; Clement v. McConnell, 14 Ill. 154; White v. Walker, 31 Ill. 438.
In case of mistake, interest is recoverable only after demand for payment: Freeman v. Jeffries, 4 Exch. 189; Brown v. Campbell, 1 Serg. & R. 179; King v. Diehl, 9 Serg. & R. 422; Hunt v. Nevers, 15 Pick. 500; Wells v. Abernethy, 5 Conn. 222; Haven v. Foster, 9 Pick. 112.
Messrs. MCGUIRE & HAMILTON, for appellee; as to the right to recover back money paid by mistake, cited Bradford v. Chicago, 25 Ill. 411.
Negligence in discovering the mistake will not bar the right: Devine v. Edwards, 87 Ill. 177.
The verdict must stand unless clearly unsupported by the evidence: People v. Town of Waynesville, 88 Ill. 474.
Upon the right to recover interest: Rev. Stat. 589; Chapman Burt, 77 Ill. 337; Bedell v. Janney, 4 Gilm. 193; Commonwealth v. Crever, 3 Binney, 123; Hudson v. Tenney, 6 N. H. 456.
In the absence of a special contract only six per cent. can be collected: Rev. Stat. 589; Warren v. Tyler, 81 Ill. 18.
Appellants in this case were engaged in the banking business at Buffalo, Illinois, in the year 1874, and for some time thereafter. Appellee was a dealer in cattle, and had a partner in business by the name of D. S. Williams. This suit was brought by appellee against appellants to recover back certain moneys paid by mistake in the settlement of his bank account. It is claimed on the part of appellee, that, at the solicitation of appellants, both he and Williams transferred their individual bank accounts, as well as that of the firm, from the banks in Springfield to that of appellants in Buffalo, under an agreement that they were not to be charged intere??t on overdrafts on shipments of live stock. It seems that sometime afterwards Williams learned through his bank book that appellants had been charging him interest to the amount of $116.78. He then says he sent the firm book to be balanced, and that it also was returned with interest on overdrafts and express charges to the amount of $90.12. A few days after this he settled up his individual account in the bank, leaving unpaid the said sum of $116.78, which he claims he did not owe, but did not tell appellants that he did not owe it, or that he did not intend to pay it. They did not ask him for it, and he went away to Iowa in about four months afterwards, leaving it unpaid. In the meantime, according to the testimony of A. T. Thompson, one of appellants, appellee presented a check of Williams and Fullinwider for the sum of $623.69, which they placed to his individual account in the bank. This overdrew the firm account $90.12, the same sum that Williams says was erroneously charged them for interest and express charges. Having subsequently overdrawn his own account somewhat, as claimed by appellants, and being called on for a settlement, he gave appellants a note for $164.64, which he afterwards paid, and this closed up his business with appellants. These several transactions took place from the spring 1874, to December, 1876. So the matter rested until the summer of 1878, when appellee claims to have discovered certain mistakes in his bank account with appellants.
It turns out that the individual account of Williams, as well as the firm account, had been transferred to appellee's account and charged to him before the giving of the note. It also seems that he was charged in his individual account with some interest on overdrafts. To recover back these several sums which he claims were wrongfully charged to him by appellants, is the object of this suit. Judgment was rendered against appellants for $258.02, from which they appeal to this court.
In order to open a settled account, after so long a time had elapsed and the same had been rendered item by item, the evidence should be very clear and satisfactory. It will be seen that the case turns largely upon the questions whether appellee authorized the individual account of Williams with the bank to be charged to him, and whether or not he settled his account knowing of the interest charges against him. Upon these two points he stands alone, while certain checks and receipts signed by him in his transactions with Williams through the bank, about the time of his departure for Iowa, of which appellee had entirely forgotten, show him to be a person whose memory is not very reliable. On the other hand both A. T. Thompson, and Grout, the book-keeper in the bank, testify circumstantially to what took place in the bank between the former and appellee, both at the time he gave directions to charge the account of Williams, as well as that of the firm, to himself, and at the time he gave the note in settlement. Their statements are well supported by contemporaneous documentary evidence relating to the transactions. We deem it unnecessary to review the evidence at length, as we think appellee's testimony was fairly overcome and that a new trial should have been granted. Peaslee v. Glass, 61 Ill. 94; C. R. I. & P. R. R. Co. v. Herring, 57 Ill. 59; Koester v. Esslinger, 44 Ill. 476; Lincoln v. Stowell, 62 Ill. 84; Boudreau v. Boudreau, 45 Ill. 480.
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