| Mass. | Mar 15, 1869
The plaintiffs and defendants were principals in the transaction out of which this suit arises. The agency of the Atlas Bank does not affect táeir relations, or their rights and obligations towards each other. The Clearing House regula
Money paid under mistake of fact may be recovered back, if there has been no loches, and the situation of the other party remains unchanged. What constitutes such a mistake of facts as will entitle a party to recover is a question of law. The court below found generally that “ the money was paid by the plaintiff by mistake,” and that the plaintiff was entitled to recover the whole amount of the check. The report does not indicate whether the mistake upon which judgment was rendered related to the character of the check, or to the condition of Bennie’s account at the plaintiffs’ bank. The finding of the court is therefore not conclusive of the facts, in either aspect, except so far as they are stated in the report.
1. As to the character of the check; in form it was adapted to the use that was made of it. It contained nothing to restrict its use in that mode. The paroi agreement, giving it full effect according to the terms stated, does not appear to the court to restrict the check from its ordinary use as a check. It provided only .that its use should be delayed, and that there should be notice to Bennie a day or two before they wanted the money; in both of which respects the agreement was complied with. Its deposit afterwards in no way contravened the agreement under which it was received. The Boylston Bank paid it rightfully, and Bennie cannot complain of its use by the defendants, or its payment by the plaintiffs. The payment may have been contrary to Bennie’s intention, and in that sense a mistake ; but it was not a mistake of any fact which disentitled the defendants to receive the money in that mode.
2. The only mistake in regard to the state of Bennie’s account appears to be, that the amount on deposit was not' sufficient. It does not appear that the plaintiffs’ teller was misled in any way, or had any reason to suppose that the account was otherwise than it was. No considerable amount had recently been withdrawn. The amount to Bennie’s credit had not beer,
If there are any facts, not stated in the report, which led the mind of the judge, who heard the case, to the conclusion at which he arrived, they will avail upon another hearing. But upon this statement we think the judgment cannot be supported.
Exceptions sustained.