265 F. 1003 | D.D.C. | 1920
Action by appellee bank, plaintiff below, to recover from appellant an overdraft of $1,009.93. It appears that defendant at various times covering a period of three months deposited in plaintiff bank the sum of $1,127.26, and drew therefrom, reducing his balance to $26.87. He then drew a check payable to his order in the sum of $1,036.80, which the cashier, through a mistake of one of the bookkeepers, certified as good, and upon such certification defendant indorsed the check and negotiated it at another bank in the city of AVashington. In regular course plaintiff bank paid the check. When the mistake was discovered, demand was made upon defendant to pay the overdraft. He denied liability. Hence this suit.
Plaintiff filed a declaration with affidavit of merit under the seventy-third rule. In the affidavit the transactions of defendant with the bank are set out in detail, showing that the account of defendant was . overdrawn by the certification of the check 'through a mistake of fact.
Defendant interposed a demurrer to the declaration, which was overruled by the court. He then filed his pleas and affidavit of defense. The affidavit amounted to a plea of ignorance of the amount deposited and the amounts checked out of the bank, and set up that upon in
On' motion, judgment was entered for plaintiff, from which this appeal was taken.
“It is a general rule that where money is paid by mistake, neither party being in fault, the party paying the money may recover it as money paid without consideration, as money had dnd received by the defendant to the use of the plaintiff.” Hibbs v. Beall, 41 App. D. C. 592.
See, also, Strauss v. Hensey, 9 App. D. C. 541.
The judgment is affirmed, with costs.
Affirmed-.