187 F. 80 | 9th Cir. | 1911
(after stating the facts as above). The defendant in error has interposed motions to dismiss the writ of error, and strike from the files of the court the bill of exceptions. Both motions are made on the ground that the plaintiff in error has failed to comply with certain rules of court.
“The party desiring the bill (of exceptions) shall * * * within ten days after the rendition of the verdict * * * serve upon the adverse party a draft of the proposed bill of exceptions.”
The judgment was entered on March 17, 1910. The law of the state of Washington provides that a proposed bill of exceptions must be filed and served either before or within 30 days. The plaintiff in error ap- ( pears to have delayed action in that proceeding under the mistaken belief that this statute prevailed in the federal court, for on the 11th of April, 1910, an order was entered extending the time until May 14, 1910, in which the plaintiff in error might file and serve its bill of exceptions. A copy of this order was served upon defendant in error with the proposed bill of exceptions within the time as extended by such order. Such order was made during the term in which the judgment was entered. It recited that it was made for good cause shown. The exceptions were seasonably taken and reserved, and they were put in form and filed in the case by direction of the judge. This was.held sufficient in Stanton v. Embrey, 93 U. S. 548, 555, 23 L. Ed. 983. We think that, under the authority of this case and the practice prevailing in this court, the bill of exceptions should be accepted. Southern Pacific Co. v. Johnson, 69 Fed. 559, 16 C. C. A. 317; City of Seattle v. Board of Home Missions, 138 Fed. 307, 70 C. C. A. 597. Both motions are accordingly denied.
In Leather Manuf. Bank v. Merchants’ Bank, 128 U. S. 26, 9 Sup. Ct. 3, 32 L. Ed. 342, the Supreme Court said:
“Whenever money is paid upon the representation of the receiver that he lms either a certain title in property transferred in consideraiion of the payment, or a certain authority to receive the money paid, when in fact he 1ms no such title or authority> then, although there be no fraud or intentional misrepresentation on his part, yet there is no consideration for the payment, and the money remains, in equity and good conscience, the property of the payer, and may be recovered back by him, without any previous demand, as money had and received to his use.”
In Fidelity Savings Bank v. Reeder, 142 Iowa, 373, 120 N. W. 1029, the following were the facts of the case: The defendant was a depositor in the plaintiff bank, and presented his hook to withdraw his account. It was shown that the amount due him at that date, principal and interest, was $1,285.22, and no more, and this amount the defendant admitted he received. Plaintiff claimed, however, that by mutual mistake of the parties the amount due the defendant was computed as being $1,385.22, and that acting upon such mistaken belief its cashier paid to the defendant the latter sum making an overpayment of $100, which upon demand the defendant refused to refund. Plaintiff in its petition not only alleged overpayment by mistake, but further alleged that, after discovering the error, defendant admitted the mistake and promised to rectify it. The court held that, even if the plaintiff wholly failed to prove the alleged admission and promise of repayment, it was still entitled to recover if the jury should find that if by mistake of the parties overpayment had in fact been made. The court had instructed the jury that proof of the alleged admission and the promise to repay was essential to
“Even though the plaintiff had wholly failed to prove the alleged admission and promise of repayment, it was still entitled to recover if the jury should find that by mistake of the parties an overpayment to the defendant had in fact been made. The right to recover money paid by mistake is too well established to require argument, and such right is in no manner dependent upon an express admission by the party receiving it, or on his agreement to refund.”
In support of this doctrine the court cites numerous decisions, and then says:
“The allegation of such admission and promise in plaintiff’s petition was unnecessary to a statement of a cause of action, and he was not required to sustain it by evidence.”
“We on our part agree upon return to us of both sets of bills, showing that the draft has not been paid to reimburse you in the sum paid us, provided, that we were in no wise injured by the fact that your Port Arthur branch has indefinitely held the bills after their maturity, at which time they could have been returned to us and we could have collected from the Steamship Company.”
There was evidence that the draft had not been paid, and that the draft together with the protest had been returned to the Seattle bank in a letter written to the Seattle bank by the Port Arthur bank under date of May 26, 1904. There was testimony that this letter was not received by the Seattle bank, and, although it was introduced in evidence and read, it was subsequently objected to by the defendant and excluded as, we think, erroneously. As the exclusion of this letter is assigned as error, we shall refer to that ruling later in the opinion. For the present, it is sufficient to say that the deposition of Alexander Friedberg, an officer of the Port Arthur bank, was introduced in evidence, who testified that:
“The draft for $36,194.80 was protested. April 20/May 3, 1904, and returned with the deed of protest to the National Bank of Commerce of Seattle with 1he letter dated May 13/26. 1904.”
The deposition of Alexander Drozdov, another officer of the bank, was also introduced in evidence. He testified:
“The draft for $36,194.80 was protested and returned to the National Bank of Commerce, together with the protest in letter dated May 13/26, 1904.”
This testimony we think tended to establish the fact that the protested draft had been mailed to the Seattle bank. When these depositions were taken, there does not appear to have been any question about the fact. If there was any doubt upon that subject, the witnesses should have been cross-examined as to what was meant by their
With respect to the final condition that the Seattle bank should not have been injured, it appears from the evidence that, before the Seattle hank received the repayment from the St. Petersburg bank, the Seattle hank had been paid in full by the Centennial Mill Company. This evidence comes from R. R. Spencer, who was the cashier of the Seattle hank during the transactions involved in this case, and who was the first vice president when lie gave his testimony. His testimony is as follows:
“Q. I will ask you whether or not prior to the time the Russo-Chinese Bank paid you the money that they are now suing for the Centennial Mill Company had paid the National Bank of Commerce this draft. What is the fact about it? A. They took up the draft and paid us for the draft quite a little while before we received the money from the Russo-Chinese- Bank.”
It thus appeared that even on the conditions for repayment proposed by the Seattle bank the evidence before the court did not entitle it to a nonsuit; but the evidence remains clear and uncontradicted that the payments made to the Seattle bank by the St. Petersburg bank were made under a mistake of fact upon which the law raises an implied agreement to restore the money, and we are of the opinion that the complaint stated a cause of action upon such an implied promise., and that a motion for a nonsuit should have been denied. Whether the Port Arthur bank was negligent in dealing with the draft appears to be a question raised by the pleadings. It is set up as a defense to the action by the Seattle bank, hut it is denied by the St. Petersburg bank, and there is evidence lending to support that denial. The question was therefore not involved in the nonsuit. It follows that we are of the opinion that the judgment should he reversed and a new trial granted.
In view of such new trial, we will notice the assignments of error relating to the exclusion of evidence on the motion of the defendants. In the deposition of Alexander Rriedberg he was asked this question;
“Q. State if you know whether Clarkson & Co. accepted said draft and if they did, what date? A. Yes; Clarkson & Co. accepted said draft on January 17/30, 1001.”
The copy of the letter of May 26, 1904, was attached to the deposition of Alexander Friedberg, and a copy was also attached to the deposition of Alexander Drozdov. These depositions were read in evidence together with the copy of the letter attached to each. The original letter was called for by the plaintiff from the defendant, and the response by the defendant’s cashier was that it had not been received. Thereupon counsel for the defendant moved to exclude the copy of the letter attached to the deposition of Friedberg on the ground that the correctness and truthfulness of the copy-book had not been established, and it had not been shown that the original letter had been mailed. Friedberg in his deposition stated:
“X beg to attach. * * * an identified copy of letter date May 13/26, 1904, addressed to the National Bank of Commerce of Seattle with which the protested draft for $36,194.80 was returned. * * * The draft for $36.-194.80 with the deed of protest was received back from the notary at Port Arthur at the time when communication was cut off both at sea and on land. Under such circumstances, the mail could not be forwarded from Port Arthur, and therefore the bank kept the draft with the deed of protest in the safe until communication should be re-established.”
We think this was a sufficient identification of the letter and the fact that it was mailed. This letter inclosed the missing draft, and, together with the draft, appears to have been lost. We think the copy of the letter was therefore admissible, particularly in view of the fact that the copy of the letter attached to the deposition of Drozdov was read in evidence, and not objected to or excluded.
The judgment of nonsuit is reversed, with instructions to grant a new trial and such further proceedings as are not inconsistent with this opinion.
150 Fed. xxxiii, 79 C. C. A. xxxiii,
For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes