Herman D. Walbridge et al., Respondents, v. The Ocean National Bank of the City of New York, Appellant

Herman D. Walbridge et al., Respondents, v. The Ocean National Bank of the City of New York, Appellant. (Argued November 24, 1874; decided December 8, 1874.) This was an action to recover back money alleged to have been paid by mistake. Plaintiffs’ evidence tended to show that defendant collected and discounted commercial paper for plaintiffs to a large amount under an arrangement that if any was not paid it was to be returned to plaintiffs without protest, who were to give their checks therefor. In the fall of 1865 a specific arrangement was made that defendant should discount certain cheeks drawn by one Chase on bankers in Pennsylvania, indorsed by plaintiffs; and in pursuance thereof two checks, of $6,000 each, were so drawn, indorsed and discounted. The checks were returned unpaid to defendant who sent them by a messenger to plaintiffs’ place of business where they were presented to the book-keeper, who was ignorant of the arrangement and unauthorized to pay them. He at first declined to pay in the absence of plaintiffs’ financial agent, but upon the assurance of the messenger that if not right it should be corrected he gave checks for the amount, under the belief that the returned checks belonged to the class of paper covered by the general agreement. Plaintiffs claimed that they could only be made liable upon their indorsement by demand, protest and notice. The mistake alleged in the complaint was, that the book-keeper supposed the checks had been duly presented for payment, payment refused and plaintiffs legally charged as indorsers. At the close of the plaintiffs’ evidence defendant’s counsel moved for a nonsuit on the ground, among others, that the proof did not show the payment was made under mistake, or, at least, the mistake alleged in complaint ; that it did not show that the checks were not properly presented, payment demanded and notice given to plaintiffs. ¡ The court overruled the exceptions and submitted these questions to the jury. Held, no. error; that the variance between the complaint and proof did not affect, materially, the right to recover, as the mistake which the evidence tended to establish was equally one of fact as that alleged; that the evidence tended to show a want of notice of non-payment such as would charge plaintiffs as indorsers, and that their liability was not claimed on that ground. Various questions of evidence were also raised. S. W. Fullerton for the appellant. Henry Brodhead for the respondents. [MAJORITY — Church, Ch. J.,] Church, Ch. J., reads for affirmance. All concur. Judgment affirmed.