Bank of Belmont v. Judson Lumber Co.

*88 McGowen, J., delivered the opinion of the court. The Judson Lumber Company brought its suit in the circuit court of Tishomingo county against the Bank of Belmont for three hundred twelve dollars and twelve cents paid by check on an invoice for lumber consigned by Nixon Lumber Company in an L. & N. car, alleging *89 that this check for this car of lumber had been assigned by the consignor to the Bank of Corinth;. that there was only due the Bank of Belmont on Nixon’s consignment of lumber in a G. M. & N. car shipped on the same date by the same consignor; that there was only due the Bank of Belmont the difference between three hundred twelve dollars and twelve cents and five hundred seventy-one dollars and forty-two cents, the amount of the check which the plaintiff, Judson Lumber Company, by mistake, remitted to the Bank of Belmont, which check included the amount due by it on both the L. & N. ear and the G. M. & N. car; the Bank of Corinth'having an assignment on the proceeds of the L. &,N. car, and the Bank of Belmont having an assignment on the proceeds of the G. M. & N. car of lumber. According to the agreed statement of facts and the testimony of the cashier of the Bank of Belmont, after paying what was due it on its G. M. & N. car of lumber there was left two hundred seventy-eight dollars and thirty-five cents, and for this amount the court, below directed a verdict and entered a judgment, and from that judgment the Bank of Belmont appeals and the Judson Lumber Company files its cross-appeal, assigning as error the failure of the court below to allow it the full amount sued for, three hundred twelve dollars and twelve cents. In remitting the check for both cars to the Bank of Belmont, the Judson Lumber Company instructed the Bank of Belmont to place it to the account of Nixon Lumber Company. It is clear from the agreed statement of facts that the thirty-three dollars and seventy-seven cents represented a loss to the Bank of Belmont on the G. M. &• N. shipment; in other words, that, in advancing money on that shipment, they advanced Nixon Lumber Company more than the car of lumber actually brought. It is also clear that in its dealing with Nixon Lumber Company the Bank of Belmont profited by handling the proceeds of the L. & N. car, which should not have been *90 remitted to it and which was remitted to it through mistake ; that it was used to profit the bank and was not paid out as a loss to the bank at any time before notice of the mistake, nor did the bank lose because of the mistake, but, if allowed to keep any part of the amount overremitted to it and not due by virtue of its assignment, it would profit thereby; and it is equally true that there is no merit in the contention, because, even after notice to it of the mistake, it paid across the counter to Nixon the major portion of this money. One cannot thus profit by the mistake of another. Chief Justice Smith, as the organ of this court in the case of Bessler Movable Stairway Co. v. Bank of Leakesville, 106 So. 445, said: “Money paid to another by mistake of fact, although such mistake may have been caused by the payer’s negligence, may be recovered from the person to whom it was paid, in an action for money had and received. Bank of Louisiana v. Ballard, 7 How. 371; Holden v. Davis, 57 Miss. 769; 21 R. C. L. 167; 30 Cyc. 1321. The ground on which such recovery is allowed is that one receiving-money paid to him by mistake should not be allowed to enrich himself at the expense of the party who paid the money to him by retaining it, but in equity and good conscience should refund it. In order that this rule may apply, the party to whom the payment by mistake was made must be left in the same situation after he refunds it as he would have been had the payment to him not been made. Holden v. Davis, supra; 21 R. C. L. 170; Keener on Quasi-Contracts, 59 et seq. To require him to refund the money would be to throw a loss upon him which he would not have suffered, had it not been for the mistake or negligence of the person who paid the money to him, and to require him to suffer the loss instead of the person through whose negligence or mistake it was caused would be highly inequitable. The assignment under which the appellee collected.the money here in question was not absolute, but was to secure the payment *91 of a debt by the assignor, and, under it, it was the appellant’s duty to pay the assignor any money it received from the appellant in excess of the debt due it by the assignor. The appellant having discharged its duty, the loss resulting therefrom must be borne by the appellant, through whose mistake it was caused.” In the case at bar no loss can be said to have accrued to the Bank of Belmont on account of the mistake of the Judson Lumber Company in remitting the three hundred twelve dollars and twelve cents. It is true that the Bank of Belmont paid to itself its losses on other ship ments, and to hold they were entitled to apply any part of this money would be, in effect, to say that they could profit by the mistake of the party remitting to it, which would not be legal or equitable. We think that there is no merit in the contention of the appellant, the Bank of Belmont, that the cause of ación did not lie against it for money paid to it by mistake under the circumstances above detailed. But we think the court erred in not directing a recovery for the entire amount of the overpayment, three hundred twelve dollars and twelve cents, with interest at the rate of six per cent: from October 8, 1924. Affirmed on direct appeal and reversed on cross-appeal, and judgment entered here for the full amount sued for, with interest at six per cent, from October 8, 1924. Affirmed on direct appeal. Reversed on cross-appeal.