Felin & Co. v. First Mortgage Guarantee & Trust Co.

Per Curiam, We have examined the testimony and pleadings in this case and discovered nothing which would warrant us in reversing the'findings of fact by the learned chancellor, and they require the affirmance of the decree granting the relief prayed for in the bill. He found that the sum of $2,296.54, the over-payment, was paid by defendant to plaintiffs upon orders or vouchers out of the moneys held by defendant for the account of the Dillon operation, that at the time this payment was made Dillon was and still is indebted.to the plaintiffs, and that Dillon agreed with the plaintiffs the money should be applied in payment of- extra materials supplied to him, provided defendant approved it. After this agreement with Dillon, plaintiffs wrote to the defendant company enclosing a check and voucher for $750, advising the company that they understood the money was to be applied to extras which Dillon required, and that at his request and with the defendant’s approval, they were returning $750, and would apply the balance of $1,546.54 on account of extra materials which Dillon had received. The voucher shows that the $1,546.54 was applied to extras with defendant’s approval. The court found that the defendant received the letter, check and voucher, and without making any reply thereto, and without repudiating the understanding, as stated in the letter; accepted and used the check. In concluding his findings, the learned chancellor 'says: “The defendant accepted that check and never repudiated the understanding as stated in that letter, and consequently it must have accepted the check with the understanding that the plaintiffs should keep the $1,-546.54 and apply it to- the extra work. In other words, it approved of the arrangement because it accepted the check under the conditions mentioned in the letter. [199] Therefore the defendant having agreed that the. money should be applied to the extra work, cannot now demand it back.” The decree is affirmed.