
    John Keenholts, Resp’t, v. Walter S. Church, App’lt.
    
      (Supreme Court, General Term, Third Department
    
    
      Filed July 7, 1890.)
    
    Money had and received — Agreement to refunded- amount due is LESS THAN CLAIM.
    Plaintiff claimed to have paid defendant $424 on a claim due to one B. on an agreement by defendant that if the claim was less, then when plaintiff settled with B. he would refund the difference; that he settled with B. for less and that defendant refused to pay. In this he was corroborated. Defendant claimed to have said that he had the claim as security for debts owing him, and testified that B. turned the claim over to him, and he told her that whatever he collected over the amount due him from her husband she should have. This was denied by B., who testified that he was to collect the claim and pay it to her. The referee found in favor of plaintiff. Held, no error; and that whether defendant held the claim as absolute owner or as agent for B., he could make the agreement with plaintiff, and having received the money under such agreement he was liable.
    Appeal from judgment in favor of plaintiff, entered on the report of a referee.
    
      George L. Stedman, for app’lt; Jacob H. Clute, for resp’t.
   Learned, P. J.

The complaint alleges that the plaintiff on the 3d day of January, 1883, paid to the defendant $424.35; that this was the amount which the defendant claimed that the plaintiff owed to one Martha Batcher; that the plaintiff at the time ■claimed that he owed said Batcher much less ; that plaintiff paid the money under an agreement that, if said Batcher’s claim against plaintiff was less than that sum, then, as soon as plaintiff had settled with said Batcher, defendant would pay back to plaintiff the difference.

It avers that plaintiff about March 24, 1883, settled with said Batcher for said claim; that he owed her only ninety-three dollars at the time when he paid defendant $424.35 ; that she gave plaintiff a receipt in full; that he presented this to defendant and demanded the difference.

And the complaint demands $331.35 with interest.

The answer admits the payment of that sum of $424.35 and denies everything else.

The testimony of Simon E. Keenholts and of Elon Crounse tends to show that such an agreement was made. The testimony of the plaintiff is to the same effect. He also testifies to his subsequent settlement with Martha Batcher for ninety-three dollars; and also to the demand on the defendant for the balance. The receipt of Martha Batcher for ninety-three dollars dated March 24, 1883, is produced stating that this was all which was due her. The testimony of Judge Clute states the transaction substantially as set forth in the complaint, to the effect that, on the 3d day of January, 1883, the defendant said that he had this claim of said Batcher against the .plaintiff, and that defendant agreed that if plaintiff would pay the amount to defendant and then would settle -with said Batcher and bring her receipt, the defendant would refund the difference.

Mr. Ludden testifies to the settlement about January 5, 1883, between'plaintiff and said Batcher for ninety-three dollars.

On the other hand, the defendant testifies that, in the interview of January 3rd, he said that he had a'claim against said Batcher for the security of debts due him, and that the claim must be provided for; that plaintiff claimed that such debt was less, and defendant claimed it was more. One portion of the claim was a note of plaintiff to George A. Batcher or bearer for $400, dated May 1, 1869, and another was an account against plaintiff.

Defendant further testifies that said Martha Batcher turned over the note and account to him; and that he told her that whatever he collected from plaintiff• over and above the amount due defendant from her husband (George A.) she should have the benefit of. There is evidence of Schoonmaker to the same effect as to the agreement between Martha Batcher and the defendant.

The testimony of Martha Batcher, on the contrary, is to the effect that the defendant was to collect this claim from plaintiff and pay it to her.

Without going over the testimony in detail ‘ any further, it is seen that there was a conflict on the evidence as to the transaction of January 3rd.

At that interview Judge Clute wrote down, and put his initials, to, the following paper: “ Martha Batcher has in Church’s bill. $424.35 ; if her claim is less, Church is to give his check for the balance. J. H. 0.”

The defendant insists that this was read aloud and assented to by the parties, and that it is the binding agreement between them, and should exclude all other evidence of the agreement.

It is evident that this paper without some extrinsic evidence is. hardly- to be understood. But it appears that at the time of the interview the plaintiff and the defendant were having a settlement in regard to some rent claimed by defendant against the plaintiff, and that for some reason this alleged debt of plaintiff to said Batcher was brought into the settlement. This is the meaning of the words: “Martha Batcher has in Church’s bill $424.35.” All the testimony shows that this meant that the claim of said Batcher against the plaintiff was in the bill or demand of defendant against plaintiff.

The writing then states that if her claim is less, that is, if her claim against plaintiff is less than $424.35, defendant is to give his check for the balance. The writing does not say to whom the check is to be given. But all the circumstances show that it was. to be given to plaintiff. For if plaintiff paid more than was really owing by him to said Batcher, the excess would j ustly be refunded to him.

If we take the defendant’s statement, viz., that he told said Batcher that whatever he collected from plaintiff over and above what was due to defendant from her deceased husband, George A. Batcher, she should have the benefit of, still that does not seem to affect the question of defendant’s liability to plaintiff for money paid in excess of the debt, and paid on an agreement to refund. Whether defendant or said Batcher held the claim, the plaintiff was not bound to pay more than he owed. If he had paid without the agreement to refund, it might have been said that the ¡payment was voluntary. But no such position is taken here.

Evidence was given as to how much was actually owing from plaintiff to said Batcher: and the referee has found the amount. So that the plaintiff does not rely solely on his settlement with her.

There is some conflict as to what were the exact rights of the defendant in the Batcher claim; whether he was absolute owner, or a holder as security. At any rate he could make an agreement as to the terms on which plaintiff should pay.

So far as affects this case, it does not seem .to be very important whether, on the 3d of January, defendant was holding the Batcher note and account as absolute owner or as agent for said Batcher. In either case, if an agreement was made between plaintiff and defendant that, if plaintiff paid defendant the whole $424.35 claimed to be owing said Batcher, and if her claim should in fact be less, then that defendant would refund, the defendant would be liable, whether he was absolute owner or not. The plaintiff did not know that defendant claimed not to be absolute owner. The referee has found as a fact not only that plaintiff settled with said Batcher on the 6th of January for $93.31, but that that was the amount of the indebtedness to her.

The defendant urges that the referee erred in refusing to find that the Batcher claims belonged to defendant But if it did so belong, we do not see any ground why the defendant should retain more than was due thereon, when the payment had been made on an agreement that if the claim was less, defendant should give his check for the balance.

■ There are no rulings as to the admission or exclusion of evidence which require a reversal of the judgment

The judgment should be affirmed, with costs.

Landon and Mayham, JJ., concur.  