
    {Sullivan,
    June, 1883.]
    Spencer, Ap't, v. Goddard, Adm’x.
    
    Appeal from the decision of the commissioner of insolvency ■on the estate of the defendant’s intestate, disallowing the plaintiff’s claim for money overpaid. Facts found by a referee.
    
      H. W. Parker, for the plaintiff.
    
      H. Holt, for the defendant.
   Smith, J.

The defendant is administratrix of the estate of G. By mistake in accounting between the plaintiff and G., the plaintiff, either as purchaser of G.’s goods, or as an agent employed by G. in selling them, paid G. 1342.01 more than was due; and no reason is shown why the amount of the over-payment should not be recovered in this action. The bond given to G., in 1877, by the plaintiff, to account for all sales made by the plaintiff as agent, does not estop the plaintiff to assert that a mistake was made in accounting. If there was an agency, it was abandoned March 8, 1880, when the plaintiff bought all the goods that had not been sold, and (as we understand the referee’s report) this sale was made on the basis of a settlement that included the error, and left it open to correction.

Judgment for the plaintiff. ■

Allen, J., did not sit: the others concurred.  