
    
      Archibald Broun vs. Ker Boyce.
    
    Plaintiff purchased in Mobile, with his own funds, a bill of exchange, indorsed it, and remitted it to the defendant in Charleston, with directions to place the amount to the credit of C. He, the plaintiff, charged C. only with the amount he paid for the bill. Both plaintiff and defendant were acting in the transaction as the mere agents and friends of C., but each was ignorant, at the time, that the other was so acting. The bill was accepted by the drawees, but was afterwards dishonored, and the plaintiff, as indorser, paid to the defendant the amount of the bill with interest and ten per cent, damages. The acceptors refused to pay the ten per cent, damages to the plaintiff, and he, afterwards discovering that the defendant had acted in the transaction as the mere agent of C., brought his action, before the defendant had parted with the fund, to recover back from him the ten per cent, damages, as money paid by mistake. Held that he was entitled to recover.
    
      Before Frost, J., at Charleston, October Term, I860.
    
      The report of his Honor, the presiding Judge, is as follows :
    “ Assumpsit for money had and received.
    “ Archibald Broun, of Mobile, the plaintiff, being the factor of William S. Campbell, of Alabama, was instructed by Campbell to remit to Ker Boyce & Co., of Charleston, on his account, the sum of $6,373. Broun accordingly purchased and' remitted a bill of exchange, at ninety days sight, of which the following is a copy: '
    “ Exch. for $6,473 34. Mobile, 28th Feb., 1837.
    Ninety days after sight of this first of exchange, (second of the same tenor and date unpaid,) pay to Archibald Broun, Esq., or order, six thousand four hundred and seventy-three 34-100 dollars, value received, and charge the same, as advised, to your ob’t. servant,
    THOS. LESESNE.”
    
      “ To Messrs. Chas. EdmondstoN & Co., Charleston, S. C.”
    
      “ The following is a copy of the letter in which the said bill was enclosed:
    Mobile, Feb. 28, 1837.
    “ Messrs. Ker Boyce &• Co., Charleston :
    Dear Sirs — I have been instructed by our friend, Col. Wm. S. Campbell, to remit to you by the first of March, six thousand three, hundred and seventy-three dollars, ($6,373) and now wait upon you with Mr. T. Lesesne’s draft on Chs. Edmondston & Co., for $6,473 34, which you will please place to the credit of Col. Campbell. Checks are not to be had at present, and I am compelled to send a draft at 90 days, which I hope may suit you equally well. ******
    
    Yours respectfully,
    ARCH’D. BROUN.”
    " The bill was payable'to Broun and endorsed by him.
    
      
      “ On the 7th March, 1837, Boyce & Co. presented the bill to Edmondston and Co., who accepted it.
    
      “ Edmondston & Co. soon after failed, and when the bill became payable on the 8th June, 1837, it was protested for nonpayment.
    “ On the 11th August, 1838, Broun, as endorser, paid the bill to Boyce & Co., as the owners, in Charleston, through an agent, who paid the amount of the bill with interest, and also ten per cent, damages, which Boyce & Co. exacted.
    “ Broun thus became the owner of the bill, and as such, claimed on it against the assigned estate of Edmondston & Co., the acceptors, and received from their assignees the several dividends paid by their estate. But the assignees struck out of his claim the amount paid by him as damages, and only paid him dividends on the face of the bill.
    “ When Broun made this remittance, in February, 1837, he had no funds of Campbell’s in his hands, but on the contrary there was a large balance on his books against Campbell. He charged Campbell in account with the amount ($6,373) paid for the bill to the drawer, and with the customary commission for advancing, but made no charge for guaranteeing the bill. Campbell’s indebtedness to Broun continued without any material change, and in September, 1837, amounted to $10,000, which he then liquidated by his two notes of $5,000 each, payable respectively, January 4, 1839, and January 4, 1840, which notes were not paid at maturity, and were passed away by Broun some time subsequent to April, 1840.
    “ One of the credits in Campbell’s account was for $7,211 84, in February, 1837, being an advance received by Broun on 100 bales of cotton, shipped for Campbell to Havre. On this there was a large reclamation, which Broun paid, and on the 13th March, 1838, Campbell arranged the same with Broun, by giving his note of that date at 12 months, for $2,916 44. In the settlement of the bill with Boyce & Co. as aforesaid, Broun gave this note in part payment, and Campbell was afterwards sued on it by Boyce, and paid it.
    
      “ It seems that Boyce & Co. were not the owners of the bill, but merely agents of Campbell, and the whole amount paid to them by Broun, as above stated, is now in the hands of the defendant Boyce, who is ready and willing to pay the same, with interest, to the parties to whom it is legally due.
    “ Campbell claims the whole. Broun contends that the damages paid by him were erroneously paid, and therefore claims out of the fund in the defendant’s hands, the amount of the said damages, ($647 33,) with interest; and the present action was instituted to recover the same.
    “ This case was brought on along with the case of W. S. Campbell vs. Ker Boyce, late on the last day of the term, but was not argued, and a verdict was taken for the defendant, with the understanding between the attorneys of the parties, that a motion would be made for a new trial, in the Court of Appeals, on the annexed grounds.
    “ This report has been prepared by consent of the attorneys engaged in the case. It had been agreed between them, that this case should be taken up in connection with that of Campbell vs. Boyce, and I had consented to the arrangement; but I was exhausted by the fatigue of a very late session, and directed a verdict for the defendant, that the whole litigation might be adjudicated in the Appeal Court.”
    GROUNDS OP APPEAL.
    1. That in fact Broun, who was Campbell’s creditor, settled the bill with Boyce <fc Co. under a misapprehension of their situation as being the mere agents of Campbell, and the damages paid by him were, therefore, paid by mistake, and he is entitled to recover back the same, with interest, as money had and received, to his use.
    2. That even if Campbell had not been indebted to Broun, the bill being payable in Charleston, and actually settled there, the holder was not entitled to recover more than the face of the bill, with interest and expenses, without damages. The damages were, therefore, in this point of view too, erroneously paid.
    
      Lesesne, for the motion.
    Hayne, contra.
   Curia, per

Whitner, J.

This action is brought to recover money paid by mistake, and the question presented is, whether the plaintiff was properly chargeable with the ten per cent, damages exacted and collected by the defendant, under the circum-' stances of this case.

The view entertained by the whole Court relieves me from entering into an examination of the complex question raised in the second ground, maintained with authority and plausible argument by counsel on each side, and about which there is diversity of opinion amongst ourselves.

For like reason, I am saved from much inquiry, as to the respective liabilities of parties to a bill of exchange, in case of dishonor, either by non-acceptance or non-payment, in the course of ordinary business, transactions, and of the liabilities of the one to the other, as well in reference to the principal sum and interest, as damages and expenses incurred by the dishonor, and whether secured by statutory enactment, or the general principles of the law merchant.

Confined to the face of the paper these questions would arise, but we have been furnished with the means and are privileged to look behind the paper itself, to ascertain the true character the parties sustained to each other.

The plaintiff, resident in Alabama, the factor of W. S. Campbell, without being furnished with funds and without being paid the usual charge for guaranteeing the bill, undertook a remittance to the defendant in Charleston, S. C., of a certain amount to be placed by him to the credit of Campbell. The bill of exchange was purchased by plaintiff, indorsed and forwarded; though accepted, it was not paid at maturity, and being protested for non-payment, the plaintiff, as endorser, subsequently paid the amount of the bill and interest, as also the- ten per cent, claimed.

It turns out that the defendant likewise was the friend and agent of Mr. Campbell, and the fund, when provided in'Charleston, was for the use of Campbell, as he might afterwards direct; that the defendant, therefore, for the time being, was the mere depository. The intervening failure of the business parties to this bill, gave rise to a further inquiry as between plaintiff, defendant and Campbell.

We have then the fact of one agent remitting to another agent of the same party; or, in another form, Mr. Campbell, through his agent in Alabama, transmits a draft to himself through his agent in South Carolina, and though their names were severally used in the transfer, to this complexion it comes at last. These parties then, plaintiff and defendant, however ignorant of the fact, at the time, stood in at least as favorable a relation as that of mere accommodation holder and endorser. The relation being understood, the defendant cannot be considered as having sustained special loss or injury,-to be recovered of the plaintiff, when ex equo et bono, such an operation would be describing a circle merely; intended beneficially for Mr. Campbell in tracing •it directly, such recovery would be but the reversal and consequently a retracing of the same circle. Though upon the face of the paper, -prima facie, the parties should be treated as bona fide ; hence, any one into whose hands it might pass regularly, was authorized to regard and treat each other, whether standing before or after, as having all the rights incident to a bona fide business transaction, yet when the derivative title of each has been ascertained, and their true character made known, injustice should be restrained or injury repaired as between and amongst those who occupy, in fact, a different relation from the one supposed.

Hence the conduct of the holder, in the exaction, and the acquiescence of the endorser, in its payment, was excusable and justifiable as to each other, whilst ignorant of their true relation ; nevertheless the mistake falls within the rule, and the party now seeking, is entitled to its correction ; no subsequent change of relative condition having yet transpired between them. The recovery was authorized, by the facts, of the sum demanded, and a new trial should be had.

The motion is therefore granted.

O’Neall, Evans, Wardlaw, Frost and Withers, JJ. concurred.

Motion granted.  