
    D. B. Tallman v. H. B. Miller.
    [Filed July 2, 1891.]
    Cheeks: Alleged Overpayment. In an action to recover an overpayment of money, it appeared that the payment had been made by a check on a bank for $160, although the drawee claimed that it was for $60, and no more; that he had received no greater sum thereon, ffeld, That the proof clearly established the fact that the check was for $160, and that he had received that amount.
    
      Error to the district court for Wayne county. Tried below before Morris, J.
    
      Frank Fuller, for plaintiff in error.
    
      Frank M. Northrop, and A. A. Welch, contra.
    
   Maxwell, J.

The plaintiff alleges in his petition that “on or about the 20th day of June, 1888, plaintiff was indebted to defendant in the sum of $608, for corn purchased of said defendant; that on said June 25, 1888, plaintiff paid to the defendant the sum of $400, and on August 16, 1888, the further sum of $160; on the 24th day of September, 1888, plaintiff made the further payment to defendant of the sum of $148, at which time defendant represented and claimed that the payment made on August 16, as aforesaid, was $60, and plaintiff, relying upon such statements, and by mistake, paid to defendant on said 24th day of September, 1888, the sum of $148, when, in fact, plaintiff was indebted to defendant only in the sum of $48, and by such mistake, plaintiff overpaid the defendant the sum of $100, said sum of $100 being that much in excess of the amount of which defendant was entitled to recover from plaintiff; that afterwards, and before the bringing of this suit, plaintiff discovered that the payment made on the 16th day of August, 1888, was'$160, and requested said defendant to return to plaintiff the sum of $100, which defendant refused to do. Now there is due from defendant to plaintiff the sum .of $100, and interest from September 24, 1888, no part of which has been paid. Wherefore plaintiff asks judgment against said defendant for the sum of $100, with interest and costs.”

To this petition the plaintiff in error filed an answer in which he admits all the facts stated in the petition except that the check dated August 16, 1888, was for $160. He alleges that the check was for $60 and no more, and alleges that the bank paid him only $60 thereon. On the trial of the cause the jury returned a verdict in favor of the defendant in error for $100 and interest thereon, upon which judgment was rendered. The principal error relied upon in this court is that the verdict is against the weight of evidence. The original check was introduced in evidence and is now before, us. The body of the check is in the same handwriting as the signature and it is in the following form:

“Wayne, Neb., Aug. 16, 1888.
“ The Citizens Bank, pay to the order of D. B. Tall-man ($160.00) one hundred and sixty dollars.
“H. B. Miller.”

The bank stamp on the check shows that it was presented to the bank and paid the day it was drawn, and the bank books show that $180 were paid thereon. This being the state of proof it is very difficult to perceive how the jury could have reached a different conclusion from that arrived at in their verdict. It is true the plaintiff in error and some of the members of his family testify that he only received $60 on the check. It is evident, however, that they were mistaken. The judgment conforms to the proof and is

Affirmed.

The other judges concur.  