
    Joseph Beadenbaugh vs. N. W. Cooper.
    
      Money paid ly mistake — Pleadings—Evidence.
    Money paid by mistake in. a settlement may be recovered back under a count for money had and received, and it is not necessary to allege or Xrrove that the plaintiff had notified the defendant of the supposed error and had demanded the money.
    BEFORE WITHERS, J„ AT UNION, FALL TERM, 1859.
    The report of his Honor, the presiding Judge, is as follows:
    “It is difficult to report this case in such order as would conform to the grounds of appeal, and therefore I will give it at large.
    “It was stated to be an action to recover a sum o£ money, paid by mistake by the plaintiff to the defendant. The declaration contained the money counts; but particulars were also stated of certain sums paid by mistake, or by reason of the misrepresentation of defendant, and among them was a sum alleged to have been paid on account of Mrs. John Beadenbaugh. It was also specified that a note of about fifty-four dollars principal was paid to the defendant by the plaintiff by mistake.
    “After the death of John Beadenbaugh, his widow, with three children, remained on a place belonging to this plaintiff, in the neighborhood of the defendant, and her son procured from the defendant some supplies necessary for, their support, though he did not; I believe, live with them. He could not read, but he paid, as he testified, more than one hundred dollars to the defendant on account of necessaries supplied for his mother and family; and when he paid, the defendant read to him the items from a book, and the aggregate being ascertained, he paid in full, some time before a settlement was had between the plaintiff and defendant. He produced receipts in full; the latter was dated six days subsequent to the settlement between these parties, but he said the payment was made before, to Cooper, and his receipt in full from Cooper, dated 22d October, 1858, was given to him for a full acquittance, and the payment was made before the 16th October, 185S.
    “ On this latter day the plaintiff and defendant had two settlements: one of their mutual individual transactions, and the other of transactions between Cooper, the defendant, and this plaintiff and a co-partner of his, for mutual accounts between the co-partners and Cooper.
    “ In the first settlement between these parties, the evidence was that Cooper received satisfaction from the plaintiff for some amount — it did not appear how much — for supplies furnished for the use of Mrs. John Beadenbaugh. The plaintiff’s demands against Cooper exceeded (according to the evidence) the amount found for him by the jury, and Cooper fell in debt to him twenty dollars and twenty-five cents, for ■which he gave his note, and received it again afterwards towards the satisfaction of his demand against the plaintiff and his co-partner, who was Mike Beadenbaugh.
    " Mike testified that Cooper said he and Uncle Joe (meaning the plaintiff) had had a long settlement, from 1853 up: that Beesy (meaning Mrs. John Beadenbaugh) had got things from him, and Jeff, (meaning her son Jefferson Nance) had never paid, and he thought Uncle Joe ought to pay — that Uncle Joe said if it was not paid he would pay it, though he thought Jeff had paid it — and Cooper said, no ; Jefferson was of no account, and never paid his debts; and he said to Joe, ' Look over and study it up, and if it is not right, come back and I’ll right it.’
    "It was in evidence, from Jeff Nance, that when he found out that Joe, the plaintiff, had paid money for account of things procured from Cooper for his mother, he immediately went to Cooper and asked him about it, saying to Cooper, 'I suppose you have made uncle Joe pay for things I had.’ Cooper said, 'Oh, no, you are mistaken; don’t touch, it will not come out of you.’ Jeff, said, 'Yes, it has come out of me, for I have paid you, and you know it, and you will have to fetch your books to my house.’ Cooper said, ‘ It was this way. I charged half to you, and half to him.’ Jeff said,
    ' Have you any authority for that ?’ Cooper admitted he had not. Jeff, added to this, 'that his uncle Joe could read writing very little, if at all.’ Cooper had removed from the country.
    "The jury were instructed that where one had received the money of another, which in good conscience he could not retain, the other might recover it back in an action of assumpsit ; that, in this case, the question turned upon the allegation of misrepresentation by Cooper, whereby he procured from the plaintiff money already paid to him by Jeff. Nance; and if that were true, and the amount of money so procured to be paid could be ascertained, the plaintiff was entitled to redress by a verdict in his behalf. The j ury rendered a verdict for him for seventy-five dollars.”
    The defendant appealed, and now moved this Court in arrest of judgment, and for a new trial, on the grounds — in arrest of judgment:
    Because the plaintiff did not allege and prove, that after the settlement and payment, by the plaintiff, on the 16th of October, 1858, and -before the suit in this case was brought, the plaintiff had notified the defendant of the supposed error, and demanded the money of the defendant; which is necessary to sustain this suit.
    And for a new trial:
    1. Because the money paid to the defendant, by the plaintiff, on the 16th October, 1858, was a voluntary payment made by the plaintiff, and therefore cannot be recovered back in this action.
    2. Because there was no proof given of any amount paid to defendant on account of Mrs. John Beadenbaugh’s indebtedness to the defendant; but, if any, it was paid by Jefferson Nance, which was not according to the allegations of the plaintiff’s declaration, and therefore the plaintiff cannot recover.
    3. Because the charge, that the mistake in the payment to the defendant was on account of a debt due to the defendant by Mrs. John Beadenbaugh, was not supported by the proof given.
    4. Because the proof was, that Jefferson Nance had paid to the defendant, on the 22d October, 1858, so that, if any, there was an error in that payment, aud the suit should have been in the name of Jefferson Nance, and not Joseph Beadenbaugh, as he paid what he did pay on account of John Beadenbaugh’s widow, on the 16th October, 1858, and Jefferson Nance, on 22d October, 1858.
    5. Because there was no proof as to how much the plaintiff' paid the defendant on account of John Beadenbaugh’s widow, at their settlement, on the 16th October, 1858 ; therefore, the verdict is void for uncertainty in the evidence, as Jefferson Nance could not say what he had paid the defendant on his mother’s account.
    6. Because the verdict is contrary to law and evidence, and the express charge of his Ilonor, who charged the jury there was no proof as to what Jefferson Nance paid for his mother.
    7.Because the jury gave, or found, more for the plaintiff than he claimed in his account filed with his declaration, and therefore the verdict should be set aside.
    
      Thompson, for appellant.
    
      Gadberry, contra.
   The opinion of the Court was delivered by

O’Neall, C. J.

The ground in arrest of judgment cannot avail the defendant. The counts for work and labor, goods sold, money lent, and money had and received, are beyond all doubt good, and that for money had and received entitled the plaintiff to recover, if it was true, as he alleged, that the defendant had been paid by Jeff. Nance for the same matter, before he compelled the defendant to pay it. It may be that the declaration is not sufficient in counting upon the alleged mistake in a settlement, on account of Mrs. John Beadenbaugh.” But that is immaterial, as the count for money had and received covers the same matter. It was not necessary, as the first ground supposes, to allege or prove that the plaintiff had “ notified the defendant of the supposed error, and had demanded the money.” To show that he had been twice paid, entitled the plaintiff to recover.

The various grounds for new trial have not shown any clear error in the verdict: according to well-established rules we cannot interfere. The motions in arrest of judgment and for a new trial are dismissed.

Johnstone and Wardlaw, JJ., concurred.

Moiipn dismissed.  