Keazar v. Bank , 75 N.H. 278 ( 1909 )

The question argued, whether the payment to the defendants' cashier Bailey, under the circumstances disclosed in the case, was a payment to the bank, does appear to be material in the present controversy. For obvious reasons, the plaintiff does not claim he can recover the money which he alleges he paid the defendants in 1898 in discharge of his liability as indorser. His claim is for the money paid by Jameson Son in 1904, in discharge of the claim of the bank against them as indorsers.

The holder of dishonored negotiable paper has a claim against all of the prior indorsers to whom notice has been given, and may collect of either. Payment by any indorser discharges his own liability upon the paper and that all subsequent indorsers. Sto. Pr. Notes, s. 401. Assuming that the plaintiff in legal effect, as he claims, paid the bank the amount of the check in 1898, the bank had no legal claim against Jameson Son in 1904. Having been once paid, the claim of the bank against all parties to the paper was extinguished. But the collection by the bank from Jameson Son of a claim already paid them by the plaintiff would not give the plaintiff title to the money paid by Jameson Son. The money paid by them was theirs, — not the plaintiff's, — and it was paid in supposed discharge, not of the plaintiff's liability to the bank, but of their own. If under the circumstances Jameson Son could recover the money paid because the bank acquired no title to it, no recovery can be had by the plaintiff because he shows no title to the money. Their payment discharged the plaintiff from liability to the bank, but did not transfer their money to him.

It does not appear that the Jamesons have ever assigned their claim to the plaintiff, or authorized the use of their names in the litigation; but if it be assumed that such assignment could be established in fact or in law, and that Jameson Son, despite their antipathy to litigation, could be made plaintiffs, the question would arise whether they could recover the money paid by them in discharge of the liability then claimed against them as indorsers. It is clear they could not. They assented to the claim of the bank and paid the money with full knowledge of the plaintiff's claim of prior payment to Bailey, in the face of his protest, offer of indemnity, and proffer of security, because they did not wish to be involved in a lawsuit. Their payment was voluntary, made either because of a mistake of law, if the plaintiff's claim that his payment to Bailey was a payment to the bank be correct, or because they preferred compromise to litigation, as is expressly found. Money paid under such circumstances cannot be recovered. Strafford Savings Bank v. Church, 69 N.H. 582; Bradley v. Laconia, 66 N.H. 269; Pearl v. Whitehouse, 52 N.H. 254; Sessions v. Meserve, 46 N.H. 167; Manchester v. Burns, 45 N.H. 482; Evans v. Gale,17 N.H. 573; Peterborough v. Lancaster, 14 N.H. 382, 389; Bean v. Jones,8 N.H. 149; Webber v. Aldrich, 2 N.H. 461.

Upon the defendants' contention that the delivery to Bailey, the defendants' cashier, out of banking hours, on the streets of Colebrook, when he was not engaged in collecting the paper, of money which Bailey neglected to pay the bank, was not a payment to the bank, the payment by Jameson Son to the bank was a discharge of an existing liability due from them to the bank, which cannot be recovered by any one. Upon either view of the legal effect of the transaction between the plaintiff and Bailey, there can be no recovery against the bank for the money paid them by Jameson Son.

Judgment for the defendants.

All concurred.