#### William Richardson and ano., Resp’ts, *v.*James M. Stevens, App’lt.

*(Supreme Court, General Term, Fifth Department,*

*Filed June 22, 1889.)*

Conversion—Money received by mistake—Form on action.

Where in an action to recover the proceeds of a certain check belonging to plaintiffs alleged to have been wrongfully converted to his own use by defendant, it appeared that the check was an over-payment, given to defendant by plaintiffs on the settlement of certain accounts, that defendant at the time he received the check had no knowledge that he was receiving anything that was not his own, but that it was a case of mutual mistake, *Held,*that the action should have be- n brought not for tort, but for money had and received by defendant to the use of plaintiffs.

Appeal from a judgment of the county court of Steuben county, affirming, on question of law, a judgment of a justice of the peace in favor of the plaintiffs, for $90.08, overpaid by them to the defendant.

*F. FI. Bobinson,*for resp’ ts; *A. W.*Burrell, for app’lt.

Macomber, J.

The complaint charged the defendant as follows: 1 ‘ That on, or about, the 11th day of August, 1886, defendant being in possession of a draft, check or money, the property of the plaintiffs, to which they were entitled to the immediate possession of, to the value of $20.08, wrongfully converted the same to his own use, disposed of the same and appropriated the same and the proceeds thereof to his own use and benefit, to the plaintiff’s damage, etc.”

The evidence in the case is, that the defendant had had, for a number of years, quite extensive dealings with plaintiffs, by way of selling and delivering hemlock bark by wagon loads. In their course of dealings occasional settlements had been made, usually at the close of each year’s delivery.

The manner of settlement was by a comparison of the books of the respective parties and an adjustment thereof. At this time, however, the defendant called for a settlement without having his books wfith him, stating that they were lost or mislaid, and a settlement was thereupon made *860wholly from the books of the plaintiffs, and under the statement of the plaintiffs’ bookkeeper. The defendant appears to have been wholly ignorant of the actual condition of the accounts. This is rendered abundantly evident, by the fact that many of the deliveries of the hemlock bark had been made in behalf of the defendant by a man by the name of Coats, running between the dates of June 5th and July 9th of that year.

The several sums to which these different loads came to were not known to the defendant, and were not fully reported to him by Coats, nor was the money, when payments were made to Coats, returned to the defendant in all instances.

For instance, on a delivery amounting to $12, Coats would report to the defendant that he had received a much smaller sum, say two or three dollars. In this statement of account sworn to by Mr. Schant, one of the plaintiffs, of the eight loads delivered by Coats, two of them, amounting probably to about $12 each, were not paid to him nor to the defendant.

Under these circumstances it cannot be said that at the time the defendant received the over-payment of $20,08, he did so knowingly, or with any intention of converting that amount of money to his ■ own use. It was clearly a case of mutual mistake, and wholly without fault on the part of the defendant. The persons solely responsible for the error were the plaintiffs themselves. The case should have been brought, not for a tort or wrong, but for moneys had and received innocently by the defendant, and held by him to the use of the plaintiffs when called for.

The case of *Agar*v. *Haines*(11 N. Y. St. R., 644), to which our attention has been called by the respondent’s counsel, has no application, because there it was shown that the defendant was guilty of a civil tort and was liable for the conversion of the money, for the reason that when he received the second payment of a bill which had been once paid, he had personal knowledge of the prior payment.

The case before us, however, is devoid of any testimony which would justify the conclusion that the defendant had any knowledge, at the time he received the money, or when he received the check containing the over-payment, that he was obtaining anything which was not his own.

The judgment of the county court, and that of the justice of the peace, should be reversed, with costs.

All concur.