#### The Metropolitan Bank, plaintiffs and respondents, *vs.*Thomas O. Smith and others, defendants and appellants.

1. The receipt, by mistake, by the clerk-of á bank with whom a note has been deposited 'for collection, from one of its makers, in full payment thereof, of a less amount than was due thereon, may be established, by circumstantial evidence, against the positive affirmative testimony of such maker that he had paid the full amount.

2. Proof that the difference between the whole amount received by the clerks of such bank, for negotiable instruments, choses in action, and other debts collected by them on the day of the maturity of such note, and the amount they would have received if the whole of such note had been paid, was exactly equal to the difference between the amount in the body of such note and figures in the margin, or above the same; and that the amount indicated by such figures corresponded precisely with entries in the books of the plaintiffs, and a notice given to such maker of the falling due of such note, and that such figures, as well as the name of the makers, were torn off when the note was produced by them on the trial, without any reason assigned for such mutilation, were *held*to be sufficient *prima faeie*evidence to go to the jury.

3. Although further evidence might have been produced, either corroborative or to clear up doubts, yet, it being a question for the jury, the court will not, under such circumstances, disturb the verdict.

(Before Robertson, Ch. J., and McOunn and Jones, JJ.)

Heard March 14,1866;

decided June 30,1866.

*230This was an action to recover the amount due on a promissory note, made hy the defendants, for $510.70, payable at the bank of the plaintiffs on the 7th of April, 1863. The plaintiffs claimed that, by mistake, they had entered it on their books as a note for $210.70 ; that the defendants came to the bank and paid $210.70, and got the note before the mistake was discovered; and,.when their attention was called to it, insisted that they had paid the full amount of the note; that the defendants, to shield themselves, mutilated the note, by tearing off the figures from the margin, and returned it to the bank in that condition, to show that no mistake could have occurred.

The complaint alleged that the defendants had, at no time, paid upon the said note to the plaintiffs, or to any person on their behalf, or for their use, any greater or other sum than said sum of $210.70 ; that there is now actually owing and unpaid, from the defendants to the plaintiffs, upon the said note the sum of $300, and that the said plaintiffs have, since the said 7th day of April, 1863, demanded the same of the said defendants, who refused to pay the same. Whereupon the plaintiffs demanded judgment against the defendants for the said sum of $300, with interest and costs.

The defendants, by their answer, denied the allegations of the complaint, and alleged that, on or about the 7th day of April, 1863, they paid to the plaintiffs the sum of $510.70, in full payment of the note mentioned in the complaint.

The action was tried before Justice Babboub and a jury. The plaintiffs’ evidence showed that when the note came to the plaintiffs, the figures on the margin were either $210.70, or so written as to be readily taken for them. It was first entered on the collection register of the defendants, by calling off from the figures on the margin as $210.70.

A notice or ticket, sent to the defendants, of the note falling due, was made out, by a clerk in the bank, from the figures on the margin of the note, and left at the defendants’ place of business by an express, on a list of notes to be paid on the 7th of April, made up by the receiving teller to guide him. *231The figures on the note were entered as $210.70; the note was paid according to the list, and the cash entries of the defendants’ books balanced according to it. One of the defendants, (Claus Smith,) when he came to pay the note, handed back the ticket that had been sent tó the defendants, in which the note was designated as a note of $210.70. The ticket agreeing with the figures on the margin of the note, the latter was surrendered without examination. After the error was discovered, the defendants, when called upon, first said that the' note was destroyed, but finally brought it to the bank in a • mutilated condition, with the names of the makers, and the figures on the margin torn off.

One of the defendants was examined as a witness, and testified positively that he called at the bank and called for T. C. *&*0. Smith’s note for $510.70, and handed the money to the teller, who counted it, asked him how much money there was, stamped the note, and gave it to the defendant; and that he, the defendant, tore off the figures from the note, so that nobody could claim it.

At the close of the testimony the defendants’ counsel requested the court to charge the jury that the evidence, on the part of the defendants, was direct, affirmative, and positive proof of the payment of the whole amount of the note, whilst that on behalf of the plaintiff was not of that character, but was merely circumstantial and inconclusive, and what might be termed weak, inferential evidence, and that, if they believed the witnesses of the defendants to be credible witnesses, they were bound to render a verdict for the defendants; but the court refused so to decide or to charge, to which refusal' the defendants’ counsel excepted. The jury thereupon found a verdict for the plaintiffs for $340.19.

The defendants moved for a new trial, which was denied, and they appealed from the judgment, and from such order.

*P. Y. Outlet,*for the appellants.

*J. O. Dimmick,*for the respondents.

*232By the Court,

Eobertson, Ch. J.

Although the note in question in this case seems to have been sent to the plaintiffs merely for collection, no question was made, on the trial, of their right to recover the amount claimed to be still due and unpaid upon it. The action was substantially on the note, and the sole question in the case was whether the whole amount had been paid by the defendants to the plaintiffs. The latter endeavored to disprove it by various facts, such as that the aggregate of the amounts received by them by their clerks on the day such' note matured, fell short of the amount claimed as unpaid on such note ($300,) the amount which ought to have been received. That in receiving payments such clerks were always governed by the figures in the margin of or above promissory notes paid at their bank, and not by the amount written in the notes. That the figures written in the note in question were just the same amount below the sum stated in the body of the note. And that the defendants, after taking up the same, endeavored to conceal the short payment by tearing off the top of such note which had such figures written thereon, without any proper motive therefor. If the evidence introduced on the part of the plaintiffs on the trial established such facts, and those facts in any way tended to establish the fact of short payment, the whole matter was in the hands of the jury.

In regard to the figures in the corner of the note, six witnesses were examined on behalf of the plaintiffs, Camp, Baldwin, Williams, Mailer, Buckley and Parmley, who were clerks in their employ, and whose duty it was to make entries of notes received by the bank. They proved a habit of making such entries from the notes according to the figures which showed their amount written on the top or margin of them, instead of the amounts in the body of them. Two such entries were given in evidence ; one ifi the collection book on the receipt of the note, and one in a credit book in which a list of notes due on the same day was entered, both made from the note in question. In both of them the note was entered as of the less sum, being $300 less than the real amount in the body *233of it. A bank notice, also, of the time the note became due, was produced, having been found on the string at the bank, on which such notices are usually strung when brought back at the time of paying notes. The contents of which notice had been taken from the original note by a clerk (Demarest) whose duty it was to fill up the same, and it was placed, according to his custom, in a tin box, from which such notices were daily taken by a messenger of a letter express company (Earle) to deliver to parties to whom they were directed. Such messenger testified that he always delivered all notices that were placed in such box, to the parties to whom they were addressed, and that he had often left notices of the same kind at the place of business of the defendants. In such notice, the note in question was described as of the smaller amount. The note itself, when produced, had the part torn out where the figures had been, as well the signature torn off. There was, therefore, some evidence that the figures in the note had represented the smaller amount, and this gave plausibility to the theory of the possibility of a mistake having been thereby produced in receiving the less amount, if it was received.

It was also proved that four clerks were authorized to receive payment of notes due at the bank of the plaintiffs, Buckley, Williams, Mailer and Parmley, besides the first assistant note teller (Baldwin,) all of whom testified that they put all the money they received into a drawer or till, from which it was delivered to the note teller. Such note teller testified that he footed up the cash receipts every night, and the amount must agree with the credits, otherwise the books would not balance ; and that on the day of the maturity of such note they, agreed within seven cents. There was, therefore, evidence to show that $300 less was received by the bank upon account of notes on that day, than should have been received if the whole amount due upon the note in question, as well as other notes, had been paid.

The evidence would have been more satisfactory if the amounts paid by other persons than the defendants to the *234plaintiffs, on the same day, had been proved to have been paid, and on what account, and if possible in what manner, and the aggregate of receipts had also been proved, and the absence of such proof on the part of the plaintiffs, unexplained, afforded reasonable grounds of suspicion for the jury, since it would be extremely difficult for the defendants to fasten a mistake upon any other one of numerous payments ; still it only formed a matter proper for the jury, upon which they alone were entitled to pass.

There was evidence, therefore, that a mistake had occurred in regard to some payments to the plaintiff on the day of the maturity of the note in question, corresponding with the difference between the amount indicated by its figures and that expressed in its body, of which also there was evidence. The character of the mutilation of the note where the figures had been, besides tearing off the signature, also creates suspicion, as it was entirely unexplained. Although the evidence was, to a certain extent, circumstantial, the jury had a right to rely on it in preference to the direct testimony of one of the defendants, who was interested. No error of law seems to have been committed. The judgment and order appealed from must be affirmed, with costs.