Post v. Smith

Headnote

This was an action brought to recover back moneys alleged to have been paid by plaintiff, upon defendant’s order, by mistake. In 1889 plaintiff was supervisor of the town of Southport, Chemung county, and defendant was trustee of a.

school district in that town. There was a conflict of evidence as to whether the district was joint district number two or number twelve. The daughter of defendant, a minor, taught school in the district, and there was due her about forty-seven dollars. Defendant drew an order upon plaintiff as supervisor, .payable to her order, for the balance of public moneys due his district, signing it as trustee of joint district number twelve. The daughter indorsed the order to her mother, the wife of defendant, who presented it to plaintiff. Plaintiff was allowed to prove, under objection, that defendant’s wife stated, when she presented the order, that she had been to the town clerk’s office and examined, and that the amount due the district was $51.96; plaintiff paid her that amount thereon, which she paid to the daughter. In fact there was no money apportioned to joint district number twelve, and none was due to joint district number two. None of the money came to defendant’s hands, or for his use. Held, that defendant could not be affected by the statements of his wife upon presentation of the order, and that plaintiff was not entitled to recover.