Opinion
March 31, 1910.
Edwin G. Davis, for the appellant.
William Wills, for the respondent.
The plaintiff has recovered a judgment against the defendant for the sum of $183.50 and costs. The facts are somewhat peculiar, but I think the decision was correct. On the 24th day of April, 1909, the plaintiff sent one of his employees to the defendant's store to buy a keg of nails with a written order for the same. Not knowing the price, he gave him also a blank check, duly signed, and payable to the defendant's order, with directions to leave it at the store to be filled in by the defendant for the purchase price of the nails. The messenger purchased the nails at the price of $3.25 from the defendant's clerk, delivered the check to him, telling him it was to pay for the nails, and received at the same time a receipted bill for the amount. The defendant was not present at the time, but on receipt of a blank check from his clerk, filled it in in the sum of $186.75, and collected the money.
The pleadings were oral, the answer being a general denial only. On the trial the defendant claimed that the plaintiff was indebted to him in an open account in the sum of $183.50, and that the check being in blank, he filled it in for the amount of such account added to the price of the nails. He did not produce his clerk as a witness, nor did he testify that the clerk did not inform him that the check had been left to pay for the nails only. The account for $183.50 was not proven, and the plaintiff testified that his indebtedness to the defendant was only between $10 and $20. In the circumstances, the act of the defendant in filling out the check for the sum which he did was unauthorized, and he is clearly liable to refund to the plaintiff the sum of money which he thus unlawfully collected and received.
The judgment should be affirmed.
WOODWARD, JENKS, THOMAS and CARR, JJ., concurred.
Judgment of the Municipal Court affirmed, with costs.