Filgo v. Penny, 6 N.C. 182, 2 Mur. 182 (1812)

July 1812 · Supreme Court of North Carolina

6 N.C. 182, 2 Mur. 182

William Filgo v. William Penny.

From Johnston.

A. having by mistake paid to B. a fifty dollar banlc note, for a five dollar bank note, cannot maintain assumpsit to recover back forty-five dollars. A bank note is not money, and a delivery by mistake of any tiling except money, does not pass the property in the thing delivered, and cannot raise an implied promise to pay money.

This case commenced by a warrant before a Justice of the Peace, in which the Plaintiff claimed the sum of forty-five dollars, “ a balance due to him on exchange of some bank notes.” The Plaintiff declared upon a special agreement, and for money liad and received, for money paid to the Defendant by mistake, &c. There was no evidence of any special agreement, and the only evidence to maintain the other counts was, that the Plaintiff had, by mistake, paid to the Defendant, a fifty dollar bank note, for a five dollar bank note. No promise, either express or implied, was proved, unless the payment of the bank note as aforesaid, implied a promise to pay money. The Defendant relied upon the plea of <£ non-assumpsit.” The Jury found a verdict for the Plaintiff, under the charge of the Court; and a rule for a new trial being obtained,, the same was sent to this Court.

Harris, Judge,

delivered the opinion of the Court:

The case states, that there was no evidence of a special agreement, and the only evidence to support the money counts was, that the Plaintiff had, by mistake, paid to the Defendant a fifty dollar bank note for a five dollar bank note. A bank note is not money, and does not differ in its nature from any other promissory note payable to bearer. A delivery by mistake of any thing, except money, does not pass the property in the thing delivered, and cannot raise an implied promise to pay-money. Let the rule for a new trial be made absolute.