First National Bank v. Haight

Citations

• 55 Ill. 191

Syllabus

<p>1. Bankers—receiving money at a bank, uncounted by the party receiving it. Where a borrower of money at a bank, has an opportunity and is able to count the money himself, but does not, and accepts the count of the bank officer as a performance of the contract of loan, then, although such acquiescence and acceptance will not be conclusive upon him, if there be in fact, a mistake, yet it will require as clear and satisfactory proof to open the transaction and recover for such mistake, as in the case of opening accounts between merchant and merchant, or banker and merchant, when there has been an account stated.</p> <p>2. Account stated—in what manner established. In such a case, to make an account a stated account, it is not necessary the acceptance be express, but it may be implied from circumstances.</p> <p>3. Burden of proof—in such case. The burden of showing a mistake in such case, is upon the party seeking to recover therefor.</p> <p>4. Witnesses—credibility. A party who received money at a bank without counting it himself, brought an action against the bank to recover for an alleged mistake, in paying him a less sum than was intended. The deficiency was not discovered until the second day after the money was received, the party alleging the mistake having in the mean time paid out and received different sums: Held, it was error to refuse to instruct the jury, on behalf of the bank, that in estimating the credibility of the two witnesses, the plaintiff, and the officer of the bank who paid him the money, and probability as to which of them made the mistake, the latter in counting, or the former in taking proper care of the money after he received it, the jury might take into consideration, their appearance on the stand, their business competency, care and habits, as disclosed by the evidence.</p>