MORROW, Circuit Judge
(after stating the facts as above). The defendant in error has interposed motions to dismiss the writ of error, and strike from the files of the court the bill of exceptions. Both motions are made on the ground that the plaintiff in error has failed to comply with certain rules of court.
[ 1 ] The first motion is based upon an alleged failure of the plaintiff in error to comply with rule 24 of this court1 requiring counsel for the plaintiff in error to file with the clerk of the court 20 copies of the printed brief and serve upon the counsel for the defendant in error one copy thereof at least 10 days before the case is called for argument. This case was set for argument for the 11th day of October, 1910. The 20 copies of the printed brief were filed with the clerk of the court as required by the rule, and it appears from an affidavit on file that counsel for the plaintiff in error served their brief upon counsel for defendant in error on the 1st day of October, 1910, by depositing copies in the post office at San Erancisco, in sealed envelopes addressed to the counsel for the defendant in error at Seattle, Wash., with postage prepaid. We think this service comes within the rule, but, had there been such a delay of the delivery of the briefs at Seattle as to in [86]*86any way prejudice counsel for the defendant in error in filing their reply brief, this court upon a proper showing would have made a suitable order with respect thereto.
[2] The second motion is based upon an alleged failure of the plaintiff in error to prepare and have settled a bill of exceptions in accordance with the provisions of rule 75 of the United States Circuit Court for the District of Washington. That rule provides that:
“The party desiring the bill (of exceptions) shall * * * within ten days after the rendition of the verdict * * * serve upon the adverse party a draft of the proposed bill of exceptions.”
The judgment was entered on March 17, 1910. The law of the state of Washington provides that a proposed bill of exceptions must be filed and served either before or within 30 days. The plaintiff in error ap- ( pears to have delayed action in that proceeding under the mistaken belief that this statute prevailed in the federal court, for on the 11th of April, 1910, an order was entered extending the time until May 14, 1910, in which the plaintiff in error might file and serve its bill of exceptions. A copy of this order was served upon defendant in error with the proposed bill of exceptions within the time as extended by such order. Such order was made during the term in which the judgment was entered. It recited that it was made for good cause shown. The exceptions were seasonably taken and reserved, and they were put in form and filed in the case by direction of the judge. This was.held sufficient in Stanton v. Embrey, 93 U. S. 548, 555, 23 L. Ed. 983. We think that, under the authority of this case and the practice prevailing in this court, the bill of exceptions should be accepted. Southern Pacific Co. v. Johnson, 69 Fed. 559, 16 C. C. A. 317; City of Seattle v. Board of Home Missions, 138 Fed. 307, 70 C. C. A. 597. Both motions are accordingly denied.
[3] Upon the merits we are of opinion that the allegations of the complaint state a cause of action upon an implied agreement to restore money paid to the defendant in error by the plaintiff in error under a mistake of fact, and that the evidence introduced on behalf of the plaintiff tended to sustain such a cause of action. The rule now established in the federal courts is this: If the state law permits a nonsuit where the evidence with all the inferences to be drawn therefrom would not sustain a verdict for the plaintiff, the federal court may do likewise under the provisions of section 914 of the Revised Statutes of the United States (page 684, U. S. Comp. St. 1901). Central Transp. Co. v. Pullman’s Car Co., 139 U. S. 39, 40, 11 Sup. Ct. 478, 35 L. Ed. 55; Meehan v. Valentine, 145 U. S. 618, 12 Sup. Ct. 972, 36 L. Ed. 835; Coughran v. Bigelow, 164 U. S. 308, 17 Sup. Ct. 117, 41 L. Ed. 442. It follows that, if the evidence in such a case is sufficient to sustain the cause of action, a motion for a nonsuit should be denied. Such is the rule established by the Supreme Court of the state of Washington. Welch v. Fransioli, 46 Wash. 530, 90 Pac. 644.
[4] The evidence in the case before us was to the effect that the plaintiff on November 9, 1904, paid to the defendant the amount sued for upon representations made by the defendant that the Port Arthur bank had previously received from Clarkson & Co. the amount called [87]*87for in the draft; that at the time this payment was made the plaintiff stated to the defendant that the payment was being made without knowledge of the exact conditions established between the defendant and plaintiff’s Port Arthur branch for the collection of its documentary bills, and there was evidence that the draft had not in fact been paid to the Port Arthur bank. The Seattle bank claimed that the draft of the Centennial Mill Company on Clarkson & Co. had been paid to the Port Arthur branch of the St. Petersburg bank, and that the Seattle bank was entitled to have this amount refunded, and so represented to the St. Petersburg bank. There was evidence tending to show that this representation was a mistake on the part of the Seattle bank. There was also evidence tending to show that the St. Petersburg bank, influenced by the representations of the Seattle bank and relying upon such representations that the draft had been paid to its branch bank at Port Arthur, paid the amount of the draft with interest and charges to the Seattle bank. This was a mistake on the part of the St. Peters-burg bank; that is to say, the evidence tended to show that both parties to the transaction were acting under a mistake of fact. In such a case the failure of the complainant to prove an agreement in writing “that, if it should be thereafter ascertained that said draft had not been paid, the said sum should be repaid to it by the defendant,” was immaterial, as the allegation of such an agreement was unnecessary in the statement of the cause of action.
In Leather Manuf. Bank v. Merchants’ Bank, 128 U. S. 26, 9 Sup. Ct. 3, 32 L. Ed. 342, the Supreme Court said:
“Whenever money is paid upon the representation of the receiver that he lms either a certain title in property transferred in consideraiion of the payment, or a certain authority to receive the money paid, when in fact he 1ms no such title or authority> then, although there be no fraud or intentional misrepresentation on his part, yet there is no consideration for the payment, and the money remains, in equity and good conscience, the property of the payer, and may be recovered back by him, without any previous demand, as money had and received to his use.”
In Fidelity Savings Bank v. Reeder, 142 Iowa, 373, 120 N. W. 1029, the following were the facts of the case: The defendant was a depositor in the plaintiff bank, and presented his hook to withdraw his account. It was shown that the amount due him at that date, principal and interest, was $1,285.22, and no more, and this amount the defendant admitted he received. Plaintiff claimed, however, that by mutual mistake of the parties the amount
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MORROW, Circuit Judge
(after stating the facts as above). The defendant in error has interposed motions to dismiss the writ of error, and strike from the files of the court the bill of exceptions. Both motions are made on the ground that the plaintiff in error has failed to comply with certain rules of court.
[ 1 ] The first motion is based upon an alleged failure of the plaintiff in error to comply with rule 24 of this court1 requiring counsel for the plaintiff in error to file with the clerk of the court 20 copies of the printed brief and serve upon the counsel for the defendant in error one copy thereof at least 10 days before the case is called for argument. This case was set for argument for the 11th day of October, 1910. The 20 copies of the printed brief were filed with the clerk of the court as required by the rule, and it appears from an affidavit on file that counsel for the plaintiff in error served their brief upon counsel for defendant in error on the 1st day of October, 1910, by depositing copies in the post office at San Erancisco, in sealed envelopes addressed to the counsel for the defendant in error at Seattle, Wash., with postage prepaid. We think this service comes within the rule, but, had there been such a delay of the delivery of the briefs at Seattle as to in [86]*86any way prejudice counsel for the defendant in error in filing their reply brief, this court upon a proper showing would have made a suitable order with respect thereto.
[2] The second motion is based upon an alleged failure of the plaintiff in error to prepare and have settled a bill of exceptions in accordance with the provisions of rule 75 of the United States Circuit Court for the District of Washington. That rule provides that:
“The party desiring the bill (of exceptions) shall * * * within ten days after the rendition of the verdict * * * serve upon the adverse party a draft of the proposed bill of exceptions.”
The judgment was entered on March 17, 1910. The law of the state of Washington provides that a proposed bill of exceptions must be filed and served either before or within 30 days. The plaintiff in error ap- ( pears to have delayed action in that proceeding under the mistaken belief that this statute prevailed in the federal court, for on the 11th of April, 1910, an order was entered extending the time until May 14, 1910, in which the plaintiff in error might file and serve its bill of exceptions. A copy of this order was served upon defendant in error with the proposed bill of exceptions within the time as extended by such order. Such order was made during the term in which the judgment was entered. It recited that it was made for good cause shown. The exceptions were seasonably taken and reserved, and they were put in form and filed in the case by direction of the judge. This was.held sufficient in Stanton v. Embrey, 93 U. S. 548, 555, 23 L. Ed. 983. We think that, under the authority of this case and the practice prevailing in this court, the bill of exceptions should be accepted. Southern Pacific Co. v. Johnson, 69 Fed. 559, 16 C. C. A. 317; City of Seattle v. Board of Home Missions, 138 Fed. 307, 70 C. C. A. 597. Both motions are accordingly denied.
[3] Upon the merits we are of opinion that the allegations of the complaint state a cause of action upon an implied agreement to restore money paid to the defendant in error by the plaintiff in error under a mistake of fact, and that the evidence introduced on behalf of the plaintiff tended to sustain such a cause of action. The rule now established in the federal courts is this: If the state law permits a nonsuit where the evidence with all the inferences to be drawn therefrom would not sustain a verdict for the plaintiff, the federal court may do likewise under the provisions of section 914 of the Revised Statutes of the United States (page 684, U. S. Comp. St. 1901). Central Transp. Co. v. Pullman’s Car Co., 139 U. S. 39, 40, 11 Sup. Ct. 478, 35 L. Ed. 55; Meehan v. Valentine, 145 U. S. 618, 12 Sup. Ct. 972, 36 L. Ed. 835; Coughran v. Bigelow, 164 U. S. 308, 17 Sup. Ct. 117, 41 L. Ed. 442. It follows that, if the evidence in such a case is sufficient to sustain the cause of action, a motion for a nonsuit should be denied. Such is the rule established by the Supreme Court of the state of Washington. Welch v. Fransioli, 46 Wash. 530, 90 Pac. 644.
[4] The evidence in the case before us was to the effect that the plaintiff on November 9, 1904, paid to the defendant the amount sued for upon representations made by the defendant that the Port Arthur bank had previously received from Clarkson & Co. the amount called [87]*87for in the draft; that at the time this payment was made the plaintiff stated to the defendant that the payment was being made without knowledge of the exact conditions established between the defendant and plaintiff’s Port Arthur branch for the collection of its documentary bills, and there was evidence that the draft had not in fact been paid to the Port Arthur bank. The Seattle bank claimed that the draft of the Centennial Mill Company on Clarkson & Co. had been paid to the Port Arthur branch of the St. Petersburg bank, and that the Seattle bank was entitled to have this amount refunded, and so represented to the St. Petersburg bank. There was evidence tending to show that this representation was a mistake on the part of the Seattle bank. There was also evidence tending to show that the St. Petersburg bank, influenced by the representations of the Seattle bank and relying upon such representations that the draft had been paid to its branch bank at Port Arthur, paid the amount of the draft with interest and charges to the Seattle bank. This was a mistake on the part of the St. Peters-burg bank; that is to say, the evidence tended to show that both parties to the transaction were acting under a mistake of fact. In such a case the failure of the complainant to prove an agreement in writing “that, if it should be thereafter ascertained that said draft had not been paid, the said sum should be repaid to it by the defendant,” was immaterial, as the allegation of such an agreement was unnecessary in the statement of the cause of action.
In Leather Manuf. Bank v. Merchants’ Bank, 128 U. S. 26, 9 Sup. Ct. 3, 32 L. Ed. 342, the Supreme Court said:
“Whenever money is paid upon the representation of the receiver that he lms either a certain title in property transferred in consideraiion of the payment, or a certain authority to receive the money paid, when in fact he 1ms no such title or authority> then, although there be no fraud or intentional misrepresentation on his part, yet there is no consideration for the payment, and the money remains, in equity and good conscience, the property of the payer, and may be recovered back by him, without any previous demand, as money had and received to his use.”
In Fidelity Savings Bank v. Reeder, 142 Iowa, 373, 120 N. W. 1029, the following were the facts of the case: The defendant was a depositor in the plaintiff bank, and presented his hook to withdraw his account. It was shown that the amount due him at that date, principal and interest, was $1,285.22, and no more, and this amount the defendant admitted he received. Plaintiff claimed, however, that by mutual mistake of the parties the amount due the defendant was computed as being $1,385.22, and that acting upon such mistaken belief its cashier paid to the defendant the latter sum making an overpayment of $100, which upon demand the defendant refused to refund. Plaintiff in its petition not only alleged overpayment by mistake, but further alleged that, after discovering the error, defendant admitted the mistake and promised to rectify it. The court held that, even if the plaintiff wholly failed to prove the alleged admission and promise of repayment, it was still entitled to recover if the jury should find that if by mistake of the parties overpayment had in fact been made. The court had instructed the jury that proof of the alleged admission and the promise to repay was essential to [88]*88plaintiff’s recovery. This charge was excepted to as casting upon plaintiff an unduly heavy burden. The Supreme Court of Iowa was of the opinion that the contention was well founded. It said:
“Even though the plaintiff had wholly failed to prove the alleged admission and promise of repayment, it was still entitled to recover if the jury should find that by mistake of the parties an overpayment to the defendant had in fact been made. The right to recover money paid by mistake is too well established to require argument, and such right is in no manner dependent upon an express admission by the party receiving it, or on his agreement to refund.”
In support of this doctrine the court cites numerous decisions, and then says:
“The allegation of such admission and promise in plaintiff’s petition was unnecessary to a statement of a cause of action, and he was not required to sustain it by evidence.”
[5] In this aspect of the case plaintiff was clearly entitled to have defendant’s motion for a nonsuit denied; but, if we turn to- the condition upon which the Seattle bank proposed to return the money to the St. Petersburg bank and the evidence relating to such condition, we reach the same conclusion. The condition as stated by the Seattle bank in its letter of December 5, 1904, was as follows:
“We on our part agree upon return to us of both sets of bills, showing that the draft has not been paid to reimburse you in the sum paid us, provided, that we were in no wise injured by the fact that your Port Arthur branch has indefinitely held the bills after their maturity, at which time they could have been returned to us and we could have collected from the Steamship Company.”
There was evidence that the draft had not been paid, and that the draft together with the protest had been returned to the Seattle bank in a letter written to the Seattle bank by the Port Arthur bank under date of May 26, 1904. There was testimony that this letter was not received by the Seattle bank, and, although it was introduced in evidence and read, it was subsequently objected to by the defendant and excluded as, we think, erroneously. As the exclusion of this letter is assigned as error, we shall refer to that ruling later in the opinion. For the present, it is sufficient to say that the deposition of Alexander Friedberg, an officer of the Port Arthur bank, was introduced in evidence, who testified that:
“The draft for $36,194.80 was protested. April 20/May 3, 1904, and returned with the deed of protest to the National Bank of Commerce of Seattle with 1he letter dated May 13/26. 1904.”
The deposition of Alexander Drozdov, another officer of the bank, was also introduced in evidence. He testified:
“The draft for $36,194.80 was protested and returned to the National Bank of Commerce, together with the protest in letter dated May 13/26, 1904.”
This testimony we think tended to establish the fact that the protested draft had been mailed to the Seattle bank. When these depositions were taken, there does not appear to have been any question about the fact. If there was any doubt upon that subject, the witnesses should have been cross-examined as to what was meant by their [89]*89statements that the draft was returned to the Seattle bank with the letter dated May 26, 1904.
With respect to the final condition that the Seattle bank should not have been injured, it appears from the evidence that, before the Seattle hank received the repayment from the St. Petersburg bank, the Seattle hank had been paid in full by the Centennial Mill Company. This evidence comes from R. R. Spencer, who was the cashier of the Seattle hank during the transactions involved in this case, and who was the first vice president when lie gave his testimony. His testimony is as follows:
“Q. I will ask you whether or not prior to the time the Russo-Chinese Bank paid you the money that they are now suing for the Centennial Mill Company had paid the National Bank of Commerce this draft. What is the fact about it? A. They took up the draft and paid us for the draft quite a little while before we received the money from the Russo-Chinese- Bank.”
It thus appeared that even on the conditions for repayment proposed by the Seattle bank the evidence before the court did not entitle it to a nonsuit; but the evidence remains clear and uncontradicted that the payments made to the Seattle bank by the St. Petersburg bank were made under a mistake of fact upon which the law raises an implied agreement to restore the money, and we are of the opinion that the complaint stated a cause of action upon such an implied promise., and that a motion for a nonsuit should have been denied. Whether the Port Arthur bank was negligent in dealing with the draft appears to be a question raised by the pleadings. It is set up as a defense to the action by the Seattle bank, hut it is denied by the St. Petersburg bank, and there is evidence lending to support that denial. The question was therefore not involved in the nonsuit. It follows that we are of the opinion that the judgment should he reversed and a new trial granted.
In view of such new trial, we will notice the assignments of error relating to the exclusion of evidence on the motion of the defendants. In the deposition of Alexander Rriedberg he was asked this question;
“Q. State if you know whether Clarkson & Co. accepted said draft and if they did, what date? A. Yes; Clarkson & Co. accepted said draft on January 17/30, 1001.”
[6] This answer was struck out on the motion of counsel for the defendant on the ground that the acceptance of the draft must have been by an instrument in writing, and the writing should be produced, but the evidence was not offered for the purpose of establishing a liability upon the draft upon the evidence required by the statute of frauds, but for the purpose of fixing the date when the draft was accepted. This could be established by the testimony of any one competent to testify and who had knowledge of the fact. The witness appears to have had knowledge of this fact.
[7] It further appears that the draft itself had been lost. If the acceptance was indorsed on the draft as is usual, then it could not be produced and secondary evidence as to the date of its acceptance was admissible.
[90]*90With respect to the extract from the entries in' the books of the Port Arthur bank relating to this draft, it is objected that the book from which the extract was taken was not sufficiently identified as an original book of entry; that there was no evidence that the entries were made at the time the transactions were made by a person authorized to make them and made in due course of business. We think the book was not so identified, and that the objection was properly sustained.
The copy of the letter of May 26, 1904, was attached to the deposition of Alexander Friedberg, and a copy was also attached to the deposition of Alexander Drozdov. These depositions were read in evidence together with the copy of the letter attached to each. The original letter was called for by the plaintiff from the defendant, and the response by the defendant’s cashier was that it had not been received. Thereupon counsel for the defendant moved to exclude the copy of the letter attached to the deposition of Friedberg on the ground that the correctness and truthfulness of the copy-book had not been established, and it had not been shown that the original letter had been mailed. Friedberg in his deposition stated:
“X beg to attach. * * * an identified copy of letter date May 13/26, 1904, addressed to the National Bank of Commerce of Seattle with which the protested draft for $36,194.80 was returned. * * * The draft for $36.-194.80 with the deed of protest was received back from the notary at Port Arthur at the time when communication was cut off both at sea and on land. Under such circumstances, the mail could not be forwarded from Port Arthur, and therefore the bank kept the draft with the deed of protest in the safe until communication should be re-established.”
We think this was a sufficient identification of the letter and the fact that it was mailed. This letter inclosed the missing draft, and, together with the draft, appears to have been lost. We think the copy of the letter was therefore admissible, particularly in view of the fact that the copy of the letter attached to the deposition of Drozdov was read in evidence, and not objected to or excluded.
The judgment of nonsuit is reversed, with instructions to grant a new trial and such further proceedings as are not inconsistent with this opinion.