United States v. Mitchell

26 F. 607, 1886 U.S. Dist. LEXIS 16

• Court: District Court, N.D. New York
• Decided: February 22, 1886
• Status: Published

Opinion

Coxe, J«

The facts are substantially undisputed. In June, 1874, the defendant received from the plaintiff $362.78. This money did not belong to the defendant. Upon no possible theory bad he a right to retain it .as his own. Shepherd resigned in November, 1873. Assuming that the defendant could lawfully draw, six months thereafter, for Shepard’s salary, or retain the amount from the fees received at the consulate, it is entirely clear that he could only do this for the purpose of paying the amount to Shepard. If he paid Shepard it would probably afford a sufficient answer to the present claim upon him. But the payment to Shepard was a defense to be pleaded and proved. Upon this record there is no word of evidence that the defendant has ever parted with the money. For aught that appears he may have it at the present time. It is argued on his behalf that the presumption is that he paid it to Shepard. Is this so ? When the draft was drawn in June, 1871, Shepard was not consul and not at the consulate. During the same month, June, 1871, the auditor seems to have allowed the amount to Shepard in his account with the government. This necessarily occurred before the draft could have reached this country, and when Shepard and the treasury officers were ignorant of the defendant’s action. If inferences are to be indulged in, is it probable that Shepard, having received credit for his salary at the treasury, would again receive it from the defendant? When defendant’s draft reached this country, the United States owed Shepard nothing, and never owed him anything thereafter. Shepard could not have taken the money from the defendant without knowing that he had no right to receive it. The presumption would certainly, in the absence of proof, be against such a questionable transaction.

Permission was given to the defendant, at the trial, to amend his answer, and prove payment to Shepard, but he did not avail himself of this opportunity. The ease, as it appears upon the proof now before the court, is a simple one. A., residing in New York, owes B., residing in Buffalo, $100. A. sends the money to C., also residing in Buffalo, and receives a receipt acknowledging that he (C.) has received $100 to hand to B. In the mean time B. goes to New York, and receives payment directly from A. Is there any reason wrhy 0, should not return the money? There is no presumption that he has paid the money to B. If he has done so in good faith, he should prove it. So, in this case, the defendant received $362.78 from the plaintiff to pay to Shepard. Before he could, in the ordinary course of business, have paid Shepard, the latter received the amount from the plaintiff. If the defendant legally disposed of the sum so received, he should have proved it. Having failed to do so, no reason is seen why he should not now pay it back.

The length of time in bringing this action would be fatal in a case between individuals, but not so where the United States is the party plaintiff.

The plaintiff is entitled to the judgment demanded in the complaint.