Page:Harvard Law Review Volume 4.djvu/321

305 THE DOCTRINE OF PRICE v. NEAL. 305 The case of Merchants' Co. v. Abbott is a typical one. Certain buildings, insured in the plaintiff company, were set on fire by the owner and destroyed. The owner then assigned the policy of in- surance to the defendant, to whom the plaintiff paid the amount of the adjusted loss, both parties being ignorant of the owner's fraud. The defendant was allowed to keep the money. In Mar v, Cal- lander, a creditor, who had been paid by the debtor's chamberlain, assigned his debt to the defendant; a new chamberlain, who was ignorant of the payment by his predecessor, paid the debt to the defendant. Here, too, the defendant prevailed. Consistently with the cases hitherto considered, if a drawee pays a bill of exchange, erroneously supposing that the amount to the credit of the drawer is sufficient to meet the bill, he ought not, upon discovering his mistake, to recover the money paid from the holder. Such is the law in England and several of our States.^ In Chambers v. Miller, the mistake was discovered while the holder was still at the bank-counter; but the court held that the money was irrevocably his. In Massachusetts, if not also in New York, the holder is not permitted to keep the money, unless he has changed his position before notice of the mistake.^ The decisions in those States, it is submitted, are inequitable. Either the holder or drawee must suffer by the misconduct of the drawer in drawing without funds. If the holder has once got the money, there seems to be no reason why a court should take it from him. Further- more, it seems impossible to reconcile these decisions with those discussed in the preceding two paragraphs and decided in the same jurisdictions. In Fort Dearborn Bank v. Carter,^ the court was evidently embarrassed by its decisions in favor of the drawee ^ Davies v. Watson, 2 Nev. & M. 709; Chambers v. Miller, 13 C. B. n. s. 125; Woodland v. Fear, 7 E. & B. 519, 521 ; Pollard v. Bank of England, L. R. 6 Q. B. 623; Nat. Bank v. Burkhardt, 100 U. S. 686; Preston v. Canadian Bank, 23 Fed. Rep. 179; City Bank v. Burns, 68 Ala. 267; Nat. Bank v. McDonald, 51 Cal. 64 (semble); First Bank v. Devenish (Colo., 1890), 25 Pac. R. 177; Peterson v. Union Bank, 52 Pa. 206; Hull V. Bank, Dudley (S. Ca.), 259. So in Germany. Postfiscus v. Imhof (Reichs- Gericht, 1889), 44 Seufifert's Archiv, No. 257; Anon. (O. L. G., Hamburg, 1887), 43 Seuffert's Archiv, No. 212. 2 Merchants' Bank v. Eagle Bank, loi Mass. 251; Merchants' Bank v. Nat. Bank, 139 Mass. 513 (but see Boylston Bank v. Richardson, loi Mass. 287); Troy Bank v. Grant, Hill & D. 119; Irving Bank v. Wetherald, 36 N. Y. 335; Whiting v. City Bank, 77 N. Y. 363 (semble); Nat. Bank v. Steele, 11 N. Y. Sup. 538 (but see Oddie v. Nat Bank, 45 N. Y. 735). ' 152 Mass. —, 25 N. E. Rep. 27.