Page:Harvard Law Review Volume 8.djvu/437

421 NOTES. 421 decision upon various grounds. Schillinger v. United States^ 24 Ct. of Claims, 278; 15 Sup. Ct. Rep. 85. In the first place, it is objected that the construction of the words " contract express or implied " has always in this connection been limited to cases where there was a possibility of inferring a contract implied in fact, although the cases seem to show that it had not been thought necessary to show the fact of real contract, but only the possibility. United States v. Great Falls Co., 112 U. S. 645; Great Falls Co. V. Garland, 124 U. S. 581. It is submitted that although the construction of a statutory phrase like the one in question is not a matter for strict logic, it would be better either to stop at real contracts, or to go on to all cases of unjust enrichment, and so not sacrifice the right to the form of the remedy. It is, however, asserted by the court that there is no unjust enrich- ment, and a case is put which, though extreme, is a fair test of the principle. " Take for illustration," says Mr. Justice Brewer, delivering the opinion of the court, "a patented hammer or trowel. If a con- tractor, in driving nails or laying bricks, use such patented tools, does any patent-right pass into the building and become a part of it ? " It is submitted that if- the building contract were let at a low price, and it were known that the saving was due to a patented trowel which the con- tractor intended to use in defiance of the patentee, the owner of the completed building would be saved money by the violation of the patent. The government, says Mr. Justice Brewer, is not " in possession or enjoy- ment of anything" of the plaintiffs. That is, nothing has passed into the building; but what does that matter? There maybe no authority in the printed reports for the truth that a penny saved is a penny earned, but has any one ever tried to controvert that saying of Poor Richard's with success? And would not a penny unjustly saved weigh as much in the pocket and on the conscience of an honest man? It is submitted that it would, and that an honest Government ought to be in no better position. " " Acceptance " of a Check — What is Forgery. — In First Nat. Bank V. Northwestern Nat. Bank, 38 N. E. Rep. (Ill ), it appeared that a certain person under the name of W. S. C, Treas., drew a check on the plaintiff bank, payable to " C. H. W., Asst. Gen. Supt." (a real person). Some person unknown wrote on the check the signature of " C. H. W. Asst. Gen. Supt.," and the check was presented to the plaintiff, who indorsed it " Ac- cepted, payable through Chicago Clearing House, Northwestern Nat. Bank, per S., Teller." The check was placed in the hands of C. & G., who delivered it to the defendant Bank, who indorsed it and presented it for payment through the clearing house. The plaintiff soon after pay- ment discovered the " forgery," tendered the check to the defendant de- manding back the money, and the defendant refusing, the plaintiff brought this action of assumpsit. It was held that the drawee who had paid the bank check could recover back the money so paid on discovery of the " forgery," the demand for repayment being made within a reasonable time after the discovery of such "forgery." The "acceptor" of a check was said to be estopped to deny the genuineness of the drawer's signature by his acceptance, but not to deny the genuineness of any indorsements on the instrument. The doctrine is perfectly sound that a drawee who pays to a holder claiming under a forged indorsement may recover back the money as paid