{
  "id": 5175055,
  "name": "First National Bank of Chicago, Appellant, v. Edward J. Molesky, d/b/a Edwards Auto Rebuilders, Appellee",
  "name_abbreviation": "First National Bank v. Molesky",
  "decision_date": "1957-11-26",
  "docket_number": "Gen. No. 47,096",
  "first_page": "470",
  "last_page": "472",
  "citations": [
    {
      "type": "official",
      "cite": "15 Ill. App. 2d 470"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "186 Ill. 18",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        3227215
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill/186/0018-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 236,
    "char_count": 2925,
    "ocr_confidence": 0.506,
    "pagerank": {
      "raw": 1.0482681451391714e-07,
      "percentile": 0.5528432352619786
    },
    "sha256": "994e8073e0892296df8828281e809187aa8dd1152c3a76cf398bdf91559b4caa",
    "simhash": "1:221319874122fcc7",
    "word_count": 498
  },
  "last_updated": "2023-07-14T20:59:23.995826+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "KILEY, P. J. and LEWE, J., concur."
    ],
    "parties": [
      "First National Bank of Chicago, Appellant, v. Edward J. Molesky, d/b/a Edwards Auto Rebuilders, Appellee."
    ],
    "opinions": [
      {
        "text": "JUSTICE FEINBERG\ndelivered the opinion of the court.\nPlaintiff appeals from an order and judgment which sustained defendant\u2019s motion to strike the complaint and to dismiss the action for alleged failure to state a cause of action. The sufficiency of the complaint is the only question presented upon this appeal.\nThe pertinent averments of the complaint are:\n\u201cPlaintiff\u2019s claim is for $450.76, which sum was paid to defendant on December 27, 1955 by a mistake of fact to-wit:\nOn December 22, 1955 Plaintiff\u2019s customer, W. C. Lukey, Jr. issued his check No. 1415 drawn on the Plaintiff, payable to the Defendant in the amount of $450.76.\nOn December 27, 1955 Mr. W. C. Lukey, Jr., revoked his order to pay and stopped payment on said check. Subsequent thereto, on December 27, 1955, said check was presented to plaintiff and through mistake of fact was paid.\n\u201cThe Defendant has wholly neglected and refused to return the money received by him although Plaintiff demanded payment thereof.\u201d\nPlaintiff contends that the mere issuance and delivery of the check by the drawer to defendant created no rights in payee\u2019s favor against the bank, relying upon the Negotiable Instruments Act, Ill. Rev. Stat. 1955, Ch. 98, \u00a7 210, which reads:\n\u201cA check of itself does not operate as an assignment of any part of the funds to the credit of the drawer with the bank, and the bank is not liable to the holder, unless and until it accepts or certifies the check.\u201d\nWhen the check was presented by the payee, plaintiff accepted it and paid it. It now claims that the payment was by a mistake of fact, and cites Gordon v. Johnson, 186 Ill. 18, and 40 Am. Jur., p. 844, in support of its claim. We do not regard the facts alleged in the complaint as constituting a mistake of fact of the character involved in the cases cited by plaintiff.\nThere is no averment of fact in the complaint which would charge defendant with knowledge that at the time of the presentation of the check and payment thereof, he was not entitled to receive payment. Upon the face of the averments in the complaint, the payee had a legal right to present the cheek to plaintiff, demanding payment. Having been paid by plaintiff, the complaint is not sufficient to require defendant to repay to the bank the amount of the check and thus be relegated to the necessity of litigating with the drawer to recover the amount of the check.\nThe judgment is correct and is affirmed.\nAffirmed.\nKILEY, P. J. and LEWE, J., concur.",
        "type": "majority",
        "author": "JUSTICE FEINBERG"
      }
    ],
    "attorneys": [
      "Wilson, Paul and Hansen, of Chicago (George A. Hansen, and Gerard A. Fairfield, of counsel) for appellant.",
      "Henry A. Kalcheim (Irving Liberman, and Elliott Kalcheim, of counsel) for defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "First National Bank of Chicago, Appellant, v. Edward J. Molesky, d/b/a Edwards Auto Rebuilders, Appellee.\nGen. No. 47,096.\nFirst District, Second Division.\nNovember 26, 1957.\nRehearing denied December 26,1957.\nReleased for publication January 14, 1958.\nWilson, Paul and Hansen, of Chicago (George A. Hansen, and Gerard A. Fairfield, of counsel) for appellant.\nHenry A. Kalcheim (Irving Liberman, and Elliott Kalcheim, of counsel) for defendant-appellee."
  },
  "file_name": "0470-01",
  "first_page_order": 484,
  "last_page_order": 486
}