#### West Frankfort Bank & Trust Company, Appellee, v. Joe Barretti and Barney Tonazzi, Appellants.

(Not to be reported in full.)

Abstract of the Decision.

1. Banks and banking, § 119 * —when evidence sufficient in action hy hank to recover money entered on pass hook hy mistake. In an action by a bank to recover money which through mistake had been entered on the pass book of defendants, where it appeared that the amount was deposited by another depositor and the error was not discovered until almost a year after it was made, and after the partnership of the defendants had been dissolved, their business sold out and the balance checked out to their credit, evidence held sufficient to sustain a verdict in favor of plaintiff.

2. Assumpsit, Action of, § 48*—when for money had and received lies. Money paid by one to another by mutual mistake of *262facts may be recovered back in an action of assumpsit under the count for money had and received.

*261Appeal from the Circuit Court of Franklin county; the Hon. Charles H. Miller, Judge, presiding. Heard in this court at the October term, 1916.

Affirmed.

Opinion filed April 13, 1917.

Statement of the Case.

Action by West Frankfort Bank & Trust Company, plaintiff, against Joe Barretti and Barney Tonazzi, defendants, to recover money erroneously credited to the account of defendants. From a judgment for plaintiff for $501.30, defendants appeal.

R. E. Hickman, W. P. Seeber and John E. Hamlin, for appellants.

William H. Hart and William W. Hart, for appellee.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Boggs

delivered the opinion of the court.

*2623. Assumpsit, Action op, § 44*—when for money had and received lies. Assumpsit for money had and received may be maintained whenever the defendant has obtained money belonging to the plaintiff which in equity and good conscience he has no right to retain, as in such case the law implies a promise to pay.

4. Banks and banking, § 119 * —when deposit slip is admissible in action by bank to recover money erroneously credited in pass book. In an action by a bank to recover money credited by mistake to a depositor in his pass book instead of entering such deposit in the book of the depositor who made the deposit, held that the deposit slip showing a deposit by such other depositor was properly admitted in evidence, it being a part of the. res gestw.