#### George W. Stipp v. John Johnston.

Money had and beceived—to recover tack over-payment. Where a plaintiff had assumed the payment of anote of a third person upon which there had been various previous payments, and paid the holder more than was due, the note not being present, upon his agreeing to refund in case the payment exceeded the sum due: Held, that the plaintiff was entitled to recover, under the common counts in assumpsit, the excess paid above the amount due

Appeal from the Circuit Court of McLean county; the Hon. Thomas F. Tipton, Judge, presiding.

*177This was an action of assumpsit, brought by John Johnston against George W. Stipp, to recover back an alleged over-payment upon a note. The declaration contains the common counts only. The plaintiff recovered the sum claimed by him, and the defendant appealed.

Messrs. H. & J. D. Spencer, for the appellant.

Messrs. Williams & Burr, for the appellee.

Mr. Justice McAllister

delivered the opinion of the Court:

This was assumpsit, brought by Johnston against Stipp,-to recover back the sum of $375 dollars, with interest, which the former claimed he had paid over and above the amount actually due upon a note made by one Shurtleff, which the plaintiff had assumed to pay. There had been various payments made upon the note previously; but at the time plaintiff made the final payment, the note was not present. The amount alleged to be due was stated by Stipp, who, as the testimony tends to show, agreed at the time to refund the surplus, if the amount stated by him proved to be incorrect. The plaintiff having afterwards satisfied himself of the"overpayment, endeavored to get it back from defendant by settlement, but being unable to do so, brought this action. The evidence clearly tends to establish plaintiff’s theory of the case, while that of the defendant raises some conflict. Upon such conflicting evidence, it was for the court, sitting as a jury, to pass. It has done so, and we find no ground in this record for disturbing the finding.

Judgment affirmed.