Payments voluntarily made by one against whom a claim is made as of right, and by whom it is assented to, cannot be reclaimed. The credit given by the defendant to plaintiff of the $800 draft in question they might have cancelled upon being advised of their mistake, had the failure to collect the draft arisen through no default of theirs. But after having been fully apprised of its non-payment, of plaintiffs refusal to any discharge of the credit because of want of diligence on their part, or of their sub-agents, in its collection, and of Martin’s failure while presentation was delayed, and having thereafter asserted against their sub-agent, in their own right, a claim for damages for their neglect, predicated upon their' positive assertion that they had, in consequence of that neglect, paid their own employer (the plaintiff), and as his conceded damages for their neglect, the amount of the draft: and further, after having continued the credit uncancelled for two years and a half, and having during that time made no attempt to modify or correct it, but in their •numerous accounts rendered making no" intimation of any ■dissent from its correctness, I fail to discover how such subsequent accounts, prepared and rendered under full knowledge of the facts, could be regarded as other than “ accounts stated ” without legal impeachment for the alleged mistake ■occurring in November, 1872, in respect to the Martin draft.
Payments are transactions wherein both debtor and cred*480itor agree in the application of the money paid or consideration given as being to the very intent and purpose suggested and agreed upon between them. No mistake occurred in this case in the continued assertion of the plaintiff’s claim,, that the credit given him in his bank account for the draft should be maintained, nor in the acquiescence by the defendants in that claim in the subsequent transactions between the parties, and the repeated acquiescence in, and acknowledgment of, its justice and propriety until May, 1875. Other considerations of an equitable character also estop the defendants. They were offered by Martin fifty per cent, of the debt, which they refused, and they then (as they never had done before) neglected to advise the plaintiff they should look to him alone for the amount of the draft. The credit so asserted in November, 1872, and acquiesced in by the defendants, and continued unaltered without further question until in May, 1875, must in every aspect be treated as then made, and be held as a legal payment into the bank, through deposits made for all purposes of a-general bank account, and as recognized in all the subsequent accounts between the parties, as evidenced by plaintiff’s pass books and the balancing or settlements of balances therein on various occasions, as shown by the testimony. The subsequent attempt of the defendants in May, 1875, to return the draft and disavow and annul the credit made and acquiesced in from November, 1872, was of no avail.
I concur with Judge Larremore in an affirmance of the judgment.
Chables P. Daly, Ch. J., dissented.
Judgment affirmed.*
Affirmed by the Coart of Appeals, March 18th. 1879.