by the Commission; 2nd, to make such just and reasonable directions with respect to car service, without regard to the ownership as between the carriers of cars, during such emergency as in its opinion will best promote the service in the interest of the public and the commerce of the people; and, 3rd, to give directions for preference or priority in transportation, embargoes, or movement of traffic under permit, and for such periods as it may determine, and to modify, change, suspend or annul them. The service order, after reciting the emergency, directs each common carrier east of the Mississippi River, to the extent to which it is unable promptly to transport all freight traffic, to give preference and priority to coal; to give preference and priority to the movement, exchange and return of empty coal cars; to furnish coal mines with certain classes of cars; to require that non-coal-loading carriers deliver empty coal cars to the maximum ability of each, to enable the connecting coal-loading companies to receive and use the coal cars so delivered for the preferential purposes set forth in the order; to discontinue the use of coal cars for the transportation of commodities other than coal during the order; to place an embargo on the receipt by any consignee of coal in suitable cars who shall fail or refuse to unload the coal seasonably; and, finally, in the supply of cars to mines, to place, furnish and assign coal mines with cars suitable for the loading and transportation of coal for certain classes of consignees, and, in a certain order, forbidding reconsignment or diversion. It seems to us clear that the order of the Commission affects the furnishing of cars, their loading, their consignment, and thus necessarily their movement in transportation, and corresponds fully with the powers conferred by § 15; and that § 15 and Service Order No. 23 both apply not only to priority of car service but also to that of transportation. Certainly, one who secures reconsignment and diversion from a lower to a higher class of consignees for delivery violates the service order in terms. In urging this objection to the indictment, reliance is had by defendant upon the opinion of this Court in the case of Peoria & Pekin Union Ry. Co. v. United States, 263 U. S. 528. There the Interstate Commerce Commission sought under § 15 to compel a terminal carrier to switch, by its own engines and over its own tracks, freight cars tendered by or for another connecting carrier. It was held that the exercise of the emergency power of the Commission in transferring car equipment from one carrier to the use of another under paragraph 15 was strictly to be construed, and that the provision as to car service did not authorize the Commission to impose upon the terminal carrier, without a hearing, the affirmative duty not only of turning over its cars and equipment to another carrier, as contemplated in paragraph 15, but also that of itself doing the work of the transportation of and for another carrier. It was in this connection that this Court used the expression that car service connotes the use to which vehicles of transportation are put, but not the transportation service rendered by means of them. The opinion expressly affirms the authority of the Commission under paragraph 15 to give regulatory directions for preference or priority in transportation. The language of this Court in the Peoria Case referred to is of no aid to the defendant here. The judgment is Reversed. UNITED STATES v. NATIONAL EXCHANGE BANK OF BALTIMORE. ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE FOURTH CIRCUIT. No. 222. Argued March 16, 1926.-Decided April 12, 1926. 1. A drawee of a check or draft who is also the drawer is held, in paying it, to a knowledge of the true amount, and if, by mistake, Argument for the United States. 270 U.S. he pay to a bona fide holder for value without notice a larger amount to which the paper has been fraudulently raised, he can not recover the difference from such holder. P. 533. 2. This rule is applicable to the United States. So held where a check was drawn on the Treasurer of the United States by a disbursing clerk of the Veterans' Bureau; raised and negotiated by the payee; and in due course taken and paid for at its fraudulent face by the defendant bank, which collected the same amount from the United States. 1 Fed. (2d) 888, affirmed. ERROR to a judgment of the Circuit Court of Appeals affirming a judgment for the Bank in an action by the United States to recover the difference between the amount to which a check paid by it had been fraudulently raised and the amount for which it was drawn. Mr. Gardner P. Lloyd, Special Assistant to the Attorney General, with whom Solicitor General Mitchell was on the brief, for the United States. It is a general rule that a payment made under mistake of fact may be recovered. There is, it is true, an exception in the case of commercial paper. This exception is that where, from the situation of the parties, the person paying an instrument may be assumed to know certain facts concerning the instrument, he can not recover the payment because of a mistake as to those facts. Thus a drawee may be assumed to know his drawer's signature and can not recover a payment made upon an instrument to which the drawer's signature is a forgery. But ordinarily it can not be assumed that the drawee knows the amount of the instrument or anything more than the signature of the drawer, and he may therefore recover any amount paid on a raised instrument in excess of the amount originally called for. However, if the drawer and the drawee are the same person, he may be assumed to know the amount of the instrument as well as his own signature and can not recover a payment made on an 527 Argument for the United States. instrument the amount of which has been fraudulently raised. In the present case the drawer and the drawee were not the same. That both were agents of the United States is no basis for an assumption that the Treasurer knew, or should have known, all facts known to the disbursing clerk. The case is therefore within the general rule that a payment made under a mistake of fact may be recovered, and not within the exception. Price v. Neal, 3 Burr. 1354; 4 Harv. L. Rev. 297; United States v. Natl. Exch. Bank, 214 U. S. 302; Espy v. Bank of Cin cinnati, 18 Wall. 604; White v. Cont. Natl. Bank, 64 N. Y. 316; Parke v. Roser, 67 Ind. 500; City Bank v. Natl. Bank, 45 Tex. 203; Redington v. Woods, 45 Cal. 406; United States Bank v. Bank of Georgia, 10 Wheat. 333; Cooke v. United States, 91 U. S. 389; United States v. Chase Natl. Bank, 252 U. S. 485; United States v. Bank of New York, 219 Fed. 648; §§ 62, 139, and 141, Negotiable Instruments Law; Brannan, Negotiable Instruments Law, 3d ed., 225; McClendon v. Bank of Advance, 188 Mo. App. 417; Interstate Trust Co. v. United States Natl. Bank, 67 Colo. 6; Amer. Homing Co. v. Milliken Natl. Bank, 273 Fed. 550; First Natl. Bank v. United States Natl. Bank, 100 Ore. 264; Cherokee Natl. Bank v. Union Trust Co., 33 Okla. 342. It is no doubt true, on general principles of agency, that where one holds commercial paper, not as the owner thereof, but merely for collection as agent for another, the drawee who pays the paper with knowledge or notice of the agency can not recover from the agent if he has paid the proceeds over to his principal before receiving notice of any defect in the paper. But in this case it appears from the declaration that the defendant received the check for value in the usual course of business and was not merely an agent to collect, and therefore the plaintiff can recover without alleging that the defendant, before paying over the proceeds to the bank from which 100569°-26- 34 Argument for Defendant in Error. 270 U.S. it received the check, had notice that the check has been fraudulently raised. Schutz v. Jordan, 141 U. S. 213; Woods v. Colony Bank, 114 Ga. 683; Negotiable Instruments Law, §§ 31-38. It is apparent in the present case, first, that the indorsement placed on the check by the Bank of Commerce is, on its face, unrestricted; second, that regardless of what the defendant might prove on a trial, it does not appear from the pleadings that there is any custom among banks to use such an indorsement for collection only and not where it is the intention to transfer title to an instrument; and third, that even if there were such a custom it should not be permitted to vary the unrestricted language of the indorsement. Messrs. G. Ridgely Sappington and Charles G. Baldwin for defendant in error. This action is barred by the rule that as between two parties having equal equities, one of whom must suffer, the legal title will prevail, and the action for money had and received will not lie to compel the holder to surrender his legal advantage. The doctrine of Price v. Neal, 3 Burr. 1354, has been generally approved in the United States. Bank of United States v. Bank of Georgia, 10 Wheat. 333; Gloucester Bank v. Salem Bank, 17 Mass. 32; United States v. Chase Natl. Bank, 252 U. S. 485; United States v. Natl. Exch. Bank, 214 U. S. 302; Deposit Bank v. Fayette Natl. Bank, 90 Ky. 10; Dedham Natl. Bank v. Everett Natl. Bank, 177 Mass. 392; Comm. & Farmers Nat. Bank v. First Natl. Bank, 30 Md. 11. Although there is no logical reason why the rule in Price v. Neal should not be applied in cases where the forgery consists in raising the amount of the check, as well as in cases where the drawer's signature is forged, yet this distinction has been made by many courts, including this Court. It is |