Brummitt v. . McGuire

Davis, J.: The defendant asked,for eight specific instructions, all of which, except the seventh, which was given in part (what part was given and what refused does not appear), were refused. If the defendant was entitled to any one of these instructions, and it was not cured by the charge as given, it was error. It is well settled that money paid under a mistake of fact may be recovered back, and it is equally well settled that money demanded and paid with a full knowledge of all the facts cannot be recovered back. The plaintiff’s counsel relies upon the case of Pool v. Allen, 7 Ired., 120, and Adams v. Reeves, 68 N. C., 131. In Pool v. Allen, Pool, the plaintiff, owed Allen, and having removed to another State, left two agents in this State, with directions, among other things, to pay the debt due the defendant, the then creditor, Allen. Allen had placed the debt in the hands of a constable for collection. One of the agents paid the money to the constable who had the claim in hand for collection, and the other agent, meeting with the defendant (creditor), paid the money to him, and after discovering that the money had been paid to the constable for the creditor (Allen, the defendant), it was held that the plaintiff (Pool, the debtor) could recover back the money paid under mistake, the debt having been already paid. “The money was paid and received in discharge of a debt then believed to subsist. In that,” says RuffiN, C. J., “ there was a total mistake on the part of the person making the payment, and, probably, on that of the receiver also, and it is plain that *356 money, thus got under a mistake, and for no consideration, cannot be kept ex equo et bono.” In Adams v. Reeves it is said: “A voluntary payment, with a knowledge of all the facts, cannot be recovered back, although there was no debt. But a payment under a mistake of fact may be,” and for this many authorities are cited-We see nothing in Pool v. Allen or in Adams v. Reeves in conflict with the well settled law that money voluntarily paid, with a full knowledge of all the facts, cannot be recovered back. But the plaintiff says: “In this case there was compulsion, for the horse, at the time the money was paid, or arranged to be paid, was locked up in the clerk’s stable.” This was no such compulsion or legal duress as to make void a payment made long thereafter, though made, as the plaintiff says, to “protect Dixon,” to whom he had sold the mortgaged horse, and if there was any mistake as to the amount due when the note and mortgage were executed on February 6th, 1888, as a settlement of the controversy then existing between the parties, the plaintiff had ample time, before the note was due, the 1st of October following, and certainly before the payment was made, April 24th, 1889, by the exercise of ordinary diligence, to “look up the receipts he had taken,” and discover the mistake before the money was paid. It appears from the testimony of the plaintiff himself that there was no material fact of which he was ignorant at the time of the payment, and no mistake as to the amount of the debt which, by ordinary diligence, he might not have discovered before the debt wTas paid. The plaintiff ought not to have given the note if the settlement was not satisfactory, and he ought not to have paid it more than a year after if he denied its correctness or validity. In Matthews v. Smith, 67 N. C., 374, the plaintiff testified that “he was forced to pay the note to relieve his sureties from a suit,” and it was held that he could not recover the *357 money back if he paid it with a full knowledge of the facts, and that the Court ought to have instructed the jury “that, according to plaintiff’s own testimony, he had full knowledge of the facts.” In Devereux v. Insurance Co., 98 N. C , 6, it was held that a payment voluntarily made, with a full knowledge .of all the facts, though reluctantly done and under protest, cannot be recovered back. Money voluntarily paid, with a knowledge of all the facts, cannot be recovered back, although there was no debt Commissioners v. Commissioners, 75 N. C., 240; Commissioners v. Setzer, 70 N. C., 426. Nor, if thus paid, can it be recovered back, though paid in satisfaction of an unjust demand; or one that had no validity. 4 Wait’s Actions and Defences, 479, and cases there cited. Nor if the payment be made in ignorance or mistake of fact, can it be recovered back, where the means of knowledge or information is in reach of the party paying, and he is negligent in obtaining it. Marriot v. Hampton, 3 Smith’s Leading Cases, 1711; Adams v. Reeves, supra. Without expressing any opinion as to the method resorted to by the defendant to obtain payment of his claims for rent, we are of opinion that the plaintiff, when he gave the note in February, 1888, and, certainly, when he paid it more than twelve months thereafter, was, according to his own evidence, in possession, or by ordinary diligence might have been in possession, of all the facts upon which he bases his claim now set up to recover back the money, and might have availed himself of them in contesting the defendant’s demand, but having given the note in February, 1888, and paid it in April, 1889, under no legal compulsion or duress, and without setting up any defence or contesting its validity for any cause, as he might have done, he waived any defence that he might have had, and, by his own act, *358 “settled,” and cannot now, under the circumstances as testified by him, recover it back. The defendant was entitled to the first instruction asked, and this relieves us of the necessity of considering the others. Error.