Norton v. Marden

The action was continued nisi, and the opinion of the Court afterwards delivered by Shepley J. This is assumpsit for money had and received, brought to recover back a sum of money alleged to have been paid under a mistake. And the question presented by this bill of exceptions is, whether where parties contract under a mutual mistake of the facts supposed to exist, there being no fraud, and no- beneficial interest obtained, the one who pays can recover back the money paid. Certain principles in relation to this action seem now to be well settled. Money paid under a mistake of tbe law cannot be reclaimed. Doug. 471; Bilbie v. Lumley, 2 East, 469; Stevens v. Lynch, 12 East, 38; Brisbane v. Dacres, 5 Taunt. 144; Mowatt v. Wright, 1 Wend. 355. But a mistake of a foreign law is regarded as a mistake of a fact, 9 Pick. 112. Nor can it be reclaimed, when voluntarily paid with a knowledge, or means of knowledge in hand of the facts. Martin v. Morgan, 1 Brod. & Bing. 289; Welsh v. Carter, 1 Wend. 185. Nor where there may be a mistake of the facts, if the party paying has derived a substantial benefit from such payment; because he is not then entitled ex aequo et bono to reclaim it. Taylor v. Hare, 4 B. & P. 262. But when paid under a mistake of facts, and without any laches on the part of the payer, and without any substantial benefit derived from it, it may be recovered back. Hern v. Nicholls, 1 Salk. 289; Cox v. Prentice, 3 M. & S. 344; Milnes v. Duncan, 6 B. & C. 671; Garland v. Salem Bank, 9 Mass. R. 408. In Mowatt v. Wright, it is said, that an error of fact takes place, either when some fact which really exists is unknown, or some faot [47] is supposed to exist, wliich really does not exist. And that, “ the cases founded on mistake seem to rest on this principle, that if parties, believing that a certain state of things exist, come to an agreement with such belief for a basis, on discovering their mutual error, they are remitted to their original rights.” In Cox v. Prentice, Lord Ellenborough says, “now this is a case of mutual innocence and equal error, which is not an unusual case for money had and received.” In the case now under consideration the instructions required, that the jury should find, that there was a mistake of fact, viz.: that the plaintiff supposed, that he was purchasing a bond for a different lot from the one described in it; and that they should also find, that the contract was made upon that mistake of facts. But it is insisted, that the plaintiff had the means of correct knowledge. And in one sense a person may be said always to have the means of knowledge. He may have access to books, and to the assistance and instructions of his fellow men. But the means of knowledge which the law requires are such, as the party may avail himself of as then present without calling to his aid other assistance. And in this case there is no ground for inferring, that the plaintiff had then the means of knowing that the true lot designated in the bond was not the one examined. He does not appear to have had any more satisfactory means of knowledge, than the statements of the defendant, and those proved to be erroneous. It is also insisted, that the case is within the principle of the decisions of this Court, that the party, who takes a deed of release of real estate, if he obtain thereby no title, cannot recover back the money paid. Both parties in such cases, must be supposed to understand the tract of land purporting to be conveyed. And the absence of all covenants of title is satisfactory evidence, that they knew that the title was doubtful, and that the contract was made upon that basis. If in such cases there is any mistake, it is rather a mistake of law, than of fact. But the substance of the contract is, that the party purchasing agrees to purchase the other’s right, whatever it may be, and take the risk of the title upon himself. And in such cases, there is no principle of law, which authorizes him to reclaim the purchase money in case of an entire failure of title. This is not the case of a conveyance of real estate, [48] but the assignment of a contract for . a conveyance, and the contract of assignment made upon a mistake of facts. And there is no evidence, that the plaintiff obtained any benefit from it. Exceptions overruled, and Judgment on the verdict.