Varnum v. Town of Highgate

The opinion of the court was delivered by TAFT, J. a. Whether the court erred in refusing to dismiss the special counts is now immaterial. There is a good count in the declaration for the same cause of action, and the verdict is deemed as the finding of the jury on the good count, as it does not otherwise appear, and judgment must be given according to the right of the case and the matters in law, without regard to the counts in the question. R. L. s. 913. b. The plaintiff purchased of the defendant certain stone and paid six hundred dollars for them. The defendant had no right to sell them, had no title to them for that purpose, as they were part of a highway bridge then being rebuilt under the provisions of the statutes. No. 11, Acts 1884, and No. 16, Acts 1886. After the plaintiff’s evidence was closed the defendant did not desire to go to the jury on any question, therehy admitting as proved all the plaintiff’s testimony tended to establish. Hamblet v. Bliss, 55 Vt. 535; O’Connors. Sowles, 57 Vt. 470; Hawkins v. Ins. Co., Ibid 591. Under this rule it may be regarded that it was established upon trial that the contract of sale was made under a mutual mistake of a material fact, viz. : the ownership of the stone, or the right of the plaintiff to sell them. This was an error of fact; it may have arisen because the parties misjudged the law, still it was no less an error of fact. Right of private ownership is matter of fact, although it may result from a question of law. It has been held that when a contract, as applied to the subject matter, conveys a different right, or effectuates a different purpose from that intended by the parties, although the language of the contract was intentionally used, the mistake is treated as one of fact not of law. McKenzie v. McKenzie, [420] 52 Vt. 271; Tabor v. Cilley, 53 Vt. 487. By the act of selling the. defendant undertook to transfer the property in the stone to the plaintiff, but the latter acquired nothing by the sale, for the town had nothing to convey. A contract so made under a mutual mistake of fact can be avoided in a court of law. Ketchum v. Catlin, 21 Vt. 191; Faulkner v. Hebard, 26 Vt. 452. Upon the ground of a mutual mistake of fact in respect of the subject matter of the contract, the plaintiff had the right to avoid the sale, and is entitled to recover the consideration he paid for the stone. c. It is insisted that a demand was necessary befoi’e suit. When money is paid by mistake, a demand is sometimes necessary, sometimes not. When the payor is not in fault, and the payee receives the money in his own wrong, no demand is necessary, and none of the cases cited upon this point so holds. The plaintiff was not in fault when informed by the selectmen of the town that they claimed the court had held that the stone belonged to the town, he journeyed to St. Johnsbury to see one of the members of the court, and was confirmed in his belief of that fact. The selectmen ought to have known they had no right to receive the money ; they shall not be permitted to say “We did not know we were doing wrong when we put our hands into the State’s treasury and took so much money and put in our own.” No demand was necessary. Sharkey v. Mansfield, 90 N. Y. 227. d. The legal title of the money paid the defendant was in the plaintiff. He drew it from the State treasury, and was accountable for it to the State: ss. 5, 6, No. 16, Acts 1886. The plaintiff can recover it, in an action in his own name against the defendant. e. No question of a disputed claim and a compromise thereof is presented by the evidence. f. No laches appear on the part of the plaintiff. The suit was brought within two years from the time the State auditor [421] disallowed the item sought to be recovered, and the defendants have not been injured by the delay. 'Judgment affirmed. Start, J., did not sit, having been of counsel.