Jacobson v. Mohall Telephone Co.

Bruce, J. This is an action to recover money alleged to have been paid by mistake. The gist of the complaint is that the plaintiff on the 2d day of June, 1913, was employed by the defendant under a written contract as manager, lineman, and repairer of its telephone system, and that at about the same time the plaintiff gave to the defendant a bond to secure the said defendant against any personal dishonesty on the part of the plaintiff, but which bond did not contain any provision guarantying the honesty or integrity of any other employee of the company; that the plaintiff was not well versed in the construction of written contracts, and, when the written contract and bond were made, did not go over the same with sufficient detail to remember all the terms thereof; that the bond and contract were prepared by the defendant, and that the bond (though not the contract) was thereafter kept by the defendant alone; and that the plaintiff never thereafter saw such bond until after the 1st day of March, 1914; that on the 17th day of Bebruary, 1914, the officers of the company examined its books, and reported to the plaintiff that his office was $505 short in its account with the company, saying that — 218 — the plaintiff as manager was liable for all shortages, and that the bond .secured the defendant against losses and for every dollar of such shortage, and that, if said sum of money was not paid, defendant would forthwith bring action on said bond to recover said amount; that the plaintiff, relying on said statement on the part of the officers' and directors of the defendant, and fearing the result of such litigation on his future reputation with such bond companies, the possibility of his arrest and conviction of what, from their report, he supposed was a crime, and not having in his possession and control the bond above described, .and knowing nothing of its contents except such as was told him by such officers, at once complied with their demands, and on the said 17th day ■of February, 1914, paid over to the bank at Mohall to the credit of the ■defendant the sum of $505, which said sum was then and there received and accepted by the defendant; that the payment of said sum was paid through a mistaken belief on the plaintiff’s part that he was liable to defendant fo» such an amount, and the same was received by the defendant either through its mistake as to the terms of said bond and the proper meaning and construction thereof, or through fraud on the part of the officers of said defendant and the defendant itself through a misrepresentation to the plaintiff as to his liability thereon. The evidence bore out the main allegations of the complaint, but failed entirely to prove any fraud on the part of the defendant, or any real threats, coercion, or duress, and that the money was paid over instantaneously and without due opportunity for consideration and the obtaining of legal advice. It showed that the plaintiff was twenty-one years of age, and although prior to the entering into the contract the ■defendants had written that “the operators do all the collecting and book work,” the contract, which he always retained and kept, expressly provided that “the party of the second part (the plaintiff) hereby hires himself to the party of the first part on the terms and conditions hereinbefore set forth, and agrees to the conditions herein set forth, and in addition to the foregoing duties agrees to look after all collections of all the accounts due and owing to the said party of the first part, and to deposit the proceeds in bank, and to keep a true and accurate set of books of all accounts and transactions of the said first party, and, re'nder statements whenever called upon by said first party, and to account at all limes to said first party for all moneys that may come into his hands or — 219 — under his control in the performance of his duties and in connection with his position.” The contract also provided that the party of the second part was authorized to employ necessary help for constructing lines and designated and employed the plaintiff as “manager, lineman, and repairer” of the telephone system. The evidence showed that the plaintiff immediately entered upon his employment under the contract, but did not look after the collections except to a very limited degree. He did not obtain or seek to obtain the combination of the safe. He did not keep a set of books and, in short, seems to have taken no part in the management of the office or of the operators, but allowed the operators to have full charge thereof with practically no supervision by him, and to malee all of the deposits. It showed that in the month of November, 1913, or thereabouts, the directors checked over the office, and it was agreed between them and the plaintiff that the office was $505 short. The directors did not claim to know who had taken the money, though the inference seems to have been that it was taken by one of the operators. The plaintiff asserted that he was not guilty, and at no time did. the directors claim that he was. They merely took the position that he was liable for the shortage under his contract and also under his bond. The situation was fully and clearly talked over between the parties, in December, 1913, and February, 1914, on both of which occasions the plaintiff offered to give the company a note for the amount. This offer, however, was declined, and plaintiff was told that unless the money was forthcoming the directors of the company would have to take the matter up with the bonding company for investigation and settlement. Plaintiff testifies that he was afraid that the bonding company would prosecute him criminally if such action was taken, hut nowhere is there any proof that any such criminal action was threatened. The proof is positive, in fact it is admitted, that the directors were a kindly body of farmers who were merely anxious to clear up the matter, as they were responsible to the stockholders, and who honestly believed that the plaintiff was liable both under his contract and under his bond, although they suspected that the actual theft was committed by one of the operators, and who made no threat except to refer the matter to the bond company, and who were absolutely without guile or malice. The testimony then shows that, after consulting an attorney at hlohall, who told him that the contract was binding, the plaintiff raised the money — 220 — and deposited it in the bank to the credit of the company, having first stipulated that the operator should be discharged; that the operator was discharged, and that the plaintiff then remained in the employ of the company for about a month, and then after consulting his present attorney, not as to the liability of the company to him, but as to the possibility of collecting the money from the operator, and being told by such attorney that he could recover the money from the company itself, he brought the present suit. The question to be determined is whether the payment was voluntarily made or was made under a mistake of fact or under such a mistake of law that it can be recovered. It must be conceded that no liability was proved under the bond, as the bond merely secured the personal honesty of the plaintiff, and there is no proof or claim of personal dishonesty. There can, in our opinion, however, be no doubt as to his probable liability to some extent, at any rate, under the contract, which clearly made it his duty to supervise the office, and though not necessarily to . himself collect the money or make the deposits, or keep the books, to supervise fche work, and to see that it was properly and honestly done. The evidence is clear that he practically paid no attention whatever to this part of the business, and it is also quite clear that a part of the loss, at any rate, could have been prevented if he had not neglected his duty. It is perhaps true that, as the facts turned out, he was not liable under his bond. It is however probably true that he was liable, to some extent at least, under the contract; that there was a shortage in the office; that the directors did not actually know who was responsible therefor; that it was a case in which, if he himself had been dishonest or implicated, the bondsmen would have been liable, and in which mere business prudence on the part of the directors would have required calling upon such bondsmen and asking them to make an. investigation, if to do nothing-more, and there can, therefore, be absolutely nothing in the contention that fraud was perpetrated or duress involved in their demand for the money, and statement that if it was not forthcoming they would report the matter to the surety company. Plaintiff says that he was afraid of a criminal prosecution, that might be brought by the bonding company. The fear, however, was merely in his own mind. The directors of the telephone company had waved no club over his head, and had made no — 221 — threats of such prosecution. He was liable, to a certain extent at least, under his contract. There may have been a mistake of law, both on the part of the directors and himself, as to his liability under the bond. There was no mistake as to his liability to some extent under the contract, and, if he himself had embezzled the money, of his liability under the bond. — The rule seems to be almost universally established that a mistake of law, even though mutual, will not of itself entitle one to sue to recover money which has been voluntarily paid. 30 Cyc. 1314; 7 Mod. Am. Law, 77-81, 421-432; 15 Am. & Eng. Enc. Law 2d ed. 1102. All of the authorities also seem to hold that neither a mistake of law nor of fact will justify a recovery if the defendant can equitably and in good conscience retain the money. Under this rule the case would not be different if we held that the evidence showed that there was a mistake of fact as to the terms as well as of the legal effect of the bond. The most liberal of the courts indeed, and even the few which refuse to recognize any distinction between a mistake of law and a mistake of fact, or which limit the rule to an ignorance of public rights and duties rather than of private rights, go no further than to say: “That whenever, by a clear and palpable mistake of law or fact essentially bearing upon and affecting the contract, money has been paid without cause or consideration, which in law, honor, or conscience was not due and payable, and which in honor or good conscience ought not to be retained, it was and ought to be recovered back.” Ray v. Bank of Kentucky, 3 B. Mon. 514, 39 Am. Dec. 479; Underwood v. Brockman, 4 Dana, 309, 29 Am. Dec. 407; Louisville v. Zanone, 1 Met. (Ky.) 151; Rupple v. Kissel, 24 Ky. L. Rep. 2371, 74 S.W. 220; 30 Cyc. 1314. Even if we concede that in the case at bar there was a mistake of mixed law and fact, and that the plaintiff was ignorant not merely of the legal effect of the bond, but of its exact wording, and that the ignorance of its wording was the ignorance of a fact, can we say that “the money was paid without cause or consideration, which in law or honor or conscience was not due and payable, and which in honor or good conscience ought not to be retained ?” There can, to our mind, be no doubt that it was the duty of the plaintiff under his contract to act as manager of the office, and not as line — 222 — repairer merely. No matter what may have been his liability under the bond, it is perfectly clear tbat under bis contract (a copy of wbicb be bad at all times retained) be expressly agreed “to look after all collections . . . and to deposit tbe proceeds in bank and to keep a true and accurate set of books of all accounts and transactions of the-said first party, and render statement whenever called upon by said first party, and account at all times to said first party for all moneys tbat may come into bis bands or under bis control in tbe performance of bis duties and in connection with bis position.” There can be no-question tbat tbat position was tbat of manager as well as lineman, for tbat term was expressly used in tbe contract. There can be no question tbat tbe written contract superseded all prior letters in conversations. There can be no question tbat be alone of the employees was required to furnish a bond, wbicb would have hardly been tbe case if tbe others were to be equally responsible with him for tbe receipts of tbe office and for its management. There can be no question tbat be paid no attention whatever to tbe business side of tbe office and to tbe safety of its funds. It is proved tbat, prior to bis taking charge of tbe office, $40 bad been misappropriated, and tbat this misappropriation was apparent upon tbe face of the books. 'And tbat if, upon taking charge of tbe office, be bad supervised tbe books and accounts, much, if not all, of tbe subsequent loss and defalcation could have been prevented. Can there be any contention tbat bis payment was entirely without consideration ? Tbe rule also seems to be established -tbat money paid under a mistake-even of fact is not recoverable in equity if it is clear tbat tbe party making tbe payment intended to waive all inquiry into tbe fact. Neal v. Read, 1 Baxt. 333. It seems quite apparent from tbe record before us tbat tbe plaintiff made all tbe investigations tbat be desired prior to paying tbe money,, and that on two occasions be offered to give bis note for tbe amount. He consulted an attorney in regard to tbe contract, and tbe attorney told him tbat tbe contract was good. He at no time asked to see tbe bond. Neither be nor the directors at any time pretended to know all of the law. All tbat tbe directors stated was tbat they bad to arrive at some settlement, and tbat they were of tbe opinion tbat tbe plaintiff was liable under bis contract and under bis bond. All they proposed to do was to report tbe matter to tbe bonding company, so tbat an investigation — 223 — might be made and the liability of the plaintiff under bond and under his contract be determined. Rather than have this investigation made the plaintiff chose to pay the money over. He may have been mistaken as to the law as far as the bond is concerned and in regard to his. liability thereunder, but he himself chose to prevent an inquiry. Money as a rule can only be recovered when paid by mistake and when there is no obligation to pay. In the case at bar there was an apparent obligation to pay at least a part of the amount. We find nothing in our statutes which seems to change the general rule in regard to such matters. It is true that § 5844, Comp. Laws 1913,, in dealing with contracts and in speaking of the general subject of consent, says that “an apparent consent is not real or free when obtained through duress, menace, fraud, undue influence or mistake;” and that § 5855 provides that mistake, within the meaning of this chapter, only arises from: 1. A misapprehension of the law, by all parties, all supposing that they knew the law and understood it, and all making substantially the same mistake as to the law. We do not understand, however, that these sections apply to voluntary payments, but merely relate to the consent to an agreement, and that the law of voluntary payments is as it was before the Code was adopted. That law, as we have before intimated, is that a voluntary payment can never be recovered when the payee can retain it in good conscience, and that, in order to justify a recovery in such a case on the ground of ignorance or mistake of law, some improper conduct must be able to be imputed to the payee. We have carefully read the cases which are cited by counsel for appellant, but none of them seem to he controlling. The case of Gjerstadengen v. Hartzell, 9 N. D. 268, 81 Am. St. Rep. 575, 83 N. W. 230, was one in which the act sought to be pleaded as an estoppel to a personal claim of the plaintiff was done by him while acting as an administrator of an estate, and in executing a deed of land to which neither he nor the estate had any title, and by a deed which contained no covenants of warranty, either personal or otherwise, and on account of an ignorance of law which was shared in by all of the parties. In the case of Gregory v. Clabrough, 129 Cal. 475, 62 Pac. 72, .the mistake of law relied upon was caused by a misunderstanding of the law which was induced by the defendant’s own attorney, and where the de — 224 — fendant had no moral or legal right to the money paid or to any part thereof. The case of Griffing v. Gislason, 21 S. D. 56, 109 N. W. 647, relates to the rescission of an executory contract, and not to the recovery of money which was paid upon a contingent liability. The case of James River Nat. Bank v. Weber, 19 N. D. 702, 124 N. W. 952, was one in which “plaintiffs bank in good faith, and by mistake of fact, parted with money to which defendant was not entitled either legally or morally.” We do not here say that a mistake such as here occurring, if mistake there was, could not be pleaded as a defense in an action to enforce a contract in relation to which the mistake had been made. The courts, however, seem to have quite uniformly adopted the rule, and we must here adopt the rule, that an independent action will not lie to set aside a consummated act on the ground of mistake of law, unless special circumstances, such as undue influence, misrepresentation, or misplaced confidence, are shown; and no such special circumstances are shown, in the case at bar. See Boggs v. Fowler, 16 Cal. 559, 76 Am. Dec. 561; Dill v. Shahan, 25 Ala. 694, 60 Am. Dec. 540; Goodenow v. Ewer, 16 Cal. 461, 76 Am. Dec. 540; Kenyon v. Welty, 20 Cal. 637, 81 Am. Dee. 137; Erkens v. Nicolin, 39 Minn. 461, 40 N. W. 567. The judgment of the District Court is affirmed.