Higgins v. Mendenhall

Eothrock, J. l. statute of chTingo'of sVatate: Rand. — I. In Higgins v. Mendenhall, 42 Iowa, 675, an error occurred in the opinion in quoting section 9, chapter 167, Laws of the Thirteenth General Assembly. The quotation is made in these words : “In actions for re]jef on the gr0und of fraud or mistake * * * the cause of action shall not be deemed to have accrued until the fraud or mistake * * * shall have been discovered by the party aggrieved.” The word mistake does not occur in the statute, although it is contained in section 2530 of the Code. The same error occurs in the case of McGinnis v. [140] Hunt, 47 Iowa, 668. In the latter case, however, the error is not material to the question involved. The cause of action, as it was presented to us upon the former appeal, accrued in May, 1865. It being for a mistake, the act of the Thirteenth General Assembly did not affect the action, and it was fully barred by the statute of limitations, more than five years having elapsed after the action accrued, and before the suit was commenced. The opinion heretofore filed must, therefore, be considered as overruled. 2. pkaotxce m . abstraoti'°lut‘ II. Counsel for appellee makes the question that there can be no review of this cause upon the errors assigned, because the appellant’s abstract does not purport to contain a full abstract of all the evidence introduced upon the trial. This, we think, is incorrect. It is recited that “all the evidence given to the jury by either party will be found set out in bill of exceptions hereinafter given. ” On the next page is commenced what purports to be a bill of exceptions. It contains some fifteen pages of an abstract of evidence. This, we think, is a sufficiently specific statement that all the evidence is contained in the abstract. „ 3. STATUTE Of paymentby mistake. III. The court instructed.the jury in substance that if the money was paid to Mendenhall in May, 1865, by mutual mistake of both parties, and Mendenhall retained the finder an honest belief that it belonged p-jTT1) the plaintiff’s cause of action is barred by the statute of limitations. But if Mendenhall received the money knowing that it did not belong to him, and retained it without informing plaintiff’s firm of the mistake, this would be a fraud, and the action would not be barred until five years after the discovery of the fraud. Another instruction was given to the effect that if the money was paid by mistake, and afterward Mendenhall, knowing of the mistake, retained the money and failed to notify the plaintiff’s assignor of the mistake, this would constitute a fraud, and an action therefor would not be barred until five years after the discovery of the fraud, or [141] until five years after it should have been discovered by the use of diligence. The instructions, so far as they referred to the questions of frarid, were excepted to because they were not justified by the pleadings. Counsel for appellee insist that appellant cannot be allowed to object to these instructions because no objection was made to the evidence tending to show the fraud. However this may be, we think the position of counsel for appellant, that these instructions are erroneous, is well taken, because this action is not for relief on the ground of fraud, “in a case heretofore solely cognizable in a court of chancery.” The true test as to what is a case solely cognizable in a court of chancery is this: Did .chancery, before the enact-' ment of the statute, have exclusive jurisdiction to grant the relief prayed for in the action ? That an action at law for the recovery of - this money, whether paid in mutual mistake or by the mistake of one party alone, and fraudulently received and retained by the other, was always maintainable, can admit of no question. Kerr on Fraud and Mistake, 415; 1 Story’s Equity, § 60. The relief asked by-plaintiff is just what he could have obtained at common law in an action of assumpsit, under the count for money had and received.' 2 Greenleaf on Evidence,, § 123. The relief asked, therefore, not being such as was, before the statute, exclusively cognizable in a court of chancery, the action was barred by the statute of limitations, conceding that Mendenhall received the. money in bad faith or fraudulently concealed the alleged mistake. Reversed.