THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW k SELECTED CASES ON THE LAW OF QUASI-CONTRACTS EDWIN H. WOODRUFF PROFESSOR OF LAW IN THE COLLEGE OF LAW CORNELL UNIVERSITY INDIANAPOLIS THE BOBBS-MERRILL COMPANY 1905 1905 COPYRICSHT 1905 By EDWIN H. WOODRUFF The llollenbcck Prcfii ln>)Uuia|>olit) PREFACE. This volume is intended to contain a representative selection of cases upon the large and important group of legal duties embraced in the term quasi-contract, and to afford material for the study and discussion of the principles regulating recovery in that class of cases, as those principles are found implicated with, and working upon, the actual facts of decided cases. For the historical development of the law of quasi-contracts, the student is referred to the masterly His- tory of Assumpsit , by Professor Ames, which he has kindly per- mitted to be republished as an appendix to this volume. The primary division of the work into three parts was determined by the broad classification first given by Professor Ames in his History of Assumpsit, and adopted by Professor Keener in the in- troductory chapter to his Treatise on Quasi-Contracts. However, by far the greater part of the subject is comprised in Part III, under the general doctrine of "Unjust Enrichment," and the arrangement employed by the present editor for this part, while not the only feasible grouping, will, it is hoped, be practically satisfactory. As Dr. Johnson says in his essay on Pope : "Of two or more positions depending upon some remote or general principle, there is seldom any cogent reason why one should precede the other" ; and so, while the cases in Part III depend upon the very general principle of "Unjust Enrichment", and while a cogent reason cannot always be given why some of these positions should precede others, never- theless the special correlation of analogous topics has been the guide to the present arrangement. It may be added that the only essay at a completely developed classification of the law of quasi-contracts which has thus far been published, is the one offered tentatively by Professor Wigmore, in 25 American Laiv Reznezv, 695 (1891). The notes appended to the cases are largely apposite quotations from judicial decisions which in many instances themselves might 667158 IV PREFACE. well have been selected for publication in full, had not the limita- tions of space forbidden. In 1888, Professor Ames, in his History of Assumpsit, said : "The equitable principle which lies at the foundation of the great bulk of quasi-contracts, namely, that one person shall not unjustly enrich himself at the expense of another, has established itself very gradu- ally in the Common Law. Indeed one seeks in vain to-day in the treatises upon the Law of Contract for an adequate account of the nature, importance and numerous applications of this principle." Later in the same, and in the next following year. Professor Keener published his Cases on the Law of Quasi-Contracts, and in 1893, his Treatise on the Law of Qiiasi-Contracts. In those pioneer works he segregated the rules of this branch of the law, and in his Treatise, which is a penetrating, critical analysis of the subject, delimited the field for subsequent workers. But the literature of the subject is still comparatively meager, and therefore this collection of cases will, ^t is hoped, prove useful to the practicing lawyer as well as to law students. College of Law, Cornell University, August I, 1905. TABLE OF CONTENTS. PART I. Recovery upon a record., PAGE. A. Recovery upon a judgment i B. Recovery upon a recognizance 6 PART II. Recovery upon a statutory, or official, or customary duty. A. Statutory duty 8 B. Official duty 12 C. Customary duty 14 PART III. Recovery upon the doctrine that one person shall NOT BE allowed TO ENRICH HIMSELF UNJUSTLY AT THE EXPENSE OF ANOTHER. A. Introductory — Quasi-contract and true contract dis- tinguished 19 B. Recovery for benefits conferred voluntarily 24 I. Benefits conferred in the absence of contractual agreement 24 a. Without request 24 In general 24 V Vi TABLE OF CONTENTS. PAGE. Performance of obligation imposed by law upon defendant 28 Performance of defendant's contractual obligation 34 Preservation of property 37 Preservation of life 50 Benefits incidentally conferred. , . . , 51 b. Upon request 54 In general 54 Family relation 61 Rewards 69 2. Benefits conferred in the performance of, or under the inducement of a contractual agreement 71 a. Capacity of parties 71 Infants 71 Insane persons 71 Married women 73 Corporations yj Private corporations "jy Municipal corporations 79 b. Statute of frauds 90 Plaintiff in default 90 Defendant in default 104 c. Breach of contract 122 Plaintiff in default , 122 Defendant in default 153 d. Impossibility of performance 169 Plaintiff in default 169 Defendant in default 191 e. Illegal contracts 206 C. Recovery for benefits not conferred voluntarily 239 I. Mistake 239 a. Mistake of fact 239 In general 239 Compromise or settlement 248 Payor's knowledge or belief 256 When not against conscience for defend- ant to retain 264 Change of defendant's position 271 Plaintiff negligent 290 TABLE OF CONTENTS. Vll PAGE. Plaintiff negligent and defendant's posi- tion changed 293 Equal fault 297 Notice to or demand upon defendant. . . . 300 Particular applications 306 Gratuity conferred under mistake 306 Mistake as to the existence of a contract.. 315 Mistake as to the existence of the subject- matter 329 Mistake as to the title of a vendor 334 Improvements put by mistake upon the property of another 342 Performance of a written contract, — the contract founded on mistake 354 Mistake as to negotiable instruments 370 Mistake as to agent's authority 389 b. Mistake of law 403 In general 403 Particular applications 423 Void ordinances 423 Change of lav/ 430 Payment by public officers 435 Payment to an officer of the court 438 Foreign law 441 2. Constraint 445 a. Constraint by fault of defendant 445 In general 445 Contribution 45 1 Contractors 45 1 Tortfeasors 461 b. Duress by defendant 469 Duress of property 469 Personal property 469 Real property 479 Injury to business 482 Non-performance of a public duty 490 Public officers 490 Common carriers and public service cor- corporations 49'^ Usurious interest 5^9 viii TABLE OF CONTENTS. PAGE. Duress of person 515 C Compulsion of law 526 Money paid after action begun 526 Before judgment 526 After judgment 531 Recovery of taxes paid 546 3, Waiver of tort 579 a. In general 579 Unjust enrichment 587 Diminution of plaintiff's estate 590 Joint tortfeasors 596 Injured tenants in common 604 b. Particular applications 604 Fraud 604 Money procured wrongfully and passed to innocent holder 610 Trespass to goods c 622 Trespass to land 625 False imprisonment ' 633 Interference with status or contract 635 Usurpation of office 636 D. Relation of quasi-contract to equity 640 Appendix. The History of Assumpsit, by James Barr Ames 653 Index 685 TABLE OF CASES. *** Where n is prefixed to the page present editor, in a note. PAGE. Abbot V. Town of Fremont n. 635 Abbott V. Draper 95 Ackerman v. Ljonan 626 Adair v. Winchester 642 Adams, Matter of n. 579 Adams v. Irving Nat. Bk. n. 525 Alabama Bk. v. Rivers n, 613 Albea v. Griffin 119 Alfred v. Marquis of Fitzjames n. 309 Allen v. Impett 641 Allen v. Intendant of Lafayette 83 Alton v. First Nat. Bk. n. 408 Amer. Mut. Life Co. v. Bertram 224 Amer. Steamship Co. v. Young n. 491 Anderson v. Cameron n. 579 Anderson v. Pungs n. 610 Andrews v. Montgomery i Angus v. Scully n. 184 Anonymous (2 Show.) 205 Appleby v. Dods n. 175 Appleton Bk. v. McGilvray n. 293 Armstrong Co. v. Clarion Co. 462 Asher v. Tomlinson n. 133 rvtkinson v. Denby 485 Atwell v. Zeluff 574 Auditor v. Ballard n. 71 Augner v. Mayor nn. 5, 9 Bailey v. Butterfield n. 13 Baldwin v. Burrows «. 392 Baltimore & Susq. R. R. v. Faunce 239 number, the case is referred to, by the PAGE. Bank of Charleston v. Bk. of the State 616 Bank of Chillicothe v. Dodge 443 Bank of Commerce v. Union Bk. 379 Bank of Orange v. Brown 14 Bank of St. Albans v. Farmers' Bk. 11. 372 Bank of Toronto v. Hamilton 275 Banker v. Henderson no Bannister v. Read n. 167 Barnes v. Shoemaker n. 28 Barnet v. National Bk. 514 Bartholomew v. Jackson 42 Bates V. Insurance Co. n. 478 Bath Gas Light Co. v. Claffy n. 79 Beckwith v. Frisbie 39 Bedier v. Fuller n. 610 Behring v. Somerville 277 Belfast Nat. Bk. v. Stockton n. 396 Bender v. Bender 121 Berkshire Ins. Co. v. Sturgis n. 248 Bernard v. Taylor n. 213 Billings v. Monmouth 394 Bishop v. Corning n. 414 Bodenhamer v. Bodenhamer 12 Bodine v. Commonwealth n. 7 Bohart v. Oberne n. 392 Bond V. Aitkin 317 Booker v. Donohue n. 640 Booker v. Wolf n. 116 Borough of Allentown v. Saeger 560 Boston Ice Co. v. Potter 26 Boyce v. Wilson 354 Brandner v. Krebbs 50 TABLE OF CASES. ^ PAGE. Brewer v. Tysor n. 142 Brewster v. Burnett n. 331 Bright V. Boyd 348 Britton v. Turner 126 Brown v. Brown 595 Brown v. Harris n. 204 Brown v. Mcintosh n. 510 Brown v. Storm n. 350 Brown v. Timmany 218 Brown v. Tuttle 63 Brumagim v. Tillinghast 492 Brundred v. Rice mm. 590, 613 Brunswick Gas Light Co. v. U. S. Gas Co. 77 Bryant's Estate n. 38 Bucki V. McKinnon n. 105 Buckley v. Mayor nn. 429, 483 Buel V. Boughton 266 Buffalo V. O'Malley 243 Bullard v. Bell 8 Burrows v. Ward 310 Burwell v. Jackson n. 338 Butterfield v. Byron 180 Byrd v. Boyd 124 Byrne v. Schiller n. 206 Cahaba v. Burnett 423 Calkins v. Griswold n. 256 Calvert v. Aldrich 43 Camden v. Green n. 425 Carew v. Rutherford w. 483 Carpenter v. U. S. 400 Carr v. Stewart 242 Carson v. M'Farland 283 Carter v. First Eccles. Soc. 538 Case V. Roberts 640 Catlin V. Tobias 148 Center School Township v. Com- missioners 432 Central Bridge Co. v. Abbott n. 9 Central Transportation Co. v. Pullman's Co. n. 78 Chambers v. Miller «, 388 Champlin v. Laytin n. 417 Chanfjlcr v. Sanger 528 Chnndler v. Webster 195 Chapman v. I'orbes n. 650 Chase v. Corcoran 37 Chase v. Dwinal Chatfield v. Paxton Chipman v. Morrill Churchill v. Holt Cincinnati v. Ogden City of London v. Goree Clabbon, In re Clark V. Pinney Clarke v. Dutcher Clinton v. Strong Cobb V. Charter Cockram v. Welby m) Cole V. Clark Coleman v. U. S. Collier v. Coates Collins V. Stove Co. Collyer v. Collyer Columbus &c. Ry. v. Gaffney Colwell v. Peden Concord Coal Co. v. Ferrin Constantinides v. Walsh Cook V. Boston Cook V. C. R. I. & P. R'y Cooke V. U. S. CooHdge V. Brigham Cooper V. Cooper Cooper V. Phibbs Corn Exch. Bk. v. Nassau Bk. Cosgriff V. Foss Covington v. Powell Craig V. Craig Cribbs v. Sowle Crow V. Boyd Crown Cycle Co. v. Brown Culbreath v. Culbreath Cummings v. Knight Cuningham v. Cuningham Cunningham v. Reardon Curtis V. Smith Davis V. Converse Davis v. Thompson Dawkins v. Sappington Day v. N. Y. C. R. R. De Cesare v. Flauraud PAGE. 469 n. 257 451 M. 467 M. 34 n. 17 M. 311 541 403 n. 492 M. 472 t. 7, 13 328 • n. 42 n. 97 n. 322 n. 63 19 M. 471 322 30 n. 425 n. 504 382 n. 331 313 n. 408 n. 272 45 n. 422 460 n. 523 579 604 415 M. 515 n. 417 M. 29 157 n. 515 n. 34 69 n. 106 n. 55 Dedham Nat. Bk. v. Everett Bk. 371 Dcdman v. Williams 458 Decry v. Hamilton n. 399 TABLE OF CASES. De La Cuesta v. Ins. Co. De Montague v. Bacharach Derby v. Johnson Detroit Nat. Bk. v. Blodgett Devine v. Edwards Dickerson v. Raleigh BIdg. A Dickinson v. Poughkeepsie Disbrow v. Durand Dix V. Marcy Dixon V. Ahem Dorsey v. Jackman Downs V. Finnegan Duncan v. Baker Duncan v. Ware Dupuy V. Roebuck Duval V. Wellman Eagle V. Smith Earle v. Bickford Earle v. Cob urn Edwards v. Hardwood Co. Eddy V. Smith Elliott V. Gibson Emery v. Dunbar Falls V. Cairo Fanson v. Linsley Farnam v. Davis Fay V. Slaughter Feeney v. Bardsley Fegan v. Gt. Northern Ry. Fenton v. Clark Finlay v. Bryson First Baptist Church v. Caughey 393 First Nat. Bk. of Americus v. Mayor 557 First Nat. Bk. v. Sargeant n. 481 First Nat. Bk. v. Van Voorhis 2 Fisher v. Ins. Co. n. 226 Fleetwood v. New York 567 Floyd V. Brown 602 Fogg V. Holbrook n. 28 Force v. Haines n. 42 Forsyth v. Ganson 36 Fowler v. Shearer n. 74 Frambers v. Risk n. 258 Franklin Bank v. Raymond m. 268 PAGE. 476 n. 167 153 n. 523 299 sso n. Sii n. 82 61 n. 105 n. 628 334 n. 632 133 543 n. 544 n. 224 1 • 71 n. 336 40 246 64s n. 9 n. 204 565 622 n. 102 M. 392 142 n. 296 n. 189 n. 580 PAGE. Frederick v. Douglas Co. 435 Freeman v. Jeffries n 305 Fuller V. Mowry 67 Fuller V. Shattuck n 537 Galusha v. Sherman 521 Gaskins v. Davis n 354 Gay V. Mooney 108 George v. Tallman n 361 Germania Bank v. Boutell 373 Gillett V. Brewster n 302 Gillig V. Grant 438 Gillis V. Cobe n 144 Gilmore v. Wilbur n 604 Gleason v. Warner n. 29 Golsen v. Brand 454 Goodrich v. Houghton 237 Gould V. Commissioners 564 Gould V. McFall 545 Grape Sugar Co. v. Small n. 327 Green v. Ovington 6 Griggs v. Austin 200 Gross v. Coffey 511 Guetzkow v. Breese n. 483 Guild V. Baldridge n. 257 Gutta Percha Co. v. Mayor n. 5 Ham V. Goodrich nn 105, 165 Harmony v. Bingham n. 472 Harris v. Christian 10 Harris v. Ferguson n. 455 Harris v. Jex 430 Harris v. Loyd 245 Harse v. Assur. Co. 222 Hartford Live Stock Ins. Co. V. Matthews n. 248 Harvey & Boyd v. Olney n. 429 Hatcher v. Briggs n. 350 Haven v. Foster 441 Hawkins v. Deal n. 102 Hawley v. Moody 114 Hawtayne v. Bourne 389 Haynes v. Rudd 524 Heiserman v. B. C. R & N. Ry. 503 Helena v. Dwyer 427 Hemminger v. Co. 155 Hemphill v. Moody 409 Hentig v. Staniforth 219 Xll TABLE OF CASES. PAGE. Hewitt V. Anderson 57 Hickam v. Hickam «. 309 Hildebrand v. Fine Art Co. n. 126 Hindmarch v. Hoffman 614 Hipp V. Crenshaw 54° Hogg V. Longstreth 445 Holt V. Thomas n. 247 Hopf V. U. S. Baking Co. n. 636 Hoskins v. Mitcheson n. 97 Hosmer v. Wilson n. 157 Hotchkiss V. Williams n. 24 Houghtaling v. Lewis n. 359 Howes V. Barker 356 Hubbard v. Belden 189 Hudson V. Hudson 164 Huffman v. Hughlett n. 601 Hunt V. Silk 166 Hunter v. Felton 25 Hutton V. Edgerton n. 4^7 Huyett & Smith Co. v. Co. n. 175 Inhabitants of Mil ford v. Com- monwealth II Inhabitants of South Scituate v. Hanover 24 Irvine v. Angus n. 447 Isle Royale Mining Co. v. Hertin 350 Jacobs V. Morange Jackson v. Loomis Janes v. Buzzard Jennings v. Camp Joannin v. Ogilvie Jones V. Hoar Kelley v. Lindsey Kelly V. Solari Kellogg v. Turpic Kenneth v. S. Carolina R. Ketcham v. Evertson Kidney v. Persons King V. Welcome Kingston Bank v. Eltinge N. Y.) Kingston Bank v. Eltinge N. Y.) Kirchgassncr v. Rodick Kirklan & Ilickson v. Brown n. 539 n. 417 11. 347 n. 624 122 479 n. 580 390 258 607 R. 498 n. 124 581 97 (40 271 (66 264, n. 293 n. 62 Kneil v. Egleston Knowlton v. Spring Co. Koch V. Williams Koontz V. Cent. Nat. Bk. Kowalke v. Co. Kreiter v. Bomberger Kreitz v. Behrensmeyer Lafontain v. Hayhurst Laidlaw v. Marye Lamb v. Lamb Lamborn v. Commissioners Lauman v. Des Moines Lawrence v. Amer. Nat. Bk. Lawrence v. Beaubien Leach v. Vining Leather Manufacturers' Bk. Bk. Lemans v. Wiley Lemon v. Grosskopf Levy V. Terwilliger Lightly V. Clouston Limited Invest. Assoc, v. Gh dale Assoc. Lincoln v. Stockton Lincoln v. Worcester Lindsey v. Allen Liness v. Hesing Little Rock & Ft. Smith R. V. Perry Lockwood V. Barnes Long V. Finger Lord V. Wheeler Loring v. Bacon Louisiana v. New Orleans Louisville v. Zanone Lovell v. Simpson Low V. Conn. & Passumpsic R. McArthur v. Luce McClay v. Hedge McCue, Matter of McDonald v. Lynch McDonald v. Mayer McGhee v. Ellis ]\TcKibben v. Doyle McMillan v. Eastman PAGE. n .76 214 n. Id n. 298 n. 251 361 636 64 n . 97 n. 625 553 n. 579 293 11. 417 n. V. 303 303 n. 247 230 n. 266 635 n- 588 M. 396 n. 579 572 R. 230 n. 327 116 Id n. 184 1 I. 53 r I. 5 n. 270 490 R. 325 262 143 n. 579 n. 322 79 n. 34 254 n. 13 TABLE OF CASES. PAGE. McMullen v. Hoffman n. 229 McMurtrie v. Keenan 479 McSorley v. Faulkner 592 Maddox v. Kennedy n. 13 Malbon v. Birney n. 142 Manchester v. Burns n. 313 Manhattan Fire Alarm Co. V Weber 31 Mann v. ^tna Ins. Co. n. 543 Mansfield v. Lynch n. 270 Martin v. Atkinson n. 350 Martin v. McCormick 331 Marvin v. Mandell n. 513 Masson v. Swan 102 Mathews v. Davis n. 119 Mayer v. Mayor n. 288 Mayor of Jersey City v. Riker 551 Mayor of Newport v. Saunders 630 Mays V. Cincinnati n. 425 Merchants' Ins. Co. v. Abbott n. 613 461 n. 334 H. 584 M. 105 n. 119 651 161 Merryweather v. Nixan Meyer v. Richards Miller v. Miller Miller v. Roberts Miller v. Tobie Minchin v. Minchin Missouri Elec. Light Co. v. Car- mo dy Mobile & Montgomery Ry. v. Steiner 504 Monongahela Co. v. Wood 501 Montgomery v. Cowlitz Co. 571 Moody v. Moody 34 Moore v. Des Arts 329 Moore v. Fulham 526 Moore v. Williams 337 Morgan v. Beaumont 213 Morgan v. Groff n. 230 Morgan v. Ravey n. 18 Morgan Park v. Knopf n. 438 Morse v. Woodworth 515 Moses v. Macferlan 531 Mowatt v. Wright nn. 264, 528 Muir V. Craig 22) Murdock v. Gilchrist n. 359 Nassau Bk. v. Bk. of Newburgh n. 620 National Granite Bk. v. Tyndale 74 National Life Ins. Co. v. Jones 256 National Oil Refining Co. v. Bush 628 Neal v. Haygood «. 13 Needles v. Burk 413 Nelson v. Kerr n. 13 Nelson v. Shelby Co. 100 Neumann v. Lacrosse 429 Newall V. Tomlinson 272 Newhall v. Wyatt n. 613 Niblo V. Binsse 175 Nichols V. Bucknam 447 Niedermeyer v. Univ. of Missouri 496 Norman v. Will n. 260 Norris v. Churchill 455 Northrup's Exrs. v. Graves n. 422 Norton v. Marden 336, n. 261 O'Brien v. Young n. 5 O'Conley v. Natchez n. 633 Orear v. Botts 118 Osbom V. Guy's Hospital 311 Osier v. Hobbs 66 Overton v. Hudson n. 13 Paine v. Upton n. 359 Panton v. Water Co. 482 Parcher v. Marathon Co. 576 Parker v. Tainter n. 114 Parsons v. Moses 346, n. 350 Patrick v. Putnam «. 189 Patterson v. Patterson 28 Patterson v. Prior 587 Payne's Appeal M. 315 Pensacola & Atl. R. R. v . Brax- ton 265 People ex rel. Dusenbury V. Speir nn. 6, 23 Perkinson v. Gilford n. 13 Peters v. Lowenstein «. 513 Peysor v. Mayor 546 Phelps V. Church of Our Lady 631 Phelps V. Williamson 204 Phetteplace v. Bucklin 287 XIV TABLE OF CASES. PAGE. Philanthropic Bldg. Assoc, v. Mc- Knight 509 Philbrook v. Belknap 94 Phillips V. Homfray n. 519 Phillips V. McConica n. 410 Pingree v. Gas Co. 506 Pinkham v. Libbey 193 Pitcher v. Turin Plank Road Co. 411 Pixley V. Ingram m. 515 Porter v. Dunn 163 Portsmouth Brewing Co. v. Mudge n. 229 Potomac Coal Co. v. Cumberland R. R. 499 Potter V. Carpenter 54 Preston v. Boston 573 Preston v. Hawley n. 625 Price V. Neal 370 Puckett V. Roquemore 525 Putnam v. Tyler «. 347 Quin V. Hill n. 29 Rainer v. Huddleston n. 104 Ramsdell v. Butler 647 Rand v. Webber 364 Real Est. Co. v. Keech 514 Redmond v. ^layor n. 549 Reed v. McConnell 117 Regan v. Baldwin 484 Reid V. Rigby 398 Remington Paper Co. v. O'Dough - erty 1 . 5 Renard v. Fiedler n. 413 Reynolds v. Padgett 624 Reynolds v. Reynolds n. 107 Rhea V. Allison n. 120 Rhccl V. Hicks 251 Richards v. Allen 104 Richards v. Shaw 151 Richmond v. Union Steamboat Co. 475 - ic'pcl V. Tns. Co. n. 251 Riley v. Williams 11. 100 Ripley v. Gelston n. 492 Riverside Bank v. Bank of Shen- andoah 384 Roberts v. Ely 648 PAGE. Robinson v. City Council n. 417 Rockford, R. I. & St. L. R. R. v. Sage 324 Rockwell V. Proctor 17 Rosenbaum v. Credit System Co. n. 443 Ruabon Steamship Co. v. London Assur. Ruggles V. Beikie Rumford Chemical Works v Ray Russell V. Clough Russell V. Stewart Rutherford v. Mclvor St. Joseph's Orphan Asylum ■ Wolpert St. Louis Brewing Assoc, v. Louis Salmond v. Price Sargent v. Currier Saunders v. Saunders Saunders v. Short Savage v. McCorkle Schillinger v. U. S. Scholey v. Mumford Scott v. Ford Scott v. Bush Sears v. Grand Lodge Shaffer v. Bacon Sharkey v. Mansfield Shear v. Wright Shearer v. Fowler Sheperd v. Young Sherman v. Kitsmiller Shreve v. Grimes Siegel-Cooper Co. v. Eaton C Silsbee v. Webber Skinner v. Henderson Skudera v. Ins. Co. Skyring v. Greenwood Slater Woolen Co. v. Lamb Sioss Iron Co. v. Harvey Smart v. Gale Smart v. White Smith v. Blachley Smith v. Brady Smith V. Collins 51 1 • 13 576 n. 2,22 1 ■ 71 n. 261 V. 311 St. n. 483 n • 34 449 n . 62 n. 153 1 • 35 590 472 11. 408 n. lOI 248 n. 268 300 191 73 n. 311 n. 329 n. 119 lo. 169 518 221 168 n. 291 1 • 78 11. 634 339 n. 212 226 136 n. 7 TABLE OF CASES. XV Smith V. Glens Falls Ins. Co. Smith V. Hatch Smith V. Richmond Smith V. Admrs. of Smith Smith V. Stewart Smout V. Ilbery Smyley v. Reese Snow V. Prescott Solinger v. Earle Southwick V. Bk. of Memphis Spalding v. Bk. of Muskingum Speake v. Richards Spooner v. Thompson Spring Co. v. Knowlton Stache v. Ins. Co. Stacy V. Foss Standish v. Ross Stanley v. Bircher Stanley Rule Co. v. Bailey Staples' Appeal State V. McGuire State Bank v. Ensminger State National Bk. v. Payne Steamship Co. v. Joliffe Steele v. Sanchez Steeples v. Newton Stephens v. Bd. of Education Stuart V. Sears Stuhr V. Curran Sumpter v. Hedges Swift Co. V. U. S. Tankersley v. Childers Tarplee v. Capp Taylor v. Hare Taylor v. Root Teasedale v. Stoller Terry v. Munger Thomas v. Brown Thomas v. Evans Thomas v. Shooting Club Thomas v. Thomas Thompson v. Bronk Thompson v. Nelson Thompson v. Williams Ticonic Bank v. Smiley Tinslar v. May Tipton V. Feitner PAGE. PAGE. 247 Tongue v. Nutwell n. 347 io6 Tracy v. Talmage n. 212 233 Trainer v. Trumbull n. 311 112 Trimmer v. Rochester 550 625 Troewert v. Decker n. 219 1(^ Troy V. Bland nn. 1 :5i, 432 n. 31 Turner v. Barber 530 ". 537 Turner & Otis v. Webster 319 487 Tyler v. Mayor n. 247 n. 613 ". 509 Ulrich V. Ulrich n. 62 n. 13 Union Bank v. Bank of U. S. 297 391 Union Hall Assoc, v. Morrison ;;. 350 n. 217 Union Ins. Co. v. Alleghany 561 n. 248 Union Stock Yards Co. v. C. B. 212 & Q. R. R. 464 n. 282 United States v. Dempsey n. 438 w. 18 United States v. National Park 260 Bk. 290 n. 31 United States v. Pacific R. R. "• 53 11. 6 Urie V. Johnston 306 n. 510 613 Van Deusen v. Blum 315 n. 9 Van Santen v. Oil Co. n. 449 340 Van Werden v. Ins. Co. n. 169 134 610 Waite V. Leggett n. 261 n. 251 Waldron v. Davis 71 n. 638 Walker v. Conant (65 Mich.) n. 294 n. 142 Walker v. Conant (69 Mich.) 280 n. 491 Walker v. Ames 536 Walsh v. N. Y. & Ky. Co. n. 147 604 Ware v. Percival 584 285 Wayne Co. v. Randall n. 438 338 Webster v. Drinkwater 58 n. 5 Welch v. Goodwin n. 384 n. 544 Welch V. Hicks 190 596 Wells V. Adams n. 481 90 Wellston Coal Co. v. Co. 157 n. 346 Wernniger, In re n. 31 56 Wessel V. Land Co. n. 481 n. 350 West V. Houston 263 633 Westlake v. St. Louis n. 483 n. 253 Wheadon v. Olds 255 217 Wheaton v. Hibbard 513 448 Wheeler v. Hatheway n. 262 241 Whipple V. Stephens 585 144 White V. Franklin Bank 206 XVI TABLE OF CASES. White V. Miller White River Tp. v. Dorrell Whiting V. City Bank Whitney v. Port Huron Whittemore v. Farrington Wilde V. Baker Willard v. Doran Co. Williams v. Bemis Williams v. Gibbes Williams v. Hathaway Williams v. Vanderbilt Williams v. West Chic. R. R. Wilmington v. Wicks Wilson V. Alexander PAGE. PAGE, 366 Wilson V. Barker 295 396 Windbiel v. Carroll 263 n. 387 Winters v. Elliott n. 121 568 Witbeck v. Waine n. 359 n. 335 Witherby v. Mann n. 459 n. 440 Wolfe V. Howes 185 n. 5 Wood V. Ry. n. 17 109 Wood V. Sheldon n. 334 342 Wright V. Butler n. 650 360 Wunsch V. Boldt n. 247 M. 346 n. 71 Young V. Chicopee n. 184 426 «. 381 Zink V. Wells- Fargo Co. n. 616 A SELECTION OF CASES THE LAW OF QUASI-CONTRACTS. PART I. Recovery upon a Record. A. Recovery upon a Judgment. ANDREW.^ V. MONTGOMERY and others. i^9 Johns. 162. — 1821. Assumpsit, on a judgment recovered against the defendants, in the Court of Common Pleas of the County of Essex, in the state of New Jersey. The defendant's counsel insisted that the action should have been debt, not assumpsit. Spencer, Ch. J. — * * * * ^\^q plaintifif has counted upon the judgment in New Jersey, as a simple contract ; and, accordingly, it is set forth as a promise to pay the amount adjudicated. Now it is well settled, that assumpsit cannot be supported, where there has been an express contract under seal, or of record but the party must proceed in debt or covenant, where the contract is under seal, or in debt, if it be of record, even though the debtor, after such contract were made, expressly promised to perform it. ( i Chitty, 94, and the numerous cases there referred to.) In Pease v. Howard, 14 Johns. Rep. 479, this court decided that a judgment in a justice's court was not within the statute of limitations, like a foreign judgment, and that it was in the nature of a specialty. The judgment recovered in New Jersey being admitted by the plead- ings, and standing totally unimpeached, we are bound to consider it as fairly and justly obtained, and as establishing a debt of record against the defendant. It is not, therefore, merely prima facie evi- I RECOVERY UPON A RECORD. dence of a debt, like a foreign judgment, but absolute and decisive evidence of a debt. Assumpsit then will not lie upon it ; and with- out examining the pleas, as it is impossible to support the plaintiff's action, be they ever so bad, the defendant must have judgment. Judgment for the defendant. FIRST NATIONAL BANK OF NASHUA v. VAN VOORIS. 6 South Dakota 548. — 1895. Attachment by the First National Bank of Nashua, Iowa, against William F. Van Vooris. From an order dissolving the at- tachment, plaintiff appeals. Reversed. Kellam, J. — This is an appeal from an order of the Circuit Court of Brookings County discharging an attachment. The lead- ing question in the case is whether, within the meaning of our at- tachment law, a judgment of a sister state is a contract, without re- gard to the character of the original cause of action which entered into it. The difficulty is not to find direct adjudications upon the general question of whether a judgment is or ought to be classed as a contract, for they are almost numberless on both sides of the ques- tion. The embarrassment is to determine which line of these cases, so squarely opposed to each other, is most securely grounded upon good reason, and most likely to result in its practical application in the most good and the least harm. Although some elementary law writers, and some courts whose learning is so great and whose judgment is so nearly infallible as to almost foreclose further in- quiry, have declared judgments to be contracts, and have so classed them, it is very obvious that ordinarily they lack the element of con- sent, which is generally named as the very life and spirit of a con- tract. It would look pedantic, and probably serve no useful purpose, to undertake in this opinion to rewrite the learning found in the opinions of other courts, and in the books of the text writers, upon this question of the contract character of a judgment. A very brief examination of the subject demonstrates the fact that the most learned, careful, and thoughtful judges and lawyers have reached directly opposite conclusions. In Black on Judgments (Vol. I, § 7 et seq.) are marshaled a large number of these conflicting decisions. In Louisiana v. Mayor, etc., of New Orleans, 109 U. S. 285, 3 Sup. Ct. 211, the judges of the Federal Supreme Court could not agree that a judgment was or was not a contract. It seems to me, however, that, even if a judgment is not a contract in a liroad and unqualified sense, it docs not necessarily follow that a foreign judgment cannot be the basis of an attachment. This must depend upon the interpretation to be given to the expression, "action arising on contract," as used in the attachment law. The original office of the attachment was to secure the collection of debts. The JUDGMENT. 3 relation of debtor and creditor must exist. It could not be used in actions for wrongs or torts. In some of the states this scope of the proceeding has been enlarged so as to include in some states specified, and in others all, actions in tort. Actions at law are funda- mentally and logically divided into two classes, — "actions ex con- tractu" and "actions ex delicto,"' — though these express terms are not employed in the statute. Everybody knows what these terms mean, and, while the legislature seemed to prefer English words, we are inclined to think that they used this expression, "actions aris- ing on contract," as the equivalent of "actions ex contractu," just as they substituted "claim and delivery" for "replevin." Now, while it may seem essentially contradictory to say that an action brought on something which is not a contract is an action ex contractu, or an "action arising on contract," still what we seek is to know what kind of an action the legislature meant when they referred in their attachment law to an "action arising on contract." It seems to us that the thought and purpose of this first paragraph of the at- tachment law was to declare in what general class of actions an attachment would lie. It was a declaration of the purpose and policy of the attachment law of this state as to what general class or kind of actions might be aided by attachment. By the statutes of some of the states, attachments were allowed in any action for the recovery of money. Sometimes both classes were expressly named, as in Georgia, where it was available "in all cases of money demands, whether arising ex contractu or ex delicto." In others the remedy was confined to actions "on contract, express or implied" ; "actions on contract" ; "actions arising on contracts," etc., — all meaning, as we think, that general class of actions known in legal nomenclature as "actions ex contractu." Subsequent provisions are supplementary, and define particularly the further conditions that must exist to justify the issue of the attachment. The general condition an- nounced in the beginning is that the action must be of that class known as "actions on contracts," as distinguished from "actions for torts." Actions on judgments form a very common class of actions, and have always been brought as ex contractu actions, and not as tort or ex delicto actions. O'Brien v. Young, 95 N. Y. 431 ; Louis- iana v. Mayor, etc., of New Orleans, supra ; Johnson v. Butler, 2 Iowa 535. This is not because judgments are essentially and abso- lutely contracts, but because the obligation imposed by them is more in the nature of a contract liability than a tort liability. It seems much the same in character as the liability of an infant to pay for necessaries. The judgment against him does not rest upon his con- tract liability, for he is not required to pay what he promised or agreed to pay, but simply what it is right for him to pay, and yet his liability is regarded and classed as contractual. We are inclined to regard a judgtnent, not as a contract, but as a quasi-contract, which the legislature and the courts have treated as a contract in respect to the remedy by subsequent action upon it ; and so, as before suggested, the question whether, under our 4 RECOVERY UPON A RECORD. Statute, an attachment may issue in an action on a judgment depends upon the sense in which the legislature used the expression, "action arising on contract." If used in an exact and literal sense, an action on a judgment would not, in our opinion, be included; but if used in a general and leading sense, to distinguish actions of one class from those of the other, then the expression must be presumed to have been used in view of the common understanding and practice that actions on judgments were actions on contract. I think the same meaning was intended here, as by the same words in section 4915, providing that a cause of action "arising on contract" may be pleaded as a counterclaim. I think there could be little doubt that an existing judgment might, under this provision, be pleaded as a counterclaim. This point was directly ruled in Taylor v. Root, *43 N. Y. 335, where it was held that, in an action on contract, a judg- ment in an action of slander could be set up as a counterclaim for the reason that, within the meaning of that provision, it was a cause of action arising on contract. In Wyman v. Mitchell, i Cow. 316, and AlcCoun v. Railroad Co., 50 N. Y. 176, and O'Brien v. Young, 95 N. Y. 428, all New York cases, it was distinctly said that a judg- ment was not a contract ; and yet in Nazro v. Oil Co., 36 Hun 296, and again in Gutta-Percha & Rubber Manuf'g Co. v. Mayor, etc., 108 N. Y, 276, 15 N. E. 402, reversing 46 Hun 237, it was held that an action on a judgment was one on "a contract express or im- plied," within the meaning of the attachment law, and the right to attachment was in each case sustained. In the latter case the court said : "In a suit upon a binding judgment, whether foreign or do- mestic, the plaintiff must therefore be entitled to the same provi- sional remedies to which he would be entitled in an action upon a 'contract express or implied." Upon the same line the supreme court of North Carolina said that, while judgments were not treated as contracts for all purposes, they were so treated for the purpose of distinguishing them from causes of action ex delicto, and that they were not included in a statute covering causes of action "not aris- ing out of contract." See Moore v. Nowell, 94 N. C. 265. In John- son v. Butler, 2 Iowa 535, an attachment was issued on an action on a judgment. Their attachment law prescribes a different pro- cedure in an action "founded on contract" from that in an action "not founded on contract." The question was as to which class the action belonged. The court said : "The distinction is manifestly between actions ex contractu and ex delicto, and it was always so understood and so acted upon. ''^ * * The Code does not recog- nize the common-law technical names of action, nor, in this case, even the general classification of those upon contract and those of tort, in express and technical terms ; still the sense cannot be mis- taken." The Wisconsin supreme court in Childs v. Manufacturing Co., (Wis.) 32 N. W. 43, discussed the question whether an action on a judgment, as one arising on "contract expressed or implied," could be joined with an action for the breach of an express contract. and said : "When we consider the object of section 2647, we think JUDGMENT. 5 it very clear that the legislature intended to use the word 'contract' in said subdivision in its largest sense, and not in a restricted sense. The object of the section, as a whole, is to classify causes of action with reference to their joinder in one and the same action. * * * In this view of the subject, notwithstanding the fact that in other parts of the statute, and for other purposes, the legislature seems to have made a distinction between 'contracts' and 'judgments,' that fact furnishes no good reason for holding that in said section 2647 the word 'contract' was not intended to be used in its larger mean- ing, so as to cover a case of a judgment for the payment of money." Against this enlarged interpretation of the expression, "actions arising on contract," so as to include an action on a judgment, it is urged that the legislature of at least one of the states, Nebraska, did not so use or understand it, for they thought it necessary to ex- pressly add "judgment or decree" to "debt or demand arising upon contract." There is certainly some force in this, but the argument is of the same character as it would be to ui'ge that under our law an attachment would lie in an action for a breach of promise to marry, because in New York it was thought necessary to except such actions from those on "contract, expressed or implied ;" and our legislature has not made such exception, thus indicating, as the argument would be, that they intended to allow attachments in such cases. We do not think the fact in either case, or the inference therefrom, is potent enough to control our conclusion as to the proper interpretation of our law. While the question is not entirely free from embarrassment, we conclude that an action on a judg- ment is an "action arising on contract," within the meaning of that; expression as used in our attachment law, and that this is so whether the original cause of action which entered into the judgment was one on contract or tort. This view necessitates the conclusion that the court erred in discharging the attachment, on the ground that the action was not one arising on contract, and the order appealed from is reversed. All the judges concur.^ * Meaning of "Contract" as Used in Statutes. — A judgment is not a con- tract within the meaning of the constitutional provision against legislation im- pairing the obligation of contracts, Louisiana v. New Orleans, log U. S. 285 (1883). The following New York cases serve to illustrate, by judicial deter- mination, whether the word "Contract" as used in various statutes means true contract only, or includes quasi-contract as well : "Express or implied con- tract" in § 420, Code Civ. Pro. (taking judgment without application to the court), — a statutory liability to refund is an implied contract, Augner v. Mayor, 14 App. D. 461 (1897). "Cause of action on contract" in § 501, subd. 2, of Code Civ. Pro. (counterclaim by such cause of action), — a judgment in a tort action is an implied contract, Taylor v. Root, 4 Keyes 335 (1868). "Contract express or implied" in § 635, subd. i, of Code Civ. Pro. (granting warrant of attachment), — a judgment is an implied contract, Gutta Percha Co. v. ]\Iayor, 108 N. Y. 276 (1888), but a statutory liability to pay costs is not. Remington Paper Co. v. O'Dougherty, 96 N. Y. 666 (188^1), affirming, without opinion, 32 Hun 255. Exception of "any contract or obligation made before the passage of the act" in ch. 538, Laws of 1879 (reducing legal rate of interest), — a judg- ment is not a contract, O'Brien v. Young, 95 N. Y. 428 (1884). "Judgment or 6 RECOVERY UPON A RECORD. B. Recovery upon a Recognizance. GREEN & GREEN v. OVINGTON & BLEECKER. i6 Johns. 55. — 1819. Spencer, J. — * * * * 'pj^e plaintiff declares in debt, on a record of recognizance of bail entered into by the defendants, in the Mayor's court, as of April term of that court, in 1810; and refers, in his declaration, to the record of recognizance remaining in that court, in the usual form of declaring on records of judgment or recognizance, pront patct per recordnni. The defendant's plea impeaches the record, in stating that the bail-piece, which is the warrant for the recognizance record, was not acknowledged by the defendants until after the judgment in the original cause, to wit, the 24th of January, 181 1 ; and the plea con- cludes with the allegation, that the bail-piece is void. As the plea is clearly bad, it is unnecessary to take any particular notice of the replication. Although the recognizance of bail is taken before a single judge of a court, it is, in legal contemplation, done in court ; and it is so entered. The bail-piece is a mere memorandum of the recognizance, authorizing the making up the record of recognizance of bail, and when that is filed it becomes a record of the court and the party in whose favor it is acknowledged, may, on its being forfeited, bring either a scire facias, or debt, at his election. The validity of records, among which are recognizances of bail, cannot, in pleading, be impeached or affected by any supposed defect or il- legality in the transaction on which they were founded ; nor can there be any allegation against the validity of a record, (i Chitty PI. 354, and the cases there cited.) It is to be observed that all the pleas by bail, of which we have any precedent, state matters con- sistent with the record. If the record is untruly stated, the defend- ants can avail themselves of such defect, only by pleading mil tiel record. Judgment for the plaintiff.^ decree founded upon contract" in ch. 300, § i of Laws of 183 1 (arrest in civil actions), — a judgment founded upon a quasi-contractual liability is not a judgment founded upon contract. People ex rel. Dusenbury v. Speir, yy N. Y. 144 (1879). And see also, Willard v. Doran & Wright Co., 48 Hun 402 (1888), wbcre § 1013 of the Code Civ. Pro. (providing for compulsory reference) is held applicaide to actions on true contract only. ' In State v. McCuirc. 42 Minn. 27 (1889), the court says: "A recognizance fiiffers from a bond in tin's : that while the latter, which is attested by the sig- nature and seal of the obligor, creates a fresh or new obligation, the former is an acknowledgment on record of an already existing debt, with condition to be void on performance of the thing stipulated, and attested by the record of the court alone, .and not by the obligor's signature and seal. It is undoubtedly es- sential that it be a matter of record, and that it contain and express in the body of it the material parts of the obligation and condition; and, if deficient in this respect, the record cannot l)e aided by parol. Tn an action of debt on a recognizance at common law, the utmost strictness that was ever required was RECOGNIZANCE. 7 that the declaration should state it with certainty, pursuing the description in the entry of recognizance, and should allege in what court, and at whose suit, and for what sum the defendants acknowledged themselves obligated; also, that it should be averred that it is a record, and the breach stated according to the terms of the recognizance. We cannot see wherein the complaint in this action fails to comply with a single one of these requirements." In Bodine v. Commonwealth, 24 Pa. St. 69 (1854), the court says: "The 2d section of the Act of 2d December, 1783, and the 2d section of the Act of 30th March, 1821 (Brightly's Purdon 375), confer jurisdiction upon the common pleas over forfeited recognizances, but do not prescribe the form of action to be brought. Debt has generally been the action adopted, but in some parts of the state we are told the scire facias has uniformly been employed. We are of opinion that either action will lie. Of the two actions perhaps the scire facias is most appropriate, for the recognizance is matter of record, is in the nature of a judgment, and the process upon it is for the purpose of carrying it into execution, and is rather judicial than original. It is no further to be reckoned an original suit than that the defendant has a right to plead to it. It is founded upon the recognizance, and, partaking of its nature, must be considered as flowing from it; and when final judgment shall be given the whole is to be taken as one record : Cobbet's Case, 2 Yeates 362. Chitty, in his excellent work on Pleading, Vol. I, p. 100, citing Tidd's Practice, expresses preference for the scire facias in these words : "Debt is sometimes brought upon a re- cognizance of bail, but the remedy thereon is more frequently by scire facias, because in the latter the proceeding is more expeditious, and the bail have less opportunity of discharging themselves by rendering their principal." In Smith v. Collins, 42 Kan. 259 (1889), the court says (p. 260) : "Strictly speaking, a recognizance is a debt confessed to the state which may be avoided upon the conditions stated. At common law the forfeiture of the recognizance was equivalent to a judgment. * * * Another theory of the common law was that the cognizors by an acknowledgment of the cognizance had already submitted themselves to the jurisdiction of the court;" and from these theories grew a rule that "recognizances must be prosecuted in the court in which they were taken or acknowledged, or to which they were returned." See also, as to recovery upon a record, Cockram v. Welby, 2 Show. 79, re- ported herein at p. 13, note. PART II. Recovery Upon a Statutory, or Official, or Customary Duty. A. Statutory Duty. Story, J, in BULLARD v. BELL. I Mason 243, 298. — 181 7. This is a liability created, not merely by the act of the parties, but by the express terms of a statute. The act of incorporation pro- vides "that if said corporation shall, at any time hereafter, divide their stock, previous to the payment of all their bills, or shall refuse* or neglect to pay any of their bills when presented for payment in the usual manner, the original stockholders, their successors and as- signs, and the members of such corporation shall, in their private capacities, be jointly and severally liable to the holder of any bill or bills issued by the said corporation for the payment thereof," etc., etc. I agree at once to the position, that the bills of the bank are to be considered originally as the debts of the corporation and not of the corporators ; and, except from some special provision by statute, the latter cannot be made ansvv^erable for the acts or debts of the former. They are altogether in law distinct persons and capable of contract- ing with each other. But the corporators are not strangers to the corporation. On the contrary, the law contemplates a privity be- tween them, and upon that privity has created an obligation on the corporators, under certain circumstances, to pay the debt of the cor- poration. Nothing can be better settled than that an action of debt lies for a duty, created by the common law, or by custom. A fortiori it must lie, where the duty is created by statute. Mr. Justice Black- stone says, "that every person is bound, and hath virtually agreed to pay such particular sums of money, as are charged on him by the sentence, or assessed by the interpretation of the law. What- ever, therefore, the law orders any one to pay, that becomes in- stantly a debt, which he hath beforehand contracted to discharge." Without placing any reliance upon this refined notion of contracts, it cannot be doubted that the learned judge has expressed the true doctrine of the law. Whatever is enjoined by a statute to be done, creates a duty on the party, which he is bound to perform. The STATUTORY DUTY. 9 whole theory and practice of poHtical and civil obli,e^ations rest upon this principle. When therefore a statute declares, that, under certain circumstances, a stockholder in a bank shall pay the debt due from the bank, and those circumstances occur, it creates a direct and im- mediate obli.c^ation to pay it. The consideration may be collateral or not, but it is not a subject-matter of inquiry, and to deny that it is a duty on the stockholder to pay the money, is to deny the authority of the statute itself, for a duty is nothing more than a civil obligation to perform that which the law enjoins. Here then the law has declared that the stockholders shall be liable to pay a specific sum, and it imposes on them a duty so to do. How then can the court say that debt does not lie, since there is a duty on the defendant to pay the plaintiff a determinate sum of money? There is no room, under this view of the case, for entertaining- any ques- tion as to collateral undertakings. The law has created a direct liability, a liability as direct and cogent, as though the party had bound himself under seal to pay the amount in which case debt would undoubtedly lie. The law esteems this an obligation created by the highest kind of specialty. Indeed, if debt would not lie in this case, it is inconceivable how assumpsit could. There is no pre- tense of any express promise, and if a promise is to be implied, it must be because there exists a legal liability, independent of any promise sufficient to sustain one. Now the very notion of a collateral undertaking is, that there exists no legal liability, independent of the promise to create a duty. And if there exists a duty sufficient to raise a promise, then it is sufficient to sustain an action of debt. Upon the most mature reflection I am of opinion that an action of debt well lies in this case.^ * In Elliott V. Gibson, lo B. Mon. (Ky.) 438 (1850), where assumpsit was brought upon the liability of the owner of an escaped slave to pay a statutory reward, if he received the slave back, the court said (p. 439) : "A statute is in some respects considered a specialty, and debt is frequently, perhaps gen- erally, the remedy prescribed for the recovery of any money due to the plain- tifif under its provisions under contract or quasi-contract ; but when the stat- ute does not prescribe the remedy, assumpsit may be supported, the plaintiff not being by it restricted to any particular remedy: (i Chitty's Pleadings, 120; Buller, N. P., 129)." See also, (assumpsit) Central Bridge Trans. Co. V. Abbott, 4 Cush. (Mass.) 473 (1849). and Augner v. Mayor. 14 App. D. (N. Y.) 461 (1897), where it is said (p. 466'), speaking of the action under the re- formed procedure : "This action is upon what has been aptly termed a quasi- contract. It is not upon a genuine contract, that is, an agreement, in fact, be- tween plaintiff and defendant, either express or implied. It is simply upon a statutory liability, which is sufficient to sustain an action analogous to what was formerly called assumpsit." In Steamship Co. v. Joliffe, 2 Wall./U. S.) 450 (1864}, plaintiff broughtan action to recover under a statute which allowed half-pilotage fees to a pilot whose services were tendered and declined. The statute was later repealed. The court said (p. 457) : "The claim of the plaintiff below for half-pilotage fees resting upon a transaction regarded by the law as a quasi-contract, there is no just ground for the position that it fell with the repeal of the statute under which the transaction was had. When a right has_ arisen upon a con- tract, or a transaction in the nature of a contract authorized by statute, and lO STATUTORY DUTY. HARRIS V. CHRISTIAN. 10 Pa. St. 233. — 1849. Assumpsit for work and labor done. Pleas, non-assumpsit and the statute of limitations. The claim was for fees earned by the plaintiff's intestate, who was as alderman a magistrate of Philadel- phia. In many instances the suits were ended more than six years before this action was brought. His honor instructed the jury that the plaintiff could recover in all cases where there had been a judg- ment recovered. 2. That the statute was not a bar, as the claim was for a debt of record. Rogers, J. — We see nothing wrong in the trial except the answer of the court to the defendant's fifth point. The court was requested to instruct the jury that the statute of limitations is a bar in all cases in which the services were rendered more than six years be- fore the death of the alderman. The court refused to give this in- struction, under the erroneous idea that the action was founded on a claim of record, and not a contract. Although the docket of the justice is evidence to charge the defendant with the costs of the original writ, subpoena, and execution, yet it is not a debt of rec- ord, but the evidence of a debt, from which the law will imply a promise to pay. And such was the opinion of the court in Lyon v. McManus, 4 Bin. 167. The action to recover the fees in that case was assumpsit on an implied contract, and it was there held that where a statute gives fees the law implies a promise to pay by the person to whom the service is rendered. The plea of the statute of limitations is therefore a good plea. The suit is brought against the plaintiff [defendant] to recover for services rendered him in the suits before the alderman. He must look to the defendant for in- demnity. It may be proper to add that the suits are terminated within the meaning of Lyon v. McManus, on the rendition of the several jud.gtnents. We are further of opinion that the costs may be recovered on a declaration for work and labor done, and goods sold and delivered. No injury can result to the defendant from the gen- erality of the counts, as he may have a bill of particulars on demand. Judgment reversed and a venire de novo awarded. has been so far perfected that nothinsr remains to be done by the party assert- injT it, the repeal of the statute docs not affect it, or an action for its enforce- ment. It has become a vested right which stands independent of the statute." STATUTORY DUTY. II INHABITANTS OF MILFORD v. COMMONWEALTH. 144 Mass. 64.— 1887. Field, J. — The question of law to be decided is whether the claim that the commonwealth reimburse to the town the expenses incurred in the support of a state pauper, under the Pub. Stats., c. 86, §§ 25, 26, is a claim which is founded upon a contract for the payment of money, within the meaning- of the statute of 1879, c. 255 (Pub. Stats., c. 195). See Stats. i'865, c. 162 ; 1869, c. 12 ; 1879, c. 291, § 3. The Court of Claims of the United States, under statutes which give it jurisdiction to hear and determine "all claims founded upon any law of congress, ... or upon any contract, expressed or implied, with the government of the United States," etc., has heard and determined claims for salaries or pay established by a law of the United States, and these have been sometimes spoken of as claims founded on contract, although it is not clear that they ought not to be regarded as claims founded upon a law of the United States. U. S. Rev. Stats., § 1059. Patton v. United States, 7 Ct. of CI. 362, 371 ; French v. United States, 16 Ct. of CI. 419; Collins v. United States, 15 Ct. of CI. 22; Mitchell v. United States, 18 Ct. of CI. 281, s. c. 109 U. S. 146; United States v. Langston, 118 U. S. 389. In matters of procedure, penalties have usually been regarded as debts. In the Pub. Stats., c. 167, § i, actions for penalties are ex- cluded from actions of contract, and are included in actions of tort, but actions under statutes to recover for money expended have usually been actions of contract. New Salem v. Wendell, 2 Pick. 341; Oakham v. Sutton, 13 Met. 192; Amherst v. Shelbume, 11 Gray 107; Wenham v. Essex, 103 Mass. 117. The law regards the money as expended at the implied request of the defendant, and a promise to pay the money is said to be implied from the liability created by the statute. A contract may be ex- pressly made, or a contract may be inferred or implied when it is found that there is an agreement of the parties and an intention to create a contract, although that intention has not been expressed in terms of contract ; in either case, there is an actual contract. But a contract is sometimes said to be implied when there is no intention to create a contract, and no agreement of parties, but the law has imposed an obligation which is enforced as if it were an obligation arising ex contractu. In such a case, there is not a contract, and the obligation arises ex lege. We are of opinion that the Stat, of 1879, c. 255, was not in- tended to give to the superior court jurisdiction over obligations for the payment of money imposed by statute upon the common- wealth. There are many such obligations, but they are not within any of the definitions of a contract, all of which require a consent or agreement of the parties. These statutory obligations are per- 12 OFFICIAL DUTY. formed by the various officers of the commonwealth, or by the legis- lature. In one case, at least, there is a remedy by a petition in the nature of a petition of right, to be filed in the supreme judicial court. Pub. Stats., c. 13, § 64. In most cases, however, no judicial remedy against the commonwealth has been provided, and the com- monwealth cannot be sued in its own courts without clear statutory authority. We think that the Pub. Stats., c. 195, must be confined to actual contracts made by the commonwealth for the payment of money, and we are not now required to determine whether they must be express contracts. Exceptions overruled. B. Official Duty. BODENHAMER v. BODENHAMER. 6 Humph. (Tenn.) 264. — 1845. Reese, J. — The defendant sued the plaintiff in error by warrant or summons before a justice of the peace, "in a plea," as the sum- mons says, "of debt under one hundred dollars." The justice gave judgment for the plaintiff below, for the sum of forty-five dollars. The defendant appealed to the circuit court, where a ver- dict was rendered against him for about the same amount. The defendant below was an officer, and had in his hands an exe- cution in favor of the plaintiff", which he levied upon property of the execution debtor, sufficient to satisfy the execution. It did not ap- pear whether he had collected the money or not. It seems that the chief controversy in the circuit court, as here, related to the form of action, and to whether debt would lie. The court charged the jury that the officer could not be held liable on the ground of negli- gence or malfeasance in that form of action ; but that if he had col- lected the money, or levied the execution upon property sufficient to satisfy the execution, as that would discharge the execution debtor, the defendant would become liable for the amount of the execution, and the action of debt might be maintained to enforce such legal liability. We arc of opinion that this part of the charge is correct, namely : that the collection of the money or a levy upon personal property sufficient to satisfy the execution, will maintain the action of debt against the officer ; but we are further of opinion that as this case presented itself at the trial in the circuit court and was for an amount liolow fifty dollars, and within the jurisdiction of the magis- trate, if there had been doubt whether the action of debt would He, it was not necessary to hold that that was the form of action from anything said in the warrant or summons. The several forms of OFFICIAL DUTY. I3 action and the rules which govern them cannot he enforced and preserved in suits before justices. So that we have held at this term and heretofore that in such cases the statutes of limitation will be applied to the evidence and substance of the case, and not to any words indicating a form of action which the magistrate may choose to use in his summons or warrant. These words "of plea of debt" must be moulded to apply to accounts, assumpsit, to damages for non-compliance W'ith a contract, or legal duty, etc. If held to the true meaning of technical words used by them these domestic tribu- nals would involve the afifairs of society in more than the confusion and difficulty necessarily incident to the administration of the laws by persons being so imperfectly acquainted with them. Let the judgment be affirmed.^ ^ In Speake v. Richards, Hob. 206 (1618), the sheriff had made the levy and return, but did not pay the money; and "the first question in this case was whether the action of debt would lie, because there was no contract between the plaintiff and the sheriff. But that was resolved by the court that it would lie; for though there were no actual contract yet there was a kind of contract in law, so it is ex quasi contractu. And therefore upon damages recovered in an action of trespass, the plaintiff shall have an action of debt; and by the same reason when the money is levied by the sheriff, so as the action ceased against the defendant, the same action is ipso facto by law transferred to the sheriff, having both the judgment to make it a debt, as before, and the levy to make him answerable." Further as to recovery upon an official duty, and the appropriate action, see the following: Debt allowed against a sheriff, — Perkinson v. Gilford, Cro. Car. 539 (1640) ; Ruggles v. Beikie, 3 O. S. Upper Can. K. B. 276 (1833) ; Neal v. Haygood, i Ga. 514 (1846). Indebitatus assumpsit allowed against a sheriff, — Overton v. Hudson, 2 Wash. (Va.) 172 (1796). Assumpsit not allowable against an officer, McMillan v. Eastman, 4 Mass. 378 (1808) ; Bailey v. Butter- field, 14 Me. 112 (1836) ; not allowable unless 'plaintiff has an instant right to moneys in the hands of the officer, Maddox v. Kennedy, 2 Rich. L. (S. C.) 102 (1845). Previous demand upon the sheriff held not necessary, Nelson v. Kerr, 59 N. Y. 224 (1874). That recovery in such case is founded upon a record is held in Cockram v. Welby, 2 Show. 79 (1679), reported as follows: "Debt against the defendant, having been sheriff of the county of [Lincoln] and levied money on a iicri facias sued by the plaintiff on a judgment he had obtained against J. S. The defendant pleads the statute of limitations. The plaintiff demurs. The ques- tion was, if debt lies against a sheriff for money levied on a iieri facias before the return of the writ. And held that it does, else an inconvenience would follow that the sheriff should take advantage of his own wrong, viz. : not re- turning the writ. And then, whether this action is within the statute of limi- tations? And held not, for though it be not a matter of record till the writ be returned, yet it is founded upon a record, and has a strong relation to it." For reports of the earlier consideration of Cockram v. Welby, see i Mod. 245 (1677) ; 2 Mod. 212 (1677) ; Freeman, 236 (1677). 14 CUSTOMARY DUTY. C. Customary Duty. BANK OF ORANGE v. BROWN and others. 3 Wend. 158. — 1829. Savage, Ch. J. — This is an action on the case against six defend- ants as common carriers, alleged to be the owners of the steamboat Constellation, charged in the first eight counts of the declaration with having received bank bills to a large amount for transporta- tion from the city of New York to the village of Newburgh, which it is averred were lost through the want of due care, and by the negligent and improper conduct of the defendants and their serv- ants. The ninth count is in trover, to which the defendants have pleaded the general issue. To the first eight counts they have pleaded in abatement that fifty-four other persons, together with the defendants, are joint owners and proprietors of the steamboat Constellation, and are jointly liable for any damage the plaintiffs may have sustained. The plaintiffs have demurred, and the ques- tion presented for adjudication is, whether it is necessary to join all the joint owners in this suit? It is not denied that in an action against joint contractors as such, all must be joined, and if the action be brought against a part only those who are sued may plead in abatement the non- joinder of the other joint contractors. Nor is it denied that in an action for a tort the plaintiff may prosecute all or any portion of those con- cerned in such tort. But an action on the case against common carriers, upon the custom of the realm, seems in England not to be considered always as belonging entirely to the class of actions aris- ing ex contractu, nor to those arising ex delicto, but is said some- times to be a case arising ex delicto quasi ex contractu. Every person who undertakes to carry, for a compensation, the goods of all persons indifferently is, as to the liability imposed, to be considered a common carrier. There is an implied undertaking on his part to carry the goods safely, and on the part of the owner to pay a reasonable compensation. No special agreement is neces- sary to enable the owner to maintain assumpsit against the carrier for breach of his duty, nor to enable the carrier to maintain as- sumpsit for his compensation. There is therefore a perfect contract implied between the carrier and his employer. As this contract is im])lied by law, so also where any person becomes a common carrier by professing to carry for all persons indifferently, the law imposes upon him duties and liabilities arising out of his public employ- ment, and imposes upon the employer the liability of making com- pensation. Considerations of public policy, and not agreements be- tween the parties, have ascertained the duties and fixed the limits of the liability of common carriers, and for any omission or neglect of duty an action lies without stating any consideration or contract CUSTOMARY DUTY. 1 5 between the parties, for the negligence is the cause of the action and it is not necessary to state or rely upon an assumpsit. Coggs v. Bernard, 2 Ld. Raym. 909. There may be and often is a special contract made with a common carrier and such special contract is to control, but without any agreement whatever, the bare delivery of goods to the carrier imposes upon him the obligation to dispose of them according to the directions which he receives, and a neglect to comply with such directions subjects him to an action, because, says Lord Holt, "a neglect is a deceit to the bailor, for when he en- trusts the bailee upon his undertaking to be careful he has put a fraud upon the plaintiff by being negligent, his pretense of care being the persuasion that induced the plaintiff to trust him, and a breach of a trust, undertaken voluntarily, will be a good ground for an action." 2 Ld. Raym. 919. This was said in relation to Lord Holt's sixth class of bailments, where the bailee acts without com- pensation, but applies with equal if not greater force to his fifth classification, where the bailee acts for a reward. The form of action against a common carrier is a question which has been considerably agitated in the English courts and has been different as the gravamen was supposed to arise upon a breach of public duty, or the breach of mere express promise. Each form has its advantages and disadvantages. If assumpsit is brought, or the action be laid as arising upon contract, it may be abated for the non-joinder of proper parties, but it survives against the personal representative, and the common counts may be joined in the declara- tion. If the action be laid as arising ex delicto, and founded on the custom, the suit does not abate for the non- joinder of all the proper parties, and, in a proper case, a count in trover may be joined. "The present usage," says Mr. Jeremy, in his Law of Carriers, p. 117, "sanctions the principles and adopts the advantages of both forms of action by permitting the cases to be considered either way, as arising ex contractu or ex delicto, according as the neglect of duty or breach of mere express promise is meant to be relied upon as the cause of injury." Mr. Chitty supposes the plaintiff has his choice of remedy (i Chitty's PI. 75, 6), and that in an action founded upon the custom, no advantage can be taken of the non-joinder of defend- ants, and refers to the cases which were cited upon the argument. He has given precedents of declarations both ways (2 Chitty, 117 and 271, 2), according to which the declaration in this case is clearly founded upon the negligence of the defendants and not upon an express promise. It may be useful to review very briefly some of the leading cases in the English courts on this subject. [Here follows a discussion of Boson V. Sandford, 2 Show. 478; Rice v. Shute, 5 Burr. 261 1 ; Ab- bott V. Smith, 2 Bl. 947 ; Dale v. Hall, i Wils. 281 ;' Mitchel v. Tar- ^ Apparently the first reported case (1750) in which an assumpsit implied by law was allowed against a common carrier. — Ames, History of Assumpsit, 2 Harvard Law Rev. 63. l6 CUSTOMARY DUTY, burt, 5 T. R. 649 ; Buddie v. Wilson, 6 T. R. 369 ; Govett v. Rad- nidge, 3 East 62; Dickon v. Clifton, 2 Wils. 319; Powell v. Layton, 5 Bos. & Pul. 365; Max V. Roberts, 12 East 89; Bretherton v. Wood, 3 Broad. & Bing. 54.] It is not to be denied that there has been a difference of opinion between some of the English judges on the question whether an action against a common carrier is an action founded on a tort or on a contract. Dallas, chief justice,^ seems to put that question at rest, by bringing it to a very fair test : does it require the plaintiff to show a contract, express or implied, to support it? The action on the case was at last decided to be for a tort or misfeasance. This w^as clearly the opinion of Lord Mansfield in the case [Cowp. 375] cited by Ch. Justice IMansfield,^ and all the cases in which it has been held necessary to join all the joint owners have been said by dis- tinguished judges to be clearly actions upon a promise. Much of the confusion has probably grown out of the forms of declaring in some of the cases, w^here it is difficult to determine whether the promise and undertaking often stated in the count, or the custom of the realm, also stated, is intended by the pleader to be the foundation of the action. I apprehend the true rule now is, that an action solely upon the custom is an action of tort ; that in such action all or any number of the owners of a vessel, coach, or any kind of conveyance used by com.mon carriers, may be sued, and judgment may be rendered on a verdict against all or a part only of those against whom the action is brought ; the plaintiff has his choice of remedies, either to bring assumpsit or case, and that when one or the other action is adopted it must be governed by its own rules. But if the plaintiff states the custom, and also relies on an undertaking, general or special, as in Boson V. Sandford and some others, then the action may be said to be ex delicto quasi ex contractu, but in reality is founded on the contract and to be treated as such. In Allen v. Sewall, 2 Wendell 338, in giving the opinion of the court, I remarked that all the co-partners should have been sued, as the action was quasi ex contractu. It was unnecessary in that case to say anything on that point, as no plea in abatement had been pleaded, and upon further examination I am satisfied the remark is incorrect for the reasons above assigned. It is certainly now settled in England that an action against a common carrier upon the custom is founded on a breach of duty, that it is a tort or misfeasance, and it follows that it is joint or sev- eral. In the case now under consideration all the counts are substan- tially upon the custom and in case, though some of them contain ex- pressions similar to those used in actions of assumpsit; but there is ' Tn I'nlliorton v. WnocI, supra. *In Powell V. Layton, supra. CUSTOMARY DUTY. I7 none of them which reHcs upon any undertaking^ of the defendants, and they all state the p^ravamen to be a breach of duty. I am therefore of opinion that an action on the case against a common carrier belongs to the class of actions arising upon a tort or misfeasance ex delicto, and that such actions being as well several as joint, it is unnecessary to join all the joint tort-feasors. The de- murrer is well taken, and the plaintifif is entitled to judgment of respondeas ouster. Justices Sutherland and Marcy did not hear the argument of this case and gave no opinion.^ ROCKWELL V. PROCTOR. u 39 Ga. 105. — 1869. Warner, J. — This was an action instituted by the plaintiff in a justice-court against the defendant, as an innkeeper, to recover the value of a lost overcoat, proven to be worth $30.00. The case was brought before the superior court by writ of certiorari, alleging that the justice-court erred in not dismissing the case for want of jurisdiction, and that the verdict was contrary to law and without evidence to support it. The superior court sustained the certiorari on both grounds, which decision of the superior court is assigned for error here. This was not an action of trespass but an action upon the implied contract of the innkeeper. There is always, in law, an implied con- tract with a common innkeeper, to secure his guests' goods in his inn: 3d Bl. Com., 164. Private duties may arise, either from stat- ute, or flow from relations created by contract, express or implied. The violation of any such specific duty, accompanied with damages, gives a right of action. When a transaction partakes of the nature both of a tort and a contract, the party plaintiff may zvaive the one and rely solely upon the other: Revised Code, §§ 2903, 2904. The justice-court had jurisdiction of the subject-matter of the suit in this case, the more especially as the defendant plead to the merits of the action without excepting to the jurisdiction of the court : Code, 3409- . An innkeeper is bound to extraordinary diligence in preserving the property of his guests entrusted to his care, and is liable for the same if stolen, when the guests have complied with all reasonable ^ Accord, that the action may be either contract or tort. Wood v. Milwaukee & St. Paul Ry., 32 Wis. 398 (1873). "The earliest reported case of indebitatus assumpsit upon a customary duty seems to be City of London v. Goree, 2 Lev. 174, i Vent. 298. 3 Keb. 677, Freem. 433 s. c." [1676]. — Ames, Hist, of Assumpsit, 2 Harvard Law Rev. 65. "Woodruff's Cases — 2 16 CUSTOMARY DUTY. rules of the inn : Code, 2091. It is not necessary to show actual de- livery to the innkeeper ; depositing the goods in a public room set apart for such articles is a delivery to the innkeeper : Code 2092 ; Sasseen & Whitaker v. Clark, ■}>7 Ga. R. 242. The overcoat was deposited on a shelf in the hotel, as directed by the person in charge thereof by the permission of the innkeeper, during his absence. It was the duty of the innkeeper, either by himself or competent serv- ants or agents, to take charge of the goods of his guests, and if he allowed persons to officiate in that capacity during his absence in his hotel, he is responsible for their conduct and for the loss of the goods deposited therein as directed by such servants or agents ; and it is no sufficient answer for the innkeeper to say, after the goods are lost, that the persons whom he permitted to officiate in that capacity during his absence were not his servants or agents. In our judg- ment the verdict of the jury in the justice court was right, under the law and facts of the case, and that the court below erred in sus- taining the certiorari. Let the judgment of the court below be re- versed.^ ^Accord, Morgan v. Ravey, 6 H. & N. 265 (1861) ; Dickinson v. Winchester. 4 Cush. 114 (1849), — assumpsit against an innkeeper for loss of a trunk by a hackman in the employ of the innkeeper to carry between railroad station and hotel. In Stanley v. Bircher, 78 Mo. 245, an action by a guest against the executor of an innkeeper for damages for personal injuries sustained by the guest by falling down a shaft in the hotel, the court said : "It is claimed by counsel for plaintiff that the action is for the breach of a contract, and that it is not an action on the case for injuries to the person. The allusions in the petition to the formal contract between the plaintiff and the proprietor of the hotel, whereby the plaintiff became a guest in the hotel, cannot change the true character of the action. In setting forth an action of trespass on the case the pleader often finds it proper, although not absolutely necessary, to mention matters of contract connected with the tort by way of inducement and ex- planation. In this case the relation of host and guest, which originated in contract, explains how the defendant's testator came to owe the plaintiff a duty. That duty, however, the law imposes. It is a public duty which is not defined by the contract. Neither can the proprietor relieve himself from that duty by contract. The action in truth is for a violation of the duty which the law imposes independent of contract. Neither the damages nor the scope of the action can be measured or limited by the contract." Part III. Recovery Upon the Doctrine that One Person Shall not be Allowed to Enrich Him- self Unjustly at the Expense OF Another. A. Introductory — Quasi-Contract and True Con- tract Distinguished. COLUMBUS, HOCKING VALLEY & TOLEDO RY. CO. v. GAFFNEY. 65 Ohio St. 104. — 1901. MiNSHALL, C. J. — The real question in the case, and the only one we shall consider, aside from one of pleading and evidence, is whether, on the admitted facts, the plaintiff below, Gaffney, was en- titled to recover of the defendant on an implied contract the value of the services for which he claims compensation. The plaintiff had a contract with the general government, by which, for a compensa- tion, he was bound to carry the mails to and from the depot of the Columbus, Hocking Valley & Toledo Railway Company to the post office at Lancaster, Ohio, and also to and from the Cincinnati & Mus- kingum Valley Railway Co. at the same place. These two roads at this point form a junction, the roads running on opposite sides of a common depot, within forty feet of each other. Each of these roads had a contract with the government for carrying mails over its road, by which each was required to transfer the mails over its road to that of the other, when required in the course of transit, as the distance between them was less than eighty rods, the contract with the government imposing that duty on each when the distance between them is no greater. During the entire period for which compensation was claimed this work had been performed by the plaintiff, — a period of over six years, — part of the time under a con- tract of the government with one Turner, of which the plaintiff was the assignee, and the residue of the time under a contract with himself ; the terms of both contracts being alike. The plaintiff dur- ing the entire time supposed that it was his duty, under his contract 19 -r 20 QUASI-CONTRACT AND TRUE CONTRACT DISTINGUISHED. with the government in regard to carrying the mails between the depot and the post office, to make this transfer between the two roads, and performed the service under this impression until he was informed by an agent of the government that it was not his duty, and was ordered to desist from doing so. No demand for compen- sation was made until he had received this order from the govern- m.ent agent, and he at no time supposed that he was entitled to any until this time ; nor was there any express request on the part of the company or its agents for the performance of the service, the com- pany having agents of its own at the depot, who should have per- formed the service. It also appears that at the time Turner assigned his contract to the plaintifif he informed him that this service was a part of his duty under the contract with the government. On this state of facts it is claimed that a contract should be implied on the part of the defendant to pay the plaintiff what his services were reasonably Vvorth in so transferring the mails for the defendant at the depot. The common pleas rendered a judgment in his favor for $603.58, being for a period of some six years, and the judgment was affirmed on error by the circuit court. There is some confusion in the statement of the law applicable to what are frequently called "implied contracts," arising from the fact that obligations generically different have been classed as such, not because of any real analogy, but because, where the procedure of the common law prevails, by the adoption of a fiction in pleading — that of a promise where none in fact exists, or can in reason be sup- posed to exist — the favorite remedy of implied assumpsit could be adopted. This was so in that large class of cases where suit is brought to recover money paid by mistake, or which has been ob- tained by fraud. Here it is said the law implies a promise to repay the money, when it was well understood that the promise was a mere fiction, and in most cases without any foundation whatever in fact. The same practice was adopted where necessaries had been furnished an insane person, or a neglected wife or child. In all these cases no true contract exists. They are, by many authors, termed "quasi-contracts," a term borrowed from the civil law. In all these cases no more is meant than that the law imposes a civil obligation on the defendant to restore money so obtained, or to com- pensate one who has furnished necessaries to his wife or child, where he has neglected his duty to provide for them, or, by reason of mental infirmity, is unable to obtain them for himself. But con- tracts that are true contracts are frequently termed implied con- tracts, — as where, from the facts and circumstances, a court or jury may fairly infer as a matter of fact that a contract existed be- tween the parties, explanatory of the relation existing between them. Such implied contracts are not generically different from express contracts. The difference exists simply in the mode of proof. Ex- press contracts are proved by showing that the terms were expressly agreed on by the parties, while in the other case the terms are in- ferred as a matter of fact from the evidence offered of the circum- QUASI-CONTRACT AND TRUE CONTRACT DISTINGUISHED. 21 stances surrounding^ the parties, makinf^ it reasonable that a con- tract existed between them by tacit understanding. In such cases no fictions are or can be indul.c^ed. The evidence must satisfy the court and jury that the parties understood that each sustained to the other a contractual relation, and that by reason of this relation the defendant is indebted to the plaintiff for services performed or for goods sold and delivered. In the leading- case of Hertzog v. Hertzog, 29 Pa. 465, the dis- tinction is clearly stated by Judge Lowrie. After quoting- from Blackstone, and observing that his language is open to criticism, he says : "There is some looseness of thought in supposing that reason and justice ever dictate any contracts between parties, or impose such upon them. All true contracts grow out of the intentions of parties to transactions, and are dictated only by their mutual and accordant wills. When the intention is expressed, we call the con- tract an express one. When it is not expressed, it may be inferred, implied, or presumed from circumstances really existing, and then the contract, thus ascertained, is called an implied one. * * * It is quite apparent, therefore, that radically different relations are classified under the same term, and this often gives rise to indis- tinctness of thought. And this was not at all necessary ; for we have another well-authorized technical term exactly adapted to the ofifice of making the true distinction. The latter class are merely con-, structive contracts, while the former are only implied ones. In one case the contract is a mere fiction, a form imposed in order to adapt the case to a given remedy ; in the other it is a fact legitimately in- ferred. In c«ie the intention is disregarded ; in the other it is ascer- tained and enforced. In one the duty defines the contract ; in the other the contract defines the duty." The subject is instructively treated by Professor Keener in chapter i of his work on Quasi- Contracts. He expresses the difference between an express contract and a true implied contract as follows : In the one case the language of contract is in terms used, and because of the expressions used the contract is called an express contract ; whereas in the other case the contract is established by the conduct of the parties, viewed in the light of surrounding circumstances, and is called a contract implied in fact." The language quoted by counsel for defendant in error from Swan's Treatise, 509, that "an implied contract is established by proof of circumstances showing either that in justice or honesty a contract ought to be implied, or that the parties intended to con- tract," is doubtless due to "the looseness of thought" on the subject to which the learned judge above refers. The language is quite appropriate to quasi or constructive contracts, frequently classed with implied proper contracts, but wholly inapplicable to true con- tracts. Swan evidentlv followed the language of Blackstone that has frequently been criticised. The rule of evidence applicable to the proof of an implied con- tract is accuratelv stated in Abb. Tr. Ev. 358, as follows : "In gen- eral, there must be evidence that defendant requested plaintiff to 22 QUASI-CONTRACT AND TRUE CONTRACT DISTINGUISHED, render the service, or assented to receiving their benefit, under cir- cumstances negativing any presumption that they would be gratui- tous. The evidence usually consists in — First, an express request pertaining to the services; or, second, circumstances justifying the inference that plaintiff, in rendering the services, expected to be paid, and defendants supposed, or had reason to suppose, and ought to have supposed, that he was expecting pay, and still allowed him to go on in the service without doing anything to disabuse him of this expectation ; or, third, proof of benefit received, not on an agree- ment that it was gratuitous, and followed by an express promise to pay." It seems, then, clear that no contract can be inferred from the facts in this case ; for it does not appear from anything in the case that the plaintifif performed the services for which he sues under a contract with the defendant whereby it was agreed between them that he should be compensated for his services by the defendant in any sum. There could have been no meeting of minds on any of its terms, and without which no contract can exist, whether express or implied. During all this time — some six years — in which he was engaged in doing the work the plaintifif supposed that it was his duty to do it under his contract with the government. He did not, therefore, during the time, regard himself as performing any serv- ices for the defendant, and made no claim against it for compensa- tion until after he had been informed that it was not his duty to do what he had been voluntarily doing. This fact negatives the existence of any contract, express or implied, having existed between the par- ties during the time the services were being performed. The minds of the parties could not have met on the subject of compensation, when the party doing the work had no idea that he was to be compensated by the defendant at the time the work was done. Under such cir- cumstances the understanding of the party for whom the work was done becomes immaterial, unless it had been so communicated to the other party as to have induced the performance of the services, which was not the case if it had any such understanding. But there is nothing in the case to show any such understanding on the part of the company. It is true that under its contract with the govern- ment it appears that the transfer of mails from its road to the other was one of its obligations, and the plaintiff, in attending to the matter, performed a service that it, through its agents, should have performed. Rut no request of the company is here shown by impli- cation, since the company had agents of its own at the depot, and the plaintifif, in doing what he did, performed services that should have been attended to by the emploves of the company. And had any claim been made by the plnintifF for compensation, or had the circumstances indicated that he would make such claim, doubtless the companv would have directed its own agents to attend to the business. This shows that there was nothing in the conduct of the plaintiff that indicated a purpose on his part to make a claim for compensation at the time the work was performed, and that the QUASI-CONTRACT AND TRUE CONTRACT DISTINGUISHED. 23 company did not re^^ard itself as receivin^ tempt being to sustain an action on it as such. But in this case, the contract, so far as the service has been performed, is executed, and is rehed on as ret^ulating and determining the right of the plaintiff to compensation for what has been done under it. We are here concerned only with what has been done. The question is, what the plaintiff is entitled to for his labor ; and this depends upon the terms of the contract under which he performed the service. Had the whole service been performed, the rate of compensation would, without doubt, be regulated by the terms of the contract. No court would discard that contract, and resort to a quantum meruit. The principle is the same as to a performance in part. The defendant may be without remedy for the desertion of the plaintiff, but he may certainly protect himself as to what has been done. * * * * ABBOTT V. DRAPER. 4 Den. (N. Y.) 51.— 1847. Error to Columbia C. P. The parties joined issue before a justice of the peace, Abbott being plaintiff, and Draper defendant. The declaration was for goods sold and delivered, and the money counts : plea, the general issue. The cause was tried in December, 1843. The case was this: In October, 1842, the defendant agreed to sell the plaintiff a strip of land about six feet wide and running back to the water, for the sum of $60 ; one-half of which the plaintiff was to pay in money and the other half in goods out of his store. The goods were to be delivered immediately, as they might be called for. by the defendant. The money payment was to be made in July, 1843, upon receiving which the defendant was to give a deed. The contract was reduced to writing; but was never signed by the parties. The plaintiff took possession and occupied the land ; and delivered goods to the defendant in pursuance of the contract to the value of $23.57. Upon this state of facts the plaintiff brought this action in December, 1843, to recover the value of the goods. The jury found a verdict for the defendant, on which the justice rendered judgment, which the C. P. affirmed on certiorari. The plaintiff brings error. Bronson, Ch, J. — As the writing which was prepared was not signed, there was nothing more than a parol contract for the sale of the land, which was void by the statute of frauds. But still the parties have acted under the contract as though it were valid ; and the plaintiff has received a benefit from it. He entered into the possession and enjoyment of the land ; and there is nothing to show that he is not still in possession. It would be strange indeed if he could recover in this action on the ground that the contract was void ; while he continues to receive advantage from it as a valid agreement. 96 BENEFITS CONFERRED UNDER CONTRACT. He cannot thus treat the contract as both g-ood and bad at the same moment. Honesty and fair deahng forbid it. Although the statute declares a parol contract for the sale of lands void, it does not make it illegal. It is not a corrupt or wicked agreement ; nor does it violate any principle of public policy. Parties are at liberty to act under such contracts if they think proper. IMany such have been carried into complete effect, by payment of the price, and conveyance of the land. Part performance does not take the case out of the statute, so that the contract can be enforced in a court of law. But when the vendee has received the possession and paid a part of the price, the contract is not so utterly void that he can recover back the money just as though there had never had been an agreement. If he can recover at all so long as the vendor is not in the wrong, he must, at the least, first restore the possession, and demand the repayment of the money. It is impossible to main- tain that he can retain the possession, and yet recall the money. And though he has never had the possession, or any other benefit under the contract, yet as he did not part with his money as a loan, but as a payment, he cannot recover it back without first demanding it from the vendor, and giving him notice that the contract is aban- doned. When a man has paid money as due upon contract to another and there is no mistake, and no fraud or other wrong on the part of the receiver, there is no principle upon which it can be recovered back, until after a demand has been made. It cannot be right to subject a man to an action for money which was received as his just due, before he has had notice that he who paid it has changed his mind, and intends to repudiate the obligation under which the payment was made. But the difficulty lies still deeper than this. So long as the vendor is not in default, but is ready to perform the contract on his part, I see no principle on which the vendee can recall the payments which he has made under the agreement. It was adjudged that he could not, in Dowdle v. Camp, 12 John. 451 ; and although there are some loose expressions in the books looking the other way, none of the cases maintain a dift'erent doctrine. When the vendor refuses to go on with the contract, or has parted with his title so that he cannot perform, he is then in the wrong; and having himself put an end to the contract, there is no longer any consideration for the payments which have been made under it ; and the law will imply a promise to restore the money. But how can the law imply a promise to refund the money so long as the vendor is not in default? The payment was a voluntary one, made with a full knowledge of all the facts. Every time a payment was made and received, the parties virtually said, although the law will not enforce this contract, we will go on and carry it into effect. The money is not received as a loan, but as a payment : and so long as the vendor is able and will- ing to perform the contract on his part, he holds the money as owner, and not as a debtor. The consideration upon which the STATUTE OF FRAUDS. 97 money was paid has not failed, and tlicre is nothing from which a promise to repay can be justly implied.' In this case, the plaintiff was let into possession of the land, and, for aught that appears, he has the possession still. He is in default for not making the money payment which was due in July, 1843 5 while there has been no wrong whatever on the part of the de- fendant. So as far as appears, he is able and willing to convey on re- ceiving the balance of the price. The defendant did not receive the goods in question as a debtor, but as a payment, and the considera- tion upon which they were delivered has not failed. Before the plaintiff can recover their value he must put the defendant in the wrong by tendering the balance of the purchase money and de- manding a deed. Should it be admitted that the vendee can repudiate the contract without any default on the other side, still he must give notice to the vendor that the contract is abandoned, and demand a return of the money paid, before he can sue to recover it. Any other rule would be plainly unjust toward the vendor. And yet that is the very thing which has been done by this plaintiff. After having made payments under the contract from time to time, he stopped short and brought this suit, without ever having told the defendant that he had changed his mind, or demanded payment for the goods which had been de- livered. This is not fair dealing, and the law will not sanction it. Judgment affirmed.^ KING v. WELCOME. 5 Gray 41.— 1857. 'Thomas, J. — This was an action of contract on a quantum mcndf, for labor done by the plaintiff for the defendant. The amount and value of the plaintiff's services were not disputed, but the defendant relied upon an express contract by which the plaintiff was to work for an entire year, and a breach of such contract by wrongfully leaving the plaintiff's service before the year expired. That con- tract was not in writing. By its terms, the plaintiif was to labor for one year from a day future. The plaintiif said that contract was within the statute of frauds, and could not be set up in defense to the action. So the court ruled. ^Accord, Collier v. Coatcs, 17 Barb. 471 (1854) ; Hoskins v. Mitcheson, 14 Upper Can Q. B. 551 (1857). ^Section 1183 of the Cal. Code of Civ. Pro. provides that certain building contracts shall be "wholly void," etc., unless in writing and filed for record. As to the efifect of failure to comply with this requirement upon the right to recover in quasi-contract for benefits conferred, see Laidlaw v. Marye, 133 Cal. 170 (1901). Woodruff's Cases — 7 98 BENEFITS CONFERRED UNDER CONTRACT, Rightly, we think ; though, in the hght of the authorities, the question is a nice and difficuU one. Upon the reason of the thing, and looking at the ohject and pur- pose of the statute, the result is clear. So far as it concerns the prevention of fraud and perjury, the same objection lies to the parol contract, whether used for the support of, or in defense to an ac- tion. The gist of the matter is, that, in a court of law, and upon im- portant interests, the party shall not avail himself of a contract rest- ing in words only, as to which the memories of men are so imperfect, and the temptations to fraud and perjury so great. The language of our statute is, that "no action shall be brought upon any agreement that is not to be performed within one year from the making thereof, * * * unless the promise, contract, or agreement upon which such action shall be brought, or some memo- randum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some person thereunto by him law- fully authorized." Rev. Sts., c. 74, § i, CI. 5. Looking at the mere letter of the statute, the suggestion is ob- vious, that no action is brought upon this contract. But the de- fendant seeks to "charge the plaintiff therewith," to establish it by proof, to enforce it in a court of law, and to avail himself of its provisions. And if the defense succeeds, the plaintiff is in effect charged with and made to suffer for the breach of a contract which he could not enforce, and which could not be enforced against him. The difference, it is clear, is not one of principle. To illustrate this, let us suppose that in the contract, which the defendant seeks to set up in defense, there had been a provision for the payment of the wages stipulated, by semi-annual instalments. If, upon the ex- piration of the six months, the plaintiff' had brought an action upon the contract to recover the instalment, the action could not be main- tained ; the statute of frauds would be a perfect defense. This is settled in the recent case of Hill v. Hooper, i Gray 131. But if in an action brought for money lent or goods furnished to himself or family, he may avail himself of the instalment, by way of set-off or payment ; the difference is merely one of form, and not of substance. Still further, upon the construction of the statute contended for by the defendant, the laborer in the contract stated would be without remedy. For if he brought his action upon the contract for the in- stalment, the statute of frauds would be a bar ; if upon a quantum meruit, the express contract to labor for a year would be a bar. The sounder construction of the statute, we think, is that a con- tract within its provisions is one which neither party can enforce in a court of law. Carrington v. Roots, 2 M. & W. 248; Reade v. Lamb, 6 Exch. 130; Comes v. Lamson, 16 Conn. 246. The cases in the exchequer go fartber than is necessary to sustain the rule stated. They hold tbe contract, as a contract, is void, because it is a con- tract of which a party cannot avail himself in a court of law. Upon this point the recent case of Lcroux v. Brown, 12 C. B. 801, is in conflict with them. STATUTE OF FRAUDS. 99 This court has not treated the contracts as absokUely void. When fully executed, they define and measure the rights of the parties thereto. And if this contract had been fully executed, and the plain- tiff had earned the price stipulated, and had then brought quantum meruit on the ground that his services were reasonably worth more, the contract so executed would have been a full answer. Stone v. Dennison, 13 Pick. i. But this contract was not performed; it was, to a great extent, executory. For breach of it by the defendant, no action could be maintained by the plaintiff. Nor, by parity of rea- son, can the plaintiff's breach of it be set up to defeat his reasonable claim for services rendered. But though a contract within the statute of frauds, as a contract, cannot be enforced in a court of law, it may be available for some purposes. A parol contract for the sale of land, though not enforceable as a contract, may operate as a license to enter upon the land, and, until revoked, be a good answer to an action of trespass by the OAvner. So where money has been paid upon a parol contract for the sale of land, it cannot be recovered back, if the vendor is willing to ful- fil the contract on his part. This is settled in the recent case of Coughlin v. Knowles, 7 Met. 57, a case which certainly resembles the one at bar, but which may be clearly distinguished from it. That action rests upon an implied assumpsit. The implied promise arises only upon the failure of the consideration upon which the money was paid. The plaintiff fails to show any failure of consideration. He shows the money was paid upon a contract* not void, and which the defendant is ready to perform. The consideration upon which it was paid exists unimpaired. If the defendant had refused to con- vey, or if, as in the case of Thompson v. Gould, 20 Pick. 134, the property had been destroyed by fire, so that the contract could not be performed by the vendor, there would be a feilure of considera- tion, from which an implied promise would arise, and the action could be maintained. In the case at bar, the plaintiff shows services rendered for the defendant, and their reasonable value. The defendant, admitting the performance of the labor and its value, says the plaintiff ought not to recover, because he made an entire contract for a year, which he has not fulfilled. The plaintiff replies, that contract was for work for a year from a day future ; it was within the statute of frauds ; it was not in writing ; it was not executed, and cannot be used in a court of law, either as the basis of an action, or to defeat a claim otherwise just and reasonable. In the case of the money paid upon a contract for the sale of land, the action fails because no failure is shown of the considera- tion from which the implied promise springs. In the case at bar, the defense fails because the contract upon which the defendant relies is not evidenced as the statute requires for its verification and enforcement. For it is the whole contract of which the defendant seeks to avail himself. His defense is not lOO BENEFITS CONFERRED UNDER CONTRACT. that as to so much as is executed, as to so much time as the plain- tiff has labored, he labored under the contract, and the price stipu- lated is to govern. But he relies upon the contract, not only so far as it is executed, but so far as it is still executory. He seeks first to establish the parol agreement as a valid subsisting contract, and then to charge the plaintiff with a breach of it. A construction of the statute which would sanction this use of the contract, would lose sight of the obvious purposes of the stat- ute. It would adhere to the letter at the expense of the spirit. It would operate unequally upon the parties. The weight of authority is against it. Exceptions overruled.^ Coleman, J., in NELSON v. SHELBY MANUFACTURING COMPANY. 96 Ala. 515, 526.— 1892-93. In many English cases, and in some of the states, it is held that money paid on a purchase of land cannot be recovered back, if the vendor is able and willing to carry out the contract of sale, although he may be under no legal obligation to perform. We are of opin- ion that this principle has never prevailed in this state. In Flinn V. Barber [64 Ala. 193], it is said that the validity of the con- tract does not depend upon the willingness or election of the vendor, but upon the sufficiency of the written note or memorandum of the contract of sale, subscribed by him, to make it obligatory'upon him, or upon such a part performance by the vendee, as to remove the contract from the operation of the statute of frauds, so that it be- Mn Riley v. Williams, 123 Mass. 506 (1878) the action was brought upon a quantum meruit and the evidence tended to show a special contract, not in writing, by which the plaintiff agreed to do certain work for the defendant, and to receive in payment therefor a lot of land, to be selected by him out of a number of lots owned by the defendant, and blacksmith's work to a stated amount from a firm of blacksmiths ; and that the plaintiff, after perform- ing the labor, refused to accept payment as stipulated in the contract. The court said: "Under the instructions given, the jury must have found that, although the services as claimed by the plaintiff were actually rendered, yet he had agreed that he should be paid in the manner stipulated in an executory contract which the defendants arc ready and able to perform. If he was to be paid partly in a lot of land belonging to the female defendant, and partly in blacksmith's work to be furnished 1)y Cameron & Emerson, and the jury were satisfied that the defendants were ready and willing at all times to convey the land at its fair market value and Cameron & Emerson were always ready to furnish the blacksmith's work for him when called for at agreed or reasonable prices, it is not for the plaintiff to object that this special contract was not binding because it was not in writing. Tt was wholly immaterial that no ac- tion coiild be maintained on this special contract, because it was not reduced to writing, if the defendants were ready and willing at all times to carry it into full effect. The plaintiff cannot force the defendants to take their stand upon the statute. Coughlin v. Knowles, 7 Met. 57. Wethcrbee v. Potter, 99 Mass. 354, .361." / STATUTK OF FRAUDS. lO' came mutually bindin*:::. We find nothing in the earlier or present statutes of frauds which supports the conclusion that a contract not enforceable against a vendor as provided in the former, or which is declared void as to him by the present statute, because there is no sufficient written note or memorandum of the agreement to comply with its mandates, subscribed by him, and which affords the vendor complete protection against his vendee, may, by his election or will- ingness to perform, avoid the statute, and convert a contract it de- clares void into a valid agreement, enforceable against a vendee, who has subscribed no note or memorandum of the agreement, and has done no more than pay a part of the purchase-money. In such a case neither party is bound, and the contract is void by the terms of the statute itself. A contract void under the statute of frauds is void for all purposes.^ IMPROVEMENTS. LONG v. FINGER. 74 N. C. 502.— 1876. This was a civil action, in the nature of ejectment. Rodman, J. — The plaintiff has the legal title to the land in con- troversy, and is therefore admittedly entitled to recover unless the defendant has some equity to restrain him. The defendant alleges that the plaintiff by parol agreed to convey the lot to him on the payment of $150; that he thereupon entered into possession and put up improvements to the value of $150; he admits that he has never paid the plaintiff the purchase money and is unable to do so. He contends that he ought to be allowed the value of his improve- ments, or at least that the premises be sold and any excess they may bring over the purchase money, and damages for withholding the possession, and the costs of this action, may be paid to him. It may be observed that although the contract was originally by parol and could not be enforced, yet as the plaintiff in his replica- tion acknowledges the contract and offers to perform his part of it on performance by the defendant, the defendant does not need any decree of a court to give him that relief. It is competent for him to sell his estate in the premises, and if he can obtain for them a price in excess of the just demands of the plaintiff, the excess will be his, unless the plaintiff will have in that event a right to tack on his subsequent loan of $100. As no case is before us calling for any opinion as to the plaintiff's right in that respect, we express none. If the defendant cannot sell his estate in the premises subject to the plaintiff's claim, for anything, the inference is clear that al- * Accord. Scott v. Bush. 26 Mich. 418 (1873), 29 Mich. 523 (1874) ; Koch v. William?, 82 Wis. 186 (1892). 102 BENEFITS CONFERRED UNDER CONTRACT. though his improvements have cost him something, they have added nothing to the value of the lot. Beyond the remedy indicated, the defendant has no equity or title to relief. He relied in the argument on the case of Albea v. Griffin, 2 Dev. & Bat. Eq. 9, and others, to the efifect that if a vendee by parol paid part of the purchase money, or entered and made im- provements, although he could not enforce a specific performance on the ground of part performance, yet the vendor would not be allowed to turn him out without repaying what of the purchase- money had been paid and making compensation for the improve- ments. Obviously the present case does not stand on the same foot- ing. Here the vendor does not set up the statute of frauds, but waives it, and is both willing and able to comply. The defendant alone is in default. There is no error and the plaintiff is entitled to judgment for the possession of the premises on the plead- ings. * * * * Per Curiam. Judgment affirmed, with costs to the plaintifif in this court.^ MASSON V. SWAN, adm'x, et al. 6 Heisk. (Tenn.) 450. — 1871. Nicholson, Ch. J. — In May, 1857, William Swan agreed to sell to Paul Masson a vacant lot in Knoxville for $600. The agreement was in parol, no note given for the purchase money, and no time fixed for its payment, and no written memorandum of the terms of sale. Masson took possession of the lot and proceeded to make permanent improvements upon it by erecting buildings thereon for a residence. From the 25th of December, 1857, to the 25th of De- cember, i860, he occupied the premises as a residence. No pay- ment on the purchase money was made, and no application to Swan for a title. Swan died in March, 1859. The bill was filed May 2, i860, making no tender of purchase money, and asking for no execution of the contract by title from the heirs of Swan, but assuming that the contract was void because not reduced to writing, and claiming compensation for the permanent improvements to the amount of the enhanced value of the property, setting off against such the rents, after deducting the amounts paid for taxes and insurance. The widow of William Swan, as his ' Accnrrl, Farnam v. Davis. 32 N. H. 302 (1855), in an action of assumpsit for improvements. Tn Hawkins v. Real, 4 Dana (Ky.) 5 (1836), the vendee filed a bill in equity to recover the value of improvements.he having defaulted upon the oral contract and been evicted. The court said : "Had it clearly appeared that the non-execution of the contract was attributable altogether lo his wilful delinquency or fault we should be indisposed to concede to him any right in equity to any compensation whatever." But it not being cleat that the vendee's default was wilful he was allowed to recover. STATUTE OF FRAUDS. IO3 administratrix, and his heirs, were made defendants. The heirs answered — ^those who were adults answering- for themselves, and those who were minors by their regular guardian, the service of process on them being waived by him. By reference to the clerk and master the amount of the enhanced value of the lot was ascer- tained, to which was added the amount of taxes and insurance paid, and from the aggregate sum the amount of the rents was deducted. For the balance a decree was rendered, and an order of sale of the lot for its satisfaction. Both sides have appealed. * * * * It is said that there is no equity in the bill, and that complainant has no right to the aid of a court of equity to enable him to rescind the contract. By the recent decisions of this state the contract of sale was not absolutely void, but voidable upon the election of either party. Roberts v. Francis, 2 Heis. 128. Swan, the vendor, did not elect to avoid the contract, nor did his heirs after his death. Com- plainant made no tender of the purchase money, and could not claim a title until he had done so. He rested upon the parol con- tract, made the improvements, and occupied the property as his own under the parol contract until May 2, i860, when he elected to avoid the contract and claim compensation for his improvements. He had the right to make his election, and as the improvements were made under a subsisting parol contract, he had the right to come into a court of equity to have his claim for compensation en- forced. The equity springs from the fact that the contract is not void but voidable, and that either party has the right to avoid it. Rhea v. Allison, 3 Head 176. The equity of complainant is the amount of the enhancement of the value of the lot in market, resulting from the permanent im- provements made upon it; this value to be estimated at the time he made his election to avoid the contract. The amounts actually ex- pended in making or superintending the improvements do not fur- nish the criteria for ascertaining the enhanced value, though they may be looked to as legitimate evidence in the investigation. But as complainant seeks the enforcement of an equity, he is bound to do equity ; hence, he is required to account for the benefits derived from the use and occupation of the property. As he elects to re- pudiate the contract, and along with it the payment of the purchase money, equity requires him to account for reasonable rents. During the occupation of the lot the law imposed taxes on the property. These were encumbrances, for the removal of which he ought to have credit upon the amount of the rents. But the insurance paid upon the property stands on a different footing. He insured the property voluntarily and for his own protection, and while he was holding and treating the property as his own. We see no equity in allowing him a credit for this expenditure. The balance due to complainant will bear interest from the filing of the bill. The only remaining question is as to whether the enhanced value should be paid by the administrator or the heirs? It cannot be re- ^I04 BENEFITS CONFERRED UNDER CONTRACT. garded as a debt against tb.e administrator. The liability arose upon the election of complainant to avoid the contract, and it is a liability arising out of no default on the part of the intestate or his administratrix. For all we can see, the intestate was ready at any time to make title if complainant had entitled himself to it by ten- dering or paying the purchase money. Not electing to do this dur- ing the lifetime of the intestate, and only making his election to avoid the contract after the legal title had descended to the heirs of the intestate, at which time his equitable claim for compensation came into existence, we think it clear that the liability attaches to the property itself out of which it sprimg, and that it cannot be viewed as a debt of the estate to be paid by the administratrix. The real estate and not the personal is benefitted by the improvement, and equity necessarily fixes the liability for the benefit on the real estate. With the modifications indicated the decree of the chancellor is affirmed. The heirs will have four months with which to pay the amount ascertained to be due. The clerk of this court will make report of the amount due to the present term. The costs will be paid by complainant.^ ii. Defendant in Default. RICHARDS v. ALLEN. 17 Me. 296.— 1840. Assumpsit for a quantity of bricks delivered in 1829, and a yoke of oxen delivered January 27, 1832. The writ was dated January 2y, 1838. Eighteen or twenty years before the commencement of the suit, the plaintiff contracted verbally with the defendant for the purchase of a farm, and entered upon the farm under that verbal contract, and lived thereon until the time of trial. The bricks and the oxen were delivered at the respective times charged in part pay- ment of the farm, under the verbal contract for the purpose thereof. Weston, C. J. — The contract between the parties in regard to the farm, was one, which being by parol, could not be enforced at law. It was however morally binding; and payments made by the plain- tiff on account of the purchase could not be reclaimed so long as the defendant was in no fault. But if he, without any justifiable cause, repudiated the contract, and refused to be bound by it, a right of reclamation would accrue to the plaintiff, to the extent required ' But recovery for improvements will not be allowed to the vendee in default, who has notice that the vendor was opposed to the improvements beingr made. Rainer v. Huddlcston, 4 Heisk. (Tenn.) 223 (1871). STATUTE OF FRAUDS. IO5 by the principles of justice and equity.^ The statute of Hmitations would not begin to run until the cause of action accrued. The terms of the contract do not appear in evidence; but in the spring of 1837, the defendant recognized the contract as a subsist- ing one, acknowledged the payment of half the amount of the pur- chase, by bricks and a yoke of oxen, and promised in a few days to give the plaintiff or his son a deed of the farm, doubtless upon be- ing paid or secured the remainder of the purchase money. On the i8th of January following he conveyed the farm to a third person. This was putting- an end to the contract, by depriving himself of the power to fulfil it. Was he justified in this course by any act or failure on the part of the plaintifif? Nothing of this kind was offered in proof by the defendant, except the declarations made by the plaintiff to the witness Dickey. That was a casual conversation, giving no authority to the witness to make any communication to the defendant. The plaintiff cannot thereby necessarily be understood to have waived his rights. He stated that he had no interest in the land, and that the defendant might convey it to whom he pleased. This was true, if understood, as it may be of legal interest on the one hand, and of legal power on the other. The testimony of Dickey therefore, if received, might not conclusively affect the merits of the cause, or justify the conveyance made by the defendant, with- out subjecting him to a right of reclamation by the plaintiff. It may be contended that this right could not be exerted until the plaintiff had first tendered to the defendant the remainder of the purchase money and thereupon demanded a deed. This may be true if the defendant had not, by his own act, deprived himself of the power of fulfilment. This excuses the useless ceremony of tender and demand which might otherwise have been essential to the maintenance of the action. Newcomb v. Brackett, 16 Mass. R. 161. But the plaintiflF's claim must be limited to what is just and equita- ble under all the circumstances. He had made some payments ; but he had enjoyed the farm for eighteen or twenty years. The jury should have been permitted to take this into consideration, even without an account in offset, as it was necessarily connected with the plaintifif's claim, and was of a character to affect and qualify it. This not having been done, we sustain the exceptions and grant a new trial. ^ * Accord, Bucki v. McKinnon, y] Fla. .391 (1896), where a statute required agricultural, lumbering, etc., contracts to be in writing. ''The Measure of Recovery. — Dix v. Marcy, 116 Mass. 416 (1875). Oral contract by plaintiff to convey land to defendant who promised support to plaintiff and family in return, and to give a mortgage on the land or life lease thereof to secure performance. Plaintiff conveyed the land, but defendant after performing in part, broke the contract. Plaintiff can recover the value of the land conveyed, less the value of defendant's part performance. And see also. Miller v. Roberts, 169 Mass. i.?4 C1897). In Ham v. Goodrich, Adm'r, yj N. H. 185 (1857), the plaintiff went to live with defendant's intestate upon the farm of the latter under an oral contract I06 ^ BENEFITS CONFERRED UNDER CONTRACT. SMITH V. HATCH. 46 N. H. 146.— 1865. Indebitatus assumpsit, for land sold and for money had and re- ceived. The plaintiff's evidence tended to show that the plaintiff and defendant made a parol agreement, by which the plaintiff was to convey to the defendant a tract of wild land in part payment for a farm which the defendant was to convey to plaintiff ; that the de- fendant was to allow $125 for the wild land in part payment for the farm, and that if he should get more than $125 by sale of the wild land, he was to allow what he should get ; that plaintiff had conveyed the wild land to defendant, but defendant had not con- veyed the farm to plaintiff according to the parol agreement ; that the defendant had sold the wild land and received some money for it. The defendant moved for a nonsuit, on the ground that indebi- tatus assumpsit would not lie. The court overruled the motion and defendant excepted. The defendant moved to set aside the verdict which was for plaintiff. The questions arising in the case were re- served. Sargent, J. — It is to be assumed that all proper instructions were that his farm should be conveyed to the plaintiff from and after the death of defendant's intestate. Plaintiff fully performed, but defendant's intestate failed to perform. The court said, upon the measure of recovery: "The re- covery of the plaintiff being founded upon the general counts, and upon them alone, the instructions of the court that what he received from the farm as he went along might be applied in payment for his services, were correct. What did he reasonably deserve to have, under all the circumstances, was the ques- tion. The actual services performed by himself and family; the circumstances under which he went to reside there; the board of the defendant's intestate; the income of the farm received by the plaintiff, and the board of himself and family; all these matters, and others that might be suggested, were to be considered by the jury in deciding what the plaintiff was justly entitled to and should receive." In Day v. N. Y. C. R. R. Co., 51 N. Y. 583 (1873), Earl, C, says : /Tn con- sideration of the conveyance of the land to the defendant, it was to give to the plaintiff at his yards and pens the business of temporarily keeping and feeding all the stock which should be transported upon its road eastward from Niagara River. Hence we must assume, for the purposes of the appeal, that the parol agreement, as testified to by the plaintiff, was established. We imust also as- sume that ihis agreement was void under the statute of frauds, for such is the claim on the part of the defendant, and it was upon this theory alone that the recovery was based, and upon it alone the plaintiff seeks to uphold the judg- ment. As the consideration for the plaintiff's land, the defendant agreed to pay him one dollar and to give him the stock business at his yards. It paid him the one dollar and gave him all the business for the year 1855 and part of it for the year 1856, and out of this business the plaintiff made profits to the amoimt of about $6,oo(5. And yet he brings this action to recover the entire value nf the land conveyed by him on the ground nf a total failure of the con<;iderntion of his conveyance. A mere statement of the case shows that the action must be without foundation." And it was held that the measure of plaintiff's recovery should be the value of the land he conveyed, less the amount of profits he received from the partial performance by the defendant. STATUTE OF FRAUDS. IO7 given to the jury upon the rj^uestion of the rescission of contracts and all other questions arising in the case, and that the verdict for plain- tiff was properly rendered upon the evidence, provided the action of indebitatus assumpsit will lie upon the facts here stated. De- fendant claims that there has been a part performance by plaintiff in conveying the wild land to defendant, and that plaintiff has a remedy by bill in equity to enforce a specific performance of the contract, and that having such a remedy he can have no other. But we do not understand such to be the law. In Allen v. Webb, 24 N. H. 278, it is held that "where one party to a contract refuses to perform his part of the same, the other party may insist upon the contract being carried out, or he may avail himself of the refusal and rescind the contract." Without con- sidering, therefore, whether the part performance by plaintiff was such as to take the case out of the statute, and enable him to enforce a specific performance on the part of defendant, we think that if such were the admitted fact, the plaintiff might elect his remedy, and either enforce the contract or rescind it and recover back the value of the land he had conveyed. If the defendant had not sold this land, the count for money had and received could not have been maintained, though the count for land sold would then have been well enough. But the plaintiff may now, by adopting the act of sell- ing on the part of defendant and ratifying the same, recover the money which defendant received for the land under the count for money had and received. A verdict may therefore have been properly returned for plain- tiff on either count in his declaration. The defendant has no cause of complaint and the exceptions are overruled. See Stevens v. Gushing, i N. H. 18; Lane v. Shackford, 5 N. H. 130; Child v. Moore, 6 N. H. 33 ; Fuller v. Little, 7 N. H. 535 ; Luey v. Bundy, 9 N. H. 298; Ayer v. Hawkes, 11 N. H. 148; Snow v. Prescott, 12 N. H. 535 ; Gillet v. Maynard, 5 Johns. 85 ; Merrill v. Downs, 41 N. H. 72. Judgment on the verdict.^ ' Does the Existence of the Equitable Remedy of Specific Performance Debar Plaintiff From a Quasi-Contractual Action? — In Reynolds v. Reynolds, 74 Vt. 463 (1902), plaintiff, who was defendant's brother, worked on defendant's farm under an oral contract whereby defendant was to convey plaintiff an interest in the farm. Defendant broke the contract and plaintiff sued for his labor. The court said : "The defendant suggests that in any event the plaintiff ought not to recover in this action because he might have enforced specific performance in equity, — that the plaintiff's living and working upon the farm, and having the place set in the tax list to himself and his brother jointly, and paying one-half the taxes, amounted to taking possession, and was a part performance that would have avoided the effect of the statute of frauds. We have not considered whether the plaintiff was in a position to have sought relief in equity, for if he was, the defendant cannot take advantage of that. The contract was not one for the breach of which the plaintiff could sue at law, for it was not in writing, but he still had this action for the value of his services. If there was an equitable relief also, it was for the benefit of the plaintiff, not of the defendant, who cannot insist that he ''108 BENEFITS CONFERRED UNDER CONTRACT. GAY V. MOONEY. d^ N. J. L. 27. — 1901. Dixon, J. — The defendant's intestate was the uncle of the plain- tiff's wife, and for several years before his death resided in the plaintiff's family. In the present suit the plaintiff sought to recover compensation for the board and lodging furnished to the deceased. In order to rebut a presumption that the service was rendered and received as a gratuity, the plaintiff put in evidence tending to show an understanding between himself and the deceased that the latter would devise a certain dwelling house to the plaintiff's chil- dren in return for what he should receive as a member of the fam- ily. For such a purpose this evidence was plainly legitimate. It came within the rule laid down in Disbrow v. Durand, 54 N. J. Law 343, 24 Atl. 545, 33 Am. St. Rep. 678, that in cases like the present a reasonable and proper expectation that there would be compensation must, and hence may, be shown. The bargain thus exhibited is not one on which an action at law could be maintained, because it related to land, and was not susceptible of such proof as the statute of frauds requires ; but when, in pursuance of a bargain for this reason unenforceable, services have been rendered, the legal remedy is by an action on the quantum meruit for the value of the services. McElroy v. Ludlum, 32 N. J. Eq. 828. As was said in Stone v. Todd, 49 N. J. Law 274, 281, 8 Atl. 300, the in- tended devise was but the method of paying an admitted obligation, and, if payment in that manner be not made, the creditor is entitled to recover the value of the services. Although the bargain between the plaintiff and the intestate contemplated payment to be made to the plaintiff's children, and not directly to himself, yet, as that bargain did not take the form of an actionable contract, it falls out of view as a ground of legal remedy, and appears only to give color to the conduct of the parties in fur- nishing and accepting the service rendered. It affords the means of determining that the service was not a gift, but a sale, and out of that determination the law deduces a right in him who sold the serv- ice to be paid its value by him who bought it. These principles sufficiently answer the important exceptions taken at the trial and all the exceptions mentioned in the brief of counsel. The other ex- ceptions, therefore, need not be noticed. The judginent of the Middlesex pleas is affirmed. should be compelled to do what he has been asked to do and has refused. That one has an adequate remedy at law may be a reason why equity should not hear his prayrr, hut that he miRht have claimed relief in equity is no reason why he should not have his usual remedy at law. The plaintiff should recover, then, what his labor was worth." STATUTE OF FRAUDS. IO9 WILLIAMS V. BEMIS, Executor. 108 Mass. 91.— 1871. Contract for work done and materials furnished in cultivating the land of Harolin Towne, the defendant's testator. Trial in the superior court, before Scudder, J., who, before verdict, by consent of the parties, made a report of the case, of which the material parts were as follows : "The plaintiff testified that the work was done and the materials used by him upon the land of Towne under Towne's general direc- tion. On cross-examination he testified, against his own objection, that before he began the work Towne said he might take the land for one year and plant it with potatoes, and he would furnish one- half the seed and the necessary dressing, and give the plaintiff two- thirds of the crop ; that the plaintiff declined to take the land for one year upon the terms named, telling Towne that the labor and seed to be furnished by him would cost more than he could get for it the first year ; but that he told Towne he would take the land and do the work on it for two years for two-thirds of the crop for two years, the plaintiff* to furnish one-half of the seed and all the labor, and Towne all the manure, and phosphate if necessary, and Towne assented ; that the work named in the declaration was done under the contract during the first year ; that at the expiration of the first year the crop of that year was divided according to the con- tract, the plaintiff taking two-thirds and Towne one-third thereof; that Towne then refused to allow the plaintiff to plant the land the second year; and that the work done and seed furnished and used upon the land by the plaintiff during the first year was more than was necessary for the first year's crop, and of greater value than the plaintiff's share of that crop, and inured to the permanent bene- fit of the land, and of the crop for the second year, as was under- stood and anticipated by the parties when the contract was entered into and the work was done and the seed used upon the land." If upon this testimony the plaintiff was to recover anything be- yond the crop already received by him, then judgment was to be entered for the plaintiff for the sum of $53.25, otherwise judgment to be entered for the defendant. Ames, J. — * * * * ^j^g defendant insists that the work was done by the plaintiff in the cultivation of crops which were to be partly his own, and was not done upon the credit of Towne, or with any expectation of charging it against him. Such undoubtedly was the understanding of the parties originally. But as Towne saw fit to say that the special contract was not binding upon him, it cannot be set up by his executor as binding upon the plaintiff. King V. Welcome, 5 Gray 41. It cannot be treated as a nullity for one purpose, and as a contract for another. It required two years for its completion, and both parties understood that there was to be ^ no BENEFITS CONFERRED UNDER CONTRACT. no profit or advantage to the plaintiff except from the operations of both years taken together. A large part of the labor and ex- pense incurred in the first year, had no reference whatever to the operations and results of that year, taken by itself, but were a prepa- ration of the land for increased productiveness in the second year. The plaintiff must be considered as having, in that way, paid in advance, in part at least, for the privilege of using the land the sec- ond year in the manner agreed upon. By the repudiation of the contract, he has lost the privilege which he had so paid for. The consideration upon which he made that payment has failed by the wilful act of the other party to the contract, and he is therefore en- titled to recover back what he has so paid. Basford v. Pearson, 9 Allen 387. If it had been a payment in money, it would be too plain to be controverted. A payment in labor and services, of which the other has secured the benefit, stands upon the same ground. Judgment for the plaintiff for the sum agreed. BANKER V. HENDERSON. 58 N. J. L. 26.-1895. Reed, J. — This action was brought to recover the value of the labor and materials expended by the plaintiff in making a wood chopper. It appeared in evidence that the plaintiff verbally agreed to furnish to the defendant a boiler, engine, saw, and wood chopper, for the sum of $450. The engine and boiler were then in existence, but the saw and the chopper were to be made. They were all to be used together, and the price was entire. The defendant refused to receive them, and on account of his refusal they were never de- livered. On the trial, upon an objection interposed by the counsel for the defendant that this parol agreement was within the statute of frauds, the trial court ruled that this was so in respect to the boiler and engine, which were in existence when the agreement was made. The court also ruled that the contract was entire, and not severable, and therefore the whole was within the statute. Never- theless the court permitted the plaintiff to prove the value of his labor expended by him in building the chopper, and also the value of the material used for that purpose. The jury was charged that it could return a verdict for this amount, which amount the jury assessed at $278.71. To this charge the defendant took an excep- tion. The result of this is that the title, not only to the engine and the boiler, but to the wood chopper, upon which this labor and ma- terial were expended, remains in the plaintifl", while the defendant, who receives no benefit whatever from it, pays for all this which went to the enhancement of the plaintiff's property, or rather to the creation of property for the plaintiff. STATUTE OF FRAUDS. Ill The theory upon which the ric^^ht to recover for labor or materials furnished under a void contract rests is that one person has received such a benefit as would raise an implied assumpsit on his part to pay for it, and that his failure to perform his side of the contract gives a right of action against him upon this implied assumpsit. In Afc- Elroy V. Ludlum. 32 N. J. Eq. 828, services as superintendent had been actually rendered in the business of the firm under an agi"ec- ment invalid because of the statute. In Mayor v. Pyne, 3 Bing, 285, under a void agreement to deliver twenty-four numbers of a periodical work, eight numbers had been delivered. Upon refusal of defendant to take the rest, there was a recovery for the eight actually received. In Shute v. Dorr, 5 Wend. 204, a parent bargained to receive $100 for the services of his child from the ages of sixteen to twenty-one years. He was permitted to recover on quantniit meruit for the services actually rendered, the contract being void under the statute. Indeed, in every case in which a recovery has been permitted on the common counts under these conditions, there has been money advanced under the contract, or labor or materials furnished for the benefit of defendant or his property. Lockwood v. Barnes, 3 Hill 128; Gray v. Hill, Ryan & M. 420; WilHams v. Bemis, 108 Mass. 91. Thus, if one puts improvement upon land which he occupies as vendee, under a verbal agreement for a deed or devise, on failure of the other party to carry out the unenforce- able agreement he cannot recover the value of such improvements. The reason is that the improvements were not made at the special instance or request of the vendor, nor for his benefit. Where, how- ever, the improvements were put on at the special instance of the defendant, and for the benefit of his estate, an action lies. Smith v. Smith, 28 N. J. Law 208. The rule is illustrated in the case of Dowling v. McKenney, 124 Mass. 478. There was a parol agree- ment that plaintiff would finish a monument to order, and was to take in pay a lot of land and some cash. He completed the monu- ment, which defendant refused to accept. In an action brought for the value of the labor and materials supplied in completing the monument the right to sue was disallowed. The court said : "It is true that, when a person pays money, or renders services, or makes a conveyance under an agreement within the prohibition of the stat- ute of frauds, and the other party refuses to perform it, an action will lie to recover the money so paid, or the value of the services rendered, or the property conveyed ; but it is on the ground that a party who has received a benefit under an agreement which he has repudiated shall be held to pay upon an implied assumpsit for that which he has received. The defendant received no benefit from the labor performed in completing the monument, although the plain- tiff may have suffered a loss." Had this wood chopper been de- livered, or had work been done upon defendant's ground by which some benefit accrued to defendant's property, the case would pre- sent a different aspect, for then the value of such work or materials to the defendant would be recoverable. But in this case, as in the 112 BENEFITS CONFERRED UNDER CONTRACT. preceding, the title to the completed articles remaining- in the plain- tiff, no benefit whatever accrued to the defendant. The judgment is reversed, and a venire de novo awarded. JOSEPH S. SMITH v. THE ADMINISTRATORS OF JOHN S. SMITH. 4 Dutch. (N. J.) 208. — 1860. The declaration, besides several special counts, contained the ordi- nary common counts. Chief Justice. — The contract proved upon the trial of this case, or which the evidence tended to prove, was clearly within the stat- ute of frauds and perjuries. It was a contract for the transfer of an interest in land. The plaintiff, who was tenant from year to year of his father (the defendant's intestate), erected new build- ings upon the demised premises upon the authority of his father, who told the plaintiff "to go on and build, and the farm should be his," or, as another witness testified, "to go on and fix what he had a mind to — he had left it to him." The evidence in the cause would have warranted the jury in finding that the plaintiff erected the buildings with the consent and approbation of his father, upon his express promise that the farm should be his upon his father's death, by deed or devise. The contract to transfer the land, being within the statute of frauds, was void, and cannot form the foundation of an action. The plaintiff, therefore, clearly could not sue upon the special contract. May the jury lawfully infer a promise to pay for the improve- ments in money out of the personal estate of the deceased? It is clear, from the evidence, that the erection of the buildings was not a voluntary service, nor a service rendered relying upon the gener- osity of the intestate to make compensation. The son expressly re- fused to proceed with the buildings till he had his father's promise that the farm should be his. The case, therefore, does not fall within the familiar principle, that no promise can be implied to pay for gratuitous services or services rendered in expectation of a legacy. Grandin v. Reading, 2 Stock. 370 ; Johnson v. Hubbell, 2 Stock. 332; Jacobson v. Ex'rs of Le Grange, 3 Johns. 199; Martin v. Wriglit, 13 Wend. 460; Little v. Dawson, 4 Dall. iii. But will the law raise an implied promise to pay money when there was an express promise to pay in land? The answer is, that the promise to pay in land was void, and therefore no promise. If the plaintiff had erected the buildings upon the intestate's land at his request, the law would have implied a promise to pay for them. The plaintiff is in no worse situation because the defendant made an express promise to pay for the services in a particular mode, which STATUTE OF FRAUDS. II3 promise is itself a nullity. The true principle, says Mr. Chief Jus- tice Nelson, is this : "The contract being void and incapable of enforcement in a court of law, the party paying the money or ren- dering the services in pursuance thereof may treat it as a nullity, and recover the money or the value of the services rendered under the common counts. This is the universal rule in cases where the contract is void for any cause not illegal, if the defendant be in de- fault." King V. Brown, 2 Hill 486. The principle seems to be perfectly well settled, and is sustained by very numerous authorities, that where a party to an agreement void by the statute of frauds fails to execute it, the price advanced, or the value of the article delivered in part performance of the con- tract, whether in money, labor, or chattels, may be recovered back. Mavor v. Pvne, 3 Bing. 285 ; Gray v. Hill, Ry. & M. 42 ; Gillet v. Maynard, 5 Johns. R. 85, and cases cited in note a ; Shute v. Dorr, 5 Wend. 204; Lock-wood v. Barnes, 3 Hill 128; Abbott v. Draper, 4 Den. 51. In all such cases the law raises by implication a promise to repay advances made upon the faith of the contract, and for which no con- sideration has been paid. If, as a consideration for the improve- ment, the intestate had agreed to devise to the plaintiff a different tract of land from that upon which the improvement was made the case would be clear of difficulty. But as the improvement is made upon the farm agreed to be devised, it may be urged that the im- provement was made not for the benefit of the intestate, but for the plaintiff's own benefit, inasmuch as he resided upon the farm during his life, and expected to receive it after his death. It is true that where the vendee in possession under a parol agreement for the purchase of land makes improvements upon the premises he cannot recover the value of such improvements in an action at law, upon the refusal of the vendor to fulfil the contract. Gillet v. May- nard, 5 Johns. 85 ; Shreve v. Grimes, 4 Littell 224. The improve- ments in such case are not made at the instance or request of the vendor, nor for his benefit, but for the benefit of the party making them. The law, therefore, will imply no promise by the vendor to pay for them. But this case does not fall within that principle. The plaintiff was not in possession under a contract for the land, but as tenant from year to year paying rent. The improvements inured to the benefit of the intestate. He might, upon the completion of the improvements, have turned the plaintiff out of possession, or demanded and received an increased rent for the premises during his life. He was instrumental in having the improvements made. The plaintiff refused to make them until he had his father's promise that the land should eventually be his. The improvements were not only made by the procurement of the intestate, and for his use. but his estate has actuallv received the increased value of the improve- ments made by the money and the labor of the plaintiff. There seems no good reason, either in law or equity, why the jury may not Woodruff's Cases — 8 114 BENEFITS CONFERRED UNDER CONTRACT. infer a promise to pay for them. If it be objected that the evidence in the cause admits of a different interpretation, and that the terms of the contract were diiferent from those above stated, the answer is, that what is really proved by the evidence was a question of fact, and should have been submitted to the jury. * * * *i HAWLEY V. MOODY. 24 Vx. 603. — 1852. Assumpsit. Plea, the general issue, and trial by the court. On trial, the plaintiff gave evidence tending to prove, that on the nth day of July, 185 1, he contracted with the defendant for a lease of the defendant's tavern-stand in Waterbury (called the Waterbury House), for one year from and after the first day of September, 1851, for six hundred dollars; and paid the defendant at the time one hundred dollars, in a gold watch, which defendant received as a payment of one hundred dollars toward the rent. And it was further stipulated at the time, that the parties should meet at Mr. Dillingham's office as soon as he returned home (he being absent that day), and execute a written lease. The contract was all in parol. The plaintiff called upon the defendant for the lease, and the defendant soon after, on the same day, tendered the watch back to the plaintiff, which the plaintiff refused to receive, and the watch was afterward attached by one of the plaintiff's creditors, and sold on execution against the plaintiff. The defendant, on the 14th day of July, 185 1, leased the same premises to one Howard for one year, and declined to lease them to the plaintiff. The plaintiff tendered to the defendant, on the first day of September, 185 1, five hundred dollars in specie, and demanded a lease of the premises, according to the contract, which defendant declined. The county court, March term, in Washington county, 1852, Poland, J., presiding,- — adjudged that plaintiff could not recover, and rendered judgment for defendant. Exceptions by plaintiff. Redfield, J. — I. The statute of frauds in this state contains no exception of leases, or contracts for leases in fiitnro, as is found in the English statute and in some of the other states. This case falls, therefore, within the statute. * * * * 4. The only remaining inquiry then is as to the effect upon the title of the watch, of defendant's refusal to complete the contract. If this were to be regarded like the case where one is induced to purchase property, by fraudulent representations, and where, upon '"If the plaintiffs, in consideration of an agreement which was within the statute of frands, and wliich the defendant declined to carry out, expended money in huilding upon his land, they might maintain an action to recover the cost of such building." — Parker v. Taintcr, 123 Mass. 185 (1877). STATUTE OF FRAUDS. II5 the discovery of such facts, he elects to rescind the contract, as he may, then the property would revest. But here is no fraud in the contract, neither is it the object of the statute to attach to this class of contracts any mark of reproach. The contract is innocent enough, if each party chooses to trust to the honor of the other party as to its performance. If that were not so, one could not recover for pay- ments made under it. The contract is not void, or affected with any taint or turpitude, nor is it rescindable at the election of either party. Either party, if he choose, may repudiate it, but that only operates upon so much of the contract as remains executory at the time, and does not repeal anything- done under it. For these purposes it re- mains in full force. And the party repudiating must be content to lose what he has done under it, as, the contract remaining in force, the other party may defend Under it. But if the party repudiating the future performance has himself received advances which he de- clines to pay for in the mode stipulated, it is regarded as equitable that he should refund in the usual mode for money had and for goods sold, and it is not in his power without the consent of the other party, to revest the title of the specific things received. This seems to us the only view consistent with general principles appli- cable to the subject, or with the decided cases, and manifestly just and equitable. If the party has bought goods which he declines to pay for in the mode stipulated, and which but for his own act he might do, he ought and he must be content to pay in the usual mode of paying for goods sold and delivered, and this recovery may be had under the general counts. Gray v. Hill, i R. & M. 420 ; Chitty on Contracts 305. As the former cases upon this subject have adopted no principle at all analogous to allowing either party the power of rescission of the contract, we feel reluctant to push ourselves upon an unexplored field, without some obvious and pressing necessity, in order to warp justice, which we think is not this case. By the adoption of this new feature, even if it were more consonant with justice in the par- ticular case, which we think it clearly is not, we should be fearful of ultimately encountering evils which are not apparent at the mo- ment. And there are some which we could easily foresee might arise. The specific things received in payment might have been more or less put to use by the party receiving them, for which he ought to be accountable. They might have been sold and trans- ferred in different modes, and thus new rights and interests inter- vene. And if we adopt the principle of rescission, we do not see, but in principle, it will cut off by the roots all rights accrued under the contract before repudiation, which would certainly be unjust to the innocent party. And as the repudiating party is always clearly in the wrong, it can be no hardship upon him, to pay in currency for what he has received in advance upon the contract. If one party has the power of rescission, then the other, and especially the innocent party, should have the power. The result of which must be that, however many times the property has changed hands, or under Il6 BENEFITS COXFERRED UNDER CONTRACT. whatever circumstances, the innocent party may pursue it and re- cover of the last proprietor, if not of each intervening one, which would often be attended with serious embarrassment and probable wrong. Judgment reversed and case remanded for new trial. ^ LOCKWOOD V. BARNES. 3 Hill (N. Y.) 128.— 1842. Barnes brought replevin against Lockwood in the court below for two colts. The plaintiff in the court below owned a stud-horse, and the defendant a breeding mare. After the defendant had de- clined having the services of the horse, saying he did not wish to raise any more horses, it was agreed between the parties that the plaintiff should have the use of the mare, and should pay the de- fendant as follows, viz. : if the issue was a horse colt, $25, and if it was a mare colt, $20. The mare was to remain in the possession and ordinary use of the defendant, and he was also to keep the colt until the usual time for weaning, or until it was four or six months old. No time was specified for the payment of the money. On these terms the horse was put to the mare. This was in June, 1837. In May, 1838, the mare had two horse colts. In April, 1839, the plaintiff tendered the defendant $25, offered to pay for the keep of the colts from the time they were six months old, and demanded the colts. The defendant refused to deliver them, and the plaintiff brought replevin. The defendant insisted, among other things, that the agreement was void within the statute of frauds — it being one not to be performed within a year, and there being no writing. The court overruled the objection, and the defendant excepted. Verdict and judgment for the plaintiff. The defendant brought error, Bronson, J. — * * * * As I understand the agreement in this case, the colt was not to be delivered to the plaintiff until it was at least four and perhaps six months old. This, added to the eleven months for gestation, would make the whole period which was to elapse before the contract could be completely executed fifteen or seventeen months. It appears, then, that by the terms of the agreement, it was not to be performed within a year, and the fact of a part performance within that time will not aid the case. Although no time was specified for the payment of the money by the plaintiff, it was, I think, payable at the time the colt was to be de- livered, and not before ; and so on neither side was there to be a com- plete performance within the year. As the defendant refused to go on with the agreement after he 'Accord, Booker v. Wolf, 195 111. 365 (1902). STATUTE OF FRAUDS. II7 had derived a partial benefit under it, he must pay for the use of the horse ; but as the contract was void, the plaintiff acquired no title to the colts, and the court below erred in allowing him to recover. It is, of course, unnecessary to examine the other questions made by the bills of exceptions. Judgment reversed. Andrews, J., in REED v. McCONNELL. 133 N. Y. 425, 430, 433, 435.— 1892. There is an insuperable difficulty in the way of the plaintiff on this appeal. He has been permitted to recover upon a cause of action not alleged in the complaint. He sought in his pleading to recover damages for the breach of an alleged contract. He failed to establish that any valid contract was made, for the reason that the contract proved was void by the Statute of Frauds. It is sub- stantially admitted by the plaintiff that the contract sued upon is within the statute, but it is contended on his behalf that the de- fendants having on the trial insisted upon the statute as a bar to the enforcement of the contract, the plaintiff was entitled to recover in this action the value of any property received thereunder by the defendants from the plaintiff. The defendants, on the trial, con- tended that this was a new and different cause of action, not within the pleadings, and inconsistent with the cause of action alleged in the complaint. The plaintiff made no application for amendment. The trial judge overruled the contention of the defendants and awarded to the plaintiff, among other things, the sum of $12,500, as the value of a bark contract which the court found was a contri- bution of the plaintiff to the tannery enterprise, which was the subject of the void contract. * * * * A cause of action founded on a contract to recover damages for its breach, and a cause of action to recover the value of property received thereon by the party who afterwards repudiates it as void by the Statute of Frauds, are fundamentally different. The claim that there was no valid contract, and that, therefore, there is a right of action for the value of property received under it, is totally inconsistent with a claim to enforce the contract and to recover upon jt. * * * * Because facts are developed in the trial of one cause of action which suggest a right of recovery in an action for a different cause, this does not authorize the substitution of the latter cause for the one alleged. The argument urged by the appellant that the defendants waived their rights by not objecting specifically to the evidence of the value of the bark contract when it was first offered on the ground of the statute, is not, we think, tenable. They objected gen- erally that the evidence was incompetent and immaterial. When the plaintiff rested thev took the point that the contract proved was void by the statute. The plaintiff had ample notice of the ground taken. Il8 BENEFITS CONFERRED UNDER CONTRACT. He applied for no amendment of the complaint, but, on the con- trary, insisted that he was entitled to recover the value of the bark contract under the pleadings as they stood. * * * * IMPROVEMENTS. OREAR V. BOTTS. 3 B. MoN. (Ky.) 360.— 1843. Marshall, J. — It was decided by this court, in the case of Shreve v. Grimes (4 Littell 220), that a purchaser of land by parol could not recover in assumpsit from the vendor, after he [the vendor] had repudiated the contract, the value of improvements or ameliorations made on the land by the vendee before such repudia- tion. And although we are not satisfied that an assumpsit, to remunerate the vendee to the extent of the actual benefit derived from his labor, by the vendor, might not be implied, on the ground that the vendor, in violation of his promise, voluntarily takes to himself the labor of the vendee, which had been authorized and in- duced by a reliance on that promise ; yet, as there has been a de- cision of this court against it, and as the question of improvements is, in such cases, involved with the question of rents, and the Court of Equity, which seems to be the more appropriate tribunal for settling these questions, afifords an adequate and well-known remedy ; and as, moreover, the application of the action of assump- sit to the recovery of the value of improvements as a separate sub- ject might tend to embarrass rather than to facilitate the proper adjustment of such cases, we do not feel authorized, in opposition to the case referred to, and in the absence of direct authority to the contrary, to extend the doctrine of implied assumpsit to the present case. In this case, it is true, there was not an absolute sale of the land, but a parol lease or license to occupy for life, and there are some other distinguishing circumstances ; but although these distinguish- ing circumstances might show that the reasoning of the court in the case of Shreve v. Grimes docs not fully apply to the case before us, they would still leave it within the principle then declared. If that principle be correct, the peculiar circumstances referred to are not such as should relieve this case from its operation ; nor are they such as to obviate the objections to opening this new field of implied assumpsits, or to giving such an application of the action of assump- sit as by submitting to a jury the assessment of damages arising out of a violation, by the vendor, of his parol contract for the sale of land, might efifect a virtual repeal of the statute of frauds on that subject. STATUTE OF FRAUDS. 1 19 There was no error, therefore, in instructing the jury to find as in case of a non-suit, and the judgment is affirmed.^ ALBEA V. GRIFFIN et al. 2 Dev. & Bat. Eq. (N. C.) 9.— 1838. Bill for specific performance. Gaston, J. — * * * * It is objected on the part of the de- fendants that by our act of 1819 all parol contracts to convey land are void, and that no part performance can, in this state, take a parol contract out of the operation of that statute. We admit this objection to be well founded, and we hold as a consequence from it that, the contract being void, not only its specific performance can- not be enforced, but that no action will lie in law or equity for dam- ages because of non-performance. But we are nevertheless of opin- ion that the plaintiff has an equity which entitles him to relief, and that parol evidence is admissible for the purpose of showing that equity. The plaintifif's labor and money have been expended on im- ^In Shreve v. Grimes, 4 Litt. (Ky.) 220, 224 (1823), the court says: "In the case of money or property paid to the vendor, for the land itself, when he had only given his promise to convey, and should refuse to fulfil it, as such promise is of no avail in law, the price may be recovered back, on the prin- ciple that the consideration on which it was paid happens to fail. But, with regard to ameliorations made under such circumstances, they are not designed for the use of the seller. He is not instrumental in causing them to be made, as he is in case of payment of the price. They may or may not be made, at the election of the purchaser; and in searching the principles over, for which an implied assumpsit will lie, we discover not one which would support the action. If the seller can be at all made liable for them, it must be on the principle of equity, that he ought not, when the improvements are delivered over to him, to be enriched by another's loss. It is true, an implied assumpsit will lie for work and labor done for the defendant upon his request and assent, without any fixed price or any express promise to pay; but the labor must be his, and the work be done for him, and not for another, and the work after- wards happen to become his, before the action can be sustained. We, there- fore, conceive that whatever remedy the appellee may have, it is not by an implied assumpsit for work and labor." In Mathews v. Davis, 6 Humph. (Tenn.) 324 (1845), plaintiff, the vendee under an oral land contract, sued the vendor in assumpsit for "work and labor done and materials furnished," while in possession under the contract of purchase, in putting improvements on the land. In denying the right to re- cover in assumpsit the court said: "A jury cannot judge of ameliorations and adjust the matter between the parties. Besides if a recovery be had in a court of law at all it must be had for the work, labor and materials, so much as they were worth, as his honor told the jury. But we have seen this is not the criterion of compensation and therefore it is unfit for a court of law, and exclusively a matter to be adjusted in equity." But if assumpsit were a possible remedy for improvements put upon land by the vendee, the action would not lie if he had not been turned out of pos- session, and still enjoys the benefits of them. — Miller v. Tobie, 41 N. H. 84 6B. &C. 671. ^In Norman v. Will (Ohio Supreme Ct. 1846), 5 West. Law Jour. 508 (s. c. I Oh. Dec. 261), whicli was an action to recover back money paid under a mistake of fact, the court below had charged the jury that "if the plaintiff had been, previously to said payment, informed of the note having been paid by Newton, then he could not recover it back again." On appeal Birchard, J., says: "According to the instructions of the court below, a man's rights would dei)end ui)on the strength of his memory. We do not think so." payor's knowledge. 261 lege of manufacturing- and selling certain articles, under certain patents, of which the defendant previous to this time was the owner. The money was paid according to the terms of a certain contract between the parties, wherein the defendant, for the consideration of a certain royalty to be paid on all the articles covered by the patents which should be manufactured and sold by the plaintiffs, granted them the privilege of manufacturing and selling them during the continuance of the patents and any extension of them. The plain- tiffs manufactured and sold the articles, and paid the royalty ac- cording to the terms of the contract. In the meantime some of the defendant's patents expired and were not extended, but the plain- tiff's being ignorant of the fact continued to pay the royalty as they had done before, and paid the sum which they now seek to recover on patents which had thus expired. The defendant knew that the patents had expired and had not been renewed at the time he re- ceived the money ; but believing that he had the right to receive it under the contract, did not state the fact to the plaintiffs. It further appears that the plaintiffs paid the money, believing that the patents were in force, and that they would not have paid it had they known the facts. But it is said that they had the means of knowledge, and that this is equivalent to knowledge itself. There may be such full and complete means of knowledge as to be equiva- lent to knowledge itself, but we think this is not such a case. The defendant owned the patents. He was in the employ of the plain- tiffs. The patents were on a large number of articles ; and some of them were covered by two or more patents of different dates. The case was a complicated one, and required thorough examination to determine the exact fact. It would naturally be expected that the defendant would keep himself informed on the matter, and being in the employment of the plaintiffs would inform them when the patents expired. This would reasonably be expected by the plaintiffs where they had no reason to suspect dishonesty in the defendant ; and we think they had a right to rely on what would ordinarily be expected under the circumstances.^ Mn Rutherford v. Mclvor, 21 Ala. 750 (1852), the court says (p. 756) : "I cannot yield my assent to the proposition, that the means of ascertaining the real facts of the case are tantamount to actual knowledge of them. If this were the rule, then it would be but rare that money paid by mistake could ever be recovered back. For instance : if, in the settlement of an account a mistake in the calculation was made, it could not be afterward corrected by suit, because the parties, having competent knowledge of figures, had the means of knowledge ; and the mistake being the result of negligence, rather than the want of knowledge, the parties would be bound to abide by it." Accord, Waite v. Leggett, 8 Cow. (N. Y.) 195 (1828). In Norton v. Alarden, 15 Me. 45 (1838), the court says (p. 47) : "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 c-alling to his aid other assist- ance. And in this case there is no ground for inferring that the plaintiff 262 MISTAKE OF FACT. McARTHUR v. LUCE et al. 43 Mich. 435.— 1880. Marston, C. J. — Luce & Co., in demanding that McArthur pay them for logs cut, as they supposed, upon their land, acted in entire good faith. They had a survey made, and according thereto the plaintiff had cut logs over the line. When the claim was made upon the plaintiff he employed a surveyor and they went upon the land, and plaintiff then became satisfied that he had cut and taken logs from off defendants' land, and authorized a settlement to be made, which was done. This was in 1871, and all parties rested in the be- lief that a correct settlement had been made until some time in 1875, when a new survey established the fact that no logs had been cut upon defendants' land, and this action was brought to recover back the moneys paid, upon the claim of having been paid under a mis- take of fact. Where a claim is thus made against another who, not relying upon the representations of the claimant, has the opportunity to and does investigate the facts, and thereupon becomes satisfied that the claim made is correct and adjusts and pays the same, I think such set- tlement and payment should be considered as final. If not, it is very difficult to say when such disputed questions could be considered as finally settled, or litigation ended. In the settlement of disputed questions where both parties have equal opportunity and facilities for ascertaining the facts, it becomes incumbent on each to then make his investigation, and not carelessly settle, trusting to future investigation to show a mistake of fact and enable him to recover back the amount paid. One course encourages carelessness and breeds litigation after witnesses have passed beyond the reach of the parties : the other encourages parties in ascertaining what the facts and circumstances actually are while the transaction is fresh in the minds of all, and a final and peaceful settlement thereof. Detroit Advertiser & Tribune Co. v. Detroit, 43 Mich 116, and County of Wayne v. Randall, 43 Mich. 137. The judgment must be affirmed with costs. The other justices concurred.^ 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." ^Accord, Wheeler v. Hatheway, 58 Mich, "jj (1885). J payor's knowledge. 263 WEST V. HOUSTON. 4 Harr. (Del.) 170. — 1844. Appeal from the judgment of a justice of the peace; in an action of assumpsit. Pleas, non-assumpsit, etc. Issues. The defendants below, the Messrs. West, orig'inally brought an action of assumpsit in this court, against the plaintiff below, R. A. Houston, for $90, and recovered $44.50. The costs in that case were $15.15 ; and there was no affidavit filed to enable the plaintiffs to recover costs under sec. "^^y, Dig. 351. The costs were erroneously taxed by the prothono- tary in making up the record, and the defendant in that case paid them, supposing that the plaintiffs had filed an affidavit under the above section, which would entitle them to costs. This suit was brought to recover 1)ack the costs so paid. The Court ordered a non-suit. Where there is a payment in ignor- ance or mistake of a fact, it may be recovered back, unless the mis- take arises from the negligence of the party to examine and take notice of information within his full means of knowledge. Here the plaintiff was party to the very record of the judgment which he was paying, which record showed the fact he now alleges he was ignorant of. WINDBIEL v. CARROLL. 16 Hun (N. Y.) ioi.— 1878. Appeal from a judgment in favor of the defendant, entered upon a non-suit directed at the circuit. Xavier Misselbeck and Mary, his wife, executed and delivered to Davis L. Carroll, defendants' tes- tator, their bond conditioned to pay the sum of $1,200, with their mortgage accompanying the same. Thereafter Xavier and Mary conveyed said real estate to Charles Windbiel, this plaintiff, subject to the lien of t'his mortgage, he assuming the payment of the same. Both Misselbeck and the plaintiff had made payments an said bond before such conveyance to Windbiel. On June 10, 1876, the plain- tiff' paid the balance claimed by the testator. Dr. Carroll, seven hundred and ten dollars and some cents. At that time plaintiff claimed there had been paid upon such bond and mortgage two sums which had not been credited thereon, one of $90.30 and the other of $164.66, together $254.96. And to recover said two sums so alleged to have been overpaid, this action was brought. On the trial, plaintiff produced a receipt for $164.66, given by Davis L. Carroll to Xavier Misselbeck, which amount was not allowed to the plaintiff when he made the above-mentioned payment on the bond and mortgage. Learned, P, J. — When the plaintiff paid up the mortgage to Dr. 264 MISTAKE OF FACT. Carroll, he "claimed it was not right and that there was not so miKli due," He claimed that there had been an overpayment of $200 more than the doctor had credited him on the bond and mortgage. He said that he would pay the mortgage and would commence an action against the doctor to recover it back. There was a dispute between the plaintiff and the doctor about the amount due. And the plain- tiff, when he paid the bond and mortgage, told the doctor tbat he would ascertain whether he had overpaid him, and if he had taken out of him more than was due, he would sue him. This is the testi- mony of the plaintiff's own witness, and it is not contradicted. Two or three days afterward the plaintiff commenced this action. The plaintiff, therefore, when he paid the bond and mortgage, knew (or believed) that he was paying more than was owing. The very fact on which he now seeks to recover was known to him and insisted upon by him at that time, and he made the payment with the inten- tion of suing to recover part of it back again. What he has since discovered (as he claims) is not the fact that $200 more than was credited had been paid, but only the means of proving that fact. Ignorance of a fact is one thing ; ignorance of the means of prov- ing a fact is another. When money voluntarily paid is recovered back, it is because there was a mistake as to some fact. But here the plaintiff was not mistaken as to the fact. Only at the time he did not know how to prove it. The subsequent discovery of evi- dence to prove a fact, known to the party when he makes the pay- ment, cannot authorize a recovery back of the money. Such a prin- ciple would be most dangerous. I think the judgment should be afffrmed, with costs. Bockes, J., concurred ; Boardman, J., dissented. Judgment affirmed with costs. ^ 3. WHEN NOT AGAINST CONSCIENCE FOR DEFENDANT TO RETAIN. KINGSTON BANK v. ELTINGE. 66 N. Y. 625.— 1876. This was an action brought to recover back moneys alleged to have been paid by mistake. The claim of the plaintiff, in substance, was that in January, 1854, the Huguenot Bank, of which defendant was president, recovered Mn Mowatt v. Wright, i Wend. (N. Y.) 355 (1828), Mrs. Wright brought suits for a claim wliich she thought well-founded. The court said (p. 365) : "'l"he defendants believed there was a defense, but they could not produce the evidence of it, like the case of the lost receipt [Marriott v. Hampton, 7 T. R. 269] : they therefore paid a sum of money as the easiest and cheapest way of settling the claim. It is a voliuitary payment, though they would not have made it, could they have produced the evidence of their title at the time. It is now too late to call the settlement in question." NOT AGAINST CONSCIliXCE TO RETAIN. 265 judgment against Nicholas Elmendorf and others, to the amount of $6,351.98, and issued executions thereon to the sheriff of Ulster county. In March, 1854, plaintiff recovered judgments against said Elmendorf and others to the amount of over $15,000, and issued exe- cutions thereon to said sheriff. Sometime in May, 1854, after the first executions had run out, but while plaintiff's were still in life, the sheriff levied upon a steamboat belonging to Elmendorf and subsequently sold it. Plaintiff and defendant's bank supposing the levy to have been made during the life of the latter's execution, agreed that the sheriff might take the notes of one Van Vechten, who bid off the steamboat, for the amount of his bid ; subsequently, Van Vechten made payment on the notes, which were, with plain- tiff's assent, and under said mistaken belief, paid over to defendant. This was substantially the aspect of the case as it appeared upon a former trial, where a judgment was rendered for defendant which was reversed by this court. (See 40 N. Y. 391.)^ The court there found that the moneys paid to defendant's bank were the proceeds of the sale of the steamboat. The referee, however, before whom the second trial was had, did not find that the moneys paid to the Huguenot Bank were the proceeds of the sale of the steamer, but on the contrary that its judgments were paid direct to its attorney by Van Vechten, partly out of funds belonging to Elmendorf and the balance by his own note, nothing being said about the bid or the notes given therefor, and the same not having been presented ; that Van Vechten, on such payment, demanded satisfaction of the judg- ments. He also found that none of the funds used to pay the exe- cutions belonged to plaintiff. The court here held, that the evidence was sufficient to sustain the findings, and that, even if the payment was made to defendant's bank under a mistake of fact in regard to the executions, the moneys paid could not be recovered back by the plaintiff, as neither plaintiff nor the sheriff ever had possession or title thereto. It also appeared, and the referee found in substance, that Elmendorf was the owner of real estate in Ulster county, upon wdiich the Huguenot Bank judgments were prior liens, and which subsequent to their satisfaction was sold upon plaintiff's and other executions, and that plaintiff received upon its executions, out of the proceeds of such sale, an amount, at least, as much as was paid to and received by the Huguenot Bank, as aforesaid, and which, if its executions had remained in the hands of the sheriff and had not been returned satisfied, it would have been en- titled to thereon. Held, that as the action was an equitable one, presenting the question as to which party the money ex aequo et bono belonged (Buel v. Boughton. 2 Den. 91, 93; Barber v. Cary, II Barb. 551, 552; Butler v. Wright, 6 Wend. 284; Eddy v. Smith, 13 id. 488, 490; Price v. Neal, 3 Bur. 1354), and as the plaintiff w^as not entitled to recover unless it was against conscience for defend- ant to retain the money, and as defendant received no more than his * Reported herein at p. 271. 266 MISTAKE OF FACT. due and thereupon relinquished a hen from which plaintiff derived full as much benefit as if it had itself received the money, plaintiff, on this ground alone, was not entitled to recover. Also, held, that it was not necessary to set up and prove these facts as a counter-claim ; that they were admissible as showing that the equities were with the defendant. Miller, J., reads for affirmance.^ BUEL V. BOUGHTON. 2 Den. (N. Y.) 91.— 1846. Error to the Onondaga C. P. Buel sued Boughton for money had and received to his use ; and the case was substantially as follows : One Charlotte Smith held a bond against the plaintiff for $2,650, payable in six equal annual instalments, with annual interest from April I, 1843. James H. Fuller, in right of his wife, owned and had an interest in the bond to the amount of $498.10. On the first day of April, 1843, the plaintiff gave James H. Fuller his negotiable promissory note for said sum of $498.10, having more than two years to run. The plaintiff agreed to make the note payable zmth interest; but interest was left out of the note by mistake in drawing it. On the day of the date of the note Charlotte Smith indorsed and receipted the amount of the note on the bond. On the day the note was given, James H. Fuller transferred it to Almerin Fuller, who indorsed the amount of the note on a bond which he held against James, which bond was on interest. This was done on the supposi- tion that the note was also on interest. About twenty days afterward Almerin Fuller transferred the note to the defendant, who indorsed the amount of the note, and of the interest which was supposed to have then accrued upon it, on a bond which he held against Almerin Fuller, which bond was on interest. On the 23d of May, 1845, the plaintiff paid the note to the defendant, and by mistake, supposing the note to have been written with interest, paid the defendant $71.20 for interest on the note, and took it up. The plaintiff brought this suit to recover back the sum so paid by mistake for interest. The defendant set up the other facts which have been mentioned as an answer to the action ; and the court decided in his favor. A ver- dict and judgment having passed for the defendant, the plaintiff now brings error on a l)ill of exceptions. By the court, Bronson, C. J. — This is a remarkable case. The plaintiff first omitted, by mistake, to make the note payable with in- terest, as he should have done ; and then, by another mistake, he corrected the first error by paying interest, when the note itself ' Reported among the ".Memoranda of causes not reported in full." Accord, Levy V. Terwiiliger, 10 Daly (N. Y. C. P.) 194 (1881). NOT AGAINST CONSCIENCE TO RETAIN. 267 imposed no such obligation. And thus by two bkinders the parties have come out right at last. Or at least, the plaintiff has paid no more than he ouglit to pay ; and there would be no ground for an action to recover back the money paid for interest, if the payment had been made to James H. Fuller, the payee of the note, against whom the first mistake was made. One party would in that case have paid, and the other received just what in justice and honesty ought to be paid and received. But the payment was not made to James H. Fuller; and this leads me to notice that not only the plaintiff and James H. Fuller acted from beginning to end under the mistaken supposition that the note was made payable, as it should have been, with interest ; but the note was twice transferred, and both Almerin Fuller and the defendant took it under the same mistake of supposing it carried interest. Now as against the plaintiff, James H. Fuller had an equitable claim to have the mistake corrected, so as to give him in- terest on the debt. Then Almerin, having taken and paid James for the note as though it were on interest, had an equitable claim to have the mistake corrected, so as to give the interest to him. The same thing is true as between the defendant and Almerin. The de- fendant took and paid him for the note as though it carried interest. And thus by a series of mistakes the equitable claim to interest which was originally in James, passed from him to Almerin, and from Almerin to the defendant ; so that, at the time the money w^as paid, the defendant was the person who was equitably entitled to receive it. He could not have sued the plaintiff for it at law in his own name ; but in a court of equity the money would have been awarded to him, and not to James H. Fuller. It has come into the defendant's hands without suit, and from the person who ought to pay it ; and I see no sufficient reason for requiring it to be refunded. Whether the defendant could sue at law in his own name to recover the money ; or whether, having fairly got it, this action for money had and received to the plaintiff's use can be maintained, are very different questions. This is an equitable action, which may be de- fended upon the same equitable principles as those upon which it is maintained. As a general rule, the question is, to which party ex aequo et bono does the money belong; and in this case, I think it belongs to the defendant, who has got it. Let us suppose that the plaintiff had refused to pay the interest to the defendant : but, being liable to pay it to some one, he had paid it, either voluntarily or bv compulsion, to James FI. Fuller, between whom and the plaintiff the original mistake w^as made. James might then have been com- pelled to pay the money to Almerin ; and Almerin to the defendant. Or if we begin at the other end, the defendant might have fallen back upon Almerin, and compelled him to correct the mistake by paying the interest ; Almerin could have gone back in like manner upon James ; and James upon the plaintiff. And so in any way of viewing the matter, the plaintiff was bound in equitv and good con- science to pay the money; and the defendant was the man who in 268 MISTAKE OF FACT. equity and good conscience was entitled to receive it. He has got it; and to allow the plaintiff to recover it back, Vk'ould be to make this the first in a circuit of four actions which would end in leaving the money just where it was at the beginning. It is said that although the plaintiff has paid the interest to the defendant, he may be compelled to pay it again in an action on his bond to Mrs. Smith. But I think not. It fully appears that the principal sum of money for which the note was given belonged to James H. Fuller ; and of course he was entitled to the interest which should afterward accrue on that sum. If the indorsement made on the plaintiff's bond would not of itself preclude Mrs. Smith from recovering the interest in question, it would clearly be enough to show in addition, that the plaintiff had corrected the error by pay- ing the interest. But if the plaintiff should succeed in recalling the money, then undoubtedly yirs. Smith, on proving the mistake in giving the note, and that the plaintiff had not corrected it, might recover this interest for the benefit of James H. Fuller. But by leaving the money where it is, the whole series of mistakes will be corrected, and all parties, unless it be the plaintiff, will be satisfied. Judgment affirmed.^ ^ In Shaffer, as administrator, v. Bacon, and others, 35 App. D. (N. Y.) 248 (i8g8). P., as executor of the will of Bartholick, offered the will for probate, which was contested by the heirs at law upon the ground that Bartholick did not possess testamentary capacity. F. retained defendants as attorneys in the litigation and paid them out of the funds of the estate. The surrogate de- creed the will to be void for lack of testamentary capacity, and upon appeal to the Court of Appeals the decree was sustained. Subsequently plaintiff, Shaf- fer, was appointed administrator de bonis non of Bartholick, and brought this action for money had and received to recover back the monej'^ paid by F. out of the estate to defendants for legal services, which were found to be reasonably worth the sums paid to them. The court said : "This action is one which under ancient nomenclature would have been designated ind'cbi- iatus assumpsit, or an action for money had and received to the use of the plaintiff; and although such an action is, strictly speaking, legal in its na- ture, it is one wherein the plaintiff may not recover until he establishes a right founded upon equity and justice; and it is likewise one in which the same principle operates in favor of a defendant who is in this manner called upon for the payment of money. (Eddy v. Smith, 13 Wend. 488; Cope v. Wheeler, 41 N. Y. 303; Rothschild v. Mack, 115 id. i.) * * * * j^ must be borne in mind that this is not a proceeding against a fraudulent executor, but an action against innocent third parties, who, it is expressly admitted, have rendered valuable services in good faith, and in behalf of one who, at the time the greater portion of such service was rendered, had been adjudged the legal representative of a large and valuable estate. In view of these facts, we think the defendants arc entitled, ex aequo ct bono, to invoke in an action of this nature precisely the same principle that would be available to them had the instrument propounded been finally established as the last will and testament of George A. Bartholick." In Franklin Bank v. Raymond, 3 Wend. 69 (1829), the court says (p. 73) : "The debt paid by the defendants was one that subsisted against them at the time of payment. The fact of which they were ignorant did not show that there was no debt existing at the time; it only .showed that they were in a situation which enabled them to set off against the demand they had paid, a demand due to them. * * * * I do not find any case where money paid NOT AGAINST CONSCIENCE TO RETAIN. 209 PENSACOLA & ATLANTIC R. R. v. BRAXTON. 34 Fla. 471.— 1894. Braxton sued the railroad company for cattle killed by defend- ant's engines, cars, etc., and recovered jud.qment. Defendant appeals. Taylor, J. — * * * * j|-,g defendant plead as a set-off to the plaintiff's claim, and proved at the trial, that the plaintiff had received, collected, and appropriated to his own use a voucher for $22.50 that the defendant company sent to its agent at Marianna, that was made payable to, and that was intended for, another per- son than the plaintiff, but who had the same name and initials as the plaintiff, viz., J. W. Braxton, and that the defendant's agent had by mistake delivered said voucher to the plaintiff, when it was not really intended for him. The plaintiff at the trial admitted the receipt, collection, and appropriation by him of this voucher for $22.50, but testified that on January 12, 1889, he had an ox killed by the defendant's trains, that had been reported to the defendant company by its section boss, and also by himself, and that had been valued by him at $25 ; that shortly afterward this voucher for $22.50 came, payable- to J. W. Braxton (that was the way he always signed his name) ; and that, as the company had been in the habit of pay- ing him a little less than his claims, and as he knew of no other J. W. Braxton but himself, he thought this voucher was intended for him in settlement for said reported ox, and that he so applied it ; that all other vouchers paid him by the defendant company for stock killed were made out, just as that one was, payable to J. W. Braxton ; that said ox, killed before said voucher came to him, was not included in this suit, and that he had never received any pay for it other than the proceeds of said voucher, and he considered it paid for in that way ; that some eighty days afterward the company noti- fied him that said voucher was not intended for him, but for an- other J. W. Braxton, and demanded the return of the money, but that he refused, under the circumstances, co repay it, and that no suit was ever brought against him to recover it. On this state of facts the court charged the jury as follows : "If you are satisfied from the evidence that there was due from the defendant to the plaintiff, at the time said money was paid, the sum of $22.50 for and on account of damages done by the defendant to the plaintiff" for other stock killed, which is not sued for in this action, and w4iich said sum of $22.50 was applied to the payment of his (the plaintiff's) claim for the killing of such other stock, you will not allow the set-off." This charge is assigned as error, and raises the question as to when money can be recovered back that has been on a subsisting demand has been recovered back on the ground that the person making the payment has subsequently discovered facts that show he had a set-off against the demand." 270 MISTAKE OF FACT. paid by mistake. The law seems to be settled that money paid under a mistake of facts cannot be reclaimed, where the plaintiff has de- rived a substantial benefit from the payment, nor where the defend- ant received it in good faith in satisfaction of an equitable claim, nor where it was due in honor and conscience. 2 Greenl. Ev. (15th Ed.), § 123 ; Norton v. Harden, 15 Me. 45 ; Moore v. Eddowes, 2 Adol. & E. 133; Glenn v. Shannon, 12 S. C. 570; Foster v. KirlDy, 31 Mo. 496; Brisbane v. Dacres, 5 Taunt, 143-163, 14 Eng-. Rev. Rep. 718; Farmer v. Arundel, 2 W. Bl. 824. The right to recovery in such cases turns upon the question as to whether the party receiving the money paid by mistake can, in good conscience, retain it. According to the plaintiff's evidence, he had a just and legal claim against the defendant for an ox wrongfully killed by it, amounting to $25, and of which he had notified the defendant, demanding payment thereof. He received the voucher for $22.50 without fraud upon his part, but in good faith, believing it was his, and that it was given him in payment of his claim, and he so appropriated it. His claim seems never to have been settled otherwise. Under these circum- stances, we do not think that the retention of the money by him necessarily involved any smartings of good conscience, and there was no error in the quoted charge of the court.^ ^In Mansfield v. Lynch, 59 Conn. 320 (1890), the administrator, Bradley, who had by mistake as to the solvency of the estate paid in full the claim of the defendant who was a creditor, sought to recover back the money. The court, in replying to the contention of defendant that, as the estate did in fact owe her the sum paid, she had 'a right in good conscience' to retain it, said (p. 328) : "In one sense it is true that the estate owed the defendant the amount overpaid, but it is not in any legal or moral sense true that it was the duty of the administrator to pay, or the right of the defendant to re- ceive, her claim in full from the then known assets of the estate. Her right was only to receive her pro rata share with the other general creditors, and the unpaid balance still remained a claim in her favor against the estate. If she gets more than this it must be at the expense of the other general credi- tors or of the administrator. She did in fact get more than she was entitled to solely in consequence of an honest mistake. It is true that when the over- payment was made .she had no knowledge of the condition of the estate or of the mistakes of Bradley, but such knowledge on her part is not made one of the: conditions of recovery in the case cited, and after she obtained such knowledge she still refused to make the repayment. Can it then with reason be said she has 'a right in good conscience' to retain money which right- fully belongs to the estate, to which she is neither morally nor legally en- titled, and which she obtained solely in consequence of an honest mistake which wrought her no harm whatever? Whatever meaning may be given to the somewhat indefinite phrase, 'right in good conscience,' we think it clear that the defendant had no such right as against Bradley under the circum- stances to retain the overpayment." See also City of Louisville v. Zanone, i Met. (Ky.) 151 (1858). CHANGE OF DEFENDANT'S POSmON. i i27I 4. CHANGE OF DEFENDANT'S POSITION. /j /^ KINGSTON BANK v. ELTINGE. 40 N. Y. 391. — 1869. For a statement of the facts, see Kingston Bank v. Eltinge (66 N. Y. 625), reported herein at p. 264. Hunt, Ch. J. — * * * * The next proposition of the respond- ents [defendants] is, that by the discharge of their judgments they have lost their Hen upon the real estate of their judgment debtors, and if compelled to refund would lose their debt. To state it in an- other form, they insist that the claim against them cannot be main- tained, unless they can be restored to their original position, and se- cured from the intervention of other liens and purchases. This they say cannot now be done, citing Crozier v. Acker, 7 Paige 137. That was the case of a mistake of law. The chancellor says: "If this court can relieve against a mistake in law in any case, where the defendant has been guilty of no fraud, which is very doubtful, it must be in a case in which the defendant has lost nothing by the mistake, and where the parties can be restored to the same situation in which they were at the time the mistake happened." The application of this principle to the present case would sub- stantially destroy the rule that money paid in mistake of facts can be recovered by the payer from the receiver. If the facts could be so arranged, that there would be no loss to either party, there would be nothing to contend about, and no such actions would be brought. It is only where the retention or restoration of the money involves a loss that the parties are anxious about it. It is an ordinary result of the transaction, that the party receiving has incurred liabilities or paid money which he would not have done, except for the re- ceipt of the money. I find no case, however, in which this has been held to relieve him from the performance of his duty. In the pres- ent case, the one party or the other, upon the facts found, will lose his debt. By cancelling their judgment, the respondents will have lost an available security. By failing to receive the amounts due to them upon their subsisting executions, the appellants will have lost their debt. One party or the other being compelled to lose, the ques- tion is, which shall it be. The answer given by the authorities is, that the party having the legal right must prevail. In the Canal Bank v. Bank of Albany, i Hill 287, which was an action by one bank to recover from the other the amount of a draft paid to it upon a forged indorsement of the name of the payee, the plaintiff recov- ered as for money paid by mistake, and it was held no defense to show that the defendant had collected the money as the agent of another bank in the city of New York, and had in good faith and without notice paid over the money to its principal. Here a loss was inevitable to the defendant or its principal, and it was impossi- 2^2 MISTAKE OF FACT. ble to restore them to the position of the holder of an unmatured and unprotected draft. They were held liable nevertheless. In Bank of Commerce v. Union Bank, 3 Comst. 230, the same principle is laid down and in the same manner. The Union Bank had paid to its New Orleans correspondent the money received from the plaintiff. In Rheel v. Hicks, 25 N. Y. 289, a complaint had been made against the plaintiff that he was the father of a bastard child, of which one Louisa Hehr was pregnant, and upon the oath of the said Louisa. The plaintiff was arrested, and compromised the matter with the superintendent of the poor by paying him fifty dollars in consideration of a full settlement and release for the child's sup- port. It turned out that the complainant was not pregnant with a child by any one, and that she was not delivered of a child at all. The plaintiff brought his action against the defendant to recover back the money paid, and recovered. This court also held that the fact that he had paid over the money to the county did not alter the case, although it was his duty so to pay over all moneys received for the support of bastards. Neither of the propositions on which the judgment of the su- preme court is supposed to be based can be maintained. There is nothing to except this case from the general principles applicable to its class, and, upon the facts found, the judgment should have been for the plaintiff. The supreme court could readily vacate the satisfaction of the judgments and restore the defendants to their former position, so far as the judgment debtors are concerned. Should there have been bona ade purchases in the meantime, the case would be more com- plicated, and we are not called upon to say what would be the result. In any event, I think this consideration cannot prevent the plain- tiff's from recovering the moneys justly due to them. Adams v. Smith, 5 Cow, 280 ; Barker v. Bissinger, 14 N. Y. 270. The judgment should be reversed and a new trial granted,^ Daniels, J., dissenting. * * * * NEW ALL AND ANOTHER V. TOMLINSON and another. L. R. 6 C. P. 405.— 1871. Action for money had and received, money paid, interest, and money found due upon accounts stated. Plea, never indebted. The facts were as follows : The plaintiffs and the defendants were respectively cotton brokers in Liverpool. In April, 1870, the plaintiffs bought of the defendants seventy-four bales of cotton ex Clcn Cora, each acting for principals whose names were not dis- closed, and, according to the usage of the cotton-market, each treat- * Accord, Corn Exchange. Bank v. Nassau Bank, 91 N. Y. 74 (1883). CHANGE OF DEFENDANT S POSITION. 273 ing the others as principals in the transaction. Weight-Hsts of the cotton were in the ordinary course deHvered to each party from the warehouse-keeper at Albert Dock ; but a clerk of the defendants made a mistake of lOO cwt, in adding- up the figures, and the conse- quence was that when the plaintiffs paid for the cotton they paid the defendants too much by 509/ 15s. The mistake was not discov- ered until the 14th of December, wdien the plaintiffs demanded back that sum. The invoice for the cotton (which was delivered on the 226. of April) was headed as follows: "Messrs. Newall & Clayton, bought from W. D. Tomlinson & Co." etc. ; and it was not until after the discovery of the mistake that the plaintiffs were informed (as the fact was) that Messrs. Dixon & Co. were the defendants' principals. In the meantime the defendants, who had previously to the arrival of the cotton advanced very considerable sums to the shippers, Messrs. Dixon & Co., had allowed the sum in question in their account with them, and had subsequently gone on making further advances ; and when Dixon & Co. ultimately suspended payment, the balance due from them to the defendants on account of these transactions exceeded 2000/. The defendants thereupon claimed to be entitled to shelter themselves under the rule of law which protects payments bona fide made by an agent to his principal, with- out notice ; and at the trial it was submitted on their behalf, that, being known to the brokers, and being under advances to their principals, whether the plaintiffs knew that they were acting for principals or not, they (the defendants) were entitled and bound to hand over the money to their principals, or (which was the same thing) entitled to set it off against their advances, and having done so, were not liable to be called upon to refund it : and the cases of Holland v. Russell, i B. & S. 424, 30 L. J. Q. B. 308: in error, 4 B. & S. 14, ^2 L. J. Q. B. 297, and Shand v. Grant, 15 C. B. N. S. 324, were cited. The learned judge in his summing-up said that every agent for the sale of goods who has advanced money upon them and has them in his possession, has a right to sell them as owner, unless there be a countermand of his authority ; and he distinguished the cases cited, on the ground that in both of them the persons who dealt with the agent knew that they were dealing with one who represented an undisclosed principal ; whereas here the defendants, though gen- eral brokers, acted in the particular case as principals, and he di- rected the jury to find for the plaintiffs, damages 509/ 15s., reserv- ing leave to the defendants to move to enter a verdict for them, or a non-suit, if the court should think the ruling wrong. Quain, Q. C, moved accordingly, BoviLL, C. T- — The defendants in the first instance personally claimed the price of the cotton from the plaintiffs as upon a sale to them by the defendants, each being, as between themselves, person- ally bound as principals in the transaction, though each were act- Woodrupf's Cases — 18 274 MISTAKE OF FACT. ing for principals whose names were not disclosed. The invoice was made out as upon a sale from the defendants to the plaintiffs, and claiming- the price as being due to the defendants personally ; and each were liable personally to the others for the due performance of the contract. The defendants were entitled to sue for and recover the price of the cotton in their own names, and to apply it when re- ceived to their own use and benefit. They had made large advances to their principals, Messrs. Dixon & Co., upon the security of the cotton, and were entitled to sell it to recoup themselves. In no sense could they be said to have received this money for the purpose of handing it over to Messrs. Dixon & Co. ; nor did they in point of fact hand it over to them. It is true that the defendants were shown to have made further advances to Messrs. Dixon & Co. subse- quently to the receipt by them of this money. That, however, could not make it money had and received by Messrs. Dixon & Co. to the use of the plaintiffs, so as to enable them to sue Messrs. Dixon & Co. for it. The mistake originated with the defendants them- selves, and they alone are responsible. The cases relied on are clearly distinguishable. In Shand v. Grant, 15 C. B. N. S. 324, the defendant received the money as agent of the shipowner, and for the purpose of handing it over to him. The case was put en- tirely upon the ground that the defendant was a mere agent. He had handed over the money to his principal, and the principal was the proper person to sue. So, in Holland v. Russell, the same view was taken, and the decision proceeded upon the ground that the defendant was a mere agent. Cockburn, C. J., in delivering the judgment of the court below, after stating what had been the con- tention on one side and on the other, says, i B. & S. 424, at p. 432, 30 L. J. Q. B. 308, at p. 312: "We are of opinion that the plaintiff fails upon the facts. Not only is it clear that the defendant was acting solely as agent, but (the court having power to draw infer- ences of fact) we are of opinion that the plaintiff was aware that the defendant was acting as agent for the foreign owners, and as such made to him the payment of the money he now seeks to re- cover back." And, when the case came before the court of error, the same view was taken. Erle, C. J., delivering the judgment of that court, says, 4 B. & S. 14, at p. 15, 32 L. J. Q. B. 297, at p. 298: "The defendant who received this money from the plaintiff re- ceived it as agent for a foreign principal. The plaintiff knew that, and paid him in that capacity, with the intention that he should pay it over to that principal, and he did so ; and all the money thus re- ceived has been accounted for in a settlement of account approved by the foreign principal, under circumstances which clearly amount to payment of that sum to him. The defendant having therefore Ijeen altogether an agent in the matter, is there anything which takes him out of the ordinary protection to which an agent is en- titled who pays money to his principal before he received notice not to pay it, and before he knew that there was no legal duty on him to do so? There is nothing in this case to deprive the defend- CHANGE OF DEFENDANT S POSITION. 275 ant of the right of an ordinary agent so to protect himself." Here the defendants were not mere agents. They were deahng as prin- cipals, and entitled to apply the proceeds of the sale of the cotton to their own use. For these reasons I am of opinion that the di- rection of the learned judge was right, and that there should be no rule. [Concurring opinions by Byles, Montague Smith and Brett, JJ.] BANK OF TORONTO v. HAMILTON.^ 28 Ont. Rep. 51.— 1896. In this action the Bank of Toronto sought to recover certain moneys from the defendant under circumstances alleged in their statement of claim as follows: That on July 19, 1895, the plaintiffs received at their office in Montreal from W. G. Elliott $2,000 who requested them to telegraph it to Toronto to the defendant's credit, with instructions to advise the plaintiff's branch office at 719 King street west, which was done, but by error in transmitting the mes- sage the amount was re: ved as $3,000 instead of $2,000; that sub- sequently the defendant .:alled at the said branch office and inquired as to any money having been received to his credit, and was then by mistake informed that there was to his credit the sum of $3,000, and he thereupon drew a check for the $3,000 and received the amount ; that shortly afterward the plaintiffs discovered the mis- take and thereupon notified the defendant thereof and demanded the return of the $1,000, and the defendant repaid part of the $1,000, but refused to pay the balance, which the plaintiffs now claimed. The facts as proved at the trial are sufficiently mentioned in the judg- ment, and on them the defendant relied in his defense, and pleaded that though he had repaid part of the $1,000 to which he had no claim as against Halliday, in the judgment mentioned, he declined to return the remainder, because he was in no way a party to the alleged mistake, and had in consequence of the payment made to him surren- dered all claim to the cattle, as the purchase money for which the sum was owed to him by Halliday. The action was tried at the Toronto non-jury sittings before Boyd, C, on October 5th and 7th, 1896. October 8th, 1896. Boyd, C.^The advice sent by the bank from Montreal to Toronto was, "Credit I. Hamilton $2,000, per ElHott ; advise King street." The King street agency of the bank was ad- vised, but by a blunder in the transmission by telephone $3,000 was credited in the King street agency, and this was checked out to Hamilton about one o'clock on Friday, July 19, 1895. The bank thus by mistake and in the hurry of business made an overpayment of $1,000 to the defendant. " Not appealed. — Ed. 2'j() MISTAKE OF FACT. At Montreal this was the transaction : Halliday came to Elliott with a shipping bill of cattle (which he had bought from Hamilton) and asked an advance upon that security, and Elliott agreed to ad- vance $2,000, and this being accepted, he issued a check for $2,000, payable to the Bank of Toronto on account of Hamilton. This be- ing paid in about ii a. m. on Friday, was wired to the Toronto office, as already stated. The cattle came to Montreal early on Satur- day and were shipped at 7 a. m. on that day. The bank, after using all diligence, were only able to notify Hamilton of the error and overpayment about midnight on the same Saturday and after the cattle had been shipped. The private bargain between Hamilton and Halliday was that the cattle should not be shipped unless $2,827 were paid to Hamilton.^ If this money was not obtained and paid to Hamilton he was to have or resume possession of the cattle. This by-bargain, however, was not made known to Elliott or the bank, but the defendant relies upon this as a reason for withholding the money overpaid sufficiently to satisfy his full claim against Halliday. These are the salient facts. Hamilton had the right to be paid $2,827 by Halliday. Halliday not disclosing this arranges for the payment of $2,000 only to Hamilton — getting that advance from Elliott in exchange for the delivery and :^ossession of the cattle : Elliott pays that amount ($2,000) into the 3ank for Hamilton, and the bank, by the error of its officers, pays out $3,000 instead of $2,000 to the defendant Hamilton. Halliday being entrusted by Hamilton with the shipping bill of the cattle, was able to transfer them to El- liott in consideration of the $2,000 advance, and the money instead of being paid to him and transmitted to Hamilton, was paid into the bank by Elliott to Hamilton's credit. Hamilton was Halliday's nominee for payment and as against the bank and Elliott has no higher rights than Halliday. This is one way of viewing the facts, going to show that Hamilton's right to retain the surplus is to be measured by Halliday's right to retain had he received the money, which could not be argued. In another respect this case seems to fall within the principle laid down by Parke, B., in- Kelly v. Solari, 9 M. & W. 54, "that where money is paid to another under the influence of a mistake (that is, upon the supposition that a specific fact is true) which would entitle the other to the money, but which fact is untrue, and the money would not have been paid if it had been known to the payer that the fact was untrue, an action will lie to recover it back, and it ^ The statement of defense stated that after the agreement of sale, the cat- tle were placed on the cars at Wroxeler for sliipment to Montreal, when Halli- day alleging himself iinahle to pay the $2,827, it was thereupon agreed that the cattle shonld go forward to Montreal, that the defendant should follow them, and that if ITalliday did not transmit the money hy telegraph to To- ronto to the defendant, the defendant having followed the cattle to Montreal should there reclaim and resume possession of them, and that until the money was fully paid the cattle should remain the property of the defend- ant. — Rep. CHANGE OF DEFENDANT'S POSITION. 277 is against conscience to retain it." The specific fact which induced the action of the bank here was that $3,000 had been placed to the credit of the defendant by the action of their Montreal branch, only $2,000 in fact being so placed. Though the defendant may have had the right to more than $2,000 as against Halliday, that appears to give no equity to retain the proper money of the bank — which to the extent of $i,ooo was paid over to the defendant without considera- tion. It may be fairly said that there was a common mistake in this case, for the plaintiffs believed that the direction of their agent was to pay $3,000 to the defendant on account of Halliday, and the defendant believed that Halliday had carried out the private ar- rangement between them, by which at least $2,827 was to be ob- tained in respect of the cattle before they were to be shipped. But the real fact was that only $2,000 was asked for and obtained by Hal- liday. The cases cited for the defendant appear plainly distinguishable. Moss V. Mersey Docks Board, 20 W. R. 701, depends, as Cockburn, C. J. said, not on a mistake of law or fact, but on the statutory powers of the board, and he says further, if there was a mistake it was not made by the person who paid the money but by another, on whose mistake the plaintiff acted. Chambers v. Miller, 13 C. B. N. S. 125, was simply a decision as to the property in money having vested upon payment of a check, and that though there was a mis- take in paying, the money could not be retaken by violence. The mistake there was one between the bank and its customer, to which the holder of the check was no party. The other cases were on col- lateral points. I therefore adhere to the provisional judgment given at close of the case and make it absolute so far as I am concerned. /^ BEHRING ET AL. V. SOMERVILLE. 63 N. J. L. 568.— 1899. Action by Albert F. Behring and others against Alonzo Somer- ville. Judgment for plaintiffs. Defendant brings error. Reversed. Van Syckel, J. — This case was tried below before Mr. Justice Depue, by consent of parties, without a jury. The said justice found the following facts: On the 5th of February, 1885, Mrs. Behring executed a mortgage for $500 to William King. William King's executors, on the 23d of October, 1886, assigned said mortgage to Isaac W. King, which assignment was recorded November 22, 1886. Isaac W. King assigned this mortgage, and also a mortgage against one Hartman for $700. to one Mott, April 29, 1890, to secure a note for $1,000. This assignment was recorded in February, 1892. Judg- ment was obtained by Mott against Isaac W. King on this note in 278 MISTAKE OF FACT. May, 1895, for $1,200.66. King is insolvent, and resides out of this state. King retained possession of the Behring bond and mortgage after he assigned it to Mott, and on the 25th of March, 1893, as- signed it to the said Somerville to secure the sum of $325, which assignment was recorded November 3, 1893. Somerville had the records searched before he took said assignment, and the prior as- signment to Mott was overlooked. On the nth of October, 1893, ]\Irs. Behring, at King's request, went with him to Somerville's office, and there paid the principal sum due on the mortgage ; the interest being abated by an arrangement between King and Mrs. Behring. Mrs. Behring gave Somerville $325, and paid the balance to King. The mortgage was produced by Somerville, and a receipt directing the county clerk to cancel it was signed by King and Somerville, and then King went with Mrs. Behring to the clerk's office, and took the receipt and mortgage, and had the mortgage canceled of record. The receipt was as follows: "County Clerk of Essex county : The within mortgage being fully paid and satisfied, please cancel the same of record. Isaac W. King. A. Somerville." Neither Mrs. Behring nor Somerville had actual notice of the as- signment to Mott. This suit was brought by Mrs. Behring to re- cover from Somerville the money which she paid him on account of the mortgage. By agreement of the respective parties, it was sub- mitted to the supreme court, upon the facts found as aforesaid, whether Mrs. Behring was entitled to recover of Somerville the said sum of $325, and that the said special case might be turned into a special verdict. Thereupon the supreme court, being of opinion that Mrs. Behring was entitled to recover, at the request of the at- torney of Somerville, ordered that said special case be treated as if a special verdict had been rendered by a jury of the above-stated facts as found by said justice of the supreme court, and, upon motion of the attorney of Mrs. Behring, entered judgment upon said verdict in favor of Mrs. Behring and against Somerville for the sum of $430.50. The writ of error in this case is prosecuted to review the judgment of the supreme court. It appears by the facts found that neither Mrs. Behring nor Somerville had actual notice of the assignment to Mott, and there is no evidence whatever to charge Somerville with fraud or want of good faith in this transaction. The statute authorizing the record- ing of assignments of mortgages provides that such record shall be notice of such assignment to all persons concerned from the time the assignment is left for record. Both Mrs. Behring and Somer- ville are therefore chargeable with constructive notice of the previous assignment to Mott, but, neither having actual notice, the mistake of fact upon which they acted was mutual, each believing that Somerville had a valid assignment of the mortgage, subject to no paramount equities, and each having equal and adequate means of ascertaining the real situation by reference to the record. In Deare V. Carr, 3 N. J. Eq. 513, the chancellor said: "There are a great variety of cases in which relief will be afforded ; so many, indeed, as CHANGE OF DEFENDANT S POSITION. 279 to have given rise to the general rule that an act done, or a con- tract made, under a mistake or ignorance of a material fact, is voidable and relicvable in equity. The rule has a number of im- portant qualifications or exceptions, and these are often as im- portant as the rule itself." After discussing the authorities, Chan- cellor Vroom classified the case in hand with the exceptions to the general rule, for the reason that the party seeking relief on the ground of a mistake of fact could have ascertained the true situation by reference to the record of mortgages. As applicable to that case, where a purchase was made at sheriff's sale, the parties acting in like ignorance of the record, he lays down the rule that where the fact is equally unknown to both parties, or where each has equal and adequate means of information, and both have acted in good faith, the court will not interfere. The right of a debtor to recovei* from his creditor money paid by mutual mistake, in excess of what is due and owing, is not ques- tioned, because there the position of the creditor is in no wise in- juriously affected by requiring him to restore the overpayment. But in the case sub jndice, both parties having acted in ignorance of a material fact, neither can claim a right to relief superior to the other. They must be left in the position in which they placed themselves. Somerville had in fact good title to the mortgage, subject to the right of Mott, the prior assignee. He had a right to receive payment of his note, and surrender his claim upon the mort- gage he held as collateral. He did that in the presence of Mrs. Behring, the mortgagor, who paid him the amount due him, and also in the presence of King, who had assigned and delivered the bond and mortgage to him. Somerville was under no legal obliga- tion to ascertain whether any equities prior to his own existed, and give such information to Mrs. Behring. Somerville in this trans- action surrendered his assignment, and lost his legal hold upon the bond and mortgage, as security for his claim against King, and l^.lrs. Behring cannot call upon him to return the money paid by her without restoring him to his position. That was recognized as the correct legal rule in Shand v. Grant, 109 E. C. L. 323. where the court refused to allow a recovery of money paid under a mistake of fact as against persons who had changed their position in good faith, believing the payment to have been rightly made.^ The judgment of the supreme court should therefore be reversed. * * * * * But see the comment on this case in Newall v. Tomlinson, ante, p. 272, 274. 280 MISTAKE OF FACT. i \ WALKER V. CONANT. 69 Mich. 321.— 1888. Assumpsit. Plaintiff brings error. Affirmed. MoRSE^ J. — * * * * Stripped of all sophistry, the naked case is this : Van Riper obtains $3,000 of the plaintiff upon a forged mortgage/ and, out of the money so obtained, pays Mrs. Conant the debt he owes her, which is evidenced by a forged note, and secured by a forged mortgage upon the same premises described in mortgage to plaintiff. The money is honestly her due, and she has an equitable right to demand and receive it of Edgar [Van Riper] ; and, believing her securities to be genuine and valid, she takes the money and surrenders them up to him to be cancelled and de- stroyed, and in utter ignorance of the fraud perpetrated upon the plaintiff by Van Riper. It is the same, in fact and in legal effect, in my opinion, as if the $3,000 had been paid direct to Van Riper by Walker, and he had taken the money away, and out of it after- w^ards paid the debt to Mrs. Conant, and received the note and mort- gage direct from her hands. In such case, it seems to me, under all the authorities, that the fact that the plaintiff or his agent supposed his bond and mortgage to be genuine, and the Conant mortgage to be a valid lien upon the premises, cuts no figure in the case. It is not a case where he has purchased the Conant mortgage as an investment, believing it to be valid. It is not a case where he has parted with his money, and received a void security which he would not have bought had he known it to be false and forged. But, in the present case, he was loaning the $3,000 upon an $8,000 farm, and, as he supposed, upon good security. This was the main and absorbing transaction. The payment and discharge of the Conant mortgage was but an incident of his dealing. If the mortgage had not been in existence. Van Riper would have obtained the same sum, $3,000, upon the bond and mortgage delivered to E. C. Walker. Being in existence, and preventing, until discharged, a first mortgage upon the premises, Walker stipulated that this mortgage should be released out of the funds paid by him to Van Riper upon the loan. Walker would have been equally satisfied, no doubt, if Van Riper had paid the Conant mortgage before receiving any money upon the mortgage executed to Helen M. Dudley,^ and assigned to plaintiff, or if he had taken the money after it was paid to him and procured the re- lease of Mrs. Conant. The plaintiff was not buying or paying off ' The mortgage purported to be executed hy the father of Van Riper upon the father's land. 'This tnortRaRC upon whicli Walker loaned his money was taken in the name of Ilelen M. Dudley, but was immediately assigned to him. CHANGE OF DEFENDANT'S POSITION. 281 the Conant mortgaf^e ; he was loaning- $3,000 to Van Riper's father, as he supposed, upon good security. But Mrs. Conant would not have parted with her securities with- out the payment of the deht, and, if this money can be recovered back from her by the plaintiff, her situation is changed, and with- out her fault, beyond all possible return or restoration. Her note and mortgage have been destroyed by the joint of action of Van Riper and the plaintiff's agent, and cannot be returned to her. She has therefore lost the power that the possession of these papers might have given her in the collection of her debt, and it is there- fore most inequitable to hold that she shall not only lose her debt, but also the evidences of it (false though they may be as against the elder Van Riper), for the benefit of the plaintiff, who has been equally negligent with her in making these loans, and through whose negligence, and with no fault of hers, she has lost her note and mortgage beyond recall, which note and mortgage she would not have surrendered except upon the payment of her debt. A reference to the opinion filed when the case was here before [65 Mich. 194], and the authorities there cited, is sufffcient to show] that, under the case as now made, the plaintiff cannot recover. He } must bear the consequences of his own negligence, as the situa-^ tion of Mrs. Conant has been changed by his acts so that in equity she cannot be asked to return the money. She received it in good faith, in satisfaction of a just and equitable claim, and when it was due on honor and in conscience. Walker v. Conant, 65 Mich. 197, 198 (31 N. W, Rep. 787, 788). And the authorities are uniform i that where the money is received in good faith, and in the ordinary ' course of business, and for a valuable consideration, it cannot be ! recovered back because the money was fraudulently obtained of i some other person by the payor. To hold otherwise would be to put every man who receives money in the due course of his business upon inquiry, at his peril, as to the manner in which such money was procured by the payor. Justh v. Bank, 56 N. Y. 484; Mason v. Waite, 17 Mass. 563; Warren v. Haight, 65 N. Y, 171, 178; Reed v. Bank, 6 Paige 337; Currie v. Misa, 12 Moak, Eng. R. 592, 605 ; Watson V. Russell, 31 L, J. Q. B. 304; Rapalje v. Emory, 2 Dall. 51, 54; Stevens v. Board, etc., 79 N. Y. 183. The judgment should be affirmed with costs. Champlin and Long, JJ., concurred with Morse, J. Sherwood, C. J. (dissenting). — * * * * It is said by my Brother Morse, in regard to Mrs. Conant's giving up her note and mortgage : "Her situation is changed, and without her fault, beyond all possible return or restoration." If by this it is meant she has given up for destruction a forged note and mortgage w'hich she received for a loan of money made, it is true ; but if by it is meant that her legal or equitable rights are changed, in the event she is obliged to return the money she received of Mr. Walker, I confess my inability to discover such change. She certainly never had any right, legal or equitable, to have this money of Mr. Walker, unless a 282 MISTAKE OF FACT. forged note and mortgage can be regarded as legal ; neither were they of any validity or value to her when they were in existence and in her hands. She had a valid claim against Van Riper, the forger, but never had one against the plaintiff, or any one else ; and when he paid the money to her it was under a mutual mistake of facts. To hold such a payment valid, and give the payee the benefit of the same, would be unjust and inequitable, and I can never consent to a judgment which will allow the felonious transactions of a criminal to have the effect and be governed by the same rules which regulate the good-faith dealings and transactions of honest people. I know it is said that she has lost her note and mortgage, and "Has therefore lost the power that the possession of these papers might have given her in the collection of her debt ; and it is there- fore most inequitable to hold that she shall not only lose her debt, but also the evidences of it (false though they may be as against the elder Van Riper), for the benefit of the plaintiff ; * * * * and that she would not have surrendered the mortgage but for the pay- ment made." It is a little difficult to see how the possession of these forged papers, under the circumstances, could have aided her in the collec- tion of her debt. The forging does not appear to be questioned by any one. It is conceded by the parties, and the evidence to prove it remains entirely sufficient. If these void papers could have given her any aid in making collection against the insolvent forger, it does not appear in the record, and I know of no reason which suggests it. The fact that the defendant would not give the release of her mortgage until she was paid the amount it called for was the very reason why Mr. Walker made the payment he did to her. Upon the claim thus made, I can find no facts upon which to base the claimed injustice in requiring a return of the money to Mr. Walker. The rights of no other parties have intervened or are involved in the case. No bona fide rights of other innocent persons are to be pro- tected. Under the circumstances stated in the record, the money sued for in the possession of Mrs. Conant was Mr. Walker's money. She received it of him without any consideration whatever, and upon an unquestionable mistake of facts, for the existence of which neither party was in fault or to blame ; and to hold otherwise I can but regard as a misapplication of the equitable principles governing the rights of these parties, and which are applicable to the case. The judgment should be reversed, with costs, and a new trial granted.^ * In Standish v. Ross. 3 Exch. 527 (1849), the court says (534) : "It is in re- spect of the delay of the remedy only that the defendant could not be put in statu quo. We think these circumstances form no impediment to the right to recover, if money were paid over under an ordinary mistake of fact; it could not he any bar to the recovery of it, that the defendant had applied the money in the meantime to some i)urchase which he otherwise would not have made, and so could not be placed in statu quo." See "Change of Position as a Defense to an Action for Money Paid by Mistake," by C. H. Tuttle, 63 Albany Law Journal 147. CHANGE OF DEFENDANT'S POSITION. 283 CARSON V. M'FARLAND. 2 Rawi.e (Pa.) 118.— 1828. Huston, J. — The case stated was to be considered as a special verdict. The following is an abstract of the facts: On the 15th of May, 1822, Thomas Carson, the plaintiff, took out letters of admin- istration on the estate of John Huston, deceased. He filed an in- ventory in due time, and held a vendue of the personal property, which personal property amounted to above four thousand dollars. On the 14th of March, 1823, Thomas Carson paid to the defendant two hundred and twenty-three dollars and forty-six cents, being the amount of a single bill given by John Huston, in his lifetime, to the defendant. John Huston was one of the sons of James Huston, de- ceased, and had shortly before his death taken, under a decree of the Orphans' Court of Franklin county, a part of his father's estate, at an appraisement, and entered into recognizances to pay to his brothers and sisters their shares of the said lands. In August, 1823, his administrator, Mr. Carson, applied in due form of law to the Orphans' Court, for an order to sell the lands of John Huston, deceased, to enable him to pay the debts. Not being able to obtain a satisfactory price, the order was continued at several subsequent courts ; and, in February, 1825, the land was sold for eight thousand four hundred and fifty dollars, and in April following, the sale was confirmed. It now appeared, that the proceeds of the whole real and personal estate would not pay the debts of the deceased ; and, on application of the administrator, the court appointed auditors to apportion the money among the creditors. In April, 1827, their report was made and confirmed by the court. By this report the whole proceeds were required to pay debts of a higher degree than specialities ; in fact, the recognizances were not all paid, but the conusees have received something less than their whole debts. The plaintiff then brought this suit to recover back from John McFarland, the defendant, the sum of two hundred and twenty- three dollars and forty-six cents, alleging it was paid him under a mistake as to the solvency of the estate. There was no allegation of any actual wasting by the administrator ; the deficiency arose from the accumulation of interest and the depressed price of lands. It will be observed that, in this case the administrator paid the money within the year, and to a person undoubtedly a creditor of the estate ; and that, if there was any mistake as to the solvency of the estate, such mistake arose, not from any statement or representa- tion of the defendant, but from some other cause. The law, as it regards the liability of administrators or exec- utors, and how far, and under what circumstances, they may be- come personally liable for the debts of the estate they represent, is not an unimportant part of our jurisprudence. I do not mean to go out of the present case, or even to hint an opinion on some of 284 MISTAKE OF FACT. the topics discussed, and which must present themselves to the mind. In England, after some variance of decision, it seems to have been settled at one time, that a creditor, or even another legatee, could, in some cases, compel a legatee, who had received his legacy, to re- fund, in case of a deficiency of assets. This is, however, with some restriction ; for, if the assets were sufficient at the decedent's death, but were wasted by his executor, there was no refunding in favor of the legatee, or perhaps of the creditor ; and a further distinction seems to have existed, as to refunding in favor of the legatee or creditor, when the executor was insolvent, and in favor of the executor, who would lose, unless he could compel those who had received to refund. See i Vern. 94, 460, 469 ; i P. Wms. 495 ; I Anstruther, 112; Com. Dig. 630; Chancery, Legacy (3 G. 3); I Vern. 162 ; 2 Johns. Chan. 626, 627. But even there, on reading carefully the cases cited, there will be found some reason to believe it was only where refunding receipts were taken, or in consequence of the peculiar jurisdiction and au- thority of the Court of Chancery, that any one, who had received only what was at the time supposed due to him, would be compelled to refund. 2 Com. Dig. Chan. (3 G. 3) ; 2 Ventris 360. There is in I P. Wms. 355 (Pooley et al v. Ray), a dictum of the master of the rolls, that a creditor who has received money due him from the estate, may be sued, and compelled to refund in favor of another creditor ; but, on a rehearing of the case, nothing is said on this subject. 2 P. Wms. 291, 297; Coppin v. Coppin, 2 Ves. 192. There is not, it is believed, in the English authorities before our Revolution, any direct decision, that a creditor, who has been paid a debt due him, may be compelled to refund in favor of another creditor though it must have often happened, that one received all the assets and another received nothing, or was paid out of the estate of the executor ; and there are express decisions to the con- trary. See 2 Ventris 260 ; Com. Dig. Chancery 393. In this case, the administrator paid money justly due, and paid it within the year allowed by our law, to ascertain the situation of the estate. The assets were, or ought to have been, better known to the administrator, than anybody else. No accidental failure of the fund occurred, to any material extent ; the defendant has no money to which in honesty and conscience he is not entitled, as against the estate of the deceased. The hardship on the plaintifif may be great. The hardship on the defendant, if called on to refund, would not be small ; and the confusion, inconvenience and general uncertainty which would follow from a decision, that, an honest creditor, who had gotten an honest debt, was liable to be sued, and compelled to repay, would be so great, would make the settlement of estates so uncertain and so interminable, that we think the plaintiff ought not to recover. Judgment affirmed. l/ CHANGE OF DEFENDANT'S POSITION.,-, 285 TARPLEE V. CAPP. 25 Ind. App. 56. — 1900. Wiley, C. J. — This was an action by appellee, as administrator de bonis non of the estate of James W. Anderson, deceased, against appellant,^ to recover an overpayment made to him by a former executor in the belief that the estate was solvent. The case was put at issue, tried by the court, a special finding of facts made, and conclusions of law stated thereon, favorable to appellee. Final judgment was rendered accordingly. * * * ""' The first objection urged to the complaint is that the appellee, as administrator de bonis non, has no right to bring and maintain this action. While there is some conflict in the adjudicated cases, we are inclined to the view that the weight of the authorities and sound reason support appellee's right to maintain the action. In Thornton & Blackledge on Administration and Settlement of Estates, § 169, p. 453, the rule is stated to the efi^ect that where an administrator pays to a creditor of the estate the full amount of his claim, believing the estate is solvent, and it turns out that it is insolvent, such ad- ministrator may recover back the excess in amount paid, if such claim is not a preferred one. In East v. Ferguson, 59 Ind. 169, it was held that, where a settlement was made with a creditor of an estate, and his claim allowed in full upon a mutual mistake, that the estate was solvent, and the claim is not a preferred one, such facts will constitute such a mistake as will be relieved against, and an action will lie to recover the excess. In Wolf v. Beaird, 123 111. 585, 15 N. E, 161, it was held that where an executor, under the honest belief that the estate was solvent, pays a creditor in excess of his pro rata distributive share, he may recover back the over- payment in an action for money had and received for the use of the estate. It was also held in that case that it could make no differ- ence to the defendant whether the plaintiff sued in his representative capacity or in his individual name. It has been held that, where an administrator of a deceased member of a firm, relying upon state- ments contained in the reports and inventory of the surviving partner of his decedent, paid to one of the heirs and distributees of the estate represented by the administrator a sum in excess of the amount she was entitled to receive by reason of a depreciation in the value of the estate of the deceased partner, the administrator was entitled to recover from such heir and distributee the ex- cess, whether the money was paid to her at her request or was voluntarily paid to her without request; the money having been paid under a mistake of fact, and not under a mistake of law. Stokes V. Goodykoontz, 126 Ind. 535, 26 N, E. 391. The court, by Elliott, * A creditor of Anderson. — Ed. 286 MISTAKE OF FACT. J., said : "The money paid by the administrator was paid under a mistake of fact, and not under a mistake of law. The facts which induced the administrator to pay the money * * * * were pre- sented to him in a lawful mode, and he had a right to rely upon them." In Henry's Probate Law, § 333, it is said : "As a rule, an over- payment to a creditor, made by an administrator or an executor, may be recovered ; it being inferred that he only intended to make such payment as the estate could afford, and not to subject himself to personal liability on account of a deficiency of assets. This is, however, contrary to the common-law rule. But it is probably essential to the recovery that such payment has been made under the impression that the estate was solvent." Smith v. Smith, 76 Ind. 236, is in point. In that case the executors paid to appellant, who was a legatee under the will of the decedent, a certain amount of money and specific property. No account had been taken of the claim of the widow to her statutory allowance of $500, and it turned out that, after the distribution to appellant (the residuary legatee), there was not left sufficient assets with which to pay the widow's claim for $500. Referring to the rule, and the authorities in sup- port of it, that ordinarily the payment of a demand without com- pulsion, and without fraud, and with a full opportunity of obtaining such knowledge, cannot be recovered back, the court, by Bicknell, C. C, said : "But such a rule is not applicable to legacies, or to money paid upon distribution by an executor. A legatee or dis- tributee may be required to give a bond conditioned to refund his ratable proportion of the estate, if necessary (Decedents' Act, §§ 120, 140) ; and the failure of the executor to take out such a bond will not release the legatee or distributee from his liability to refund when necessary for the payment of debts, legacies, or claims." The following cases are also in point : Mansfield v. Lynch, 59 Conn. 320, 22 Atl. 313, 12 L. R. A. 285; Walker v. Hill, 17 Mass. 380; Alexander v. Fisher, 18 Ala. 374; Rogers v. Weaver, 5 Ohio 536; Wheadon v. Olds, 20 Wend. 174; Barnett v. Van Meter, 7 Ind. App. 45, 33 N. E. 666. It is also urged that the complaint is bad because it does not allege that a final dividend had been ascertained and declared by the court in which the estate was pending for settlement. We do not think this objection is well taken. It is alleged that all the assets of the estate had been reduced to cash ; that there was in the hands of appellee $84,988.56 to be applied on the general debts ; that the claims filed amounted to $110,952.99, and that the estate could only pay ']yy2 per cent, on the dollar on the general claims. It is also stated on this basis what the overpayment to appellant was. These averments are sufficiently definite to obviate the objections to the complaint under consideration. We are satisfied from the authorities, and upon sound reason, that the complaint states a CHANGE OF DEFENDANT'S POSITION. 287 led 1 1/ cause of action, and that the court correctly overruled the demurrer PHETTEPLACE v. BUCKLIN. 18 R. I. 297.— 1893. Matteson, C. J. — This is an action of assumpsit to recover money paid to the defendant in it^norance of facts. The case was heard by the court of common pleas, without a jury, and judgment was rendered for the defendant for his costs. The plaintiff petitions for a new trial, and alleges that the judgment was against the evidence. The facts, which are undisputed, as shown by the report of the testimony, are as follows : Jane M. Woodward, late of Providence, died leaving a last will and testament in which WilHam G. R. Mowry, also late of Providence, deceased, was named as executor, and who qualified as such by giving bond with Nathaniel S. Mowry and the plaintiff as sureties. The executor was not related to any of the persons interested under the will, nor does it appear that he had ever known Catherine C. Flagg, who was named in the will as a legatee. The executor, becoming involved financially, misapplied the funds of the estate of the testatrix, and became, as did also Nathaniel S. Mowry, the plaintiff's co-surety, utterly insolvent. The plaintiff, knowing the condition of the executor and his co-surety, and recognizing the liability which he had incurred as surety, re- quested his principal to furnish him with a list of the legatees to whom he was liable, and on receiving it on or about August i, 1891, made his checks payable to the legatees named in the will for the amounts of their respective legacies, and gave them to the executor for delivery to the respective legatees. One of these checks was payable to Catherine C. Flagg, who, though named in the will as a legatee, had died without leaving a lineal descendant, in St. Louis, Mo., August 29, 1 88 1, several years prior to the death of the testatrix. The plaintiff had no knowledge of her death, but sup- posed, and was led to suppose by the list furnished him by the executor, that she w^as then living ; nor is there any evidence that the executor knew, at the time of furnishing the list to the plaintiff" and the delivery of the check, of her decease. The check was delivered by the executor to the defendant and by him indorsed, "Estate of Catherine C. Flagg, Frederick A. Bucklin, Administrator," and de- posited in bank, and paid by the bank on which it was drawn through the clearing house, and charged in the plaintiff's account. Two months or so after the delivery of the check to the defendant, the plaintiff first learned of the decease of Catherine C. Flagg, and ^ See also, accord, Mansfield v. Lynch, ante, p. 270, note. As to payment under mistake of law, by an executor, see Hemphill v. Moody, and note, post, P. 409. 288 MISTAKE OF FACT. that she died prior to the testatrix, when called on by the attorney of the residuary legatees to pay them the amount of the legacy given to her, but which had lapsed by her death without a lineal descendant prior to the death of the testatrix. In the meantime the defendant, on or about September 2, 1891, had distributed the money received on the check to the legatees of Catherine C. Flagg, of whose estate he was administrator. One of these legatees resided in Providence, and the other in Melbourne, Australia. In November following, a written demand for the return of the money was made by the executor on the defendant. As the defendant did not comply with this demand, the plaintiff brought this suit. As we have seen, the case does not show that either the plaintiff or the executor knew, or had reason to know, at the time of the de- livery of the check to the defendant, that Catherine C. Flagg had died before the testatrix, leaving no lineal descendant, so that the legacy to her had lapsed. The check, therefore, on which the de- fendant obtained the money sued for, was delivered in ignorance of facts by reason of which neither the executor nor the plaintiff as his surety was under any liability to the defendant. The money obtained by the defendant on the check was money for which there was no consideration, and which the defendant in justice and good conscience was not entitled to receive. The principle is well settled that, if a person pays money which he was not liable to pay in ignor- ance of the facts, he may recover the money so paid. Garland v. Bank, 9 Mass. 408 ; Mayer v. Mayor, etc., 63 N. Y. 455 ; Bank v. Eltinge, 40 N. Y. 391 ; and see note to Mariott v. Hampton, 3 Smith Lead. Cas. 400 et seq. It is, however, subject to the qualification that, if it is inequitable to allow a recovery, the money cannot be recovered, but the person making the payment must bear the loss. Mayer v. Mayor, etc., 63 N. Y. 455. The defendant seeks to bring himself within this qualification, and contends that having paid the money received from the plaintiff to the legatees under the will of Catherine C. Flagg, one of whom resides in Australia, and is there- fore not readily accessible, before the plaintiff or the executor de- manded repayment, his position is so changed that it would be in- equitable to allow the plaintiff to recover. We do not think it is enough to relieve the defendant from liability that he has paid the money to others, even though such payment was made before a re- payment was demanded. He must show that a recovery by the plaintiff would be inequitable.^ If at the time he received the plain- tiff's money he knew that Catherine C. Flagg had died before the testatrix, leaving no lineal descendant, so that the legacy to her had lapsed, he was bound to have communicated those facts to the plaintiff or to the executor. When a person pays money in ignor- ance of circumstances with which the receiver is acquainted, and which, if disclosed, would have prevented the payment, the parties do not deal on equal terms, and the money is held to be unfairly 'Accord, as to burden of proof, Mayer v. Mayor, 6;^ N. Y. 455 (1875). CHANGE OF defendant's POSITION. 289 obtained, and may be recovered. Martin v. Morgan, i Brod. & B. 289 ; George v. Taylor, 55 Tex. 97 ; 8 Amer. & Eng. Enc. Law, 645, note 4; Kerr, Fraud & M. 99. The testimony on the part of the defendant does not negative such a state of facts, and certainly, if such a state of facts existed, it would not be inequitable to per- mit the plaintiff to recover, even if the defendant had paid the money to others before demand for its repayment. Again, assuming that the defendant had no such knowledge, but received the money innocently, he should at least show that he has made some effort to restore the money, or that such effort would be unavailing. The testimony does not show that he has made the slightest effort in that direction, not even that he has requested the legatee here in Providence to give back the portion of the money received by such legatee. It is possible that a simple request to the legatees, accompanied by a statement of the facts showing the injustice of their retention of the money, would result in their re- turning it to be restored to the plaintiff. Until all reasonable efforts have been made by the defendant to get back the money, and have proved unavailing, how can it be said that it would be inequitable to permit a recovery ? But assuming again, that such efforts had been made, and had proved unavailing, we think it may well be doubted whether such a state of facts would be enough to render a recovery by the plain- tiff inequitable. To have that effect, must there not be something besides the mere payment of the money by the plaintiff which has caused the position of the defendant to be changed ? Must there not be some negligence or laches on the part of the plaintiff in not promptly demanding repayment of the money on discovery of the true state of facts, but for which the defendant's change of posi- tion might not have occurred ? In Durrant v. Commissioners, L. R. 6 Q. B. Div. 234, it was held that a plaintiff who had paid by mistake a tithe rent charge for lands not in his occupation could recover the amount from the defendants, though, at the time when he dis- covered his mistake, the remedy of the defendants against the lands actually chargeable had become barred. Again, in Bank v. Eltinge, 40 N. Y. 391, the sheriff, having received an execution issued on a judgment in favor of the defendant, and afterwards one on a sub- sequent judgment in favor of the plaintiff against the same de- fendant, and before the last had run out, but after the sixty days had expired as to the first, made a levy on personal property not sufficient to satisfy both, sold it, and paid over the proceeds to the defendant in satisfaction of his execution, with the assent of the plaintiff, neither party knowing that the execution had run out before the levy, but supposing the contrary. It was held that the plaintiff could recover the money as paid under a mistake of fact, though the defendant's judgment had been in consequence of the receipt of the money canceled and discharged of record. And see Standish v. Ross, 3 Exch. 527 ; Rheel v. Hicks, 25 N. Y. 289 ; National Bank Woodruff's Cases — 19 J 290 MISTAKE OF FACT, of Commerce v. National Mech. Bank. Ass'n, 55 N. Y. 211. In the case at bar neither the plaintiff nor executor learned the true state of the facts till the plaintiff was called on by the attorney for the residuary legatees to pay to them the amount of the legacy which the plaintiff had already paid to the defendant. The precise date when this demand on the plaintiff was made does not appear. The plaintiff testifies that it was two months or more after he had made the check and placed it in the hands of the executor for de- livery. It is not claimed, however, that the demand on the plaintiff by the attorney of the residuary legatees was before the defendant had distributed the money, and, consequently, no negligence or laches on the part of the plaintiff after discovering the facts could have had any effect in causing the defendant to change his position by the payment of the money ; and, if not, it is difificult to see how there can be any equity in his favor to prevent the plaintiff's re- covery. The defendant contends that the check, having been made payable to Catherine C. Flagg, was illegally paid by the bank on the de- fendant's indorsement, and, therefore, that the bank could not charge the payment to the plaintiff's account ; that the payment is to be re- garded as a payment from the money of the bank, and not from the plaintiff's ; and hence that the plaintiff's remedy is against the bank, rather than the defendant. While it is perhaps true that the check was illegally paid by the bank, and that the plaintiff, if he had seen fit, could have proceeded against it, we do not think that he was compelled to do so, but that it was competent for him to ratify or adopt the payment, and to proceed against the defendant. Plaintiff's petition for a new trial granted. 5. PLAINTIFF NEGLIGENT. UNITED STATES v. NATIONAL PARK BANK OF NEW YORK. 6 Fed. 852 (Dist. Ct. S. D. N. Y.)— 1881. Choate, D. J. — This is a suit brought to recover the sum of $100, paid under a mistake of fact. A jury trial has been waived. There is no dispute as to the facts. One Dunlap made application for bounty money, and in settlement of the claim a paymaster of the United States drew a draft on the assistant treasurer at New York for the sum of $100, payable to the order of Dunlap. The defend- ant received the draft from another bank for collection, indorsed in the name of Dunlap, and also indorsed by such other bank. With- out indorsing the draft, the defendant presented it to the assistant treasurer in New York, and received the $100, on the i6th of PLAINTIFF NEGLIGENT. 29I March, 1869, and immediately thereafter allowed it as a credit in its account with the bank from which it was received. The indorse- ment of Dunlap's name was a forgery. This is a clear case of payment under a mutual mistake of fact. It is claimed, however, for the defendant that the plaintiff cannot recover on account of its negligence in informing the defendant of the forgery after its discovery that the indorsement was forged. It is claimed that the plaintiff discovered the forgery when Dunlap made another application for the bounty, which he did on the 24th of February, 1879, and that no information of the forgery was com- municated by the plaintiff to the defendant till February 3, 1880. It is not alleged in the answer, nor is there any proof, that the de- fendant has suffered any loss or damage by reason of this delay, or lost any remedy over against the party from whom it received the draft and to whom it paid the money. But it is contended that such delay is itself negligence of such a character that loss or dam- age will be presumed to have resulted from it. I think this point is not sustained, either by authority or the reason of the thing. Money thus paid under a mistake of fact is recoverable, because it^ is paid without any actual consideration, and cannot equitably be re- tained. The rule is equitable, and may be defeated where to allow the recovery would be inequitable. Negligence in the transaction,: unattended with any loss or harm resulting from such negligence to the other party, surely does not impair the equity of the claim against' him. Such negligence does not touch the reason of the rule allow- ing the recovery. If that negligence consists in delay in making the reclamation, with what justice can the party to whom the payment w^as made say that though he received the money under a mistake of fact, and was bound to return it a year ago, and could not justly or equitably keep it then, because it did not belong to him ; yet, now that the party paying has neglected to let him know of his claim after discovery of the mistake, he can justly and properly keep it? This would be absurd. The authorities are to this effect: that negligence in giving in- formation of the mistake to the other party, with the resulting loss of remedy over, is a defense, but otherwise not. The doctrine rests on the duty which the party paying owes to the other to shield him, as far as possible, from loss or damage resulting from the mistake, when he discovers that it is such. If the failure to perform that duty results in loss or damage to the other party, then it is in- equitable that he should be obliged to refund.* But if that negli- gence has made no difference to him then it is immaterial. See Kingston Bank v. Eltinge, 40 N. Y. 391 ; Mayer v. The Mayor, 63 N. Y. 455; Pardee v. Fiske. 60 N. Y. 271 ; Union Bank v.Leath. Nat. Bank, 43 N. Y. 456 ; Allen v. Fourth Nat. Bank, 59 N. Y. 19 ; Bank of Commerce v. Mechanic's Banking Ass'n, 55 N. Y. 213 ; Continental Nat. Bank v. Nat. Bank Com., 50 N. Y 575. These 'Accord, Skyring v. Greenwood, 4 B. & C. (K. B.) 281 (1825). 292 MISTAKE OF FACT. cases, it is true, are mostly cases where the negHgence imputed was in making the payment or in not discovering the mistake, but I think the reasoning on which they proceed appUes with equal force to cases where the imputed negligence is in giving information after dis- covery of the mistake. U. S. v. Union Nat. Bank, D. C, S. D. N. Y,, April 24, 1879 [10 Ben. 408; s. c. 28 Fed. Cas. 333]; 2 Parson's Notes and Bills 597. The rule declared in Price v. Neal, 3 Burr. 1354, which precludes recovery where the mistake con- sists in the erroneous admission as genuine, by acceptance or payment of a draft where the signature of the drawer was forged, and the cases following it, are now regarded as exceptions to the general rule that negligence in making the payment, even where the matter mistaken was peculiarly within the plaintiff's knowledge, or one as to which he had a duty of inquiry, unattended with damage, does not defeat the action. Allen v. Fourth Nat. Bank, ut siupra; and see Welch v. Goodwin, 123 Mass. 71. The cases cited by the defendant's counsel, where delay in giving notice that money received was counterfeit was held fatal to the recovery without actual proof of damage, are quite different in principle from this case. They proceed upon the theory that such delay, from the nature of the case, must necessarily impair the remedies over of the party from whom the money was received, and make it more diffi- cult, if not impossible, for him to trace out the source from which he himself received it, or to find the guilty party and obtain restitu- tion from him. Pindall's Ex'rs v. N. W. Bank, 7 Leigh (Va.) 617, and cases cited; Gloucester Bank v. Salem Bank, 17 Mass. 22. In the present case the defendant's answer shows that it received the draft from another bank, and its remedy over will be complete upon the plaintiff's recovery in this action. Merchants' Nat. Bank V. First Nat. Bank of Baltimore, 3 Fed. Rep. 66. I think there was no obligation on the part of the plaintiff to surrender or tender to the defendant, upon the trial, this draft. The possession of it was not necessary to a recovery over. I see no force in the argument, urged by defendant's counsel, that the plain- tiff has no just claim, ex aeqtio et bono, because Dunlap cannot sue the government if the plaintiff recovers ; nor is there any force in the suggestion that the suit is virtually one for the benefit of Dunlap, and that he has been grossly negligent. What the government may do with the money, or what its duty is toward Dunlap, are matters immaterial. The defendant has received the plaintiff's money, for which it gave no actual consideration, and is bound in law and ex aequo et bono to return it. It is unnecessary to consider the point made for the plaintiff that there was no such negligence in this case as the defendant's arguments have assumed, or that, if there was, it would not operate to defeat the action on the general ground that PLAINTIFF NEGLIGENT. 293 laches is not imputed to the j^overnment by reason of the negU- gence of its officers. Judgment for plaintiff, with interest and costs.^ 6. PLAINTIFF NEGLIGENT AND DEFENDANT'S POSITION CHANGED. LAWRENCE et al. v. AMERICAN NATIONAL BANK. 54 N. Y. 432.— 1873. Earl, C. — On the 7th day of May, 1866, the plaintiffs made up a statement of their accounts with Post, which showed that there was a balance due to him of $10,643.20, and this sum they paid to the defendant as his assignee. When they made this statement, by mis- ' In the Appleton Bank v. McGilvray, 4 Gray 518, 522 (1855), the court says: "It is no answer to the plaintiffs' claim, that the mistake arose from the neg- ligence of the plaintififs. 'Jhe ground on which the rule rests is that money paid through misapprehension of facts, in equity and good conscience belongs to the party who paid it; and cannot be justly retained by the party receiv- ing it, consistently with a true application of the real facts to the legal rights of the parties, 2 Saund. PI. & Ev. 2d Ed. 394. The cause of the mistake therefore is wholly immaterial. The money is none the less due to the plain- tiffs, because their negligence caused the mistake under which the payment was made. The case would have been different, if it had appeared that the defendants had suffered any damage, or changed their situation as respects their debtor, by reason of the laches of the plaintiffs. But the facts show that their rights were wholly unaffected by the mistake under which the pay- ment was made. Nothing occurred subsequently to the payment, which ren- ders it unconscientious to recover the money back. It is therefore clear that the defendants have money belonging to the plaintiffs in their hands, to which they show no legal or equitable title. Kelly v. Solari, 9 M. & W. 54; Bell v. Gardiner, 4 Man. & G. 1 1 ; 2 Smith's Lead. Gas. 243, 244." ^^ In Kingston Bank v. Eltinge, 40 N. Y. 391, 396 (1869), the court says: "Care and diligence are not controlling elements in the case. It is a question of fact merely. The inquiry is, are the parties mutually in error, and did they act upon such mutual mistake, not whether they ought so to have acted. If, in consequence of such mutual mistake, one party has received the property of the other, he must refund, and this without reference to vigilance or neg- ligence. On a sale and purchase of real estate, the rule and the principle are different. It is a case of a bargain in which the law requires the exercise of care and attention. A party cannot then allege himself to be ignorant of a fact, of which he was put upon the inquiry, and of which he could have obtained a knowledge by reasonable diligence. In cases of bargains and sales, the rule is applicable, z'i^ilantibus non dormientibus leges sithvcniunt. Such was the case cited of Taylor v. Fleet, 4 Barb. 95, and of which there are many instances in the books. But where there is no matter of contract, no bargain or sale, there is no call for the exercise of astuteness. The case then becomes one of fact. Was there or not an error between the parties? .A.nd the determination of that fact controls the result. Where this expression of the want of care and attention is used in reference to cases of simple mis- takes of fact, by which one has thus received the money of another, and that it is thus used in many cases cannot be denied, the expressions have not been duly considered." 294 MISTAKE OF FACT. take, they omitted to charge Post with $5,000, which they had loaned him, and hence they overpaid the defendant the amount of this sum, with interest. This mistake was unknown to them, and was mani- festly unknown to the defendant. Both parties must have supposed that the amount paid by the plaintiffs was the amount due, and hence there was a mutual mistake. These facts furnish good ground of re- covery by the plaintiffs unless certain other facts furnish the de- fendant with a defense. (The Kingston Bank v. Eltinge, 40 N. Y. 391 ; Union National Bank of Troy v. Sixth National Bank of N. Y., 43 N. Y. 452 ; Duncan v. Berlin, 46 N. Y. 685.) It is claimed that it was plaintiffs' mistake, and that they had the means in their possession at the time of the payment for the dis- covery of the mistake, and that they were negligent in not discover- ing it. The authorities above cited show that negligence in making a mistake does not deprive a party of his remedy on account thereof. It is the fact that one by mistake unintentionally pays money to an- other to which the latter is not entitled from the former, which gives the right of action, and the fact that the mistake occurs through negligence does not give the payee any better or the payer any worse title to the money. It is further claimed that the defendant settled with Wilson, Gibson & Co., who were sureties for Post's liability to it, and that upon such settlement they were credited with the entire amount paid to it by the plaintiffs, and discharged, and hence, that it has been damnified by the mistake caused by the plaintiffs. The authorities above cited show that this is no answer to plaintiffs' claim. Unless the plaintiffs could recover of the defendant, they seem to have been without any remedy, as Post was insolvent. On the contrary, the de- fendant having discharged Wilson, Gibson & Co. from their lia- bility by mistake, can avoid the discharge and resort to them for so much as it is compelled to pay to the plaintiffs in this action. Hence it is not clear that the defendant will suffer any damage on account of plaintiffs' mistake. ( Wheadon v. Olds, 20 Wend. 174 ; McDougall V. Cooper, 31 N. Y. 498.) * * * * Judgment affirmed.^ ^In Walker v. Conant, 65 Mich. 194, 197 (1887), the court says: "The rule is general that money paid under a mistake of material facts may be recovered back, although there was negligence on the part of the person making the payment; but this rule is subject to the qualification that the pay- ment cannot be recalled when the situation of the party receiving the money has been changed in consequence of tlic payment, and it would be inequitable to allow a recovery. The person making the payment must in that case bear the loss occasioned by his own negligence. Tf circumstances exist which take the case out of the general rule, the burden of proving them is upon the de- fendant. Mayer v. Mayor, etc, 63 N. Y. 457." PLAINTIFF NEGLIGENT. 295 WILSON V. BARKER. so Me. 447.— 1862. Appleton, C. J. — The facts, upon which the rights of these par- ties depend, are few and not controverted. On November 8, 1843, I^^vid Pingree and Eben S. Coe conveyed a tract of land in Stetson to E. G, Allen, who, on the same day, mort- gaged the premises to his grantors to secure in part the purchase money. The deed and mortgage were duly recorded, and the latter was assigned to the defendant, September 19, 1854, and the assign- ment seasonably recorded. E. G. Allen, having only the equity to redeem, on i6th of April, 1850, conveyed by deed the premises purchased to D. C. and C. L. Whiting, who, on the same day, conveyed them in mortgage to their grantor. The deed was not recorded, the mortgage was. On Sep- tember 13, 1853, the deed, E. G. Allen to the Whitings, not having been recorded, Messrs. Shaw & Merrill caused an attachment to be made of Allen's right of redeeming his mortgage to Pingree and Coe. They subsequently, at the April term 1856, obtained judg- ment, and, on the 30th of the following May, this equity of redemp- tion was seized, and, on 2d July, of the same year, at 2 o'clock p. m., the same was sold to the plaintiffs in the execution, in whom, or in their assigns, the title thus acquired became perfected by lapse of time. All these proceedings are conceded to have been in conformity with law. The mortgage of the Whitings, dated i6th April, 1850, after intermediate assignments, on 9th February, 1856, became vested in the plaintiff". It thus appears that the plaintiff, to make his mortgage available and his title under it good, was bound to procure a discharge of the mortgage of Allen to Pingree and Coe, which had been assigned to the defendant, and to remove the attachment of Shaw & Merrill. In this state of the title, the plaintiff, on the 26th of July, 1856, at I o'clock, tendered the defendant $230 on account of the mortgage of Allen to Pingree and Coe, assigned to him, which he received. Subsequently, being doubtful whether the amount tendered was sufficient, on the 6th of September following, he tendered the further sum of $6, which the defendant took, remarking that he always made it a rule to take all the money offered him, and, on the 12th of the same September, discharged the mortgage of Allen to Pin- gree and Coe, upon the records of the county. By these proceedings the estate of the plaintiff was relieved from one of the outstanding incumbrances. The attachment, ripened into a title by sale on exe- cution, was still subsisting and unpaid. The plaintiff neglecting to redeem that, and the title being perfected in the purchaser, he lost all benefit from his payment of the mortgage debt. The tender, ef- fecting the object for which it was made, ultimately failed to be of 296 MISTAKE OF FACT. any benefit, by reason of the intervening title of Shaw & Merrill be- coming vested in them. The plaintiff brings assumpsit to recover the money tendered on account of the Pingree and Coe mortgage. It seems the plaintiff was in fact ignorant of the attachment in favor of Shaw & Merrill, though the same was duly recorded. The defendant, who, as their attorney, procured it to be made, did not disclose its existence at the time the tender was made, nor since. As the attachment was recorded, its existence was ascertainable by all interested to inquire. The plaintiff having an interest to ascer- tain the facts, omitted to examine the records and thus learn them. His neglect to make those inquiries, which ordinary prudence would dictate, cannot give him any new rights nor enlarge those already existing. The defendant did not disclose the existence of an attach- ment. He was not aware of the plaintiff's ignorance of that fact. He could not reasonably anticipate negligence on the part of one so sagacious and vigilant as the plaintiff. The parties were dealing adversely. He could not assume that the records of the county were unknown. He was not bound to inform the plaintiff* of their con- tents, certainly not, when no inquiries were made of him on the subject. That the plaintiff derived no ultimate advantage from the tender is no fault of the defendant. It answered the purpose for which it was made. It effected a discharge of the Pingree and Coe mort- gage. It was made for the purpose of discharging that mortgage. The defendant appropriated the tender as the plaintiff intended he should. The mortgage is discharged. The plaintiff cannot place the defendant in the position in which he stood before its discharge. The plaintiff, by tendering the amount due to Shaw & Merrill, or to their assignee, might have accomplished his object. He neglected it and must suffer. But all this gives him no right of action. Neither can the plaintiff's ignorance, that the deed of Allen to the Whitings was not recorded, avail him. The fact was easily as- certainable, and if not known, it was his neglect that he did not as- certain it. The defendant could not presume that the plaintiff did not know the state of his own title. He was not bound to deduce it for him, nor to point out any defective links there might be therein. The parties negotiated ex adverso. The defendant made no mis- representations. The i)laintiff failed to tender enough to remove all existing incumbrances. He mistook the facts, and neglecting to guard his rights with his usual vigilance, he must abide the result. Plaintiff non-suit.^ 'Accord, Fcf?an v. Great Northern Ry. Co., 9 N. Dak. 30 (iSgp), where plaintiff, an employe of defendant, was by the rules of the defendant, bound to know the facts and defendant has, subsequent to the payment, lost a right to indemnity. EQUAL FAULT. 297 7. EQUAL FAULT. UNION BANK v. BANK OF THE UNITED STATES. 3 Mass. 74. — 1807. Action for money had and received, which the parties submitted to the opinion of the court, upon the following facts. It has been the custom of the branch of the United States Bank in Boston, to receive payment for checks on other banks in Boston, in the follow- ing manner: There are two correct lists of each kind of checks made out, one of which remains in the branch bank, and the other is carried with the checks to the other banks by the messenger of the branch bank ; in return for which he receives of the tellers of the several banks, checks on the branch bank, sufficient for payment, without knowing whether the checks so received are good or not ; these checks are immediately compared with the list that accom- panies them, by the teller of the branch bank, and then delivered to the bookkeepers for examination, to see if they are good ; and if they are found not good, they are immediately returned and always have been received without hesitation. On Monday, August 5, 1805, the proceeds of the exchanges of the several banks in Boston were brought to the counter of the branch bank at the same time, by the hands of the branch bank messengers, in several parcels. In one of the parcels thus brought, were two checks drawn by Stephen Rawson on the branch bank, for $550 and $300, which were instantly pronounced to be bad, and sent to the Union Bank, from which they were supposed to have been received, though in fact they were brought from the Boston Bank. The teller of the Union Bank received them, presuming that they had been sent from that bank, and sent their amount in money. On Tuesday, the 6th, they were again sent by the Union Bank to the branch bank, in part of the payment of that day, and were returned and paid for as before. On Wednesday, the 7th, Rawson, the drawer of the checks was known to have failed. On Thursday, the 8th, the teller of the Union Bank first discovered that these checks had origi- nally been sent on Monday, from the Boston Bank, of which he im- mediately gave information to the branch bank. On Sunday, August 4th, Rawson embarked in a vessel for Gibraltar, and sailed the next morning, for the purpose of avoiding his creditors. But his ab- sconding was not generally known until the Wednesday following, on which day the property in his store in Boston was attached by his creditors which property exceeded in value the amount of the said checks. If upon these facts it should be the opinion of the court that the plaintiffs have a right to recover of the defendants the amount of the said checks, judgment to be entered for $850; if otherwise, the defendants to recover their costs. 298 MISTAKE OF FACT. Parsons, C. J. — It appears from the case that on the 5th day of August, 1805, the Union Bank, being indebted to the branch bank, paid their debt to the messenger of the branch bank, who had sent him to the Union Bank to receive it. On the return of the messenger to the branch bank with the payment he had received, the officers of that bank supposing, by mistake, that the two checks drawn by Rawson were received in payment from the Union Bank, and those checks being bad, they sent them to the Union Bank, who, crediting the affirmation of the branch bank, received the checks, and paid the branch bank for them. This payment was made by mistake; and the Union Bank may well maintain an action to recover back the money, unless they have lost their right of action by their own laches, in not seasonably detecting the mistake, or in not collecting the money due from Rawson on those checks. In considering the facts in the case, it appears that the messenger was the servant of the branch bank only, and that if he committed any error in his returns of payment from the several banks, the Union Bank is not responsible for those errors. Whatever delay there was in that bank, in not collecting the checks, arose from their confiding in the mistaken affirmation of the branch bank ; and al- though this confidence might be improper, yet the branch bank, whose affirmation was the occasion of it, cannot take any advantage of it, they committing the first fault. Let judgment be entered for the plaintiffs, according to the agree- ment of the parties. In Koontz v. Central National Bank, 51 Mo. 275 (1873), the facts were: Mrs. Koontz and Mrs. Simpson were each in the millinery business at Boone- ville. Both of them were customers of C. H. Tuttle of St. Louis, who was in •the habit, from time to time, of drawing drafts on each of them for amounts due on their purchases, which drafts were sent to the Second National Bank of St. Louis for collection, and were collected and remitted. On the 7th day of July, 1870, Tuttle drew the draft out of which this controversy arose, on Mrs. Simpson for $100. The collecting officer of defendant by inadvertence and mistake, presented it to Mrs. Koontz instead of Mrs. Simpson, and Mrs. Koontz, under the impression at the time that she was indebted to Tuttle and that the draft was drawn upon her, paid the money and took up the draft. On the same day, defendant remitted the money to the Second National Bank, stating that the collection was on account of Mrs. Koontz. At this time, Mrs. Koontz and Airs. Simpson were both solvent. No notice was given to the defendant of the error until the 1st of December, 1870, being after the de- fendant had remitted the money to Tuttle, and after Mrs. Simpson had be- come insolvent. The conclusion of the court is that "it is apparent that the parties acted under a mistake of fact, and that both were mutually in error. and if, in consequence of such mutual mistake, one party has received the property of the other, he must refund; and this without reference to vigilance or negligence. As the draft was wrongfully presented to the plaintifif, and it was paid by reason of a mutual mistake, I think that she is entitled to re- cover, and that the judgment of the court below should be affirmed." y EQUAL FAULT. 299 DEVINE V. EDWARDS. 87 III. 177.— 1877. Mr. Justice Dickey. — This was an action broiiglit by Edwards against Devine, to recover the price of milk which had, before that time, been sold to appellant, and from time to time delivered. De- fendant, in the circuit court, pleaded the general issue, and pleas of set-off, and on the trial offered evidence tending to prove that less milk had been actually delivered than was charged for, and less than he supposed at the time of receiving and paying for the same. Ap- pellant, it seems, was a dealer in milk in the city of Chicago, and plaintiff (with his brother, now deceased), for a series of months, from time to time, shipped from the country milk in cans, supposed to contain eight gallons each. Upon that hypothesis the account of the vendor was rendered from time to time, and payment made by the vendee for all milk received up to the ist of March, 1875, and for a part of the milk delivered on and after that day the appel- lant refused to pay, claiming a credit for a large amount of money on account of money overpaid prior to that date, as he claims, from time to time, by mistake, in supposing that the cans each contained eight gallons, when, in fact, as he alleges, a part of them were short and contained less than eight gallons. The testimony is voluminous and contradictory, and it seems to us that the weight of the evidence found in the record is in favor of the position of appellant. The verdict was for appellee, for the sum of $989.10, being very near the full amount claimed by him. After overruling a motion for a new trial, judgment was rendered against appellant upon the verdict. Many points are presented by appellant as grounds for reversing this judgment. It is not necessary that we should consider more than one. The court, among other things, instructed the jury, at the request of appellee, "that if they believe, from the evidence, that be- fore or during the time he received or was receiving the milk of the plaintiff, for which he now claims his set-off for shortage, the de- fendant * * * had such notice thereof, that by the exercise of ordinary prudence and diligence he would have known that plain- tiff's cans were not up to the standard of eight gallons, and that plaintiff had no knowledge of any such shortage, and that defend- ant, with such notice and means of knowledge, paid the plaintiff in full for each month's milk, except the month of March, 1875, without any claim for shortage, then he cannot set off in this action any sum for such shortage " * * accruing since such * " * notice, except such shortage as mav have accrued in that month of March." We cannot give our sanction to the rule announced in that in- struction. There is evidence tending to prove, that as early as 1870, and upon divers occasions after that, the attention of appellant had been called to the question whether appellee was or was not using 300 MISTAKE OF FACT. cans which were short in capacity, and that his suspicions had been aroused on that subject, and therefore had such notice as put him upon inquiry, and such as would have prompted a man of ordinary prudence to exercise such vigilance as would, if exercised, have discovered the deficit in quantity before the several payments were made, and it is insisted by appellee, that having omitted such vigi- lance, appellant cannot complain. This is not the law. The contract under which the milk was sold was for a given price per gallon. It was the duty of the appellee to see to it that his cans should hold the quantity which he professed that they held. It does not lie in his mouth to complain that appellant did not watch him with the care which the circumstances seemed to demand. If, in truth and in fact, by the mistake of appellant and that of appellee, the amount of the milk was short, and appellee received more money on that account than he was entitled to, he must account for the same, even though the mistake resulted from negligence on the part of appellant as well as on the part of appellee. The real question is as to the fact of the alleged shortage. If that existed, the appellant is entitled to have the wrong corrected by way of set-off. For this error the judgment must be reversed and the cause remanded for a new trial. Judgment reversed. Mr. Justice Craig — I do not concur with a majority of the court in the decision of this case. The question of fact, in my judgment, was fairly submitted to the jury, and the verdict should be held con- clusive. 8. NECESSITY OF NOTICE TO, OR DEMAND UPON, DEFENDANT. SHARKEY V. MANSFIELD. 90 N. Y. 227. — 1882. This action was brought to recover a balance alleged to be due for work and material in building a stone pier in the Gowanus canal. Plaintiff claimed that the work, save some extra work, was to be done for a'gross sum, and that no price was fixed for the extra work ; defendant claimed the agreement to be that the work should be paid for at a specified price per cubic yard. He set up as a counter-claim an over-payment made through mistake on his part as to the quantity of the work done, which mistake was not discovered until a meas- urement was made after the suit was commenced, which was in 1878. Plaintiff proved that his bookkeeper presented to defendant a bill for the work as claimed by him in 1872. and that thereafter defendant made payments thereon. Finch, J. — This is not a case of money paid under a mutual mis- take, where the action of each party was equally innocent. The mis- take was that of the party who paid, and not at all that of the one NOTICE OR DEMAND. 3OI who received the amount in dispute. The plaintiff was employed by the defendant to build a stone pier in the Gowanus canal. The precise terms of the contract, and the amount due for construction were sharply litigated on the trial; but the verdict of the jury es- tablishes that there was an over-payment mistakenly made by the defendant. His right to recover {jack is resisted, mainly upon the ground that notice was not given and demand made of the over- payment, before setting up the counter-claim. Without stopping to consider whether the same rule applies to a defendant pleading an over-payment by way of counter-claim, as that which governs a plaintiff suing for the same cause, and assuming the law to be identi- cal in both cases, we are still of opinion that a demand was not a condition precedent to the defendant's right of action. Two cases in this court are relied upon by the appellant. The Mayor v. Erben, 3 Abb. App. Dec. 255 ; South wick v. The First National Bank of Memphis, 84 N. Y. 420. In the first of these cases no mistake was established, and that fact decided the case. The court added, "where money is paid under mutual mistake," demand, or at least notice of the error, must precede a right of recovery. In the later case, the mistake was mutual, and stress was laid upon the fact that the de- fendant "lawfully and innocently received the draft and the money thereon." The ground of these decisions is quite obvious. Where the mistake is mutual, both parties are innocent, and neither is in the wrong. The party honestly receiving the money through a com- mon mistake owes no duty to return it until at least informed of the error. It is just that he should have an opportunity to correct the mistake, innocently committed on both sides, before being subjected to the risks and expenses of a litigation. It was said in Abbott v. Draper, 4 Den. 53, that "when a man has paid money as due upon contract to another, and there is no mistake, and no fraud or other wrong on the part of the receiver, there is no principle upon which it can be recovered back until after demand has been made." While this language is not accurate as to a mistake on the part of the re- ceiver, if that was the meaning intended, the doctrine is clearly recognized that where the receiver is guilty of fraud or other wrong in taking the money, he is not entitled to notice. The necessity of a demand does not, therefore, exist in a case where the party receiv- ing the money, instead of acting innocently and under an honest mistake, knows the whole truth, and consciously receives what does not belong to him, taking advantage of the mistike or oversight of the other party, and claiming to hold the money thus obtained as his own. In such case he cannot assume the attitude of bailee or trustee, for he holds the money as his own, and his duty to return it arises at the instant of the wrongful receipt of the overpayment. He is already in the wrong, and it needs no request to put him in that position. The Utica Bank v. Van Gieson, 18 Johns. 485 ; Andrews V. Artisans' Bank, 26 N. Y. 299; Dill v. Wareham, 7 Met. 447; Southwick V. First National Bank of Memphis, 84 N. Y. 430. This case is of that character. The receiver was not innocent. If 302 MISTAKE OF FACT. he did not perpetrate a fraud, at least he committed a wrong. He knew all the facts and must be assumed to have knovv^n the law. He went to trial not admitting a mistake, but insisting that there was none. He charged a price beyond that to which he was entitled, or for quantities which were exaggerated, and obtained the money through the inadvertence and mistake of his debtor, who had not measured the work. He did not come rightfully by the excess. He took it as his own money, conscious of all the facts, and not only claimed to hold it as such, but sued to recover more. The case is not one in which he owed no duty until apprised of his mistake, for he made none. He took what was not his, knowing all the facts, and at the moment of its receipt it was his duty to return it. The action for money had and received could be at once maintained. The appellant further relies upon the facts of the presentation of his bill and a payment thereafter, made by the defendant, and also upon the lapse of time during which the bill remained unchallenged. These circumstances he insists amounted to an admission of the cor- rectness of the bill. They tended to that result, but were not con- clusive. They were met by the defendant's evidence of mistake and his explanation consistently therewith. The facts relied on and the explanation given were submitted to the jury and they have de- termined the question. We discover no just ground for reversing the recovery. The judgment should be affirmed, with costs. All concur, except Tracy, J., taking no part. Judgment affirmed.^ ^In Gillett v. Brewster, 62 Vt. 312, 313 (1890), the court says: "That the payment was expressed to be 'on account,' and not in final settlement, can make no difference with the rights of the parties, but serves only as evidence of the mistake or negligence of the party making the overpayment, in sup- posing that he was only paying on account, when in reality he was paying a larger sum than the whole amount actually due. Nor can it affect their rights that the amount of such payment was, at the time of suit brought, un- ascertained. No formal demand or of any specific sum is necessary. 'Whatever language gives him (the defendant) notice of the overpayment, and calls upon him to rectify the mistake, is sufficient.' 'The money all the time is the property of the party making the overpayment, but having come into the possession of the other party without his fault or knowledge, he is entitled to be notified of the fact that he has the money in his possession, and to be called upon to rectify the mistake, before he is subject to a suit for the re- covery.' Bishop V. Brown, supra [51 Vt. 330]." Recovery of Inteuest on Money Paid Under iMistake of Fact. — "The court included in the amount for which judgment was directed the interest on each overpayment from the time when such overpayment was made. This, the plaintififs claim, was incorrect, and that interest was only allowable from the time of the service of the answer, which, for the purpose of interest, might be deemed the date of the demand. This question the plaintiffs are in a position to raise under their exception to the conclusion of law that the defendant was entitled to judgment in the sum of $302.13. There was here a mutual mistake, and no fraud can be imputed to either party. In such a case, interest should not be allowed except from the time when the demand was made. King v. Diehl, 9 Serg. & R. 409; Ashurst v. Field, 28 N. J. Eq. 315; y NOTICE OR DEMAND. -^X 3°3 Gray, J., in LEATHER MANUFACTURERS' BANK v. MER- CHANTS' BANK. 128 U. S. 26, 35-— 1888. Whenever money is paid upon the representation of the receiver that he has either a certain title in property transferred in considera- tion of the payment, or a certain authority to receive the money paid, when in fact he has no such title or authority, then, although there be no fraud or intentional misrepresentation on his part, yet there is no consideration for the payment, and the money remains, in equity and g-ood conscience, the property of the payer, and may be recov- ered back by him, without any previous demand, as money had and received to his use. His right of action accrues, and the statute of limitations begins to run, immediately upon the payment. Thus, in the early case of Bree v. Holbech, 2 Doug. 654, where an administrator received the amount of the mortgage money upon his assignment of a mortgage purporting to be made to the deceased, but in fact a forgery, of which both parties were ignorant, it was held by Lord Mansfield and the court of the king's bench that the right of action to recover back from the administrator the money so paid was barred by the statute of limitations in six years from the time of the payment. So, in Utica Bank v. Van Gieson, 18 Johns. 485, where a promissory note payable at the Bank of Geneva was left by the indorsers with the Utica Bank for collection, and sent by it to the Bank of Geneva for that purpose, and the amount was afterward paid by the Utica Bank to the indorsers upon the mistaken supposition that it had been paid to the Bank of Geneva by the maker, when in fact it had not, and it was not pretended that the Utica Bank had been guilty of any negligence, the supreme court of New York held that notice of the fact that the note had not been paid by the maker was unnecessary to maintain an action by the Utica Bank to recover back the money from the indorsers ; and Chief Justice Spencer said : "The plaintiffs' ground of action, then, is that the money was paid to the defendants under a mistake of facts. The defendants are not bailees or trustees of the money thus received. It was paid and received, as their money, and not as money to be kept for the plaintififs. In such a case, it was not necessary to make a demand prior to the suit ; for a request was not essential to the maintenance of the action : nor did the defendants' duty to re- turn the money erroneously paid arise upon request." In Bank of United States v. Daniel, the acceptor and indorsers, upon taking up a bill of exchange for $10,000, which had been duly protested for non-payment, paid ten per cent, as damages, under a mistake as to the local law upon the subject. Upon a bill in equity to I Amer. Lead. Cas. (2d Ed.) 528; 11 Amer. & Eng. Enc. Law 398."— Leach v. Vining, 18 N. Y. Supp. 822, 824 (Supreme Ct. Gen. Term 1892). 304 MISTAKE OF FACT. .relieve against the mistake and recover back the money, this court, while holding that such a mistake gave no ground for relief, also held that, if it did, the statute of limitations ran, in equity as well as at law, from the tirne of the payment, saying: "If the thousand dol- lars claimed as damages were paid to the bank at the time the bill of exchange was taken up, then the cause of action to recover the money (had it been well founded) accrued at the time the mistaken payment was made, which could have been rectified in equity, or the money re- covered back by a suit at law." 12 Pet. 32, 56, In Dill v. Ware- ham, 7 Met. 438, the Supreme Judicial Court of Massachusetts, speaking by Chief Justice Shaw, held that a party receiving money in advance, on a contract which he had no authority to make and afterward refused to fulfil, was liable to the other party in an action for money had and received, without averment or proof of any previous demand. And in Sturgis v. Preston, 134 Mass. 372, where land was sold for a certain sum by the square foot, and the purchaser, relying on the vendor's statement of the number of feet, made pay- ment accordingly, and afterward discovered that the number had been overstated, but disclaimed all charge of fraud or fraudulent concealment on the part of the vendor, it was held that the right of action to recover back the excess paid accrued immediately, without any previous demand, and was barred by the statute of limitations in six years from the date of the payment. See also Earle v. Bick- ford, 6 Allen 549 ; Blethen v. Lovering, 58 Maine 437. The judgment of the circuit court in the present case appears to have been based upon the decision in Merchants' Bank v. First Na- tional Bank, 4 Hughes i, which proceeds upon grounds inconsistent with the principles and authorities above stated, and cites no case except the very peculiar one of Cowper v. Godmond, 9 Bing. 748 ; s. c. 3 Moore & Scott 219, in which the right of action to recover back money paid for a grant of an annuity, the memorial of which was defective, was held not to accrue until the grantor elected to avoid it on that ground, the annuity apparently being considered as not absolutely void, but as voidable only at the election of the grantor. See Churchill v. Bertrand, 3 O. B. 568; s. c. 2 Gale & Dav. 548. Although some of the opinions of the court of appeals of New York, in the cases cited at the bar, contain dicta which, taken by themselves, and without regard to the facts before the court, might seem to support the "position of the defendant in error, yet the judg- ments in those cases, upon full examination, appear to be quite in accord with the views which we have expressed. The cases of Thompson v. Bank of British North America, 82 N. Y. i, and Bank of British North America v. Merchants' Bank, 91 N. Y. 106, were actions by depositors against their respective bankers, and were therefore held not to be liarred until six years after demand. In South wick v. First National Bank, 84 N. Y. 420, the decision was that there was no such mistake as entitled the party paying the money to reclaim it ; and in Sharkey v. Mansfield. 90 N. Y. 227, it was adjudged that money paid by mistake, but received with full NOTICE OR DEMAND. 305 knowledge of all the facts, might be recovered back without previous demand ; and what was said in either opinion as to the necessity of a demand where both parties act under a mistake was obiter dictum. Two other cases in that court were decided together, and on the same day as Bank of British North America v. Merchants' Bank, above cited. In one of them, the defendants, wdio had innocently sold to the plaintiffs a forged note as genuine, and upon being informed of the forgery and requested to pay back the purchase money, had ex- pressly promised to do so if the plaintiffs should be obliged to pay a third person to whom they had in turn sold the note, were there- fore held not to be discharged from their liability to refund by the plaintiffs' having awaited the determination of a suit by that person against themselves, before returning the note to the defendants. Frank v. Lanier, 91 N. Y. 112. In the other case, a bank, which had paid a check upon a forged indorsement, supposed by both parties to be genuine, was held entitled to recover back the money, with in- terest from the time of payment, necessarily implying that the right of action accrued at that time. Corn Exchange Bank v. Nassau Bank, 91 N. Y. 74. In the case at bar, as in the case last cited, the plaintiff's right of action did not depend upon any express promise by the defend- ant after the discovery of the mistake, or upon any demand by the plaintiff upon the defendant, or by the depositor or any other per- son upon the plaintiff ; but it was to recover back the money, as paid without consideration, and had and received by the defendant to the plaintiff's use. That right accrued at the date of the payment, and was barred by the statute of limitations in six years from that date. For this reason, without considering any other ground of de- fense, the order must be Judgment reversed, and case remanded to circuit court, with di- rections to set aside the verdict and order a new trial.^ 'In Freeman v. Jeffries, L. R. 4 Exch. 189, 200 (1869), Bramwell, B. says : "Put the claim of this action, which is in the technical form of an ac- tion for money had and received, in a rational way, and it amounts to this. The plaintiff says, 'I, in the belief that a certain valuation had been made, paid certain moneys to you ; I have since found that the valuation was not made, I therefore say there is a duty on your part to repay me.' Would the duty of repayment arise until this notice was given? I apprehend not; for at what other time could it have arisen? Not at the moment when the money was paid ; for it was paid with the intention that the defendant should keep it. Was it, then, at the moment when the mistake was discovered? This would be most unjust; the mistake was the plaintiff's, and the discovery is the plaintiff's, and the defendant may still think that everything is right, and that no mistake at all was committed. Therefore until notice, no duty would arise, and therefore no cause of action." Woodruff's Cases — 20 306 MISTAKE OF FACT, ii. Particular Applications. I. GRATUITY CONFERRED UNDER MISTAKE. URIE V. JOHNSTON. 3 P. & W. (Pa.) 212.— 1831. Sampson Johnston, the plaintiff below, brought indebitatus as- sumpsit for work, labor and services against Urie, and recovered a verdict for $370. Kennedy, J. — The defendant in error is a negro, and the son of a negro woman, who was born and regularly registered a Pennsylvania servant until the age of twenty-eight years ; and she was the daughter of a regularly registered Pennsylvania slave for life. The defendant in error was born on the 8th of July, 1800, during the servitude of his mother, and registered by her master in eight days after his birth. He was held and considered as a servant under the abolition act of the 1st of ]\Iarch, 1780, and as such had been transferred and sold, two or three times, and in the last instance, on the i6th of September, 1816, to the plaintiff in error, for the price of $550. He was held by the plaintiff in error, as a servant, without any opposition, or doubt, or question being made or entertained of his being legitimately so, until the 27th of July, 1829, when he was discharged from the service of the plaintiff in error upon a writ of habeas corpus. This was short- ly after the supreme court in this state had decided in the case of Miller v. Dwilling^ that the child of one bound to serve to the age of twenty-eight years was not bound to servitude for the same period, but was absolutely free. Until this decision a directly opposite opin- ion was entertained and prevailed not only with a great portion of the community, but with many of the most distinguished lawyers of the state. In confirmation of this I refer to the case of Stiles v. Nelly, 10 Serg. & Rawle 366. Although it appeared upon the face of the record, in the statement of that case, that Nelly was the child of one bound under the act of the ist of March to servitude until twenty- eight only, it never occurred to her counsel to claim her freedom upon that ground, nor yet to any one of the learned judges of the court, whose duty it certainly was, if not in favorem vitae, in favor of lib- erty — a right much more highly estimated by many — to have pro- nounced her free for that cause if they had thought so, although it was not mentioned or contended for by her counsel. I have no doubt she would have been so declared at the time had the same opinion been entertained by the judges of the supreme court then as at the time of the decision in Miller v. Dwilling. Indeed, I know that the minds of some of our most distinguished jurists in the state vacillated on this question. And although the language of the act of assembly ' Not reported. GRATUITY CONFERRED UNDER MISTAKE. 307 was at all times the same, and underwent no change, yet I think it may be said that it was doubtful what its construction would be until it was judicially declared. In short, that it was doubtful what the law was on this point until this court determined it. Considering this state of uncertainty as to what the law was when the plaintiff in error bought the defendant as a servant until twenty- eight, at the extravagant price of $550, which he paid for him, it can- not be presumed that the plaintiff doubted that the defendant in error was a servant until twenty-eight. It must be presumed that the de- fendant in error knew his genealogy, at least as well if not better than the plaintiff in error, and even after he attained the age of twenty- one he continued to live with the plaintiff in error as his servant, without any the least objection, until he was twenty-seven years of age. During all this time, at least, it may be said that the defendant in error was as much bound to know his condition and rights as the plaintiff. He might certainly waive or forbear to assert them as long as he pleased. It does not appear that the plaintiff ever endeavored or attempted to use any unfair means in order to prevent the defend- ant in error from claiming and obtaining his liberty if he chose. The counsel for the defendant in error has contended that his claim may be likened to the case of money paid through mistake, wdiich may be recovered back, as he alleges ; that the defendant in error performed the services for the plaintiff' as his servant under a mistake of his real condition, not knowing that he was a freeman, and that the plaintiff in error, being greatly benefited by his services, is bound by the ties of natural justice and equity to remunerate him. It is true that as- sumpsit will lie for money had and received in all cases where by the ties of natural justice and equity the defendant ought to refund the money paid to him, except when he may with a, good conscience receive it, and there was no deceit or unfair practice in obtaining it, in which case, although the money could not be recovered by law, the action will not lie to enable the party who paid it voluntarily to re- cover it back again. Morris v. Turin, i Dall. 148 ; Bogart v. Nevins, 6 Serg. & Rawle 369; Irvine v. Hanlin, 10 Serg. & Rawle 219. Let the matter, then, be tested by this rule, and the question wall be, did the plaintiff in error, under the circumstances of this case, receive the labor and services of the defendant in error with a good conscience, in payment or satisfaction of the $550 which he had advanced for him? It must be admitted that the plaintiff in error was entitled to have either the services of the defendant in error or to have his money repaid ; that he had a just and conscientious claim to the one or the other ; if so, surely he might very fairly and honestly receive his money or the services in satisfaction of it from the defendant in error, or any other who was willing to pay or perform service for it. In such a case it is not sufficient, as has been contended, to affect the conscience of the plaintiff in error that the services, though per- formed willingly by the defendant in error, were performed under mistake ; because, in the case of a sheriff paying, through mistake, money made by him to a plaintiff in a junior execution when he 308 MISTAKE OF FACT. ought to have paid it on a senior, he cannot recover it back, although by doing so he made himself liable to the plaintiff in the senior exe- cution to pay again to him. The mistake of the sheriff in this case has never been held to affect the conscience of the junior execution creditor, who had no right to demand the money. The amount of his execution was justly due to him, and he might therefore fairly re- ceive it of the sheriff, or of any other person who was willing to pay it to him. It was the business of the sheriff to know what his duty was, and if he mistook it, he must be the sufferer. This is certainly a much harder case than the one now before the court. In the case of the sheriff, he is clearly the loser to the whole amount of the money paid by him, but in the case under consideration the defend- ant was supported and maintained entirely at the expense of the plaintiff in error, who furnished him with boarding, lodging and clothing, as also every other necessary of life. If he would have made more than this for himself had he put in the same time under the idea that he was free and his own master may be doubtful ; at least it is not certain that he has actually sustained any loss. The defendant in error was at least bound in gratitude to make compensation for the care, attention and expense bestowed and in- curred in raising and instructing him from his birth until he became able to take care of and provide for himself. And as his counsel allege that he is a man of considerable merit, it may be presumed that he owes this in part to his good education and the careful manner in which he was brought up. For all this he stood indebted to the plaintiff in error, who has either paid for, or furnished it himself. Besides, it may be observed that if the defendant in error had been abandoned by the master of his mother in his earliest stage of in- fancy, he would perhaps have fallen into the hands of the overseers of the poor of the township in which he was born, and I am inclined to think that they, under the fourth section of the abolition act of the 1st of March, 1781, might have bound him out as an apprentice until he would have arrived at the age of twenty-eight years ; this they were clearly authorized to do in certain cases ; so that the lot of the defendant in error may have been better than otherwise it would, had he been given up shortly after his birth by the master of his mother ; for certainly he was not bound to maintain him be- yond his pleasure, and if he did so he ran the risk of getting nothing for it. Upon the principle that is contended for, this action ought to be supported by every aj)prentice that is bound by an informal or void indenture. After he has served out his apprenticeship, he might turn round and sue his master for his services. So Nelly, who served Mr. .Stiles in the case already cited, might sustain a suit against him for her services, notwithstanding she was adjudged by the decision of the supreme court to be his servant, because, according to the last decision on her condition, in the case of Miller v. Dwilling, she was free. Now, such suits and claims have never been thought of, and I have no hesitation in saying that they cannot be supported. GRATUITY CONFERRED UNDER MISTAKE. 309 The case of negro Peter v. Steele, 3 Yeates 250, which has been cited and reHed on by the counsel for the defendant in error, does not bear upon the merits of this case ; it decides nothing more than that the merits, if the plaintiff has any, may be tried in an action of assumpsit, which I think is perfectly correct. Again, it has been said that in actions de homine replegiando, brought by those who have been held as slaves or servants, in which recoveries have been had, that damages have been uniformly given and allowed ; this is true, and in every such case damages follow a recovery, of course ; but then they may be nominal only, and certainly ought to be no more in a case where the defendant in the action dc homine replcgiaiido had the same ground for claiming and accepting of the service of the plaintiff that the plaintiff in error had to the service of the defendant in error in this case. If the holding the plaintiff in the action dc homine replegiando be decided to be unlawful some damages must be given for that, at least nominal, but they are not necessarily given upon the ground of compensating for services, for the action or issue joined in it does not involve that qviestion. It is not pretended that there was any express contract in this case between the parties upon which the plaintiff below can sustain his claim against the defendant. As to an implied assumpsit, I think that none can be raised. The defendant below might have conscien- tiously received the services of the plaintiff until he attained the age of twenty-eight years if he had continued to render them, and would have had a right to consider and apply them towards the satisfaction of the money which he paid for him. Suppose Johnston had con- tinued to serve Urie until he was twenty-eight, and Urie had brought a suit against his vendor of Johnston's servitude to recover the $550, would not Johnston's having served out the whole term for which he was sold have been a bar to the action? Most certainly it would. See Nickerson v. Howard, 19 John. Rep. 113. Although Johnston was not bound by law and could not have been compelled to serve Urie, and in that way satisfy him for the money which he had paid, and was entitled to be compensated for in some way, yet, having done so, he cannot claim now to have his character changed into a hireling and be paid for his labor contrary to the understanding that existed between them during the whole time of such labor or service. The judgment of the court below is reversed.^ ^ In Alfred v. Marquis of Fitzjames, 3 Esp. 3, a servant, who had been a slave in the West Indies, came to England and continued in his master's service there, without agreement as to wages. He was not allowed to re- cover in assumpsit for wages, as "there was no original contract of service for wages." In Hickam v. Hickam, 46 Mo. App. 496 (1891), the plaintiff, who was an ignorant negro woman, had, after the emancipation of slaves in Missouri, been induced, by her former master's false and fraudulent representations, to render services under the supposed continuance of the status of a slave, and it was held she could recover. / 3IO MISTAKE OF FACT. BURROWS V. WARD. 15 R. I. 346.— 1886. \ Per Curiam. — This is assumpsit for compensation for services rendered. The defendant pleaded the general issue, and on trial put in testimony to show that, when he took the plaintiff into his service, the plaintiff was an inmate of the Providence Reform School, under sentence, and that he took him as an apprentice, pursuant to an agree- ment with the keeper of the Reform School, under which he was to have the services of the plaintiff until he should arrive at the age of twenty-one, paying him $100 at that time if he continued in his service until then. This agreement was made in the spring of 1869, the plaintiff then being a boy less than twelve years of age. Under the statute it was only the trustees of the Reform School who were authorized to apprentice inmates, and they only by deed. The ap- prenticeship, therefore, was invalid. The plaintiff, nevertheless, re- mained in the service of the defendant between four and five years. He then absconded, was rearrested and recommitted to the Reform School, Shortly afterwards he was remitted to the service of the defendant, and, as the defendant testified, at his, the plaintiff's, own earnest request. He remained in the service of the defendant, accord- ing to his own testimony, imtil June i, 1880; according to the testi- mony of the defendant, until June 26, 1878. The defendant testified that, according to a record or memorandum on the books of the Re- form School, the sentence expired November 19, 1880, and that he took the plaintiff into his service believing that he could retain him, under his agreement, until that date. The jury returned a verdict for the plaintiff for $258.94. The case is before us on a petition for new trial for errors in the rulings of the court below. The first two errors alleged are for the refusal of the court to charge, in effect, that the plaintiff could not recover if his sentence, by its terms, did not expire before November 19, 1880, even if he attained his majority before that time. We do not think there was any error in the refusal, because, under the statute, sentences to the Reform School can only be during minority, or some less term. If the sentence was for longer than during minority, it was void, at least for the excess. There was, moreover, no proper evidence on which the jury could determine the terms of the sentence, the record of the sentence, which is the best evidence, not being produced. The third error alleged is for the refusal of the court to instruct the jury that, if they found that the plaintiff continued to work for the defendant after arriving at the age of twenty-one, without any specific contract, and without notice to the defendant that he ex- pected wages, then the plaintiff could not recover. The court refused this request, and instructed the jury that the plaintiff might recover for any services rendered to the defendant after he was in fact twenty-one years of age. We think that this was error. If the plain- GRATUITY CONFERRED UXDEIl MISTAKE. 3TI tiff returned to the defendant at his own request, or with his free consent, under the agreement with the keeper, the defendant behev- ing that the term of sentence did not expire until November 19, 1880, the plaintiff would not be entitled to recover for wages, after his arrival at the age of twenty-one, without some notice or intimation to the defendant that he should expect wages if he continued in his service longer. Moreover, if the plaintiff was in the service of the defendant with his own consent, with the understanding that he was not to receive wages for his work, then we do not think that he would be entitled to wages without some notice from him to the defendant that the understanding had come to an end, and that he was expect- ing to be paid. Exceptions sustained. OSBORN v. THE GOVERNORS OF GUY'S HOSPITAL. 2 Strange 728. — 1727. The plaintiff brought a quantum meruit pro opere et labore in transacting Mr. Guy's stock affairs in the year 1720. It appeared he was no broker, but a friend ; and it looked strongly as if he did not expect to be paid, but to be considered for it in his will. And the chief justice directed the jury that, if that Avas the case, they could not find for the plaintiff, though nothing was given him by the will ; for they should consider how it was understood by the parties at the time of doing the business, and a man who expects to be made amends by a legacy cannot afterwards resort to his action.^ ST. JOSEPH'S ORPHAN SOCIETY v. WOLPERT. 80 Ky. 86.— 1882. Judge Hargis. — The appellant, a charitable institution for the rearing, maintaining and educating of orphan children, brought this action against John Schulten, as guardian of Frank, George, Cath- ^ Accord, Sheperd v. Young, adm'r, 8 Gray 152 (1857), where one who had supported her destitute grandchild was not allowed, after the death oi the child in a railroad accident and the recovery of damages by the adminis- trator, to recover from the latter the amount of the child's board. But in re Clabbon, [1904] 2 Ch. 465, the guardians of the poor had sup- plied necessaries to an infant who afterward became entitled to a legacy. The court said : "I cannot agree that a pauper who takes relief in the shape of necessaries which keep him alive, takes that relief so entirely of right, that he is not under a legal liability to pay if he afterwards comes into money." In Trainer v. Trumbull, 141 Mass. 527 (1886), recovery was allowed for necessaries supplied to an infant pauper, who at the time they were supplied, had an expectation of $10,000, and who was supplied "on the credit of his expectations." 312 MISTAKE OF FACT. erine and John Wolpert, and against each of said infants in their in- dividual capacity, for the vakie of raising, taking care of and edu- cating them. The petition, stripped of its formal parts, substantially alleges that the infants named were supposed by appellant and their guardian to be penniless, and that the appellant received, cared for and educated them as persons who have no property or means, and that such per- sons were so received and cared for without charge in the institution ; but that the by-laws authorized by its charter provide that the guardian of orphans wdio have property, means or estate might con- tract wath appellant's board of trustees, and agree upon the condi- tions of their admission ; and that appellant has recently discovered that the infant appellees did have some money, which was received from their mother's estate, and as a pension, by reason of the military service of their father in the United States army. * * * After the appellant, under protest, elected to prosecute its action against the guardian of John Wolpert, the latter demurred, and the court sustained the demurrer, and that ruling forms the next ques- tion to be determined. It will be noticed that the appellant does not allege any promise or agreement with the guardian of the infants, either for board, care or education, and having, from charitable motives, taken, raised and educated them without intending to charge therefor, as it alleges, it cannot, by reason of this express and executed gratuity, recover on an implied assumpsit raised by law, unless the alleged mistake in the condition of these orphans will authorize a revocation of its consent, and impose upon them a liability for what it voluntarily did. It is not alleged that the guardian intentionally or fraudulently suppressed the knowledge from appellant of the existence of the small sum which they received by distribution from their mother's estate or of the pension ; and a close analysis of the whole case presents the question whether a charitable institution, incorporated for the purpose, shall be permitted to receive, care for and educate orphans, with the ex- press understanding that nothing is to be charged therefor, and when it is discovered that such orphans have received, by the mis- fortunes of war and the charity of the government, a pension for the purpose of subsistence, which is exempt from attachment, levy or seizure, revoke its gratuity and share with the beneficiaries that charity which they have received from another source. We do not think it can be allowed this privilege of recantation, because its charter and by-laws authorized it to contract for compensation ; yet it failed to arm itself with an agreement therefor, and no deception is alleged to have been practiced to prevent this exaction. And it has been held too often to admit of doubt or discussion that an executed gift or gratuity cannot be revoked by the donor, no matter what may have been the condition of the donee, or what char- ities he shall receive, or property acquire in the future, unless the donation or gratuity were the result of fraud or mistake in its exe- cution. And there is no reason why an executed gift of personal / GRATUITY CONFERRED UNDER MISTAKE. / 3I3 property shall not be revoked that does not sustain the irrevocability of gratuitous labor, care, board or education after completion. One is no more the executed donation of value than the other, and the same principle of law is equally applicable to both. The creation of the apjicllant was for charitable and benevolent purposes, and the undertaking of its holy mission presupposes that its labor of love is to be done without money and without price, and unless a special agreement, which seems to have been authorized by its charter, in view of the gratuitous nature of the office of this in- stitution, were made for compensation, we do not think it can recover for board, care and education of orphans whose control it has sought with the avowed purpose of bestowing charity upon them. There was no mistake in the execution of these charitable donations, which do not partake of the nature of a contract to the same degree that ordinary gifts do; but the objects of this charity seem to have been less needy than appellant supposed, and this is all we are authorized to infer from the allegations of the petition. Under what is known as the hospitality act, an uninvited guest cannot be held liable on an implied assumpsit, and certainly infants, who are invited generally and specially to a charitable institution, cannot be held bound for the charity they receive without an express promise to pay, simply be- cause they happened to have and receive property, which was un- known to the managers of the institution until after the performance of the charity. Were this otherwise, this noble charity would be con- verted into a sort of house of private entertainment, to which obliga- tions of indebtedness might be contracted unawares by orphans and guardians, and those who received its assistance free would become debtors therefor by the unexpected development of ownership hither- to unknown to the institution. The demurrer, in our opinion, was properly sustained. Judgment affirmed.^ COOPER V. COOPER et al., Admrs. 147 Mass. 370.— 1888. \ Contract to recover for services as housekeeper for defendant's intestate. Trial in the superior court, before Bacon, J., who directed a verdict for the defendants, and the plaintiff excepted. The facts appear in the opinion. W. Allen, J. — The plaintiff and James W. Cooper intermarried in the year 1869, ^"d lived together as husband and wife until his ^In Manchester v. Burns & Trustee, 45 N. H. 482 (1864), the plaintiff city had furnished aid, by virtue of a statute, to the indigent family of the de- fendant, a volunteer soldier while in the service of the United States. After his discharge, the plaintiff, not knowing of the discharge, continued to give aid to the family, and as to the benefits thus conferred under this mistake, plaintiff was allowed to recover from the defendant. 314 MISTAKE OF FACT. death in 1885. After his death the plaintiff learned that a former wife, from whom he had not been divorced, was living, and brought this action of contract against his administrator to recover for work and labor performed by her as housekeeper while living with the in- testate. The court correctly ruled that when the parties lived together as husband and wife there could be no implied promise by the hus- band to pay for such work. The legal relations of the parties did not forbid an express contract between them, but their actual relations and the circvmistances under which the work was performed nega- tived any implication of an agreement, or promise, that it should be paid for. Robbins v. Potter, 1 1 Allen 588 ; s. c. 98 Mass. 532. The case at bar cannot be distinguished from that cited, unless upon the grounds that the plaintiff believed that her marriage was legal, and that the intestate induced her to marry him by falsely representing that he had been divorced from his former wife. But the fact that the plaintiff was led by mistake or deceit into assuming the relation of a wife has no tendency to show that she did not act in that relation ; and the fact that she believed herself to be a wife ex- cludes the inference that the society and assistance of a wife which she gave to her supposed husband was for hire. It shows that her intention in keeping his house was to act as a wife and mistress of a family, and not as a hired servant. There was clearly no obligation to pay wages arising from contract ; and the plaintiff's case is rested on the ground that there was an obligation, or duty, imposed by law, from which the law raises a promise to pay money upon which the action can be sustained. The plaintiff's remedy was by an action of tort for the deceit in in- ducing her to marry him by false representations or by a false promise. Blossom v. Barrett, 37 N. Y. 434. The injury, which was sustained by her, was in being led by the promise or the deceit to give the fellowship and assistance of a wife to one who was not her husband, and to assume and act in a relation and condition that proved to be false and ignominious. The duty which the intestate owed to her was to make recompense for the wrong which he had done to her. It is said that from this duty the law raised a promise to pay her money for the work performed by her in housekeeping. The obligation to make compensation for the breach of contract could be enforced only in an action upon the contract. The obligation to make recompense for the injury done by the tort was imposed by law and could be enforced only in an action of tort ; it was not a debt or duty upon which the law raised a promise which would support an action of contract. The same act or transaction may constitute a cause of action both in contract and in tort, and a party may have an elec- tion to pursue either remedy. In that sense he may be said to waive the tort and sue in contract. But a right of action in contract cannot be created by waiving a tort, and the duty to pay damages for a tort does not imply a promise to pay them, upon which assumpsit can be maintained. Jones v. Hoar, 5 Pick. 285 ; Brown v. Holbrook. 4 Gray 102 ; Ferguson v. Carrington, 9 B. & C. 59. See also Metcalf EXISTENCE OF A CONTRACT. 315 on Contracts, 9, lo; i Chitty on Contracts, 87; Earle v. Coburn, 130 Mass. 596; Milford v. Commonwealth, 144 Mass. 64. But the objection to maintaining the plaintiff's action lies deeper. The work and labor never constituted a cause of action in tort. The plaintiff could have maintained no action of tort against the intestate for withholding payment for the work and labor in housekeeping, or for, by false representations, inducing her to perform the work with- out pay. The particular acts which she performed as a wife were not induced by the deceit, so that each would constitute a substantive cause of action, but by the position which she was deceived into as- suming, and would be elements of damage in an action for that deceit. Labor in housekeeping was a small incident to a great wrong, and the intestate owed no duty and had no right to single that out and offer payment for it alone ; and the offer to do so might well have been deemed an aggravation of the injury to the plaintiff. We have been referred to Higgins v. Breen, 9 Mo. 493, and Fox v. Dawson, 8 Martin 94, as decisions contrary to the conclusion which we have reached. It does not appear upon what ground the latter case was decided. The former was decided in favor of the defendant, the administrator, upon technical grounds, but the question of his liability was considered. It was assumed that an action of contract could have been maintained against the intestate for work and labor, and the question discussed was whether the action would survive against his administrator, and it was held that it would. Upon the evidence in the present case we think that no action, certainly no action of contract, for the cause of action declared on, could have been maintained against the intestate. Even if the intestate had been liable in tort, we are not prepared to assent to the proposition that an action of contract will lie against an administrator for a tort of his intestate for which no action of contract could have been sustained against him. In the opinion of a majority of the court, the entry must be : Exceptions overruled.^ 2. MISTAKE AS TO THE EXISTENCE OF A CONTRACT. VAN DEUSEN et al. v. BLUM et al. 18 Pick. (Mass.) 229. — 1836. This was an action of debt. The declaration contained two counts upon a special contract under seal, a third upon a qitaiituui meruit for labor performed, and a fourth upon a quantum valebant for ma- terials furnished. The defendant Blum was defaulted ; the other de- fendant, Thouvenin, appeared, and to the first two counts he pleaded non est factum, and to the third and fourth, nil debet. 'Accord, with an extended opinion, Payne's Appeal, 65 Conn. 397 (1895). 3l6 MISTAKE OF FACT. At the trial, before Morton, J., the plaintiffs produced the con- tract, purporting to be between themselves of the one part, and Blum and Thouvenin of the other part. Blum and Thouvenin were part- ners, and were so described in the contract. The plaintiffs had duly executed the contract, and Blum also had executed it by signing the company name "J. C. Thouvenin & Co.," and annexing a seal. There was no evidence that he had any authority to execute the contract in behalf of Thouvenin, or that Thouvenin was present at the execution or ever ratified it. The judge ruled that the instrument could not go in evidence to the jury as the deed of Thouvenin. The contract was for building a dam by the plaintiffs for Blum and Thouvenin across the Housatonic river, which was a purpose within the scope of the partnership business. The plaintiffs offered to prove that they built the dam and furnished the materials therefor, and they claimed against Thouvenin, under the third and fourth counts, what their work and materials were worth. Thouvenin ob- jected to the admission of this evidence, and contended that, there being an express contract executed by the plaintiffs and Blum, and that contract being in force and binding upon Blum, the plaintiffs' remedy was on that instrument alone. But the judge ruled that the plaintiffs might, notwithstanding that contract, recover under the third and fourth counts, upon an implied promise, for all the ma- terials furnished and labor performed before the dissolution of the partnership. Thouvenin and Blum dissolved partnership on the loth of Novem- ber, 1832, and all the partnership property was conveyed to Blum, and he agreed to pay all the partnership debts. The dam was not finished until after the loth of November, and for the work done previously to that day the jury found a verdict against Thouvenin. The questions arising upon these facts were reserved for the con- sideration of the whole court. AIoRTON, J., delivered the opinion of the court. — Debt, as well as assumpsit, will lie on a quantum meruit or a quantum valebant. I Chit. PI. 107 ; 2 Wms's Saund, 117b, note ; Union Cotton Manufac- tory v. Lobdell, 13 Johns 462. Hence these counts may well be joined with counts upon a specialty. Smith v. First Congr. Meetinghouse in Lowell, 8 Pick. 178. It was long doubted whether a man who performed work in con- sequence of a special contract, but not in conformity to it, could re- cover for the services rendered and materials found. There are many and conflicting authorities on the subject. They have all been care- fully examined and compared, and the rule established by our court, as we think, according to the principles of justice and the weight of autliority. He who gains the labor and acquires the property of an- other must make reasonable compensation for the same. Hayward v. Leonard, 7 Pick. 181 ; Smith v. First Congr. Meetinghouse in Lowell, 8 Pick. 178; Munroe v. I^erkins, 9 Pick. 298; Brewer v. Tyringham, 12 Pick. 547. The general authority derived from the relation of partnership EXISTENCE OF A CONTRACT. 317 does not empower one partner to seal for the company or to bind them by deed. It requires special power for this purpose. See Cady V. Shepherd, 11 Pick. 400, and the cases there cited. Here was no evidence of any previous authority or subsequent ratification. The sealed instrument executed by one partner in the name of the firm might bind him, but could not be obligatory upon the company. And although the plaintifl:'s might have had a remedy upon the contract against the party who executed it, yet they were not bound to rely upon him alone. The services never were rendered either in conformity to or under such an agreement. The plaintiffs undertook to execute a contract between themselves and the company. But there being no such con- tract in existence, they are left to resort to their equitable claim for their labor and materials. So far as these benefited the company, the plaintiffs are entitled to recover against them. Judgment on the verdict. BOND V. AITKIN. 6 Watts & S. (Pa.) 165.— 1843. This was an action of debt brought by Charles Bond against John Aitkin and James Aitkin, trading under the firm of John & James Aitkin, on the following note : Six months after date we promise to pay to Charles Bond or order four hundred dollars, with five per cent, interest, without defalca- tion, for value received. Witness our hands and seals this ist day of October, 1836. Jno. & James Aitkin, [l. s.] The plaintiffs declared in one count against the defendants as partners in a sealed instrument alleged to have been executed by them, and in another against them as partners for money lent. James Aitkin pleaded payment with leave, etc. and )ion est factum, to the first count. Judgment by default was entered against John. Bell, president, charged the jury as follows : The plaintiff declares in two counts, one on a bill single alleged to be executed by John and James Aitkin, dated October i, 1836, to secure the payment of $400. To this the defendant, James Aitkin, pleads non est factum; and this plea raises the question whether the obligation is in truth the deed of John and James, as the plaintiff argues. It appears the bill obligatory was signed by John alone, and although he used the name of his partner as one of a firm, it is not binding on James ; for, generally speaking, one partner cannot bind another by specialty or instrument under seal, sealed instruments not being such as are used in transacting partnership affairs. The plain- tiff cannot, therefore, recover on his first count, for he has failed to prove the bill single declared on is the deed of the defendants. But the plaintiff, in a second count, declares against John and 3l8 MISTAKE OF FACT. James Aitkin, as partners, for money loaned to them. On the evi- dence, the jury can entertain Httle or no doubt that the money sought to be recovered was borrowed from the plaintiff on the partnership account and applied to partnership purposes, and so became the joint debt of both the partners, though actually borrowed but by one of them. Prima facie, therefore, both would be liable in this action. But in answer to this statement of the plaintiff's claim, the defendants set up the bill single given in evidence by the plaintiff under his first count as a bar to his recovery on the second. This bill single must be taken as executed by John Aitkin alone ; for, though signed in the name of the firm, it is good against him and him alone. But it is the undovibted rule in Pennsylvania that if the creditor of a firm accept the obligation of one of the partners for the firm debt, the original claim is merged and extinguished in the new security, and the cred- itor cannot afterwards have recourse to the first liability, as is at- tempted here. But it is shown that James Aitkin promised to pay this debt subse- quently to the execution of the bill single, and if this were an action against him alone, I incline to the opinion that the plaintiff might recover on this promise, as based on a subsequent consideration. But this is an action against two, John and James ; and before the plain- tiff can recover he must show a joint liability on the part of the de- fendants to answer. In this he has failed. I am, therefore, of opinion the plaintiff is not entitled to recover in this action, and your verdict ought to be for the defendants. The plaintiff excepted to the charge, and assigned the following errors : 1. The court erred in charging that the bill single executed by John Aitkin was an extinguishment of the joint debt of both defend- ants. 2. In charging that the plaintiff could not recover upon the sec- ond count of the declaration. 3. In charging that the plaintiff could not recover upon James Aitkin's promise to pay. 4. In charging that there was no joint liability. 5. In charging that the bill single was void as to James Aitkin. The opinion of the court was delivered by Sergeant, J. — The question arising in this case has undergone a thorough discussion in the two late cases of Gram v. Seton, i Hall. 262, and Cady v. Shepherd, 11 Pick. 400, where all the authorities are examined, and the principle is settled that a partner may bind his copartner by a contract under seal, in the name and for the use of the firm, in the course of the partnership business, provided the copartner assents to the contract previously to its execution, or after- wards ratifies and adopts it ; and this assent or adoption may be by parol. And we are satisfied that the rule is founded on principles of justice and policy, and sui)portcd by the general tenor of the ad- judged cases in this coimtry and in Eugland. The only question in the present case is, whether there is any evidence to go to the jury to EXISTENCE OF A CONTRACT. 3I9 show that James Aitkin assented to the giving of the sealed bill in the name of the firm, before or at the time of its execution, or after- wards ratified it ; and we think there is. The admissions made by him in the conversation with Carter, if believed, in connection with the fact that the money was got for the firm and went to its use, are evi- dence to go to the jury. He said that though he did not know of it at the time it was given, yet, if he had, he would have been perfectly satisfied ; if he could make collections he would pay it in October. He repeatedly desired it should be sued as a partnership claim, and de- clared the note was as good as if he gave his individual note. This and the whole tenor of the conversation tend strongly to the infer- ence that he had authorized the giving of it ; and we think the evi- dence ought to have been left to the jury to say whether such author- ity was given, or whether the defendant subsequently ratified the in- strument. On the additional count, we think the plaintiff has not shown a right to recover. Where the bond of one of the partners is taken for an antecedent partnership debt, it may be considered either as pay- ment and extinguishment of such debt, or only a collateral security, according to the nature of the transaction and the circumstances at- tending it. Wallace v. Fairman, 4 Watts 378. But where there is no antecedent debt, but the bond of one partner is taken at the time money is loaned to the partnership, and as the consideration for loan- ing the money, it can hardly be treated as a collateral security. It must be considered as all one transaction, and the bond as the only security contemplated ; unless, perhaps, there were strong and posi- tive evidence to show an express agreement to the contrary by all parties. If so, then in this case the bond was the only debt ; the plain- tiff, if he recovered at all, must recover on it, and not on the money counts. And as there was no implied contract by both, so the express promise proved was only by one ; and, therefore, we are of opinion the charge of the court below was correct, that the plaintiff could not recover on the additional count. Judgment reversed, and a venire de novo awarded. TURNER & OTIS v. WEBSTER. 24 Kan. 38.— 1880. Action brought by Webster against Turner and another, partners, to recover for services rendered the defendants. Verdict and judg- ment for plaintiff. The defendants bring the case to this court. The facts are stated in the opinion. Brewer, J. — In an action commenced by plaintiff's in error, an attachment was issued, placed in the hands of the sheriff, and by him levied upon certain mill property. Pending the attachment proceed- 320 MISTAKE OF FACT. ings, the sheriff, under direction of plaintiffs in error, employed de- fendant in error to watch the property ; and this action was brought by defendant in error, plaintiff below, to recover for such services. That the sheriff was authorized by plaintiffs in error to employ de- fendant in error, and that the latter performed the services, are con- ceded facts. The dispute is as to the compensation. Webster claims that the contract price was three dollars per day, and that it was worth that amount, while Turner & Otis say that they authorized the sheriff to contract for only one dollar and a half a day, and the sheriff says that that was all he promised to pay. The misunderstanding seems to have arisen in this way : After the attachment. Turner & Otis requested the sheriff to find some one to guard the mill. Meet- ing Webster, he asked him what he would undertake the job for. He replied, one dollar and a half a day, and nights the same. The • sheriff understood him to say and mean one dollar and a half for each day of twenty-four hours, while plaintiff meant that amount for a day of twelve hovirs, and the same for the night time, or three dollars for every twenty-four hours. The sheriff reported the offer to Turner & Otis as he understood it, and they, after some hesitation, told him to accept the offer and employ Webster. Without further words as to the price, the sheriff gave the key of the mill to Webster and told him to go ahead. Now, the contention of plaintiffs in error is that the case turns on the law of agency ; that they never personally em- ployed Webster ; that the sheriff was only a special agent with Hmited powers, only authorized to bind them by a contract to the amount of one dollar and fifty cents per day of twenty-four hours ; that Webster is chargeable with notice of the extent of the sherift''s authority, and can enforce the contract as against the plaintiffs in error to the extent only of such authority. For any contract beyond that amount, the special agent binds himself alone, and not the principal. On the other hand, the defendant in error contends that where services are con- tracted for and rendered, and no price stipulated, the law awards reasonable compensation therefor, and that where there is a misun- derstanding as to the price, the one party understanding it at one sum and the other at a different, there is no stipulation as to the price, and that it makes no difference whether the contract be made through an agent or with the principal directly. In the case at bar he contends that it is immaterial that the conversation and misunderstanding were with the sheriff, the agent, and that the rule is just the same as though the talk and misunderstanding had been with Turner & Otis personally. We think the case rests upon the propositions advanced by the de- fendant in error. It will not be questioned that, where the minds of two contracting ]:)arties do not come together upon the matter of price or compensation, but do upon all other matters of the contract, and the contract is thereupon performed, the law awards a reasonable price or compensation. Thus, where shingles were sold and deliv- ered at $3.25, but there was a dispute as to whether the $3.25 was for a bunch or for a thousand, it was ruled that unless both parties had EXISTENCE OF A CONTRACT. 32 1 understandingly assented to one of those views there was no special contract as to price. Greene v. Bateman, 2 Woodb. & M. 239. It is said by Parsons, in his work on Contracts, Vol. i, p. 389, that "there is no contract unless the parties thereto assent ; and they must assent to the same thing, in the same sense." Here, Webster never assented to a contract to work for $1.50 a day. He agreed to do a certain work, and did it ; but his understanding was that he was to receive $3 per day. Turner & Otis employed him to do that work, and knew that he did it ; but their understanding was that they were to pay but $1.50 a day. In other words, the minds of the parties met upon every- thing but the compensation. As to that there was no aggregatid mentium. What, then, should result? Should he receive nothing, because there was no mutual assent to the compensation ? That were manifest injustice. Should his understanding bind both parties? That were a wrong to them. Should theirs control? That were an equal wrong to him. The law, discarding both, says a reasonable compensation must be paid. So that if the negotiation had been be- tween the parties directly, and this misunderstanding had arisen, the rule of reasonable compensation would unquestionably have obtained. Now, how does the law of agency interfere? The proposition of law advanced by counsel for plaintiff in error, that a special agent binds his principal to the extent only of the authority given, and him- self by any promise in excess, is clear. But the agent made no prom- ise in excess of his authority. He promised that which he was au- thorized to promise. Because the other party misunderstood the ex- tent of the promise is surely no reason for holding the agent bound for more than he did in fact promise. The agent has rights as well as the principal. The work is not done for his benefit. He has dis- charged his agency in good faith and to the best of his ability. Why should he be mulcted in any sum on account of the misunderstanding of the party with whom he contracted? If compensation were given on the basis of his promise, then, if his promise was in excess of his authority, he should be responsible for the excess ; but where the promise is ignored, and compensation given on the basis of value alone, he should not be charged with the excess of such value above his authority. An agent is responsible for good faith. That is not questioned. He does not insure, either to his principal or the oppo- site party. Acting in good faith and to the best of his ability, we can see no reason for making him responsible for any mere misunder- standing. Justice is done to all parties by ignoring any promise or understanding as to compensation and giving to the laborer reason- able compensation for the v/ork done, and requiring the party receiv- ing the benefit of such work to pay a just and reasonable price there- for. The case was submitted to the jury upon this basis, and while the instruction asked by plaintiffs in error and refused was imquestion- ably good law in the abstract, and while some criticism might fairly be placed upon one of the instructions given, and upon the answers Woodruff's Cases — 21 1 322/ MISTAKE OF FACT. of the jury to two special questions, we think the main question was fairly presented, and that no error appears justifying a reversal of the judgment, and it will be affirmed. All the justices concurring.^ CONCORD COAL CO. v. FERRIN et al. 71 N. H. 33.— 1901. ■\ Assumpsit by the Concord Coal Company against one Ferrin and another. Verdict rendered for defendants, and case transferred on plaintiff's exceptions. Exceptions overruled. One Bean, being indebted to the defendants for labor upon a model of an appliance invented by him, and having been requested to make payment, informed the defendants that one of the plaintiffs, Day, was backing him, and that he would get the plaintiff company to furnish a ton of coal for application as payment upon his indebted- ness ; and the defendants agreed to accept a ton of coal in part pay- ment. Bean thereupon informed the plaintiffs that the defendants wanted a ton of coal, without saying anything about the arrangement he had made with them. The coal was delivered to the defendants and used by them in their business. The plaintiffs charged the coal to the defendants. Demand for payment was made upon the defend- ants by the plaintiffs by letter within six months after the coal was delivered, and again after about a year. An oral demand was subse- quently made on several occasions, and the defendants on each occa- sion denied their liability. The defendants credited the coal to Bean's account. Day was not in fact backing Bean, and had given him no authority to iDind him in any way. The defendants knew that the coal came from the Concord Coal Company, and that the plaintiffs were a firm composed of Day and one Emmons. Both parties acted in en- tire good faith, but were deceived by Bean. Parsons, J. — Both parties understood that upon the delivery of the coal the title passed to the defendants. Their misunderstanding related solely to the mode of payment. The plaintiffs understood the defendants were to pay them the customary price, and charged the coal to them. The defendants understood the coal was delivered as a payment upon Bean's indebtedness to them, and credited it upon his account. The plaintiffs understood their delivery was of coal to be paid for in cash in the ordinary course of business. The defend- ants understood their acceptance was of coal for which they had already paid. To this branch of a contract of sale the parties did not agree in fact, either in terms or by inference. Hence there was no contract in fact, express or tacit (Sceva v. True, 53 N. H. 627, 632), because of the mutual mistake as to payment. As there was no con- ' Accord, Collins v. Stove Co., 6^ Conn. 356 (1893) ; Russell v. Clough, 71 N. H. 177 (1901) ; McDonald v. Lynch, 59 Mo. 350 (1875). EXISTENCE OF A CONTRACT. 323 tract of sale, in the absence of any estoppel, upon discovery of the mistake the plaintiffs might have retaken their coal if it remained distinguishable from other coal of the defendants, or the defendants might have required the plaintiffs to remove it. As the plaintiffs had no right of action by virtue of the mistaken acceptance of the coal, they cannot now recover except by virtue of some further facts. The additional facts stated are that the defendants used the coal in their business, and the plaintiffs, within six months and subsequently, made sundry demands for payment. It does not appear that the plain- tiffs ever demanded the return of the coal ; but, on the contrary, they appear to have uniformly insisted upon the contract as they under- stood it. In the original transaction both parties acted in entire good faith, but were deceived by Bean. Upon these facts the trial court found a verdict for the defendants. This verdict must stand unless the specific facts found are inconsistent therewith as matter of lav/. The plaintiffs' claim is that the defendants by their use of the coal charged themselves with the legal duty of paying for it in accordance with the plaintiffs' understanding of the contract, rather than their own, or at least of paying anew in money the usual price or value of the coal. The question is, how ought the coal to be paid for, — in ac- cord with the understanding of the plaintiffs, or with that of the de- fendants? It is manifest that if the plaintiffs had accompanied the delivery of tiie coal with an invoice charging the defendants with the price, or had informed them it was delivered on their credit, or if before delivery the plaintiff's had inquired of the defendants as to Bean's authority, or if the defendants, before accepting, the coal, had informed the plaintiffs that they accepted it only for application on Bean's debt, the controversy would have been avoided. Whether, under all the circumstances, the defendants accepted or the plaintiffs delivered the coal under such circumstances that either of them are now estopped to set up their understanding of the transaction, is mainly a question of fact. If it were found that the defendants were thus in default, they would be bound in contract by estoppel (Sceva V. True, supra) ; while, if the plaintiffs were considered to be sim- ilarly estopped, the case would also be determined upon that ground. As the general verdict is found for the defendants, it must be under- stood at least to embrace a finding that no estoppel exists against the defendants. Bank v. Church, 69 N. H. 582, 44 Atl. 105. The facts disclose no contract in fact, express, tacit, by estoppel, or implied in fact ; and the sole remaining question is whether the facts establish a contract implied in law, or a contract of legal duty, sometimes called a quasi contract. Sceva v. True, supra. A promise to pay what it is one's legal duty to pay is implied by law. Bixby v. Moor, 51 N. H. 402-404; Eastman v. Clark, 53 N. H. 276, 280, 16 Am. Rep. 192 ; Sceva v. True, 53 N. H. 627. 631-633 ; Water Co. v. Metcalf, 63 N. H. 427 ; Gage v. Gage, 66 N. H. 282, 283, 29 Atl. 543, 28 L. R. A. 829 ; Clark v. Sanborn, 68 N. H. 411, 36 Atl. 14. In this case the legal duty is wanting, unless it can be predicated upon the mere possession and use of property. The mere fact of benefit re- 324 MISTAKE OF FACT. ceived is insufficient to establish the legal duty of payment. Clark v. Sanborn, supra, is precisely in point. There the plaintiff was unable to recover for services valuable to the defendants, rendered under the expectation that they would be paid for, for the reason that the defendants did not accept the services with the understanding that they were to make payment. In the absence of privity of con- tract, the mere possession and use of property will not imply a prom- ise to pay for it. Ice Co. v. Potter, 123 Mass. 28, 25 Am. Rep. 9; Hills v. Snell, 104 Mass. 173, 177, 6 Am. Rep. 216; Boulton v. Jones, 2 Hurl. & N. 564; Benj. Sales, §§ 59, 416. It is contended that the plaintiffs can recover because otherwise the defendants would be un- justly enriched at the plaintiffs' expense. But that fact is not found. Both parties trusted and were deceived by Bean. If the plaintiffs cannot recover of the defendants for the coal, they have a claim against Bean for its value ; while, if the defendants were obliged to pay for the coal, they would also have a claim against Bean for the same amount. It may be assumed that Bean is worthless. But there is no equitable reason why the plaintiffs rather than the defendants should be released from the consequences of their trust in Bean. In view of the inference of freedom from fault which the general verdict finds for the defendants, the defendants' equity is at least equal with that of the plaintiffs. As no facts are found inconsistent with the general verdict found for the defendants, the verdict cannot be disturbed. Exceptions overruled. Blodgett, C. J., did not sit. The others concurred.^ ROCKFORD, R. I. & ST. L. R. R. v. SAGE. 65 III. 328. — 1872. Mr. Justice Sheldon. — This was an action of assumpsit, by Sage, against the railroad company, to recover for money paid for survey- ing done before the company was organized or its charter granted, and for services and expenses as director of the company, and for $1,000 due on an account stated. A recovery was had for $1,000, which, under the evidence, must have been upon what was found to be an account stated. The defendant appeals. * * * * We find nothing in the evidence which should be considered as amounting to the adoption of any resolution by the board of direct- ors to pay for these services and expenses, or to pay the bill offered in evidence. There was some evidence tending to show services rendered and expenses incurred by the plaintiff, since the organiza- tion of the company, apart from his duty as director ; for all such, * See also Columbus, etc. Ry. v. Gaffncy, reported herein, ante, p. 19. EXISTENCE OF A CONTRACT. 325 he may recover upon a qiiantnui meruit. T'ut there is no proof of such services and expenses to the amount of $1,000. For services and expenses before the organization of the company, which, subsequently, the company accepts and receives the benefit of, and promises to pay for, we will not say a party might not re- cover, in virtue of such express promise ; but we are disposed to deny the right of recovery for such services and expenses upon any im- plied promise resulting from the facts, although the case cited by appellee's counsel of Low v. Conn. & Passumpsic Rivers R. R. Co., 46 N. H. 284, seems to sanction such a right of recovery, as does also the case of Hall v. Verm, and Mass. R. R. Co., 28 Vt. 401, as re- spects services rendered subsequent to the act of incorporation, and prior to perfecting the organization of the company, but not for services prior to the act of incorporation. A right of recovery against a corporation for anything done be- fore it had a proper existence, does not appear to rest on any very satisfactory legal principle. It appears more reasonable to hold any services performed or expenses incurred prior to the organization of a corporation, to have been gratuitous, in view of the general good or private benefit expected to result from the object of the corpora- tion. It seems unjust to stockholders, who subscribe and pay for stock in a company, that their property should be subject to the in- cumbrance of such claims, and which they had no voice in creating. N. Y. and N. H. R. R. Co. v. Ketchum, 27 Conn. 170, is an author- ity which denies the liability of a corporation on account of services rendered prior to the perfecting of its organization ; and we accept the authority of that case as, in our judgment, establishing the more just and satisfactory rule. In the language of that case, "it is soon enough for corporate bodies to enter into contracts, incumbering their property, when they are duly organized according to their charters and have their chosen and impartial directors to conduct their business." To the same effect are Franklin Fire Insurance Co. v. Hart, 31 Md. 59, and Safety Life Deposit Ins. Co. v. Smith, 65 111., p. 309. The judgment must be reversed and the cause remanded. Judgment reversed. LOW v. CONN. AND PASSUMPSIC RIVERS R. R. 45 N. H. 370.— 1864. Assumpsit, under the common counts, to recover for labor and services in organizing said railroad company, in procuring subscrip- tions to its stock, and getting it into operation, from January i, 1845, to January 15, 1846 — $5,000; for one horse, and for services at re- quest, $300. The charter was granted first in 1835, but lapsed be- cause of failure to fulfil certain conditions. In 1843 the charter was 326 MISTAKE OF FACT. revived by act of legislature, and in January, 1846, the corporation was organized. Bellows, J. — The great question is whether the plaintiff is en- titled to recover of the corporation in any form for services rendered by him antecedent to its organization, but which were necessary to enable it to complete that organization ; and if so whether the action of assumpsit can be maintained. In considering the first question it will be assumed for the present that the services were necessary, that they were rendered at the request of one or more of the original corporators, or of those who were associated with them, and that the corporation accepted those services after its organization and en- joyed the benefit of them. Under such circumstances, we are in- clined to the opinion that it would become the duty of the corpora- tion to pay for such services ; and that in some form this duty could be enforced. * * * * If it were true, that, at the time the services were rendered, the corporation had no capacity to make a contract, — which is by no means clear after the charter has been accepted, — still if the serv- ices were rendered for the corporation upon the promise of the corporators that they should be paid for by it when its organiza- tion was perfected, and after that the corporation had adopted the contract and received its benefits, we think, that, upon the maxim that a subsequent ratification is equivalent to a prior request, it may well be held that a promise to pay will be implied. Upon this prin- ciple a person may sue on a contract made in his name by one assuming to have authority, but having none in fact. So the title of an administrator will relate back to the death of the intestate, so as to entitle him to sue for the price of goods sold by one as- suming to act for the administrator whoever might be afterward ap- pointed, — Broom's Legal Maxims (676), and cases cited, — and still at the time of such sale there was no one in existence having capac- ity to make a contract as administrator. See also Foster v. Bates, 12 M. & W. 226. So if one without authority buy goods for another, but afterward the other receives them, this is equivalent to a previ- ous request, i Wms. Saund. 264, n. i ; Broom's Legal Maxims (596) ; Story on Agency, sees, 244, 250; Keyser v. School District, 35N. H.481,482. In such cases it can avail nothing by way of defense to shoxV that in fact the party had no capacity to make such antecedent request, or to bind himself by a contract as, in the case of a corporation, that it was not organized at all, or imperfectly, — any more than to show that in point of fact there was no such request, or no contract made. But the promise is implied by law from the fact that the party, when it had capacity to contract has taken its benefits, and, therefore, must be deemed to have taken its burdens at the same time ; and he is estopped to controvert it, either by showing a want of capacity to make a contract or that none in fact was made. Upon the same principle a person entering into a contract with a corpora- tion in their corj)orate name is estopped to deny that it is duly con- EXISTENCE OF A CONTRACT. 32" stituted. Dutchess Cotton M. Co. v. Davis, 14 Johns. 238; Congre- g-ational Society v. Perry, 6 N. H. 164; Angell & Ames on Cor. 594. The case of an infant is in point. He has not capacity to bind himself by a contract except for necessaries ; but if after he arrives at full age he apply the goods to his use, he is bound to pay as he had promised. So here, if the corporation, after its organization, has elected to receive the benefit of services rendered for it prior to such organization, the law may well imply a promise to make rea- sonable compensation for them. To bind the corporation, however, by such ratification it would be essential that it had previous knowl- edge or notice of the existence of such claim, or of the material facts upon which it is founded ; or, at least, that it was put upon inquiry in respect to it. 2 Greenl. Evi., sec. 66, and cases ; Bell v. Cunning- ham, 3 Pet. 81 ; Wilson v. School District, 32 N. H. 128. The case before us stands much upon the same ground as a prom- ise to the corporation before it is organized, to take and pay for shares in its capital stock which may, when adopted after organiza- tion be enforced by a suit at law. Upon these principles the instruc- tions to the jury, that if a corporator perform necessary labor and expend money in carrying out the provisions of the charter and to effect an organization, and this is assented to by the corporation, or being known to them is not objected to, and the corporation is or- g'anized and enjoys the benefit of such services, the law implies a promise to pay for them, are, as we think, substantially correct. In- deed, it would be immaterial whether such services were rendered by a corporator or another, because the subsequent ratification is equivalent to an antecedent request ; but we think that without such ratification either express or implied from taking the benefit of such services, the law would raise no such promise to pay from the mere fact that the plaintiff was requested to render them by one of the original corporators as associates. * * * *i ^ Re-asserted upon a second appeal, 46 N. H. 284, 298. In Little Rock and Ft. Smith R. R. v. Perry, yj Ark. 164 (1881), after a review of the cases in equity and at law, the court concludes upon this ques- tion (p. 191) : "From all the authorities, it seems clear that, in order to re- cover, in an action at law, the plaintiff must show either an express promise of the new company, or, that the contract was made with persons then en- gaged in its formation, and taking preliminar}' steps thereto, and that the contract was made on behalf of the nev; company, in the expectation on the part of plaintiff, and with the assurance on the part of the projectors, that it would become a corporate debt, and that the company afterward en- tered upon and enjoyed the benefit of the contract, and by no other title than that derived through it. From these circumstances an affirmance would be implied." In Grape Sugar M'fg Co. v. Small, 40 Md. 395 (1874"), an action of as- sumpsit against the corporation, the court says (p. 400) : "The second prayer proceeds upon the assumption that the defendant is not liable, provided the work was done prior to the recording of the certificate of incorporation. It is true, that under the general incorporation law of this si ate, the recording of the certificate was necessary to constitute the appellant a body politic. If, however, the contract was made with the plaintiff through Doctor Sim, act- ing as president of the appellant, after the certificate had been signed by the 328 MISTAKE OF FACT. COLE AND OTHERS V. CLARK. 3 PiNN, (Wis.) 303.— 1851. HuBBELL, C. J. — Clark sued Cole and others in the county court of Jefferson county. The declaration was in assumpsit, containing the common counts only. The only question of import arises on the sealed contract between the parties, offered in evidence by the plain- tiff below. It contained, among other clauses, the following : "The said party of the first part, for, etc., covenants and agrees to put in a good workmanlike manner, two water-wheels, to drive each a run of stone in the flouring mills (the same that are now in the mill of L. A. Cole & Co., called the Rough and Ready Mills, in said town of Watertown), and warrant the same, with two hun- dred inches of water to each wheel, to be measured at the bottom of the flume, to grind fifteen bushels per hour, in a style suitable to make good flour ; to attach all machinery to said wheels, etc." "And the said parties of the second part covenant, etc., to pay the said Clark $500 for the completion of said work, in case it be done, and the mill performs, when completed, according to the above con- tract." The county judge charged the jury that they were to be governed by the construction of the contract, and that if they found that both run of stone would grind fifteen bushels per hour, the plaintiff had complied with the said contract in that respect. To this ruling, exceptions were taken by the plaintiff in error. It was a case, undoubtedly, where the judge was bound, if he could, to construe the contract, and his construction was binding on the jury. But this court is unable to concur with the learned county judge in his construction of the instrument. On the contrary, we are all of opinion that it is too indefinite and uncertain to admit of any interpretation as a matter of law. The offer to introduce oral evidence to explain the understanding of the parties was properly rejected. Such evidence is admissible when there is a latent am- biguity, which is made to appear by extraneous facts, and which may be made clear by parol proof. But the ambiguity in this instance is patent; it appears on the face of the instrument ; and it arises not from the use of words of art, or technical phrases, nor from the ex- istence of any custom or usage, but from the failure of the parties so to use common and plain words as to express any definite idea. They have not told us themselves what they did mean ; whether each run of stone was to grind fifteen bushels per hour, or whether members of the proposed corporation, but before it was recorded, and the company, after its incorporation was complete, accepted the work done under the contract, it will be estopped, both in law and in equity, from denying its liability, on accftunt of tlic same. Tn other words, the appellant will not be permitted to accept (he work done and materials furnished by the plaintiff under a contract made prior to the recording of the certificate, and at the same time deny its liability under it." EXISTENCE OF THE SUBJECT MATTER. both were to do it, and so their instrument is wholly void. Board- man V. Ford, 6 Peters 345. The judgment of the county court must be reversed for this cause, and the case must go back for a new trial. The plaintiff then can re- cover quantum meriut upon the common counts, and no more.^ Judgment reversed, with costs. 3. MISTAKE AS TO THE EXISTENCE OF THE SUBJECT MATTER. MOORE V. DES ARTS. I N. Y. 359.— 1848. Appeal from chancery. The defendant imported into the city of New York goods on which the collector of customs exacted and re- ceived duties. The goods were by law entitled to a drawback of the duties in case they were exported within three years. The defendant sold the goods to the plaintiff at the "long price," which by custom and agreement included the amount of duties paid, and carried to the purchaser the right to the drawback. Afterward, and while the plaintiffs yet owned the goods and could export them so as to get the drawback, or could sell them in the market at the "long price," the secretary of the treasury decided that goods of that kind were duty free, and thereupon the duties were refunded to the im- porter. In consequence of such decision the right to a drawback was extinguished, and the market price of the article was immediately re- duced by about the amount of duties which had been exacted. Plain- tiff filed a bill to recover the amount of duties returned to the de- fendant. The defendant demurred to the bill for want of equity, and his demurrer was overruled by the vice chancellor, whose de- cision was reversed by the chancellor on appeal, and the bill was ordered to be dismissed. The complainant appeals to this court. Bronson, J. — The case made by the bill amounts to this, and noth- ing more. The defendant imported the spelter, and paid the duties which were demanded by the government. The property was then sold to the complainant at the "long price," or full market value, which, according to the alleged usage in the city of New York and the intention of the parties, gave the complainant a right to the drawback, in case the goods should be exported at such time and in such manner as to entitle them to a drawback. While the goods still remained in a condition in which they might have been exported and the drawback secured, the secretary of the treasury decided that the goods were free from duty ; and thereupon the money which had been wrongfully demanded of the defendant when he imported the * Accord, Sherman v. Kitsmiller, 17 S. & R. (Pa.) 45 (1827). 330 MISTAKE OF FACT. Spelter, was refunded to him by the government. Immediately on publishing the decision of the secretary of the treasury, the right to obtain the drawback on exporting the goods was lost ; and the com- plainant also lost the right and opportunity of obtaining an equiva- lent for the drawback by re-selling the goods at the "long price" — the market value of the goods being reduced by about the amount of the duties. On this case, the complainant insists that the money which was refunded to the defendant belongs to him. Although there is a seeming equity in favor of the complainant, I have not been able to discover any principle upon which his claim can be supported. There was no warranty v;hen the complainant purchased that the goods were dutiable ; and no fraud of any kind is imputed to the defendant. So far as appears the parties dealt upon equal terms, each knowing all that was known by the other. As the government officers have decided both ways on the question whether the spelter was subject to duties, it may fairly be presumed that these merchants knew that was a debatable question ; they knew that the decision which had been made by the collector might be overruled by the secretary of the treasury, and the duties be re- funded to the importer. With this knowledge the defendant sold, and the complainant purchased the spelter, with a right to the draw- back, should that right ever become perfect. But there was no sale or purchase of the duties in case they should be refunded by the govern- ment, on the ground that the duties were not dutiable. At the time of the sale, there were two contingencies in which the duties might be restored to the importer ; he might receive them as a drawback on exporting the goods ; or the money might be refunded on the ground that it was improperly demanded at the first. The complain- ant purchased the right to the drawback ; but he did not purchase the other right. And I do not see how we can give it to him with- out making a contract for the parties. The argument for the complainant goes upon the ground that he purchased the right to the duties should they be restored by the government for any cause. But that is not the case made by the bill. He only purchased a right to the duties in case they should be re- stored as a drawback on exporting the goods. There is no allegation that the defendant did any act which de- prived the complainant of the right to the drawback. On the con- trary, the allegation is that the right was lost to the complainant immediately on the making and publication of the decision of the secretary that the goods were free from duty. And such was evi- dently the necessary consequence of the decision. The right of drawback was at an end, whether the defendant received the money which the government offered to refund or not. And the decision that such goods were free, would of course reduce their market value by about the amount which had before been charged for duties. There is a further difficulty in the case. The bill contains no alle- gation that the complainant, at the time the secretary made his deci- sion, intended to, or would have exported the goods, if the duties EXISTENCE OF THE SUBJECT MATTER. 33 1 had not been refunded ; nor that he could have sold the property to any one else for the purpose of exportation ; nor that the g'oods then bore a higher price in any foreign market than they did in our own. Nor does it appear in any other way, that the complainant lost any- thing of value, by losing the right, which he purchased, to the draw- back on exporting the goods. The fall in the market value of the property did not result from the loss of the right of drawback ; but was the natural consequence of the decision of the government that the goods were not subject to duties. I am of opinion that the decree of the court of chancery is right, and should be affirmed. Decree affirmed.^ MARTIN V. Mccormick. 8 N. Y. 331.— 1854. In 1839, the plaintifif became the owner in fee simple of a house and lot in the city of New York, worth $6,000. On the first day of October, 1842, they were sold by order of the mayor, aldermen and commonalty of the city, for the taxes assessed upon them for the years 1835, 1836 and 1838, amounting in the aggregate including interest and costs to $105.70. The defendant bid them in for the term of one hundred years, and thereby became entitled to a lease thereof on the first day of October, 1844, no redemption having then been made. In fact he did not obtain the lease, supposing that it was unnecessary for him to receive it before he should give the notice to the tenant to redeem under the provisions of chapter 230 of the laws of 1841. On the twelfth day of October, 1844, he caused the notice required by the statute that the premises had been sold for the taxes and conveyed to him for one hundred years, and that unless he redeemed them within six months the conveyance wovdd become absolute. The plaintift', a few days after the expiration of six months from the service of the notice, paid into the office of the comptroller of the city for the defendant and in redemption of the premises, the sum necessary for that purpose, but shortly after the payment the comptroller and the defendant informed him that the payment was at too late a day for redeeming, and that the convey- ance to the defendant had become absolute, and the comptroller re- paid to him the money, the defendant refusing to receive it. On the ^ Duty of Restitution. — A purchaser of counterfeit bonds need not return the bonds before bringing an action to recover back the money paid for them, Brewster v. Burnett, 125 Mass. 68 (1878) ; but when a seller of goods takes therefor the note of a third person, purporting to be indorsed by the payee and another, and the indorsements are forged, the seller cannot, upon dis- covering the forgery, maintain an action against the buyer for goods sold and delivered, unless he has tendered back the note. Coolidge v. Brigham, i Met. (Mass.) 547 (1840). 332 MISTAKE OF FACT, first of July, 1845, the conveyance in pursuance of the bid at the tax sale, was made to the defendant. On the third of July, 1845, the plaintiff believing the information conveyed in the notice served upon him in October, 1844, was true, and that the time to redeem the premises from the sale had expired before he paid the money to the comptroller in April, 1845, and that the defendant thereby had acquired an absolute title to the premises for the term of one hundred years, he purchased the lease and such term of the defend- ant, and paid him therefor $1,800. This sum he sought to recover as money received by the defendant to his use. The defendant did not deny the fact that at the time the notice was given, October 12, 1844, the conveyance had not been made to him, but alleged that he was informed by the clerks in the comp- troller's office that it was ready for him and that it made no differ- ence whether he had it or not, and that at the time he sold his lease to the plaintiff he was not aware that his conveyance had not become absolute. He also insisted that the lease was to be construed as of full force from its date, the first day of October, 1844, when he was entitled to receive it. Judgment for the defendant, which was affirmed at general term. (See 4 Sand. 366.) The plaintiff appealed to this court, Johnson, J. — In this case the defendant was in possession of an instrument under the seal of the corporation of the city of New York, by which there purported to be created in him an estate for the term of one hundred years, in a house and lot of land in the city of New York. The plaintiff was at the time in possession of the house and lot, claiming to be and being seized thereof in fee, unless the lease held by the defendant created a valid term for years in him. The defendant as matter of fact believed, the lease did give him the term which it purported to' convey. The plaintiff also so believed, and thereupon a bargain was entered into between them in pursuance of which the plaintiff paid the defendant $1,800, and received in consideration thereof an assignment of the term. The plaintiff now seeks to recover back this money upon the general ground, that the defendant, notwithstanding his apparent interest in the premises, had no estate in them whatever, the lease from the corporation be- ing invalid, and that he purchased the lease and paid the money un- der an entire misapprehension and mistake as to the facts upon which depended the validity or invalidity of the defendant's lease. This is not the case of money paid by a party under a mistaken idea of the existence of a legal obligation binding him to pay it ; nor that of a party seeking to resist the performance of an executory contract to pay money, entered into under such circumstances of mistake. Of this latter sort was Bell v. Gardner (4 Man. & Gr. 11), in which the action was upon a promissory note given by the de- fendant for the amount of a bill of exchange on which defendant was endorser, but which had been altered after endorsement, where- l)y he ceased to be liable. The jury found that the defendant when he gave the note had no knowledge of the alteration, but the judge EXISTENCE OF THE SUBJECT MATTER. 333 refused to submit to them the question whether the defendant had the means of knowledge. All the judges held that, this being only a promise to pay, the defendant's position was much stronger than if he had been plaintiff in an action to recover back the money ; but as the case had been argued on its analogy to a claim to recover back money paid, they considered it in that light also, and approved of Kelly V. Solari (9 M. & W. 54), in which they held it to have been determined, that in an action to recover back money paid under a mistake of facts, it was not necessary to negative means of knowl- edge as well as knowledge of the true state of the facts. Kelly v. Solari, belonged to the former class. It was an action to recover back the amount paid by an insurance company upon a life policy, which the insured had by mistake permitted to expire. The fact that it had lapsed was known to the officers of the com- pany, who afterward having forgotten the fact paid the loss. The court held that this fact of forgetting was no answer to the action. It is not necessary to pursue this line of cases, for they do not touch any ground upon which this plaintiff can succeed. He has entered into a contract which has been executed, and his position is that of one seeking to rescind the contract and get back the consideration paid. No case of fraud is pretended, McCormick and the plaintiff both believed that the lease was valid, and one bought and the other sold under that belief. The parties did not deal with each other upon the footing of the compromise of a doubtful or doubted claim, but upon the ground of a conceded right in the defendant. He was assumed by both of them to have become the owner of a term for one hundred years in the premises in question, and the parties dealt with each other upon that basis for the sale and purchase of that interest. Then as to the subject-matter upon which the sale was to ope- rate, the plaintiff having actually redeemed the premises before the execution of the lease to the defendant, the authority to convey which the corporation had acquired was defeated, and their lease was wholly inoperative to confer upon the defendant any right whatever, and had no more significance or efficacy in law than if it had remained unexecuted. It follows, that the assignment executed by McCormick to Martin did not convey to him any right. The subject-matter to which it related had no existence. The plaintiff in my judgment occupies the same position which any other person would have occupied who had dealt with the defendant for the term of one hundred years, and become the purchaser of it. Now the term which was the subject of the contract, contrary to the supposition of both parties had no existence, and in all that class of cases where there is mutual error as to the existence of the subject-matter of the contract, a rescission may be had. (i Story Eq., sec. 141, 142, 143.) The case of Hitchcock v. Giddings (4 Price 135), was a bill by a vendee of a remainder in fee expectant upon an estate tail. A recovery had been suffered at the time of the contract, though both parties were ignorant of the fact, and there 334 MISTAKE OF FACT. had been no fraud from knowledge or concealment of the fact, and it was decreed that a bond given for the purchase money should be delivered up, and the interest which had been paid upon it should be refunded. I do not see how the principle of this case can be dis- tinguished from that at bar ; for surely it can be no ground of differ- ence in result, that in the one case an estate which had once existed had at the time of the contract come to an end, while in the other the estate which was the subject of the contract had no existence at any time. Allen v. Hammond (ii Pet. 71). The judgment below should be reversed, and the sale be declared rescinded, etc.^ 4. MISTAKE AS TO THE TITLE OF A VENDOR. DORSEY V. JACKMAN. I S. & R. (Pa.) 42.— 1814. TiLGHMAN, C. J. — This is an action for money had and received, brought by Jackman, the plaintiff below, against Dorsey, the de- fendant, who had sold and conveyed to the plaintiff a tract of land without warranty of any kind. The plaintiff had paid the purchase money, after which, apprehending the title to be defective, and hav- ing made a second purchase from the person in whom he supposed the true title to be vested, he brought this action to recover the money paid on the bad title. The president of the court of common pleas of Washington county, charged the jury in favor of the plaintiff, whereupon the counsel for the defendant excepted to his opinion, and the cause has been removed to this court by writ of error. The opinion of the court of common pleas was founded upon this principle, that the action for money had and received is in nature of a bill in equity, and lies in all cases where the defendant has re- ceived money which he cannot, in good conscience, retain. The money having been paid in this case for land, to which the defend- ant had no title, the consideration of the payment has failed, and therefore, it is concluded, ought to be refunded. But although the title has proved defective, it does not follow that the money cannot, in good conscience, be retained, because it may have been the intent of the parties, that the purchaser should run the risk of the title. Between the sale of i:^oods and of lands there is a marked distinction. In the former, the law implies a warranty, but not in the latter. This distinction is of long standing, not founded on an arbitrary rule, but existing in the nature of things. With regard to goods, possession is strong evidence of title, and the only evidence ' Accord, Wood v. .Sheldon, 42 N. J. L. 421 (1880). For a general discus- sion of the riphts of the purchaser of invalid commercial paper, sec Meyer v. Richards, 163 U. S. 385 (i8g6). TITLE OF A VENDOR. 335 which, in most cases, the purchaser can obtain. But as to lands, the case is altogether different, because the title depends on writings only. Of these writings, one party is as able to judge as the other; the construction is often doubtful, and in doubtful cases, where the purchaser requires no warranty, it is reasonable, that the price should be reduced in proportion to the hazard. When it has been long understood, that no warranty is implied on a sale of lands, it must be supposed that both buyer and seller proceeded on that under- standing. Consequently, the purchase money may be retained with good conscience. I take for granted, that the seller has practiced no fraud or deception. If he has, the case is altered, and the pur- chaser may be relieved on other grounds than failure of the consid- eration. That the law has been held as I have mentioned, will appear, not only from the opinions of elementary writers, but from adjudged cases, both at law and in equity, and I know of no adjudged case of good authority to the contrary. In the case of Lord Burkhurst v. Fenner &c.. Executors of Lady Dacres, i Rep. i, it was determined that if one seised in fee convey to another in fee, without warranty, and without mention of title-papers, yet the papers pass to the feoffee, "because he is to defend the land at his peril ; it is, therefore, reasona- ble, that he should have the papers as incident to the land, and that the feoffer should not have them, because he can receive no benefit by keeping them, nor sustain damage by delivering them," In Ser- geant Maynard's case (2 Freem. i), the sergeant had purchased land and paid his money, but a common recovery being necessary to com- plete the title, he took a bond from the seller, conditioned for the suffering of the recovery, but the sergeant having discovered a defect in the title, filed a bill in equity to obtain restitution of his money ; but the court decreed against him, because it did not appear that the seller had been guilty of any fraud. In i Fonbl. 363 to 366 (notes), the cases on this subject are collected, and the law laid down in the same manner. In Boyd v, Bopst, tried before Chief Justice McKean and Judge Rush, at Easton, June, 1785 (2 Dall. 91), it is said, that the rule caveat emptor applies only to real estate. In Cain v. Henderson, 2 Binn. 108, it was decided by this court, that the grantor who has given no warranty is a competent witness to support the title of the grantee. This I take to be, and akvays to have been, the practice in all the courts of Pennsylvania, and is incompatible with the principle of the grantor being answerable in an action for money had and re- ceived. * * * * Confining myself, then, to the present case, it appears to me, that to support the action would be to introduce a dangerous innovation, tending to disturb what has long been considered as settled. I am, therefore, of opinion that the judgment should be reversed and a venire facias de novo awarded. [Concurring opinion by Yeates, J. ; dissenting opinion by Brackenridge, J.]^ ^In Whittemore v. Farrington, 76 N. Y. 452 (1879), the suit was brought 336 MISTAKE OF FACT. NORTON V. HARDEN. 15 Me. 45.— 1838. Assumpsit for money had and received, brought to recover back the consideration money paid by the plaintiff to the defendant for the assignment of a bond of a lot of land in Bangor. The defendant held by assignment a bond for the conveyance of the lot, described in the bond, on payment of a specified sum. Prior to the bargain between these parties, there being no evidence that the defendant knew where the lot was, they went together and enquired and en- tered upon land supposed by them to be the same described in the bond, and thereupon the defendant assigned over the bond and re- ceived the price agreed on. The plaintiff soon afterwards discovered that the lot described in the bond was a different one from that seen by the parties, and much inferior to it, and gave notice thereof to the defendant, offered back the bond, and demanded the money paid by him. The trial was before Shepley, J., who instructed the jury, that if they were satisfied from the testimony that the defendant showed to the plaintiff a different lot from that described in the bond, before the contract was made between them ; and that it was made upon that erroneous information ; and that from the descrip- tion in the bond he was not undeceived, they would find for the plain- tiff, whether such erroneous information was given by the defendant fraudulently, or through mistake, or want of information on the part of the defendant ; and if not thus satisfied, they should find for to rescind an agreement between the parties for an exchange of lands and for a reconveyance of the lands deeded under said agreement, or that de- fendant be required to remove incumbrances on the lands deeded by him under the agreement. The court said : "A party who, under a verbal agreement for the conveyance to him of lands, is entitled to insist upon a good title, and a deed with covenants, pays the consideration and is then tendered a deed without covenants. He demands a deed with covenants and this is refused. He then accepts the deed without covenants, and, believing the title to be clear, records it, and continues to occupy and improve the property. An encumbrance unknown at the time to both parties is afterwards discov- ered. Both parties are innocent of any fraud. It is conceded that no legal liability rests upon the grantor in such a case. (Bates v. Delavan, 5 Paige, 300, 307; Burwell v. Jackson, 9 N. Y. 535.) In the absence of fraud or covenants a purchaser takes the title at his own risk. Then do the facts stated entitle the plaintiff to any equitable relief? We think not." In Earle v. Bickford, 6 Allen 549 (1863), the conveyance was made by the assignee of an insolvent debtor without legal authority. The con- veyance was a quit-claim deed and it was held that "the general doctrine is that the grantee who takes such a deed cannot recover back the con- sideration money in case of a failure of the title; but that doctrine does not apply to this case. If the title fails for want of authority in the person who .makes the deed to act in the capacity in which he professes to act, the consideration may be recovered back. Shearer v. Fowler, 7 Mass. 31 ; William;* v. Reed, 5 Pick. 480; Dill v. Wareham, 7 Met. 438; Holden v. Curtis, 2 N. H. 61." TITLE OF A VENDOR. 337 the defendant. The verdict was for the plaintiff, and the defendant excepted. Shepley, J. — ''' * * * 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 con- veyed. And the absence of all covenants of title is satisfactory evi- dence that they knew that the title was doubtful, and that the con- tract was made upou 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, but the assign- ment 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. Earl, J., m MOORE v. WILLIAMS. IIS N. Y. 586, 592.— 1889. But, aside from the language used in the contract, it is familiar law that an agreement to make a good title is always implied in ex- ecutory contracts for the sale of land, and that a purchaser is never bound to accept a defective title, unless he expressly stipulates to take such title, knowing its defects. His right to an indisputable ti^le, clear of defects and incumbrances, does not depend upon the agreement of the parties, but is given by the law. (Sugden on Vendors (13th ed.) 14; Rawle on Gov. 430; Burwell v. Jackson, 9 N. Y. 535; Delavan v. Duncan, 49 id. 485.) Within the meaning of this rule, at least, according to the decisions in this state, a good title means not merely a title valid, in fact, but a marketable title which can again be sold to a reasonable purchaser or mort- gaged to a person of reasonable prudence as a security for the loan of money. A purchaser will not generally be compelled to take a title when there is a defect in the record title which can be cured only by resort to parol evidence, or when there is an apparent in- cumbrance which can be removed or defeated only by such evi- dence ; and, so far as there are any exceptions to this rule, they are extraordinary cases in which it is very clear that the purchaser can suffer no harm from the defect or incumbrance. In Swayne v. Woodruff's Cases — 22 338 MISTAKE OF FACT. Lyon {(ij Pa. 436), Sharsvvood, J., said: "It has been well and wisely settled that, under a contract for the sale of real estate, the vendee has the right not merely to have conveyed to him a good title, but an indubitable one. Only such a title is deemed market- able ; for otherwise the purchaser may be buying a law suit which will be a very severe loss to him both of time and money, even if he ultimately succeeds. Hence it has been often held that a title is not marketable when it exposes the party holding it to litigation." In Dobbs V. Norcross (24 N. J. Eq. 327), it was held that "every pur- chaser of land has a right to demand a title which shall put him in all reasonable security and which shall protect him from anxiety, lest annoying, if not successful, suits be brought against him and probably take from him the land upon which monev was invested. He should have a title which should enable him, not only to hold his land, but to hold it in peace, and if he wishes to sell it, to be reasonably sure that no flaw or doubt will come up to disturb its marketable value."^ TAYLOR V. HARE. I Bos. & P. N. R. 260.— 1805. Plaintiff and defendant made a contract whereby plaintiflf in return for a consideration to be paid was to have the use of a patent right which defendant had obtained as the inventor. Plaintiif used the patent and paid the stipulated sums to defendant. It later ap- peared that the defendant was not the inventor of the invention for which he had obtained the patent ; the apparatus having been in public use before defendant obtained his patent. This fact was un- known to both plaintiff and defendant at the time of the performance of the contract. The defendant's patent was not repealed. Plain- tiff sues to recover back the sums he paid for the use of the patent. Sir James Mansfield, C. J. — It is not pretended that any action like the present has ever been known. In this case two persons equally innocent make a bargain about the use of a patent, the defendant supposing himself to be in possession of a valuable patent right, and the plaintiff supposing the same thing. Under these eir- cumstances the latter agrees to pay the former for the use of the invention, and he has the use of it ; non constat what advantage he made of it; for anything that appears he may have made consid- erable profit. These persons may be considered in some measure as partners in the benefit of this invention. In consideration of a certain sum of money the defendant permits the plaintiff to make use of this invention, which he would never have thought of using had not the privilege been transferred to him. How then can we 'Accord, I'urvvfll v. Jackson, 9 N. Y. 5.35, 547 (1854). TITLE OF A VENDOR. 339 say that the plaintiff ought to recover hack all that he has paid? I think that there must be judg-inent for the defendant. Heath, J. — There never has been a case and there never will be, in which a plaintiff, having- received benefit from a thing which has afterwards been recovered from him, has been allowed to main- tain an action for the consideration originally paid. We cannot take an account here of the profits. It might as well be said, that if a man lease land, and the lessee pay rent, and afterward be evicted, that he shall recover back the rent, though he has taken the fruits of the land. RooKE, J. — I am of the same opinion. Chambre, J. — The plaintiff has had the enjoyment of what he stipulated for, and in this action the court ought not to interfere, unless there be something ex aequo et bono which shows that the defendant ought to refund. Here both parties have been mistaken ; the defendant has thrown away his money in obtaining a patent for his own invention ; not so the plaintiff, for he has had the use of another person's invention for his money. In the case of Ark- wright's patent, which was not overturned till very near the period at which it would have expired, very large sums of money had been paid and though something certainly was paid for the use of the machines, yet the main part was paid for the privilege of using the patent right, but no money ever was recovered back which had been paid for the use of that patent. I am therefore of opinion that judg- ment of non-suit should be entered. Judgment of non-suit. SMART V. GALE. 62 N. H. 62.— 1882. Assumpsit for money had and received. Facts found by a referee, September 3, 1879, the plaintiff purchased of the defendant the stock of goods, furniture, fixtures and good will of a fruit store in Concord, for the sum of $3,200, with an agreement that neither the defendant, nor his son who had been a clerk in the store, should engage in the same business in Concord for ten years, agree- ing to pay therefor by conveying to the defendant a house valued at $2,400, and giving notes for $600 and $200, secured by mortgage on all the property in the store except the stock. The defendant, by a bill of sale under seal, conveyed to the plaintiff all the stock in trade, furniture, fixtures, including shelving and counters, and all other personal property in the store and store-cellar. The bill of sale also contained the following: "And I hereby covenant with the said grantee, that I am the lawful owner of the said goods and chattels, that they are free from all incumbrances, and that I have good right to sell the same as aforesaid, and that I will warrant and 340/ MISTAKE OF FACT. defend the same against the lawful claims and demands of all per- sons." He also gave to the plaintiff a bond in accordance with his agreement not to engage in business for ten years. The plaintiff conveyed the house to the defendant, and gave him a note for $600, and a note for $200, secured by mortgage, as had been agreed. No price was fixed for any portion of the defendant's property separate from the rest. The plaintiff immediately entered into possession of the store and other property purchased. He did not rescind or attempt to rescind the contract. He did not reconvey or offer the property, or any part of it, back to the defendant. In December, 1879, he was informed that the owner of the store owned the fixtures, and thereupon he commenced this action, December 17, 1879. He continued to occupy the store till about June i, 1880, when he abandoned it and surrendered the key to the agent of the owner, leaving therein all the property purchased of the defendant except the stock of goods. Clark, J. — The plaintiff seeks to recover the value of the fixtures on the ground of a failure of consideration. This is not a case of a payment made upon a legal consideration which has wholly failed, and may therefore be recovered back. Leach v. Tilton, 40 N. H. 473, 475. There was no separate valuation of the fixtures, and no offer to return them. Weeks v. Robie, 42 N. H. 316. The contract was entire, and has never been rescinded, and the action cannot be maintained. Way v. Cutting, 17 N. H. 450; Miner v. Bradley, 22 Pick. 457; Clark v. Baker, 5 Met. 452; Bassett v. Percival, 5 Allen 345. Judgment for the defendant. STEELE V. SANCHEZ. 80 Iowa 507. — 1890. \ Beck, J. — i. Plaintiff alleges in his petition that under a parol contract he delivered certain stone to defendant, and asks to recover therefor. A second count upon the same action is in the quantum meruit form, but recovery is sought upon one count only. De- fendant, answering these counts of the petition, alleges that he owned a quarry from which plaintiff, under a parol contract with him, quarried and removed stone, being bound to pay defendant 15 per cent, of the stone quarried; and the stone in question in this case was received by defendant under this contract. The answer sets up a counter-claim for stone received by plaintiff and not paid for. An amended petition seeks to recover for stone delivered to defendant upon a contract under which he was to quarry stone upon land claimed by defendant, and deliver a part of the stone to de- fendant. The defendant had no title to the quarry, or right to obtain or sell stone therefrom, and therefore plaintiff is entitled to recover at least the value of his labor in quarrying the stone. The plaintiff re- TITLE OF A VENDOR. 34 1 plied to defendant's answer, denying all allegations thereof, "but ad- mits that defendant received the stone named, and many more." The reply contains this language: "Says there was some kind of a con- tract between him and the defendant by which he was to pay for the stone in the quarry, but said such contract was without consid- eration in this : that defendant represented to plaintiff that he was the owner of the stone when they lay in the quarry in the bed of the Des Moines river, and plaintiff agreed to pay for the stone on the theory that defendant was the owner of the same, but that he has since ascertained that defendant never had any title to the bed of the river at that place." Defendant filed an amended answer show- ing that he was in possession of the quarry, and made with plain- tiff a parol contract to the effect that defendant would permit plain- tiff to quarry stone in the quarry, and take them out over the land of defendant, and deposit them on defendant's land, on condition that he would deliver defendant 15 per cent, of the stone quarried, and that defendant was not to pay plaintiff for the stone, or for the labor of quarrying them. The plaintiff filed a reply to this amended answer, making his reply to the original answer his reply to this amended answer. 2. Under the decision of this court in this case when here be- fore, defendant has no title to the land upon which the quarry is situated, and no right to the stone quarried therefrom. Therefore, there was no consideration for the contract under which the stone was delivered to defendant by plaintiff. ']2 Iowa 65, 33 N. W. Rep. 366. That there was a contract under which plaintiff delivered the stone for wdiich suit is brought is admitted by plaintiff, while not admitting its terms and conditions as stated by defendant. But he admits, in effect, that the stone was received by defendant upon a contract under which he was bound to pay for them. The con- tract, it clearly appears, w^as for future receipt of and payment for stone by plaintiff. It was therefore an executory contract which plaintiff performed. He cannot, after having voluntarily performed it, and received its fruits, wnthout being disturbed in their enjoy- ment, set up the want of consideration. Maxwell v. Graves, 59 Iowa 613, 13 N. W. Rep. 758 ; Bish. Cont., §§■ 50, 81. The existence of a contract and the receipt of the stone by plain- tiff under it, is admitted by the pleading ; and there is evidence tend- ing to establish it. We need not inquire as to the terms and condi- tions. It is sufficient to know that plaintiff received the stone, and used them v/ithout disturbance under the executory contract, and upon these facts there can be no doubt, and there may be said to be no conflict in the evidence. He cannot, as we have seen, set up want of consideration after having received the fruit of his ex- ecutory contract, and never having been deprived thereof. Upon these considerations the court below should have entered judgment against plaintiff. The judgment for plaintiff, in this view of the case, is wholly without the support of evidence. Other questions in the case need not be considered, as the judg- 342 MISTAKE OF FACT. ment of the court below must be reversed, and they may not arise in another trial. Reversed. 5. IMPROVEMENTS PUT BY MISTAKE UPON THE PROPERTY OF ANOTHER. WILLIAMS, Administrator, v. GIBBES and Another, Ex- ecutors, GIBBES AND Another, Executors, v. WILLIAMS, Administrator. 20 How. (U. S.) 535-— 1857. These were cross appeals from the Circuit Court of the United States for the district of Maryland. In the report, the first case only will be mentioned ; namely, that of Williams against Oliver's execu- tors. The case was formerly before the court, and is reported in 17 How. 239. The decree was for $9,686.33 in money, and $19,215.95 in stock, instead of $22,866.94 in money, and $32,847.77 in stock, as claimed by the appellant. Mr. Justice Nelson. — This is an appeal from a decree of the Circuit Court of the United States for the district of Maryland. A bill was filed in the court below by Williams, the present appellant, to recover of the defendants the proceeds of the share of complainant's intestate in what is known as the Baltimore Company, which had a claim against the Mexican government, that was awarded to it un- der the treaty of 1839. The proceeds of the share amounted to the sum of $41,306.41. The history of the litigation to which the award under the treaty gave rise, in the distribution of the fund among- the claimants or the assignees composing the Baltimore Company, will be found in the report of four of the cases which have hereto- fore come before this court — 11 How. 529; 12 How. iii ; 14 How. 610; 17 How. 233, 239. That of Williams v. Gibbes, in 17 How., contains the report of the present case when formerly here. This court then decided that the claim of the executors of Oliver to the share of Williams was not well founded ; that the interest of Williams in the same had not been legally divested during his lifetime ; and that his legal representative then before the court was entitled to the proceeds. The decree of the court below was reversed, and the cause remanded for further proceedings, in conformity with the opinion of the court. Upon the cause coming down before that court on the mandate, the defendants, the executors of Oliver, set up several charges against the fund, which it was claimed should be received and allowed in abatement of the amount. I. For certain costs and expenses to which they had been sub- jected in resisting suits instituted against it by third parties. The IMPROVEMENTS UPON PROPERTY. 343 history of these suits will be found in the cases already referred to in this court, and need not be stated at large. 2. For services and expenses of Oliver in his lifetime, in the prosecution of the claim of the Baltimore Company, as its attorney and agent before the government of Mexico, from the year 1825 down to the time of his death in 1834. The court below allowed to the executors the costs and expenses to which they had been subjected in defending the suits mentioned, and also thirty-five per cent, of the fund in question for the services of Oliver. The case is one in many of its features novel and peculiar. James Williams, the intestate, and owner of the share in the Baltimore Company, became insolvent in 1819, and took the benefit of the insolvent laws of Maryland ; and in 1825 the insolvent trustee of his estate sold and assigned to Robert Oliver the share in question in this company; and from thence down to the year 1849, Oliver in his lifetime, and his executors afterwards, did not doubt but that a perfect title to the share had passed by virtue of this assignment. In that year the Court of Appeals of Maryland decided, in a case between the executors and an insolvent trustee of Williams, that no title passed to Oliver by this assignment ; and as a legal consequence it was held by this court, in 17 How., that the interest remained in Williams at his death, and of course passed to his legal representa- tive, the complainant. All the services and expenses, therefore, of Oliver, in his lifetime, in the prosecution of the claims of the Balti- more Company against the government of Mexico, and of the liti- gation since encountered by his executors in respect to the share, have resulted in securing the proceeds of the same to the estate of Williams, the original shareholder. Williams in his lifetime, and his legal representative since, down till the fund was in court await- ing distribution, had taken no steps for its recovery, nor had they been subjected to any expense. The v/hole of the services had been rendered and expenses borne by Oliver and his executors ; and the question is whether, upon any established principles of law or equity, the court below were right in taking into the account, in the settlement between the parties, these services and expenses. We are of opinion they were. By the judgment of the Court of Appeals of Maryland, Oliver was at no time the true owner of this share ; as, notwithstanding the assignment by the insolvent trustee, it still remained in Williams. Oliver thereby became trustee instead of owner of the share and of the proceeds, as did also his executors ; and they must be regarded as holding this relation to the fund from their first connection with it. In that character the executors have been made accountable to the estate of Williams, and have been responsible since the fund came into their possession for all proper care and management of the same. In defending these proceeds, therefore, against suits, instituted by third parties to recover them out of the hands of the executors, thev have done no more nor no less than thev were bound 344 MISTAKE OF FACT. to do as the proper guardians of the fund, if they had known at the time the relation in which they stood to it, and that they were defending it for the benefit of the estate of WilHams, and not for that of Oliver. The services rendered and expenses borne could not have been dispensed with, consistent with their duties as trustees. But it is said that these suits were defended by the executors while claiming the fund in right of their testator, and hence for the sup- posed benefit of his estate ; that the defense was not made in their character of trustees, and cannot, therefore, be regarded as a ground for charging the estate of Williams with the costs of the litigation. The answer to this view is, that although in point of fact the ae- fense was made under the supposition that the fund belonged to the estate of Oliver, yet in judgment of law it was made by them as trustees and not owners, as subsequently judicially ascertained; and as the costs and expenses were properly incurred in the protec- tion and preservation of the fund, it is but just and equitable they should be made a charge upon it. The misapprehension as to the right cannot change the beneficial character of the expense, when indispensable to its security. The duty of a trustee, whether of real or personal estate, to defend the title, at law or in equity, in case a suit is brought against it, is unquestioned ; and the expenses are properly chargeable in his accounts against the estate, 2 Story, Eq. Jur., § 1275. Another principle which we think applicable to this case is to be found in a class of cases where a bona fide purchaser for a valuable consideration, without notice, has enhanced the value of the property by permanent expenditures, and has been subsequently evicted by the true owner on account of some latent infirmity in the title. It is well settled, if the true owner is obliged to come into a court of equity to obtain relief against the purchaser, the court will first require reasonable compensation for such expenditures to be made, upon the principle that he who seeks equity must first do equity. 2 Story, Eq. Jur., §§ 799, 7996 ; 6 Paige, 403, 404 ; i Story Rep. 494, 495- . A kindred principle is also found in a class of cases where there has been a bona fide adverse possession of the property tacitly ac- quiesced in by the true owner. The practice of a court of equity in such cases does not permit an account of rents and profits to be carried back beyond the filing of the bill. 8 Wheat. 78 ; 27 E. L. & Eq. 212; 7 Ves. 541 ; i Edw. Ch. 579. This principle is applicable where the person in possession is a bona fide purchaser, and there has been some degree of remissness or negligence or inattention on the part of the true owner in the assertion of his rights. Courts of equity, it would seem, do not grant active relief in favor of a bona fide purchaser making permanent meliorations and im- provements, by sustaining a bill brought by him against the true owner, after he has succeeded in recovering the property at law. 6 Paige 390, 403, 404, 405 ; i Story R. 495 ; 8 Wheat. 8t, 82. The civil law in this respect is more liberal, and provides a remedy in IMPROVEMENTS UPON PROPERTY. 345 behalf of the purchaser, even beyond an abatement of the rents and profits for such expenditures as have enhanced the value of the estate (cases above), and indeed generally applies the principle in favor of any bona fide possessor of property who has in good faith expended his money for its preservation or amelioration ; otherwise, it is said, the true owner appropriates unjustly the property of another to himself. Touillier, 3 B., tit. 4, c. i, ss. 19, 20. Now in the case before us, Oliver in 1825 purchased this share in the Baltimore Company for the consideration of $2,000, its full value at the time. The purchase was made from the insolvent trus- tee of Williams, whom all parties concerned believed had the power to sell and transfer the title. W^illianis, down till his death in 1836, set up no claim to it ; nor did his representative after his death, till August, 1852, when this bill was filed. Oliver and his executors had been in the undisturbed possession, so far as respects any claim under the present right, for the period of twenty-seven years. And although it may be said in excuse for any remissness, and by way of avoiding the consequences of delay, that Williams and those representing him had no knowledge of the defect in the title till the decision of the Court of Appeals of Maryland, it may be equally said, on the other hand, that Oliver and his executors were alike ignorant of it, and had in good faith expended their time and money in recovering the claim against the government of Mexico, and afterwards in defending it against a long and expensive litigation. It is difficult to present a stronger case for the protection of a bona ade purchaser from loss, who has expended time and money in enhancing the value of the subject of the purchase, or a case in which the principle more justly applies that where the true owner seeks the aid of a court of equity to enforce such a title, the court will administer that aid only when making compensation to the pur- chaser. We are therefore of opinion that the court below was right in allowing in the account the costs and fees paid to counsel by the executors in the defense of the suits. In respect to the 35 per cent, allowed for the prosecution of the claim against the government of Mexico, it stands in principle upon the same footing as other services and expenses incurred in protect- ing and preserving the fund after possession w^as obtained. The amount of compensation depends upon the proofs in the case as to the value of the service, and which must in a good degree be gov- erned by the usual and customary charges allowed for similar serv- ices and expenses. As this claim was prosecuted with others by Oliver when he supposed and believed that he was the owmer, and that he was acting on his own behalf and not as trustee for Williams. the rate of compensation must rest upon all the facts and circum- stances attending the service ; there could have been no agreement as to the compensation. And for the same reason it cannot be ex- pected that an account of the service and expenses was kept, so as to enable the court to arrive with exactness at the proper sum to be allowed, as might have been required if Oliver had been chargeable 346 MISTAKE OF FACT. with notice of the trust. The proofs show that OHver appointed agents to represent him at the government of Mexico as early as March, 1825, and that these agencies were continued from thence down till his death in 1834; and that during all this time he kept up an active correspondence with them and others, and with our ministers at Mexico, and with his own government, on the subject. The justice of these claims had been acknowledged by the govern- ment of Mexico as early as 1823-24, but no provision was made for their payment. They were regarded as of very little value, from the hopelessness of their recovery ; and it is perhaps not too much to say, upon the evidence, that in the absence of the vigorous and efficient prosecution of them by Oliver, they would have been worth- less. In the result, for the share in question, which was sold in 1825 for $2,000, there was realized from the government of Mexico, under the treaty of 1839, the sum of $41,306.41. The estate of Williams has never expended a dollar towards recovering it, nor has Oliver ever received any compensation for his services. The amount may seem large, but we cannot say the court below was not warranted in allowing it, upon the proofs in the case of the great service rendered, and of the customary charges in similar cases. * * * * Upon the whole, we are satisfied the decree of the court below was right, and ought to be affirmed.^ Mr. Justice Grier dissented. Dillon, J., in PARSONS v. MOSES. 16 Iowa 440, 444. — 1864. By the English and American common law, the true owner re- covers his land in ejectment, without liability to pay for improve- ments, which may have been made upon it by an occupant without title. Improvements annexed to the freehold, the law deems part of it, and they pass with the recovery. Every occupant makes im- provements at his peril, even if he acts under a bona fide belief of ownership. 2 Kent. Com. 334. Such is the rigid rule of the com- mon law. It is founded upon the idea that the owner should not pay an intruder, or disseisor, or occupant, for improvements which he never authorized. It is supposed to be founded in good policy, inasmuch as it induces diligence in the examination of titles, and prevents intrusion upon and appropriations of the property of others. 'Accord, Thomas v. Evans, 105 N. Y. 601 (1887). In Williams v. Vander- bilt. 145 Ills. 238 (1893), the court says (p. 251): "When the true owner seeks relief in equity, as, for instance, to set aside a sale of land on which the improvements have been made, or to obtain an accoimting for rents and profits, he may be required to make compensation for the improvements upon the principle that he who seeks equity must do equity." IMPROVEMENTS UPON PROPERTY. 347 Chancery, borrowing from the civil law, made the first innovation upon the common law doctrine. And it came at length to be held in equity, that when a bona fide possessor of property (for equity, no more than law, would aid a mala fide possessor) made meliorations and improvements uj)on it in good faith, and under an honest belief of ownership, and the real owner was for any reason compelled to come into a court of equity, that court applying the familiar maxim, that he who seeks equity must do equity, and adopting the civil law rule of natural equity, would compel him to pay for those improve- ments or industrial accessions, not the cost indeed, but so far as they were permanently beneficial to the estate, and enhanced its value. Story Eq. Jurisp. 799a, 799b ; Putnam v. Ritchie, 6 Paige 390; Bright V. Boyd, i Story Rep. 478, enriched by the learning and research of that distinguished jurist; s. c. 2 Id. 605; Greene V. Biddle, 8 Wheat, yy ; Willard's Eq. 312; Sugd. on Vend., chap. 22, §§ 54, 55, 57- This was the extent of relief to bona fide possessors. "I have not," says Chancellor Walworth, in Putnam v. Ritchie, 6 Paige 390, "been able to find any case either in this country or in Eng- land, wherein the Court of Chancery has assumed to give relief to a complainant who has made improvements upon land, the legal title to which was in the defendant, where there has been neither fraud nor acquiescence on the part of the latter after he had knowl- edge of his legal rights." Courts of law next modified the strict rule of the common law (which makes the occupant of land which is owned by another, no matter how good the faith of the occupant may be, lialile for the rents and profits) to this extent, viz., that where such owner brought his action for mesne profits, which courts of law treated as an equi- table action, the bona fide occupant might set off or recoup the value of his permanent improvements to the extent of the rents and profits demanded, but no further, Jackson v. Loomis, 4 Cow. 168 ;^ Murray _ ^ In Jackson v. Loomis, an action of trespass for mesne profits (the plain- tifif having in a previous action of ejectment recovered possession of the premises), the defendant asked to be allowed the value of his improvements. The court held : "There is certainly no reason, in general, why the owner of land should be compelled to pay for improvements which he neither directed nor desired, as a condition on which he is to gain possession of his property. But when an occupant has taken possess'ion under a bona fide purchase, and made permanent improvements, it is very hard for him to lose both land and improvements. If the plaintiPf is not content with ac- quiring possession of his property in an improved condition, .-.fter he has neglected to assert his- title for a number of years, it is certainl}- equitable that the defendant should be allowed the value of his improvements, made in good faith, to the extent of the rents and profits clnimcd. This view of the subject is fully supported by Green v. Biddle (8 Wheat. Rep. 81, 82), and the authorities there cited, especially Coulter's case (s Co. Rep. 30). Most clearly the defendant should not be compelled to pay an enhanced rent in consequence of his own improvements." Accord, Tonsrue v. Nutwell, 31 Md. 302 (1869). But in Putnam v. Tyler, 117 Pa. 570 (1888). which was an action of ejectment, without claim for damages or mesne profits, the court would not allow the innocent defendant the value of his improvements. 348 MISTAKE OF FACT. V. Governeur, 2 Johns. Cas. 438; Green v. Biddle, 8 Wheat, i, 75, 76; 2 Kent 335, and cases in note; Putnam v. Ritchie, 6 Paige 404; Hilton V. Brown, 2 Wash. C. C. R. 165 ; Davis v. Smith, 5 Geo. 274. The equity of the bon-a fide possessor who had made lasting and permanent improvements upon lands which turned out to be an- other's was so strong and persuasive as to force its recognition to this partial extent by courts of law, without the aid of statute. Story, J., in BRIGHT v. BOYD. I Story 478, 494.— 1841. The other question, as to the right of the purchaser, bona fide and for a valuable consideration, to compensation for permanent improvements made upon the estate which have greatly enhanced its value, under a title w^iich turns out defective, he having no no- tice of the defect, is one upon which, looking to the authorities, I should be inclined to pause. Upon the general principles of courts of equity, acting ex aequo et bono, I own that there does not seem to me any just ground to doubt that compensation, under such cir- cumstances, ought to be allowed to the full amount of the enhanced value, upon the maxim of the common law. Nemo debet lociipletarl ex alterius incommodo; or, as it is still more exactly expressed in the Digest, Jure naturae aeqitum est, neminem cum alterius detrimento et injuria fieri locupletiorem. Dig. lib. 50, tit. 17, 1. 206. I am aware that the doctrine has not as yet been carried to such an extent in our courts of equity. In cases where the true owner of an estate, after a recovery thereof at law from a bona fide possessor for a valuable consideration without notice, seeks an account in equity as plaintiff, against such possessor, for the rents and profits, it is the constant habit of courts of equity to allow such possessor (as defendant) to deduct therefrom the full amount of all the meliora- tions and improvements which he has beneficially made upon the estate ; and thus to recoup them from the rents and profits. 2 Story, Eq. Jur., §§ 799a, 799b, 1237, 1238, 1239; Green v. Biddle. 8 Wheat. yj, 78, 79, 80, 81. So, if the true owner of an estate holds only an equitable title thereto, and seeks the aid of a court of equity to en- force that title, the court will administer that aid only upon the terms of making compensation to such bona fide possessor for the amount of his meliorations and improvements of the estate, bene- ficial to the true owner. See also 2 Story, Eq. Jur., § 799b, and note ; Id., §§ 1237, 1238. In each of these cases the court acts upon an old and established maxim in its jurisprudence, that he who seeks equity must do efjuity. Ibid. But it has been sup]ioscd that courts of equity do not, and ought not, to go further, and to grant active relief in favor of such a IMPROVEMENTS UPON PROPERTY. 349 bona Ude possessor makinj^ permanent meliorations and improve- ments, by sustaining a bill brought by him therefor against the true owner after he has recovered the premises at law. I find that Mr. Chancellor Walworth, in Putnam v. Ritchie, 6 Paige 390, 403, 404, 405, entertained this opinion, admitting at the same time that he could find no case in England or America where the point had been expressed or decided either way. Now, if there be no authority against the doctrine, I confess that I should be most reluctant to be the first judge to lead to such a decision. It appears to me, speaking with all deference to other opinions, that the denial of all compensation to such a bona Ude purchaser in such a case, where he has manifestly added to the permanent value of an estate by his meliorations and improvements, without the slightest sus- picion of any infirmity in his own title, is contrary to the first prin- ciples of equity. Take the case of a vacant lot in a city, where a bona Ude purchaser builds a house thereon, enhancing the value of the estate to ten times the original value of the land, under a title apparently perfect and complete ; is it reasonable or just that in such a case the true owner should recover and possess the whole without any compensation whatever to the bona fide purchaser? To me it seems manifestly unjust and inequitable thus to appropriate to one man the property and money of another, who is in no default. The argument, I am aware, is that the moment the house is built it be- longs to the owner of the land by mere operation of law ; and that he may certainly possess and enjoy his own. But this is merely stat- ing the technical rule of law, by v^^hich the true owner seeks to hold what, in a just sense, he never had the slightest title to, that is, the house. It is not answering the objection, but merely and dryly stat- ing that the law so holds. But then, admitting this to be so, does it not furnish a strong ground why equity should interpose and grant relief? I have ventured to suggest that the claim of the bona fide purchaser under such circumstances is founded in equity. I think it founded in the highest equity ; and in this view of the matter I am supported by the positive dictates of the Roman law. * * * *i ^ Later, in deciding this same case (in 2 Story 605, 607), the same judge says: "I have reflected a good deal upon the present subject; and the views expressed by me at the former hearing of this case, reported in i Story 478, et seq., remain unchanged ; or rather, to express myself more accurately, have been thereby strengthened and confirmed. My judgment is that the plaintiff is entitled to the full value of all the improvements and meliora- tions which he has made upon the estate, to the extent of the additional value which they have conferred upon the land. It appears by the Master's report that the present value of the land with the improvements and meliorations is $1,000; and that the present value of the land without these improvements and meliorations is but $25 ; so that in fact the value of the landis increased thereby $975. This latter sum, in my judgment, the plain- tiff is entitled to, as a lien and charge on the land in its present condi- tion. 1 wish, in coming to this conclusion, to be distinctly understood as affirming and maintaining the broad doctrine, as a doctrine of equity, that, so far as an innocent purchaser for a valuable consideration, without notice of any infirmity in his title, has, by his improvements and meliora- A 350 MISTAKE OF FACT. ISLE ROYALE MINING COMPANY v. JOHN HERTIN AND MICHAEL HERTIN. 37 Mich. 332.— 1877. Trover and indebitatus assumpsit. CooLEY, C. J. — The parties to this suit were owners of adjoining tracts of timbered lands. In the winter of 1873-74 defendants in error, who were plaintiffs in the court below, in consequence of a mistake respecting the actual location, went upon the lands of the mining company and cut a quantity of cord wood, which they hauled and piled on the bank of Portage Lake. The next spring the wood was taken possession of by the mining company, and dis- posed of for its own purposes. The wood on the bank of the lake was worth $2.87^ per cord, and the value of the labor expended by plaintiffs in cutting and placing it there was $1.87^ per cord. It was not clearly shown that the mining company had knowledge of the cutting and hauling by the plaintiffs while it was in progress. After the mining company had taken possession of the w^ood, plain- tiffs brought this suit. The declaration contains two special counts, the first of which appears to be a count in trover for the conversion of the wood. The second is as follows : "And for that whereas also, the said plaintiff, Michael Hertin, was in the year 1874 and 1875, the owner in fee simple of cer- tain lands in said county of Houghton, adjoining the lands of the said defendant, and the said plaintiffs were, during the years last aforesaid, engaged as co-partners in cutting, hauling, and selling wood from said lands of said Michael Hertin, and by mistake en- tered upon the lands of the said defendant, which lands adjoined the lands of the said plaintiff, ]\lichael Hertin, and under the belief that said lands were the lands of the said plaintiff, Michael Hertin, cut and carried away therefrom a large amount of wood, to wit: one thousand cords, and piled the same upon the shore of Portage Lake, in said county of Houghton, and incurred great expense, and tions, added to the per.manent value of the estate, he is entitled to a full remuneration, and that such increase of value is a lien and charge on the estate, which the absolute owner is bound to discharge before he ia to be restored to his original rights in the land. This is the clear result of the Roman law ; and it has the .most persuasive equity, and, I may add, common sense and common justice, for its foundation. The Betterment Acts (as they are commonly called) of the States of Massachusetts and Maine and of some other states are founded upon the like equity and were manifestly intended to support it, even in suits at law for the recovery of the estate." Accord, Union Hall Assoc, v. Morrison, 39 Md. 281 (1S73) ; Martin v. Atkinson, 7 Ga. 228 (1849). Approved, Hatcher v. Rriggs, 6 Ore. 31 (1876) ; and see also Thomas v. Thomas' Ex'r. 16 R. Mon. (Ky.) 420 (1855). In many states provision is made by statute for recovering for improve- ments put upon land by one supposing himself the owner. For a discussion of such statutes see, for example, Brown v. Storm, 4 Vt. 37 (1831), and Parsons v. Moses, 16 la. 440 (1864). IMPROVEMENTS UPOX PROPERTY. 35 1 paid, laid out, and expended a large amount of money in and about cutting and splitting, hauling and piling said wood, to wit : the sum of two thousand dollars ; and afterward, to wit : on the first day of June, A. D. 1875, in the county of Houghton aforesaid, the said defendant, with force and arms, and without any notice to or consent of said plaintiffs, seized the said wood and took the same from their possession and kept, used, and disposed of the same for its own use and purposes ; and the said plaintiffs aver that the labor so as aforesaid done and performed by them, and the expense so as aforesaid incurred, laid out, and expended by them in cutting, split- ting, hauling and piling said wood, amounting as aforesaid to the value of two thousand dollars, increased the value of said wood ten times and constituted the chief value thereof, by reason whereof the said defendant then and there became liable to pay to the said plaintiff the value of the labor so as aforesaid expended by them upon said wood and the expense so as aforesaid incurred, laid out, and expended by them in cutting, splitting, hauling, and piling said wood, to wit : the said sum of two thousand dollars ; and being so liable, the said defendant in consideration thereof, afterward, to wit: on the same day and year last aforesaid and at the place aforesaid, undertook, and then and there faithfully promised the said plain- tiffs to pay unto the said plaintiffs the said sum of two thousand dollars, and the interest thereon." The circuit judge instructed the jury as follows : "If you find that the plaintiffs cut the wood from defendant's land by mistake and without any wilful negligence or wrong, I then charge you that the plaintiffs are entitled to recover from the de- fendant the reasonable cost of cutting, hauling, and piling the same." This presents the only question it is necessary to consider on this record. The jury returned a verdict for the plaintiffs. Some facts appear by the record which might perhaps have war- ranted the circuit judge in submitting to the jury the question whether the proper authorities of the mining company w^ere not aware that the wood was being cut by the plaintiffs under an honest mistake as to their rights, and were not placed by that knowledge under obligation to notify the plaintiffs of their error. But as the case was put to the jury, the question presented by the record is a narrow question of law, which may be stated as follows : whether, where one in an honest mistake regarding his rights in good faith performs labor on the property of another, the benefit of which is appropriated by the owner, the person performing such labor is not entitled to be compensated therefor to the extent of the benefit re- ceived by the owner therefrom ? The affirmative of this proposition the plaintiffs undertook to support, having first laid the foundation for it by showing the cutting of the wood under an honest mistake as to the location of their land, the taking possession of the wood afterward by the mining company, and its value in the condition in Avhich it then was and where it was, as compared wath its value standing in the woods. 352 MISTAKE OF FACT. We understand it to be admitted by the plaintiffs that no author- ity can be found in support of the proposition thus stated. It is conceded that at the common law when one thus goes upon the land of another on an assumption of ownership, though in perfect good faith and under honest mistake as to his rights, he may be held re- sponsible as a trespasser. His good faith does not excuse him from the payment of damages, the law requiring him at his peril to as- certain what his rights are, and not to invade the possession, actual or constructive, of another. If he cannot thus protect himself from the payment of damages, still less, it would seem, can he establish in himself any affirmative rights, based upon his unlawful, though unintentional encroachment upon the rights of another. Such is un- questionably the rule of the common law, and such it is admitted to be. It is said, however, that an exception to this rule is admitted under certain circumstances, and that a trespasser is even permitted to make title in himself to the property of another, where in good faith he has expended his own labor upon it, under circumstances which would render it grossly unjust to permit the other party to appro- priate the benefit of such labor. The doctrine here invoked is the familiar one of title by accession, and though it is not claimed that the present case is strictly within it, it is insisted that it is within its equity, and that there would be no departure from settled prin- ciples in giving these plaintiffs the benefit of it. The doctrine of title by accession is in the common law as old as the law itself, and was previously known in other systems. Its gen- eral principles may therefore be assumed to be well settled. A wil- ful trespasser who expends his money or labor upon the property of another, no matter to what extent, will acquire no property there- in, but the owner may reclaim it so long as its identity is not changed by conversion into some new product. Indeed some authorities hold that it may be followed even after its identity is lost in a new product ; that grapes may be reclaimed after they have been con- verted into wine, and grain in the form of distilled liquors. Silsbury V. McCoon, 3 N. Y. 379. See Riddle v. Driver, 12 Ala. 590. And while other authorities refuse to go so far, it is on all hands con- ceded that where the appropriation of the property of another was accidental or through mistake of fact, and labor has in good faith been expended upon it which destroys its identity, or converts it into something substantially different, and the value of the original article is insignificant as compared with the value of the new pro- duct, the title of the property in its converted form must be held to pass to the person by whose labor in good faith the change has been wrought, the original owner being permitted, as his remedy, to re- cover the value of the article as it was before the conversion. This is a thoroughly equitable doctrine, and its aim is so to adjust the rights of the parties as to save both, if possible, or as nearly as pos- sible, from any loss. r>ut where the identity of the original article is susceptible of being traced, the idea of a change in the property IMPROVEMENTS UPON PROPERTY. 353 is never admitted, unless the value of that which has been expended upon it is sufficiently great, as compared with the original value, to render the injustice of permitting its appropriation by the origi- nal owner so gross and palpable as to be apparent at the first blush. Perhaps no case has gone further than Wetherbee v. Green, 22 Mich. 311, in which it was held that one who, by unintentional tres- pass, had taken from the land of another young trees of the value of $25, and converted them into hoops w'orth $700, had thereby made them his own, though the identity of trees and hoops was perfectly capable of being traced and established. But there is no such disparity in value between the standing trees and the cord wood in this case as was found to exist between the trees and the hoops in Wetherbee v. Green. The trees are not only susceptible of being traced and identified in the wood, but the dif- ference in value between the two is not so great but that it is con- ceivable the owner may have preferred the trees standing to the wood cut. The cord wood has a higher market value, but the owner may have chosen not to cut it, expecting to make some other use of the trees than for fuel, or anticipating a considerable rise in value if they were allowed to grow. It cannot be assumed as a rule that a man prefers his trees cut into cord wood rather than left standing, and if his right to leave them uncut is interfered v/ith even by mis- take, it is manifestly just that the consequences should fall upon the person committing the mistake, and not upon him. Nothing could more encourage carelessness than the acceptance of the principle that one who b}' mistake performs labor upon the property of an- other should lose nothing by his error, but should have a claim upon the owner for remuneration. Why should one be vigilant and care- ful of the rights of others, if such were the law ? Whether mistaken or not is all the same to him, for in either case he has employment and receives his remuneration ; while the inconveniences, if any, are left to rest with the innocent owner. Such a doctrine offers a premium to heedlessness and blunders, and a temptation by false evidence to give an intentional trespass the appearance of an inno- cent mistake. A case could seldom arise in which the claim to compensation could be more favorably presented by the facts than it is in this ; since it is highly probable that the defendant would suffer neither hardship nor inconvenience if com.pelled to pay the plaintiffs for their labor. But a general principle is to be tested, not by its opera- tion in an individual case, but by its general workings. If a me- chanic employed to alter over one man's dwelling-house, shall by mistake go to another which happens to be unoccupied, and before his mistake is discovered, at a large expenditure of labor shall thor- oughly overhaul and change it, will it be said that the owner, who did not desire his house disturbed, must either abandon it alto- gether, or if he takes possession, must pay for labor expended upon it which he neither contracted for, desired, nor consented to? And Woodruff's Cases — 23 354 MISTAKE OF FACT. if SO, what bounds can be prescribed to which the appHcation of this doctrine can be limited? The man who by mistake carries off the property of another will next be demanding payment for the transportation ; and the only person reasonably secure against de- mands he has never assented to create, will be the person who, possessing nothing, is thereby protected against anything being acci- dentally improved by another at his cost and to his ruin. The judgment of the circuit court must be reversed, with costs and a new trial ordered. The other justices concurred.^ 6. PERFORMANCE OF A WRITTEN CONTRACT, THE CONTRACT BEING FOUNDED ON MISTAKE. BOYCE V. WILSON. 32 Md. 122. — 1869. Maulsby, J. — This action is to recover money paid by mistake under a count for money had and received. At the trial the plain- tiff offered two prayers which were rejected, and the court granted the following prayer of the defendant : "That there is no sufficient evidence to show such a mistake in the contract of April 15, 1864, and the deed of Wilson to Boyce and Rieman, as will entitle the plaintiff to recover in this action," and the plaintiff appealed. ^ "The Supreme Court of North CaroHna, in Gaskins v. Davis, 20 S. E. R. 188 [115 N. C. 85 (1894)], decides that one who cuts' logs on another's land by mistake cannot, when they are retaken by the lawful owner, claim com- pensation for their increase in value caused by his having transported them to market. The action was by the lawful owner for damages for cutting other logs, and defendant sought to counter-claim. Had the mistaken wrong- doer sutificiently changed the nature or enhanced the value of the logs to acquire title to them lay accession, the measure of damages would have been limited to the value of the logs at the time of the conversion. The same rule would have applied in many jurisdictions if there had been no accession, and the real owner had brought trover for the logs instead of retaking them. In both cases defendant would, in effect, have been compensated for the in- crease in value which his labor had brought about. It seems unfortunate that in the single case where there has been no accession, and the logs are retaken by the owner, the right to compensation should be denied. In Isle Royalc Mining Co. v. Hertin. 2)7 JMich. 332, a similar log case, the claim was denied because to allow it would be to offer a 'premium to heedlessness and blunders.' The rule of damages in accession and trover seems equally lenient to blunderers, and has not been found disastrous in practice. It is rather difficult to distinguish the cases on principle from those in which a right to compensation in equity has been allowed for improvoments to land made under a mistaken belief of ownership (Albea v. Griffin, 2 Dev. & B. Eq. 9 (N. C.) ; Rodman, J., in Potter v. Mardre, 74 N. C. 40). A decision to much the same effect was made in Bright v. Boyd, i Story 478; 2 Story 608, and see Keener, Quasi-Contracts, 385, 386. The analogy was noticed by the court in the principal case." — Note in 8 Harvard Laiv Review, 356. WRITTEN CONTRACTS. 355 In the view which we take of the case, we do not deem it material to determine whether the defendant's prayer, in the terms used, was properly granted or not. The contract offered in evidence by the plaintiff is a written contract, in which the consideration expressed is $90,322, and that sum was paid by appellant to appellee. The ground of the appellant in this suit is that the consideration, which ought to have been ex])resscd in the written contract, was $81,250, and that he paid $9,072 too much, by reason of the fact that the written contract did not contain the true contract between the par- ties to it. He was permitted by the court below to offer parol evidence, and to prove that the written contract was intended to embody a verbal agreement previously made. His counsel asked him, testify- ing as a witness, "what the agreement was which resulted in the written contract, and whether there was any mistake in the amount of consideration stated in the contract?" And again, whether the consideration stated in the written contract "was the true consider- ation for the property agreed to be conveyed," or whether there was any mistake, and if so, what it was, and how it arose? The witness replied, in substance, that he and the appellee had agreed by parol that he was to purchase from the appellee certain real estate, and mining stocks, at certain valuations, and that, after negotiating for some time, they finally made a calculation of the amount which he was to pay for the same, and that the sum ascertained by the calcu- lation was $90,322, that afterward the agreement was reduced to writing, and embodied that sum as the consideration, and that the contract offered in evidence was that writing, and when it was exe- cuted he was not aware that the said sum was not the correct con- sideration, but that some time afterward he discovered that the cal- culation had been made on an erroneous basis, and that the sum which ought to have been expressed in the written contract was $81,250, that before this discovery was made by him the real estate and stocks had been conveyed and transferred to him, and he had paid the full sum mentioned in the written contract. The alleged mistake was in the calculation made before the written contract, and was carried into that contract. Can the parol evidence vary the written contract, by striking therefrom the consideration expressed in it, and inserting in its stead another reduced consideration ? The plaintiff has made no mis- take which a court of law can correct, if he has paid only that sum which his contract obliged him to pay. He cannot recover at law a sum paid by mistake, unless that sum were over and above what he had contracted to pay. * * * * The written contract may not have been in accordance with the intention of the parties. It may have expressed, by mistake, one consideration, when the real inten- tion out of mind at the moment of its execution was that it should have expressed another. But, whatever may have been the mistake, or how produced, it can find no recognition until the written con- tract shall have been reformed and made to conform to the inten- 356 MISTAKE OF FACT. tion of the parties, and this a court of law cannot effect. A court of equity alone can reform a written contract. When the court of appeals, in Murphy v. Barron, i Harris & Gill 258, said, "the action for money had and received is an equitable action, and equally as remedial in its effects as a bill in equity," it did not mean to be understood as obliterating any of the well-de- fined lines of demarcation which separate the jurisdiction of courts of law and equity. It did not mean that an action of assumpsit can be founded on anything else than contract, express or implied. It meant only, that contracts to repay money received, through fraud or mistake, would be implied, in a spirit of liberal and generous justice, when the rigid rules of law did not forbid. The illustrations put, in the court's opinion, explain it. As, "where money has been paid on a consideration which has failed." "That the extending those actions depends on the notion of fraud." "If a man takes an- other's money to do a thing, and refuses to do it, it is a fraud ; and it is at the election of the party injured either to affirm the agree- ment by bringing an action for the non-performance of it, or to dis- affirm the agreement ab initio, by reason of the fraud, and bring an action for money had and received to his use." But the court did not intend to say that, in this action, settled rules of law could be abrogated ; that a written contract could be shown, by parol, to be different from the import of its terms, or that the rules regulating the force and effect of evidence could be interfered with or altered.^ The result from these views being that the plaintiff cannot recover in a court of law, it is not material to determine whether or not the prayer, as offered, was properly granted, because, even if it were erroneous, the appellant has sustained no injury. He could derive no benefit from a reversal, and to order a new trial would be nuga- tory, because he could not recover. Under the views expressed, the plaintiff's prayers were properly rejected. Therefore, this court will not reverse the judgment. Judgment affirmed, j^ HOWES V. BARKER. 3 Johns. (N. Y.) 506.— 1808. Tins was an action of assumpsit. The declaration contained three counts. I. For money had and received to the use of the plaintiff. 2. For money paid out and expended. 3. For money lent and ad- vanced. The defendant ])leaded non assumpsit. The cause was tried before Mr. Justice Thomp-Sgn, at the Dutchess circuit, in Septem- ber, 1807. The plaintiff's counsel, on opening the cause to the jury, stated, * But see Miiichin v. Minchin, reported herein at p. (^51. WRITTEN CONTRACTS. 357 that the plaintiff and defendant, on the 20th of August, 1798, exe- cuted articles of agreement, under their hands and seals, by which the defendant agreed to sell and convey to the plaintiff, for the sum of nine pounds per acre, a certain parcel of land, mentioned in the agreement, and covenanted to execute a good warranty deed for the same, on or before the ist day of April following, on the plaintiff's paying him for the land, at the terms agreed upon ; that the defend- ant, afterward, on the ist of April, 1799, executed a deed to the plaintiff, in the usual form, and with the usual covenants, in which the premises conveyed were described as containing 275 acres, ex- clusive of any allowance for highways, and the plaintiff paid to the defendant $6,187.50, being the price of 275 acres .at £9 per acre; that the premises mentioned in the agreement, and described and conveyed in the deed, were afterwards found to contain only 263 acres, there being a deficiency of twelve acres ; by means of which deficiency in the supposed quantity of the land the defendant had paid by mistake $270 over and above the value of the land, at the rate agreed to be paid for the same ; to recover which sum, with the in- terest thereon, the present action was brought. Upon this statement of the case, the defendant moved for a non-suit, on the ground that the action was not maintainable, and the judge was of opinion, on the facts disclosed, that no action could be sustained. The plaintiff then oft'ered to prove that at the time the deed was executed, the defendant agreed with the plaintiff, that the quantity of acres conveyed should be the subject of future inquiry, and that the sum paid should be rectified by the actual quantity of land ; but this evidence was overruled by the judge. The plaintiff then offered to prove that the defendant, after the execution of the deed, had acknowledged the mistake and had prom- ised to refund the money, so received by mistake, and for that pur- pose produced a letter written by the defendant to the plaintiff, which was admitted and read, in which he says, 'T will come down next week, and early enough in the day to send for Mr. Baldwin. All I want is to be convinced of the quantity of land, and Baldwin says he can do it." The judge being of opinion that neither the facts stated, nor the evidence produced, were sufficient to support the ac- tion, ordered the plaintiff to be called and a non-suit was accord- ingly entered. A motion was afterward made to set aside the non-suit. Thompson, J. — Could the plaintiff's action in this case be sus- tained at law without infringing upon what I consider well-settled principles, I should think the non-suit ought to be set aside ; for if the facts offered to be proved were true there has been a mistake made in the deed, which ought to be rectified. But relief in my opinion is not to be had in a court of law. There is no pretense of any fraud having been practiced upon the plaintiff. The most that can be alleged is, that there has been a mistake with respect to the in- sertion of the consideration-money in the deed. The contract be- tween the parties, according to the articles of agreement, was execu- 358 MISTAKE OF FACT. tory, and having been executed and consummated by the deed sub- sequently given, the agreement became null and of no further efifect. If it remained in force, the action, if at all sustainable, should have been upon the covenant. This is not like the case of Weaver v.. Bentley (i Caines 48). The court there sustained the action for money had and received, on the ground that the defendant having altogether failed to perform the contract, on his part, the plaintiff had his election, either to proceed on his covenant for damages, or to disaffirm the contract, and to bring his action to recover back the money he had paid. The present case, however, is not one where the plaintiff claims the right of disaffirming the contract, but has consummated it by the acceptance of a deed. The deed cannot be considered as an execution of the contract in part only. If an exe- cution at all, it must be of the whole contract, and the articles of agreement are a nullity. If so, the testimony offered in support of the plaintiff's action, to show that the consideration expressed in the deed was more than ought to have been paid, could be viewed in no other light than as parol evidence, repugnant to the written contract. That such testimony is not admissible, has been repeatedly ruled in this court. 2 Caines 161 ; i Johns. Rep. 418. The lan- guage of the court, in those cases was, that it cannot be a safe or salutary rule, to allow a contract to rest partly in writing, and partly in parol. Whenever it is reduced to writing, that is to be considered the evidence of the agreement, and everything resting in parol be- comes thereby extinguished. I cannot perceive why any parol agree- ment, varying the consideration-money expressed in the deed, does not fall within this rule, as much as if it related to any other part of the contract. There is, however, an express adjudication of this court on that point, in the case of Schermerhorn v. Vanderheyden, I Johns. Rep. 140. The court there say : "The consideration for the assignment is expressly stated in the deed of assignment itself, and the parties are thereby precluded from setting up any greater or different consideration. To allow of parol evidence for that pur- pose, would be to extend, or substantially vary, the language of a written contract. Though the promise in question may have been made previously to the assignment, yet after the execution of the instrument, we must presume that the father and son altered the consideration mentioned at first, and finally acted upon that which is set forth in the assignment." So in the case before us, we must ])resuiTLe, after the execution of the deed, that the consideration therein mentioned was the one finally agreed on between the par- ties. The testimony offered to show an agreement, at the time the deed was executed, to have the land surveyed and the price regu- lated by that survey, was properly rejected as coming within the principle adopted by this court in the case of Mumford v. M'Pher- son, T Johns. Rep. 414. See also Bradley v. Blodget, Kirby's Rep. 22. The plaintiff was permitted on the trial to adduce testimony to show that the defendant had, after the execution of the deed, WRITTKX COXTRACTS. 359 acknowledg-ed the mistake and promised to refund the money, but he altogether failed in establishini^ such a promise. Whatever view, therefore, is taken of the case, I think the non- suit ought to stand ; and that the present motion must be denied. Spencer, J., was of the same opinion. Kent, Ch. J. — I am of the same opinion. I confess that I have struggled hard, and with the strongest inclination, to see if the action for money had and received would not help the plaintiff in this case ; but I cannot surmount the impediment of the deed, which the plaintiff has accepted from the defendant, and which contains a specific consideration in money, and the quantity of acres con- veyed, with the usual covenant of seisin. Sitting in a court of law, I think I am bound to look to that deed as the highest evidence of the final agreement of the parties, both as to the quantity of the land to be conveyed, and the price to be given for it. If there be a mistake in the deed the plaintiff must resort to a court of equity, wdiich has had a long established jurisdiction in all such cases; and where even parol evidence is held to be admissible to correct the mistake, i Vesey 317; 3 Bro. C. C. 454; 5 Vesey, jun. 595, 596; 6 Vesey, jun. 333, 334. The motion to set aside the non-suit must be denied. Van Ness, J., having formerly been concerned as counsel in the cause, gave no opinion. Yates, J., not having heard the argument in the cause, gave no opinion. Judgment of non-suit.^ ^ In Houghtaling v. Lewis, 10 Johns. 296, 298 (1813), the court says: "Articles of agreement for the conveyance of land are, in their nature, ex- ecutory, and the acceptance of a deed, in pursuance thereof, is to be deemed, prima facie, an execution of the contract, and the agreement thereby becomes void, and of no further efifect. Parties may, no doubt, enter into covenants collateral to the deed, or cases 'may be supposed when the deed would be deemed only a part execution of the contract, if the provisions in the two instruments clearly manifested such to have been the intention of the parties. But the prima facie presumption of law arising from the acceptance of a deed, is that it is an execution of the whole contract ; and the rights and remedies of the parties, in relation to such contract, are to be determined by such deed, and the original agreement becomes null and void." Recovery at law because of a deficiency in the amount of land was allowed upon the principle of the cases stated suppositively in the preceding para- graph, in Witbeck v. Waine, 16 N. Y. 532 (1858), and Murdock v. Gilchrist, 52 N. Y. 242 (1873). In Paine v. Upton, 87 N. Y. 2)'27 (1882), a suit in equity was iDrought to obtain a deduction from the sum secured by a bond and mortgage, given for a portion of the purchase price of a farm, on the ground of a deficiency in and mutual mistake as to the quantity of land ; and although the contract had been executed and the deed given, the relief was granted, the court saying, however, that the power of equity to annul or reform executed transactions "should be exercised with great caution." 360 MISTAKE OF FACT. WILLIAMS V. HATHAWAY. 19 Pick. (Mass.) 387.— 1837. Assumpsit to recover back money paid to the defendant by the plaintiff on the purchase of certain land. At the trial, in the com- mon pleas, before Williams, J., it appeared that the parcel of land in question, which originally belonged to the defendant, was offered for sale by public auction, on the 20th of April, 1827, it being esti- mated and represented to contain fifteen acres ; that it was struck off to the plaintiff for $5.05 by the acre, on that estimate ; that the deed of the land from the defendant set forth, that, in consideration of the sum of $75-75, paid him by the plaintiff, he thereby conveyed to the plaintiff the land in question, "containing fifteen acres," de- scribed by metes and bounds ; that there was no agreement at the time of tlie sale or of the execution of the deed, that the land should be measured for the purpose of ascertaining the quantity ; and that by an admeasurement made in January, 1837, it fell short of the es- timate by one acre and fifty-five rods. It further appeared, that, in 1832, the defendant said, that if the land did not hold out the fifteen acres, he would make it right. The judge, being of opinion that the action could not be sustained, ordered a non-suit to be entered. The plaintiff thereupon excepted. Per Curiam. — By the deed, which is made part of this case, it appears that the plaintiff paid a certain sum of money for the whole land described and identified ; and by the rules of law, when a deed is executed in pursuance of a contract for the sale of land, all prior proposals and stipulations are merged, and the deed is deemed to express the final and entire contract between the parties. If the purchaser was not satisfied that the tract contained so large a quan- tity as it was estimated at he should have had it measured before he took his deed and made his payment. It must not be understood, from the deed, either that it was in fact measured, or that the par- ties were content to estimate it at fifteen acres, and settle at that rate, whether more or less. And if the tract described had contained more than fifteen acres, there is no doubt that it would have passed by the deed, and the grantor would have had no remedy for the excess ; the deed would be as conclvisive upon him, as we think it now is on the plaintiff. As to the defendant having said that if the land did not hold out fifteen acres he would make it right, it can hardly be deemed a promise, not being said to the plaintiff; but if it was, it was made upon no legal consideration, and was not, therefore, the ground of an action. Exceptions overruled and the judgment of C. C. P. affirmed. -r / WRITTEN CONTRACTS. '361 KREITER V. BOMBERGER. 82 Pa. St. 59.-1876. Assumpsit, brought by J. M. Kreiter, against I. F. Bomberger. One defense was by way of set-ofif and was "that Kreiter had sold Bomberger a piece of ground in Warwick village, containing, as represented by Kreiter in the deed, 242 feet 4 inches front, and in depth 200 feet, containing one acre and a half, more or less, which upon actual measurement contained 52 feet 8 inches less in front, the deficiency extending through its entire length, reducing the area to less than an acre, for which he paid $6,000, and claimed dam- ages for the deficiency. It was a sale consummated by payment, de- livery of deed, and possession of the vendee under it." The jury allowed the set-off of damages for deficiency of land, reducing the verdict from $6,769.24, as it would have been upon the first finding, to $215.59, for which amount they gave a verdict for the plaintiff. Mr. Justice Sharswood. — * * * * 'y\^q right of a vendee to be allowed to recover for an alleged deficiency in the quantity of land purchased by him, as described in his deed or articles of agreement, may arise in three different classes of cases. The first is when the agreement is entirely executory. I cannot find in our books any case in point, but in most of those which have been decided where the agreement has been carried out by a con- veyance, and the giving of securities for the purchase-money, so much stress is laid upon the execution of the deed as to produce the impression that a vendee, where the articles are entirely execu- tory, would be allowed for any considerable falling off in the quan- tity.^ Chief Justice Tilghman declined to express any opinion upon the question in Smith v. Evans, 6 Binn. 102. As the action to re- cover the purchase-money may be regarded as equivalent to a bill in equity to enforce the specific performance of the contract, it may well be concluded that the vendee ought not to be compelled to pay ^"Plaintiff contracted to purchase from defendant a parcel of land, at a certain price per acre, subject to 'measurement, and to pa}' for the same in certain instahments, defendant agreeing to convey to him after such pay- ments. In pursuance of the contract, the land was surveyed by a land surveyor, who reported the number of acres, and plaintifif paid accordingly, both parties supposing the number of acres to be that reported by the surveyor. Plaintiff entered into and took possession of the land pursuant to the contract, but without having received a conveyance thereof, and sold the: same to a third party. After this sale a resurvey was made, and the number of acres ascertained to be less than that supposed at the time the payments were made; also that the description differed from that given on the former survey. — Held, in an action brought for that purpost, that the plaintiff could recover, on the ground of a mutual mistake of facts by the parties, the amount which he had overpaid the defendant, a'nd was entitled to a deed containing a description of the land according to its true boundaries, and stating the actual number of acres." — George v. Tallman, 5 Lans. (N. Y.) 392 (1871), syllabus. 362 MISTAKE OF FACT. for more land than he actually receives, unless it appears that he understood and meant to take the risk that the quantity was as represented. The case is much plainer when the agreement is at the price of so much per acre ; and even where it is for a round sum, and the quantity is qualified by the words "more or less," the deficiency should be a reasonable one, as in the old case of Day v. Finn, Owen 133, cited in 9 Vin. Abr. 343, pi. 10, where it is held that "sive plus sive minus" shall be intended of a reasonable quan- tity. Certainly very much ought to depend upon the extent of the purchase and the value of the land. This, however, is not the case which we have before us, and we do not intend to express an opinion upon it. The second class of cases is however the more usual one : namely, where the contract has been carried out by the execution of a deed and of bonds or other securities for the purchase-money. The ques- tion has there arisen upon actions to recover on these securities. In such cases the law is well settled, that where the contract was for a round sum, or even by the acre, the vendee will not be allowed for a deficiency in the quantity, where the number of acres in the deed is stated with the qualification more or less, unless there be fraud, or, as is said, the difiference is so very great as to show an evident mistake. The rule was stated by Mr. Justice Sergeant, in Galbraith V. Galbraith, 6 Watts 112, in these words: "An examination of the numerous decided cases in our own reports will, I think, show that in the common case between vendor and vendee, in a conveyance of a tract of land bounded by adjoining owners, and described as containing so many acres, be the same more or less, at a certain price per acre, where there is no stipulation for admeasurement nor any mala fides proved, redress cannot, after the bargain is closed, be given to either party for a surplus or deficiency subsequently appearing." This rule was adopted and confirmed in Hershey v. Keemborts, 6 Barr 128; Chief Justice Gibson adding, "The vendor is answerable in respect of the quantity only for inaJa fides." There are indeed many dicta that the difference in the quantity may be so great as to be evidence itself of fraud or deceit, or of great misap- prehension between the parties, and then equity will relieve. Though no case is to be found of an actual application of this doctrine in favor of the vendee, or to show what must be the extent of the difference to raise the presumption, yet perhaps it may be fairly conceded, that in an action to enforce the payment of purchase- money, a deduction under such circumstances will be allowed. Such is the weight of extra judicial opinions: Boar v. McCormick, i S. & R. t66; Glen v. Glen, 4 Td. 488; Bailey v. Snyder, 13 Id. 160; McDowell v. Cooper, 14 Id. 296; Ashcom v. Smith, 2 Penna. R. 219; Frederick v. Campl^ell, 13 S. & R. 136; Haggerty v. Fagan, 2 Penna. R. 533; Coughenour's Adm'rs v. Stauft, 27 P. F. Smith 191. The third class of cases to which the one now under consideration belongs, is where the contract is fully executed and the purchase- money paid. We arc of the opinion that in this class, the transaction WRITTEN' CONTRACTS. ■^6', C^'o cannot be ripped up, without actual proof of fraud or mutual mis- take. Upon this question the j^reatness of the difference may be evidence, but not sufficient of itself. There must be other circum- stances. Cases of this class very rarely arise. I can find but one in- stance in our books. That is the case of Large v. Penn, 6 S. & R. 488. There the difference was very great in reference to the extent of the premises. The quantity conveyed was described as 2^ acres, and without the words ''more or less ;" the actual quantity was, I acre, 148 perches. Yet the vendee was denied relief ; Chief Justice TiLGHMAN remarking: "It is the boundaries to which the grantee must look ; he has a right to all the land within them. The quantity is a matter of calculation, and, be it more or less, passes. There is no express covenant that the quantity in this case shall amount to 2% acres. Nor is there any implied covenant, because the quantity is introduced not by way of covenant, but of descrip- tion." So in Smith v. Evans, 6 Rinn. 102, which was a proceeding on a mortgage, to recover unpaid purchase-money, where upon a conveyance of 99154 ?-cres, more or less, the quantity fell short 88 acres, 48 perches, and the vendee was refused relief ; Mr. Justice Yeates, in his dissenting opinion, says : "And yet I freely confess that if, under this state of facts, the whole money had been paid, and the transaction closed, I know of no legal mode whereby any of the money could be recovered back." This distinction between cases where the purchase-money has been fully paid and the de- mand is to recover back part, and cases where the vendor is pro- ceeding upon his securities to enforce full payment, is well sus- tained by the general principles upon which courts of equity pro- ceed. They will not rescind a contract fully executed without clear proof of fraud or mutual mistake in an essential point. They pro- ceed upon different principles in the enforcement of contracts. It follows that there was error committed by the learned judge below in admitting and submitting to the jury the deed from Kreiter to Bomberger, as in itself sufficient evidence of fraud or mistake, if they should think the difference very great. If it was sufficient of itself, it was a question of law for the court and not of fact for the jury. There was no evidence besides the deed to show fraud in Kreiter or mutual mistake of the parties. The vendee was well acquainted with the lot, within the boundaries described in the deed. That was the lot he bought. There was no representa- tion by the vendor of the quantity of acres it contained. The de- scription in the deed was most probably copied from the prior con- veyances to him recited in it. Both parties made and concluded the bargain with their eyes open. The vendee threw out no anchor to windward as to quantity as he did as to title by his covenant of general warranty. If within any period short of six years from the time of the transaction, a contract of purchase and sale, fully exe- cuted by delivery of the deed and payment of the purchase-money, can be overhauled and materially changed, very disastrous conse- quences will ensue not only to vendors called upon to refund what 364 MISTAKE OF FACT. they had every reason to believe was their own and had a right to deal with accordingly, but to the public at large, by sowing the seeds of an abundant crop of lawsuits. Judgment reversed and venire facias de novo awarded. RAND V. WEBBER. 64 Me. 191. — 1874. Assumpsit, alleging that, on the twenty-second day of February, A. D. 1867, in consideration that the plaintiff would buy "the Sam- uel Bean farm" in Hudson for five hundred dollars, the defendant promised to sell her the farm for that sum, and promised that it "included a certain piece of good, cleared land containing about ten acres and lying on the side of the road opposite to the main body of the farm, of the value of two hundred dollars ;" in con- sideration whereof the plaintiff promised to buy said farm ; but the defendant "subtly intending to deceive and defraud the plain- tiff," etc., conveyed to her a described parcel of land, which did not embrace the ten acre lot aforesaid, which he had promised her, and which she had paid for, etc. Substantially the same facts were set forth in several special counts ; and, when the cause came on for trial, the plaintiff was allowed, against the defendant's objec- tion, to add the count for money had and received. The general issue was pleaded in defense, with a brief statement setting up the statute of frauds, and that assumpsit would not lie if the facts al- leged were all proved. The case was reported for the entry of a non-suit or default as the court should consider the law upon the facts required. Peters, J. — The defendant deeded to the plaintiff a piece of land. It appears that the deed does not include a parcel of about ten acres, which the defendant represented he was conveying, and which the plaintiff supposed she was getting, when the deed was made. The omission was occasioned, either by the mutual mistake of the parties, or by fraud on the part of the defendant. The plain- tiff does not rescind the contract on this account. She relies upon a si)ecial count in assumpsit and a count for money had and received, to recover back so much of the purchase-money, as said omitted parcel was actually worth. Whether this action can be maintained, is the question for our determination. We are satisfied that the form of remedy is misconceived. It is clear that the count declaring on a special oral promise to convey the ten acres cannot be maintained, because such a contract is within the statute of frauds. The statute of frauds is duly pleaded and re- lied on. And it is just as certain that the action cannot be upheld upon WRITTEN CONTRACTS. 365 the common counts. This form of declaring is predicated upon a repudiation of what has been done. It cannot be allowed, unless based upon a rescission of the contract. This cannot be partial, but must be entire. Both parties must be restored to the condition in which they were before the contract was made. No new contract can be made for them without the consent of both. The plaintiff must tender a release of the premises conveyed, before sbe can sue to recover back any part of the consideration paid. She might have resorted to equity, if there was a mutual mistake ; or she might have an action of deceit to recover the damages actually sustained, if the defendant committed a fraud upon her, and she might defend against any notes given for the land, to the extent of the damages sustained by the defendant's fraud, if they should be sued by the defendant or any one having no superior rights to the defendant. These propositions are familiar doctrine, and abundantly sustained by the following, and numerous other authorities. Herbert v. Ford, 29 Maine 546 ; Garland v. Spencer, 46 Maine 528 ; Percival v. Hich- born, 56 Maine 575. And see cases cited hereafter. But the plaintiff contends that this case can be rescued from an application of these technical principles, upon the strength of the precedent in Goodspeed v. Fuller, 46 Maine 141, It was there de- cided "that upon the money counts parol evidence was admissible to prove that the defendant, for the amount expressed as the con- sideration in a deed, agreed to sell and convey to the plaintiff two lots of land, each for a specified price ; that the plaintiff paid the defendant the full sum for both lots, and that by mistake or fraud of the grantor, only one of the lots was conveyed by the deed, and the defendant having, upon request, refused to convey the other lot, that the plaintiff could recover back the consideration paid for it with interest." That case was not like this. In that case there was a bargain for two lots at separate prices. Two bargains were there described in one transaction. The consideration was divisible. But in the case at bar there is but one contract, and one gross sum to be paid for the whole. All the land was bargained for as an entirety. It must be borne in mind, that it is not the actual value of the omitted lot that the plaintiff should recover (if at all), but the exact amount of the consideration paid therefor. How can this be ascertained ? How can it be known how much the purchase price of the "ten acres" was in comparison with the price of any other portion or of the whole? How can it be known that the defendant would sell one parcel without the other? Or how much the value of one parcel may be reduced by its separation in ownership or oc- cupation from the whole? The distinction between the case cited and this case is very forci- bly illustrated in Miner v. Bradley, 22 Pick. 457, to which we refer as directly supporting our conclusions here. The same question afterwards arose, and was elaborately examined, both by counsel and court, in Clark v. Baker. 5 Mete. 452. The same principle was affirmed in the later cases of Morse v, Brackett, 98 Mass. 205 ; and 366 MISTAKE OF FACT. Bartlett v. Drake, 100 Mass. 174. The case of Johnson v. Johnson, 3 Bos. & Pul. 162, much relied on in the Massachusetts cases, is also a very forcible case directly in point. The opinion of the court in Gushing- v. Rice, 46 Maine 303, is not inconsistent with our views as expressed here, althoug'h it may be regarded as to some extent con- flicting with one of the Massachusetts cases above cited. In that case the plaintiff was allowed to recover back money paid for logs which he had not got, there being no difficulty in making an appor- tionment of the consideration, as no point was made that there was any difference in the value per thousand feet between the logs that were and those that were not received. The court say in that case that it does not appear upon what ground the verdict was rendered ; and that the exceptions disclosed no objection to the form of the action or to the instructions of the presiding judge. It appears that no point was taken at the trial of that case, that the remedy was misconceived. It appears that the cause of action in this case arose more than six years before another suit could now be commenced. As the special count stood, it could easily be amended so as to have been an action of deceit. The plaintiff elected otherwise by adding a money count, and joining pleadings in assumpsit. The plaintiff may at nisi prius have leave to have the writ amended and the plead- ings reformed, conformably to an action of tort, by paying costs and receiving none up to the date of the amendment ; otherwise A non-suit to be entered. WHITE V. MILLER. 22 Vt. 380. — 1850. Indebitatus assumpsit for money had and received. On trial the plaintiff proved by parol testimony, which was objected to by the defendant but admitted by the court, that in September, 1844, he contracted with the defendant to purchase and did purchase of him an irregularly shaped piece of land, at the price of $25 per acre, — the quantity of land being vmknown to the parties ; that the plain- tiff and defendant went together, and, with leading lines, measured the lines of the land, and the defendant computed the contents and made the same amount to 5i^ acres; that at the same time, and im- mediately after the defendant's computation, a third person, not a surveyor, at the request of the plaintiff, computed the contents, from the defendant's minutes, as the defendant had done, and with the same result; that in both computations an error occurred of i^'^ acre, — the land, when correctly computed, amounting to only 4^^ acres ; and that both parties being ignorant of the mistake in the computation, the plaintiff paid to the defendant $143.75. ^^'^^ price of 5.)4 acres at $25 per acre, and the defendant executed to the plaintiff a deed of the land, and the plaintiff went into possession, WRITTEN CONTRACTS. 367 and still continues in possession. The deed, which on notice by the defendant was produced by the plaintiff, was a deed with covenants of warranty, in common form, acknowledging the receipt of $142 as the consideration, and describing the land as being bounded on certain other lands, without giving courses, or distances, — the de- scription concluding with these words, — "the same containing about 5^ acres, be the same more or less." The court charged the jury, that upon the evidence, if believed, the plaintiff would be entitled to recover; and the jury returned a verdict in his favor for the amount of the deficiency in the land, at $25 per acre. Exceptions by defendant. Hall, J. — The first and most important objection, that is made to the verdict is, that the parol testimony was improperly admitted, for the alleged reason, that the whole contract between the parties was merged in the deed and could not otherwise be shown than by the deed itself. How far a contract for the purchase and sale of land is to be con- sidered as being embraced and controlled by the terms of the deed is a question, upon which the authorities are to some extent contra- dictory and irreconcilable. In England the recital of the payment of the consideration money in a deed of conveyance is regarded as conclusive evidence of payment, binding the parties by estoppel ; and to that effect are some of the earlier cases in this country. But the American courts now generally treat the recital of the receipt of the consideration as only prima facie evidence of the amount paid ; and as subject to explanation, by showing, by parol, that nothing in reality had been paid, but that the sum agreed upon as the con- sideration for the conveyance was still due and unpaid. This is the undoubted law of this state. Beach v. Packard, 10 Vt. 96; Lazell V. Lazell, 12 Vt. 443. The recital in the deed is not, however, much relied upon as an obstacle to the introduction of the parol testimony in this case. But it is insisted, that the conclusion of the descrip- tion of the land in the deed, — "the same containing about 5^ acres, be the same more or less," — is to be taken as conclusive evidence, that, at the final consummation of the contract, the plaintiff agreed to accept the land, and to pay the consideration for it, without refer- ence to the quantity it contained, — that, having received the land for more or less, without reference to the quantity, he cannot now be permitted to show that the contract was for a certain number of acres, and that the quantity turned out to be less than was contracted for. The question in regard to the effect of a recital of this descrip- tion, in a deed, upon the contract of purchase and sale, is one of considerable difficulty, and one which does not appear to be con- trolled by positive authority. The reason why the recital of the re- ceipt of the consideration in the deed is not now held to be con- clusive is, that the object of inserting the consideration is to give effect to the conveyance, as a legal instrument, and not to specify the contract in regard to the price paid, or to be paid, or the fact or mode of payment. The receipt of the consideration being ac- 368 MISTAKE OF FACT. knowledg-ed for one purpose, it is held to be unjust to allow it to conclude a party upon another matter, not contemplated by its in- sertion. Was the statement, in the present case, of the quantity of land in the deed, with the qualification of more or less added to it, designed as a recital of the contract, that had been made between the parties in regard to the price to be paid, or was it merely intended as part of the description of the land to be conveyed ? It has long been held, that the statement of a precise quantity of land, as conveyed by a deed, does not bind the grantor to make good that quantity. Thus, it was held in Beach v. Stearns et iix., i Aik. 325, that the words "containing thirty-four acres and nineteen rods of ground," in a deed, added to a description of the land by metes and bounds, did not import an agreement, that the land should hold out that quan- tity. And in Powell v. Clark, 5 Mass. 355, the still stronger words — "the lot to contain two hundred acres by measure" — following a similar description of the land, were held to be alike inoperative against the grantor. The reason given, w'hy such words — of a suffi- ciently affirmative character to import a covenant — should not be construed as such, is, that they were not inserted for the purpose of declaring what the contract had been between the parties in regard to the quantity of land, but merely as a part of the description of the land designed to be conveyed. If words thus made use of, posi- tively declaring the conveyance of a precise quantity of land, are not evidence against the grantor that he had sold that quantity, it is difficult to perceive why words which merely import that the quantity may be uncertain should be conclusive proof against the grantee that he had purchased and agreed to pay for the land, without reference to the quantity. If the language is merely de- scriptive of the land, when the quantity is stated as certain, it would seem to be equally so when the quantity is stated to be uncertain. The purpose for which the deed is made is not to state the con- tract between the parties in regard to the terms of the purchase, hut to pass the title to the land. The deed is not, strictly speaking, an agreement between the grantor and the grantee. It is executed by the grantor alone, and is a declaration by him, addressed to all man- kind, informing them that he thereby conveys to the grantee the land therein described. The object is to pass the title, — not to de- clare the terms upon which the land had been sold and the mode in v/hich the payment was to be made. And in declaring that the land described contains about so many acres, more or less, the grantor merely says, that the land included within the boundaries before stated shall pass to the grantee, whatever may be the quantity — whether it be more or less than the quantity stated. It would be a forced construction of such language, thus used, to hold that the grantor intended thereby to make any declaration in regard to the particular terms of the purchase, or the mode by which the price to be paid for the land had been arrived at between the parties. It is not intended to say that the terms of a contract of sale may WRITTEN CONTRACTS. 369 not be recited in the deed ; and when the design to do so is apparent, effect should doubtless be i^iven to the recital. But when the lan- guage of the deed, as in the present case, is general, and the words used may have their full force, as descriptive of the land, we think they should not be construed to conclude the parties in regard to the terms of the contract. It is not to be denied that it would be difficult to reconcile some of the authorities cited in the argument with the conclusion to which we have come, and upon what I considered to be the weight of authority, I was at first inclined to hold that the parol testimony should have been excluded. But on farther consideration and re- flection I have become satisfied that the view we have taken is founded on the true nature and object of a deed of conveyance, — especially a conveyance by deed poll, and that any other rule than that we adopt would give an effect to the instrument not con- templated by the parties to do, and would consequently operate un- justly. We are therefore of opinion that the contract proved by parol is not to be considered as having been merged in the deed, and that the evidence was properly admitted. It is farther objected in behalf of the defendant that the facts proved were insufficient to authorize a recovery. It is said that the parties having each an opportunity of ascertaining the quantity of the land, and there being no fraud in the case, the principle of caveat . emptor applies, and that the plaintiff is to be considered as having taken the land, in regard to the quantity, at his own risk. It is un- doubtedly a general rule of law, well settled in this State, that in the absence of fraud and warranty the purchaser takes the property at his own risk, as it regards its quality, and where the quantity is made the subject of estimation only, a similar rule would probably apply. But when the quantity of the thing purchased is agreed to be ascertained by count, weight, or measure, and there is an error in the count, weight, or measure, such error must be a proper sub- ject of correction. In the present case the price to be paid was to be determined by the quantity of the land, and the error appears to have been one of mere computation. It would seem, from the bill of exceptions, that the lines of the land were rightly meas- ured, but the quantity erroneously computed. The parties were under a mutual mistake, by reason of which a greater amount of money was paid to the defendant than he was entitled to by the contract. The excess, above that which the defendant was to receive by the contract, belongs in equity and good conscience to the plaintiff", and we think he may well recover it in this action. It may be added, in reference to another objection made in argvunent, that this is not a case in which it was necessary for the plaintiff to rescind the contract, or to offer to rescind it, before bringing the action ; because when the money is recovered the parties will be left in the precise situation in which they were to be Woodruff's Cases — 24 370 MISTAKE OF FACT. placed by the contract, Johnson v. Johnson, 3 B. & P. 162 ; Miner V. Bradley, 22 Pick, 460. The result is that the judgment of the county court is to be af- firmed. 7. MISTAKE AS TO NEGOTIABLE INSTRUMENTS. PRICE V. NEAL. 3 Burr. (K. B.) 1354.— 1762. Action upon the case brought by Price against Neal, wherein Price declares that the defendant Edward Neal was indebted to him in i8o for money had and received to his the plaintiff's use ; and damages were laid to iioo. The general issue was pleaded, and issue joined thereon. It was proved at the trial, that a bill was drawn as follows : — "Leicester, 22d November, 1760, Sir, six weeks after date pay Mr. Rogers Ruding or order forty pounds, value received, for Mr, Thomas Poughfor ; as advised by, Sir, your humble servant, Ben- jamin Sutton. To Mr. John Price in Bush-lane, Cannon-street, Lon- don." Indorsed "R. Ruding, Antony Topham, Hammond, and Laroche. Received the contents, James Watson and Son ; witness Edward Neal," That this bill was indorsed to the defendant for a valuable consideration, and notice of the bill left at the plain- tiff's house, on the day it became due. Whereupon the plaintiff sent his servant to call on the defendant, to pay him the said sum of £40 and take up the said bill ; which was done accordingly. That another bill was drawn as follows: "Leicester, ist February, 1761. Sir, six weeks after date pay Mr. Rogers Ruding or order forty pounds, value received, for Mr. Thomas Ploughfor, as ad- vised by, Sir, your humble servant, Benjamin Sutton. To Mr. John Price in Bush-lane, Cannon-street, London." That this bill was indorsed, "R. Ruding, Thomas Watson and Son. Witness for Smith, Right and Co." That the plaintiff accepted this bill, by writ- ing on it, "Accepted, John Price ;" and that the plaintiff wTote on the back of it : "Messieurs Freame and Barclay, pray pay forty pounds for John Price," That this bill being so accepted was in- dorsed to the defendant for a valuable consideration, and left at his banker's for payment ; and was paid by order of the plaintiff and taken up. Both these bills were forged by one Lee, Defendant Neal acted innocently and paid the whole value of these bills. Verdict for the plaintiff, subject to the opinion of the court upon this question: "Whether the plaintiff, under the circumstances of this case, can recover back from the defendant the money he paid on the said bills or either of them," NEGOTIABLE INSTRUMENTS. 37I Lord Mansfield stopt him [defendant's counsel] from going on, saying that this was one of those cases that could never be made plainer by argument. It is an action upon the case for money had and received to the plaintiff's use. In which action, the plaintiff cannot recover the money, unless it be against conscience in the de- fendant to retain it ; and great liberality is always allowed in this sort of action. But it can never be thought unconscientious in the defendant, to retain this money, when he has once received it upon a bill of exchange indorsed to him for a fair and valuable considera- tion, which he had bona fide paid without the least privity or suspi- cion of any forgery. Here was no fraud ; no wrong. It was incumbent upon the plain- tiff to be satisfied "that the bill drawn upon him was the drawer's hand," before he accepted or paid it ; but it was not incumbent upon the defendant to inquire into it. Here was notice given by the de- fendant to the plaintiff of a bill drawn upon him, and he sends his servant to pay it and take it up. The other bill he actually accepts ; after which acceptance, the defendant innocently and bona Ude dis- counts it. The plaintiff lies by for a considerable time after he has paid these bills, and then found out "that they were forged ;" and the forger comes to be hanged. He made no objection to them, at the time of paying them. Whatever neglect there was, was on his side. The defendant had actual encouragement from the plaintiff himself, for negotiating the second bill, from the plaintiff's having without any scruple or hesitation paid the first ; and he paid the whole value bona Ude. It is a misfortune which has happened with- out the defendant's fault or neglect. If there was no neglect in the plaintiff, yet there is no reason to throw off the loss from one inno- cent man upon another innocent man ; but, in this case, if there was any fault or negligence in any one, it certainly was in the plaintiff, and not in the defendant. Rule : that the postea be delivered to the defendant. Holmes, C. J., in DEDHAM NATIONAL BANK v. EVER- ETT NATIONAL BANK. 177 Mass. 392. — 1901. The plaintiff's argument is directed to proving that we should not adopt the rule laid down in Price v. Neal, 3 Burrows, 1354, according to which a drawee paying a forged draft or check to a bona fide purchaser cannot recover back the money paid. We are aware that this rule has been questioned by some text writers. But it is of such universal, or nearly universal, acceptance that we shall go into no extended discussion. Gloucester Bank v. Salem Bank, 17 Mass. 33, 42, 43 ; Bank v. Bangs, io6 Mass. 441, 444 ; Welch v. Good- 372 MISTAKE OF FACT. win, 123 Mass. 71, 'j'j ; First Nat. Bank of Danvers v. First Nat. Bank of Salem, 151 Mass. 280, 283, 24 N. E. 44; Bank of United States V. Bank of Georgia, 10 Wheat. 333, 348, 6 L. Ed. 334; 2 Daniel, Neg. Inst. (3d Ed.) §§ 1359-1361. Probably the rule was adopted from an impression of convenience rather than for any more academic reason ; or perhaps we may say that Lord Mansfield took the case out of the doctrine as to pay- ments under a mistake of fact, by the assumption that a holder who simply presents negotiable paper for payment makes no representa- tion as to the signature, and that the drawee pays at his peril. See Wilkinson v. Johnson, 3 Barn. & C. 428, 436; Bernheimer v. Mar- shall, 2 Minn. 78, 84 (Gil. 61) ; Bank of St. Albans v. Farmers' & Mechanics' Bank, 10 Vt. 141, 145, 146; Ellis v. Trust Co., 4 Ohio St. 628, 662. The ground of a recovery for a payment under a mistake of fact is that the existence of the fact supposed was the conventional basis or tacit condition of the transaction. If parties are so far at arm's length that each takes the risk of what he does, of course one of them cannot recover money paid because he finds that he has made a mistake. We believe that now, at least, especially in the case of a bank, it is a matter of general understanding that, when the holder of a check in no way contributes to the deception, the bank does take the risk of paying, so far as the signature is concerned. But, if this is so, mistake disappears as a ground for recovery, and there is no other. It is vain to point out that in other cases more or less analogous there is an implied representation, e. g., Railroad Co. v. Richardson, 135 Mass. 473. The grounds for difference in under- standing may be very nice, but, even if the decisions had originated the difference without adequate ground, when once it exists its existence is a sufficient reason for continuing to decide in accordance with it. 1 *In Bank of St. Albans v. Farmers' & Mech. Bank, 10 Vt. 141, 145 (1838), the court says : "The presentiment of a bill to the drawee is a direct appeal to him to sanction or repudiate it. It is an inquiry as to its genuineness, addressed to the party, who, of all men, is supposed best able to answer it, and whose decision is most satisfactory. He is, moreover, the person, to whom the bill itself points, as the legitimate source of information to others, and if he were permitted to dishonor a bill, after having once honored it, the very foundation of confidence in commercial paper would be shaken. There is a wide difference between such a transaction and the passing of paper as a representative of money, between persons equally strangers to it, in the ordinary course of business. In the latter case, the receiver relies, in a measure, upon the paper, while in the former, the case is reversed, and the holder relies, and has a right to rely, upon the decision of him to whom the bill is addressed, and who alone is to determine whether it shall be hon- ored or not." r 373/ NEGOTIABLE INSTRUMENTS. GERMANIA BANK v. BOUTELL et al. 60 Minn. 189.— 1895. Action by the Germania Bank of Minneapolis against William T. Boutell and Walter D. Boutell, doing business as Boutell Bros., and others. From an order sustaining demurrers to the complaint, plaintiff appeals. Affirmed. Mitchell, J. — This action was brought to recover money paid on a forged check. To the complaint the defendants separately demurred, on the ground that it did not state a cause of action. This appeal is from an order sustaining these demurrers. The com- plaint is very prolix, but the substance of its allegations is as fol- lows : Osborne & Clark, lumber dealers in Minneapolis, were custo- mers of the plaintiff bank, with which they kept a large deposit. They had in their employ a man named Seymour, at a salary of $7 per week, "a man of limited means and small personal resources," which facts were known to Boutell Bros. Boutell Bros, had sold Seymour some goods on credit on the installment plan, upon which there was due an installment of $10. During business hours of April nth, Seymour went to Boutell Bros.' place of business in Minneapolis, with a check for $457.90, payable to his own order, purporting to be drawn by his employers, Osborne & Clark, on plain- tiff bank ; whereupon Seymour and Boutell Bros, both indorsed the check for the purpose of giving it credit and putting it in circulation, and to enable Seymour to pay the $10, and then went over to the de- fendant bank, and presented the check thus indorsed (Boutell Bros, identifying Seymour), and requested the bank to cash it, which it did, paying the money to Seymour and Boutell Bros. Although the places of business of both Osborne & Clark and of plaintiff were within a few blocks, and of ready access, Boutell Bros, made no inquiry to ascertain the genuineness of the check, and the defendant bank took no means to assure itself of the fact, except the identifi- cation of Seymour by Boutell Bros, and the indorsement of the check by the latter. The next day the defendant bank presented the check to the plaintiff, which, after examining the signature and believing it to be genuine, induced thereto by its apparent genuine- ness (it not being possible by ordinary care to detect the forgery), and by the financial standing and integrity of the defendant bank, which presented it, and of Boutell Bros., who indorsed it, "in the exercise of due care and caution," paid the check. It is also alleged that it was the custom and practice among all the banks in Minne- apolis, well known to the defendants, for the bank upon which any check purports to be drawn to pay it when presented by any other bank (provided the drawer has sufficient funds), relying upon the genuineness of the check and of all prior indorsements ; also not to pay a check "of any considerable size" purporting to be drawn by one of its depositors unless the party presenting it is identified, "save 374 MISTAKE OF FACT. when indorsements of responsible parties known to the drawee bank are indorsed thereon." On April 24th plaintiff discovered that the sig-nature of Osborne & Clark was a forgery, and immediately noti- fied the defendants of the fact, tendered back the check, and demand- ed payment of the amomit, which was refused. The signature of Osborne & Clark had been forged by Seymour, who absconded April 1 2th, the same day on which plaintiff paid the check, but whether before or after is not alleged. His whereabouts is still un- known. These facts present the question, upon which so much has of late years been said and written, whether the drawee of a bill of exchange, or the banker upon whom a check has been drawn, who has paid a bill or check upon which the drawer's signature has been forged, can, upon discovery of the forgery, recover back the amount from the holder, and if so, under what circumstances he may thus recover. It is a well-settled rule of law that money paid under a mistake of fact may be recovered back, however negligent the party paying may have been in making the mistake, unless the payment has caused such a change in the position of the other party that it would be unjust to require him to refund. And the tendency of the modern authorities is to extend rather than to curtail the opera- tion of this rule. One generally received exception to the rule is that where the drawee of a bill of exchange, or the banker upon whom a check has been drawn, pays a bill or check upon which the drawer's signature has been forged, he must stand the loss, and cannot recover back the amount, if the party to whom he paid it was a bona fide holder. This doctrine was established in England in 1762, in the leading case of Price v. Neal, 3 Burrows 1354; in which Lord Mansfield stopped defendant's counsel, saying the case was one that could not be made plainer by argument ; that it was incumbent upon the plaintiff (the drawee) to be satisfied that the bill drawn upon him was in the drawer's hand before he accepted or paid it. The same doctrine was firmly established in the commercial law of this country in Bank of U. S. v. Bank of Georgia, 10 Wheat. 333, in which Mr. Justice Story, referring to Price v. Neal, said: "After some research, we have not been able to find a single case in which the general doctrine thus asserted has been shaken or even doubted." And, so far as we have been able to discover, this general doctrine is recognized as the law by the courts of every state in the Union except Pennsylvania, where the rule has been changed by statute. The doctrine was announced and applied by this court as early as Bernhcimer v. Marshall, 2 Minn. 78 (Gil. 61). That was a case of a forged draft, but the doctrine is equally applicable to a forged check. Indeed, if there is any difference in the cases, the reasons upon which the doctrine rests apply with more force to the latter than the former, for not only do checks pass from hand to hand as money more frc(|ucntly and rapidly than do drafts or or- dinary bills of exchange, but a banker is "even more bound" to know NEGOTIABLE INSTRUMENTS. 375 a customer's handwriting than a drawee of a bill of exchange is bound to know the drawer's. Many modern text writers, some of them of learning and ability, have assailed the correctness of this doctrine, contending that the general rule as to money paid under mistake of fact should appl}-, and that the law ought to be that the bank, although at fault in not discovering the forgery of its custo- mer's signature, can recover even from an innocent holder, if he will then be in no worse condition than if the bank had refused to pay the draft or check. See 2 Pars. Notes & B. 80 ; Morse, Banks, c. 33; Daniel Neg. Inst. c. 42; also. Am. Law Rev. April 1875, p. 411, and note to People's Bank v. Franklin Bank, 17 Am. St. Rep. 889 (88 Tenn. 299, 12 S. W. 716). We shall not enter upon a consideration of the soundness of the argument against the doctrine, or as to which rule we would adopt if the question was res Integra, because we do not feel at liberty to overrule or disregard a doctrine so well established and so firmly rooted in the commercial law of the country. If the rule is incorrect or works badly in practice, its change must be left to the legislature. We may say, however, that the opponents of the doctrine seem to have found no followers among the courts. We may also suggest that perhaps the courts themselves have given the opponents of the doctrine an unnecessary vantage ground, by frequently placing it exclusively on the narrow ground of actual negligence on the part of the drawee in not discovering the forgery, because he was bound to know the signature of his own customer or correspondent. It is undoubtedly true that he is in better position than a stranger to know his customer's signature, and that men have a right to deal with checks and drafts on that assumption ; but it does not seem to us that the doctrine rests entirely on this narrow basis of actual negli- gence on the part of the drawee. The money of the commercial world is no longer coin. The exchanges of commerce are now made almost entirely by means of drafts and checks. It was largely in deference to this fact that the recovery of money paid on paper of this kind, to which the drawer's signature was forged, was made an exception to the general rule as to the recovery of money paid under a mistake of fact. In view of the use of this class of paper as money, it was considered that public policy required that, as between the drawee and good-faith holders, the drawee bank should be deemed the place of final settlement where all prior mistakes and forgeries should be corrected and settled once for all, and, if not then cor- rected, payment should be trei "^ed as final ; that there must be a fixed and definite time and place to adjust and end these things as to innocent holders ; and that that time and place should be the paying bank and the date of payment ; and that, if not done then, the failure to do so must be deemed the constructive fault of the payee bank, which must take the consequences. See dissenting opinion of Mr. Justice Snodgrass in People's Bank v. Franklin Bank, 88 Tenn. 299, 12 S. W. 716. The rule that, if a bank pays a check under the misconception -^■jd MISTAKE OF FACT. that it has funds of the drawer, it cannot recover from a bona Me holder, but must look to the drawer alone for redress, is founded on much the same reasons. There is not as much force as may at first seem in the suggestion of practical objections to the doctrine. In large commercial centers, where vast numbers of checks have to be rapidly exchanged between banks, it is always done through and under the clearing-house rules, adopted by the banks for mutual convenience, by which checks paid in that way may be returned within a certain time, if it be found that they are not genuine or that the drawer had no funds. And the doctrine has no application to cases where, as is common in cities, a customer of a bank deposits checks purporting to be drawn on other banks. Entirely different principles apply to such cases. But while the general doctrine is too well established to be overruled or disregarded, yet it is undoubtedly true that the trend of the modern authorities is to impose upon it some limitations and modifications ; so that it is not always easy to definitely state when a case falls within the doctrine or comes within the general rule as to money paid by mistake. From what examination we have been able to make of the authorities, we have arrived at the conclusion that there are very few well-considered cases which go further than to hold that the bank may recover back money paid on a check to which the signature of one of its customers was forged, when there was a lack of good faith on the part of the payee towards the bank, as when he knew the check was forged, or knew of circumstances casting suspicion on its genu- ineness not known to the bank, and which he did not communicate to it, or where the holder was negligent in not making due inquiry as to the validity of the check before he took it, and the drawee, having a right to presume that he had made such inquiry, was itself thereby excused from making inquiry before paying it. In the first case the holder is really a party to the fraud, and is not a good-faith holder. In the second case, he has, by his negligence, contributed to the consummation of the mistake on part of the drawee by mislead- ing him. There is no allegation that either of the defendants knew or suspected that the check was forged. So far as appears, they both acted in entire good faith. All that is claimed against either is neg- ligence. It remains only to consider whether either is charged in the complaint with any act of negligence in failing to make proper inquiry as to the genuineness of the check, and which the plaintifif assumed, and had a right to assume, that they had made, so as to excuse it for not making the investigation as to the genuineness of its own customer's signature which it otherwise would have made. So far as the defendant bank is concerned, there is only one side to the question. When it was requested to cash a check purporting to be drawn by one not its customer, on another bank, payable to a person unknown tn it, it took the precautions, which any prudent bank would have taken, to have the payee identified and the check indorsed by a resjionsiblc party, and thereby protect itself against NEGOTIABLE INSTRUMENTS. 377 loss in case the check was not honored when presented for payment. This is just what any bank would naturally do, and has a right to do, under such circumstances, instead of going in search of the maker of the check to ascertain from him if his signature is genuine, and then going to the drawee bank to ascertain if he has funds on deposit with which to meet it. It owed the plaintiff no duty to in- vestigate as to the genuineness of the signature of its own customer, and the plaintiff had no right to assume that it had made such in- vestigation. It seems to us that the same is true as to Boutell Bros. The distinction must be kept clearly in mind between their duty and responsibility to the defendant bank or any other bona Ude indorsee of the check, and their duty and responsibility to the plaintiff bank, with reference to the genuineness of the signature of its own custo- mer. By indorsing the check, Boutell Bros, undoubtedly guaranteed to the defendant bank the genuineness both of Osborne & Clark's signature and of Seymour's indorsement as the payee. That was the very purpose of their indorsement. And, if the indorsement of Sey- mour had proved to be forged, they would no doubt have been liable to plaintiff had it been thus led to pay the check to one not the owner of it ; for by indorsing it they guaranteed to all persons, including plaintiff, the geunineness of the preceding indorsement. But upon the question of the genuineness of the signature of Osborne & Clark, the drawee's own customers, the case stands upon an en- tirely different footing. Not being the original payees of the check, the indorsement of Boutell Bros, constituted no guaranty or repre- sentation to the drawee that the signature of the drawer was genu- ine ; and the plaintiff had no right to rely on it as such, or to assume that Boutell Bros^ had investigated as to its genuineness. That was a matter which it devolved on the plaintiff to ascertain for itself when the check was presented. In fact, the complaint negatives the idea that the plaintiff acted on any such assumption ; for it is alleged that it did examine the signature with due care and caution, that it was to all appearances genuine, and that it was not possible by any ordinary care or precaution to detect the forgery. Our conclusion is that as to both demurrers the order appealed from must be affirmed. Canty, J. (dissenting) — I cannot concur in the foregoing opinion. Because error is gray with age is no reason why it should be respect- ed or followed. It seems to me that the foregoing opinion is a mere apology for such error, and this is true of the opinion in most of the modern cases on the question here involved. I concede that il is good public policy to hold that a banker should know the signature of his depositor. It tends to greater vigilance on the part of the banker, and more prompt discovery of the forgery, which makes the business of forgery more dangerous and less successful. But it does not follow that this is the only principle involved in this kind of a case, or that it should overturn and exclude all other well- established principles applicable thereto. There is no stronger or better established principle of law or public policy than that which 378 MISTAKE OF FACT. holds that no one shall be allowed to retain the consideration re- ceived by him on a forged instrument, however innocent he may be, unless he can invoke the aid of the doctrine of estoppel. Even when a person has been deceived by the forgery of his own signature, and has paid the forged obligation, he may recover back the money so paid, from an innocent holder. Welch v. Goodwin, 123 Mass. 71 ; 2 Alorse, Banks, p. 768, §' 464. This principle tends to cause greater vigilance on the part of every one about to take such paper, and to prevent him, when he has taken it, from suppressing his suspicions, and putting the paper off on some one else, instead of investigating the matter and pursuing the guilty parties. Why should the law in such a case offer a premium on attempting to put the paper off on the drawee bank? The money of a bank is not legitimate plunder, and a person receiving it through mistake and without consideration ought not to be entitled to retain it. The mere fact that a bank pays a forged check drawn upon it is no reason why it should lose its money. It was the absolute duty of the bank to know its depositor's signature, and detect the forgery, and it should suffer any loss caused by its failure to perform that duty ; but there is no principle of law which says that, when such failure has caused no loss, the bank shall, as a mere penalty, forfeit the money so paid by it. The transfer of negotiable paper by one holder to another is ac- companied by an implied warranty that the paper is genuine. Brown V. Ames, 59 Minn. 476, 61 N. W. 448. But, when a bank pays a check drawn upon it, there is no such implied warranty that the signature of the maker is genuine. On the contrary, it is the duty of the bank to ascertain, when the check is presented, whether or not the sig- nature to it is genuine. It owes this duty not only to the innocent holder presenting the check, but also to all prior innocent holders. If it fails in this duty, it can only recover back the money so paid by it on the ground that it was paid and received by mutual mistake and without consideration, and that none of the successive innocent holders through whose hands the check passed will suffer any loss by reason of such failure if compelled to return the consideration received by him ; that is, that none of such innocent holders will be in a worse position when he has returned such consideration than he would be if the check had not been paid by the bank. There is no reason why this rule should lead to multiplicity of actions, or result in conditions too complex for practical solution. When the bank brings suit against the last holder to whom it paid the check, he can give notice of the suit to the next prior holder of whom he received it, and who is liable over to him on such implied warranty, and thereby bind such prior holder by the result of the suit. See T.ove V. Gibson, 2 Fla. 598; Kip v. Brigham, 6 Johns. 158, 7 Johns. t68; People v. Judges of Monroe, T Wend, 19; Blasdale v. Babcock, T Johns. 5x7; Bigclow, Estop. 84. I see no reason why the second last holder of the check cannot in like manner give notice of the siu't to the third last holder of it, and thereby bind him by the result of that suit. And it seems to me that the defense will be entitled NEGOTIABLE INSTRUMENTS. 379 to plead and prove the existence of as many successive innocent prior holders as it can, and thereupon the burden should, perhaps, be thrown on the plaintiff bank to prove that none of these holders will be in a worse position when lie has, by reason of the recovery of the bank, been compelled to return the consideration received by him, than he would be if the bank had never paid the check. BANK OF COMMERCE v. THE UNION BANK. 3 CoMST. (N. Y.) 230. — 1850. The Bank of Commerce brought assumpsit against the Union Bank, to recover money paid by mistake. On the 1 8th day of December, 1847, the New Orleans Canal and Banking Company drew a draft on the Bank of Commerce in New York, payable to the order of "J. Durand," for one hundred and five dollars. After the draft was issued it was fraudulently altered in several respects, and among others, by the substitution of the word "thousand" for "hundred," and the name "Bonnet" instead of "Durand," so that it appeared to be a draft for one thousand and five (instead of one hundred and five) dollars, and payable to the order of J. Bonnet (instead of J. Durand). In this altered condi- tion, and bearing the indorsement "J. Bonnet," the Union Bank in New York received the draft from the State Bank of Charleston for collection, and credited the amount to that bank. The Bank of Com- merce on the draft being presented by the Union Bank, paid it to the latter. Two days afterwards the Bank of Commerce received advices from the New Orleans Canal and Banking Company, and then ascertained the alterations in the draft. Thereupon the draft was returned to the Union Bank, and the money, which had been paid, demanded ; but payment was refused. Ruggles, J. — The payment of a bill of exchange by the drawee is ordinarily an admission of the drawer's signature, which he is not afterwards, in a controversy between himself and the holder, at liberty to dispute ; and therefore if the drawer's signature is on a subsequent day discovered to be a forgery, the drawee cannot compel the holder to whom he paid the bill, to restore the money, unless the holder be in some way implicated in the fraud. Price v. Neal, 3 Burr. 1354. This rule is founded on the supposed negligence of the drawee in failing by an examination of the signature, when the bill is presented, to detect the forgery and refuse payment. The drawee is supposed to know the handwriting of the drawer, who is usually his customer or correspondent. As between him, therefore, and an innocent holder, the payer, from this imputed negligence, must bear the loss. In Price v. Neal, the plaintiff had paid to Neal. the holder, two bills of exchange, purporting to be drawn on him by Sutton, 380 MISTAKE OF FACT. whose name was forged. On discovery of the forgery, Price brought his action against Neal, to recover back the money as paid by mistake. Lord Mansfield, in deHvering the opinion of the court in favor of the defendant, said : "It was incumbent upon the plaintiff to be satisfied that the bill drawn upon him was the drawer's hand before he accepted or paid it, but it was not incumbent upon the defendant to inquire into it." "Whatever neglect there was, was on his side. It is a misfortune which has happened without the defendant's fault or neglect." In Wilkinson v. Lutwidge, i Stra. 648, Lord Chief Justice Pratt was of opinion that "acceptance was a sufficient acknowledgement of the drawer's handwriting on the part of the acceptor, who must be supposed to know the hand of his own correspondent." So the acceptance of a bill, whether general, or for honor, or supra protest, after sight of the bill, admits the genuineness of the signature of the drawer ; and consequently if the signature of the drawer turns out to be a forgery, the acceptance will nevertheless be binding, and entitle a bona fide holder for value and without notice to recover thereon according to its tenor. Story on Bills, § 262. But it is plain that the reason on which the above rule is founded does not apply to a case where the forgery is not in counterfeiting the name of the drawer, but in altering the body of the bill. There is no ground for presuming the body of the bill to be in the drawer's handwriting, or in any handwriting known to the acceptor. In the present case, that part of the bill is in the handwriting of one of the clerks in the office of the Canal and Banking Company in New Orleans. The signature was in the name and handwriting of the cashier. The signature is genuine. The forgery was committed by altering the date, number, amount and payee's name. No case goes the length of saying that the acceptor is presumed to know the hand- writing of the body of the bill, or that he is better able than the indorsers to detect an alteration in it. The presumption that the drawee is acquainted with the drawer's signature, or able to ascer- tain whether it is genuine, is reasonable. In most cases it is in con- formity with the fact. But to require the drawee to know the hand- writing of the residue of the bill, is unreasonable. It would, in most cases, be requiring an impossibility. Such a rule would be not only arbitrary and rigorous but unjust. The drawee would undoubtedly be answerable for negligence in paying an altered bill, if the altera- tion were manifest on its face. Whether it was so or not in this case was properly submitted to the jury, who found that it was paid by mistake and without knowledge of, or reason to suspect the fraudulent alterations. It would have been difficult to find otherwise upon the evidence, the bill having passed through the defendant's bank, and the Charleston bank without suspicion. If the forgery had been in the name of the drawer, it might not perhaps have been incumbent on those banks to scrutinize the bill, because they might have relied on the drawee's better knowledge of the hand ; but the NEGOTIABLE INSTRUMENTS. 381 forgery being in the body of the bill the plaintiffs were not more in fault than the defendants. The greater negligence in a case of this kind is chargeable on the party who received the bill from the perpetrator of the forgery. So far as respects the genuineness of the bill each indorsee receives it on the credit of the previous indorsers ; and it was the interest and duty, in the present case, of the Bank of Charleston, to satisfy itself that the bill was genuine, or that its immediate indorser was able to respond in case the bill should prove to be spurious. The party who fraudulently passed the bill cannot avoid his liability to refund on the pretense of delay in detecting the forgery, or in giving notice of it ; and if reasonable diligence is exercised in giving notice after the forgery comes to light, it is all that any of the parties can require. Canal Bank v. The Bank of Albany, i Hill 287, 292-3. In Smith v. Mercer, 6 Taunt. 76, in Cocks v. Masterman, 9 B. & C. 902, and in Price v. Neal, 3 Ijurr. 1354, the plaintififs who paid the forged bills, being chargeable with a knowledge of the signature of the drawer (which was forged), were held to have paid it negli- gently and without due caution and examination, and on that ground it was that the defendants to whom they pai'd the money were held not liable without immediate notice of the forgery. But in the pres- ent case no such negligence is imputable to the plaintiffs, the plain- tiffs being no more capable of detecting the forged alteration by in- spection of the bill than either of the other parties. This action is not founded on the bill as an instrument containing the contract on which the suit is brought. The acceptor can never have recourse on the bill against the indorsers. But the plaintiffs' right of recovery rests on equitable grounds. In The Canal Bank v. The Bank of Albany, the principle was recognized that money paid by one party to another through mutual mistake of facts in respect to which both were equally bound to inquire, may be recovered back. The defendants here, as in that case, have obtained the money of the plaintiffs without right and on the exhibition of a forged title as genuine, the forgery being unknown to both parties. The defend- ants ought not in conscience to retain the money, because it does not belong to them ; and for the further reason that the defendants and the previous indorsers have, each, on the same principle, their remedy over against the party to whom they respectively paid the money, until the wrong-doer is finally made to pay. If that party should be irresponsible, or if he cannot be found, the loss ought to fall on the party who, without due caution, took the bill from him. In cases where no negligence is imputable to the drawee in failing to detect the forgery, the want of notice within the ordinary time to charge the previous parties to the bill is excused, provided notice of the forgery be given as soon as it is discovered. Judgment affirmed.'^ ^In Wilson, administrator, v. Alexander. 4 III. 392 (1842), "on (he trial before a jury, it was proved that the plaintiff held a note on the defendant, \ 382; MISTAKE OF FACT. » COOKE ET AL. V. UNITED STATES. 91 U. S. 389.-1875. Chief Justice Waite. — The United States sued Jay Cooke & Co., in this action, to recover back money paid them by the assistant treas- urer in New York for the purchase or redemption before maturity, under the Act of August 12, 1866 (14 Stat. 31), of what purported to be eighteen 7-30 treasury notes, issued under the authority of the act of March 3, 1865 (13 Stat, 468), but which it is alleged were counterfeit. Cooke & Co, insist that if they honestly believed the notes in question were genuine, and, so believing, in good faith passed them to the assistant treasurer, and he, under a like belief, and with like good faith, received and paid for them, there can be no recovery, even though they may have been counterfeit. As this de- fense meets us at the threshold of the case, it is proper that it should be first considered. It was conceded in the argument that when the United States become parties to commercial paper they incur all the responsibilities of private persons under the same circumstances. This is in accord- ance with the decisions of this court. The Floyd Acceptances, 7 Wall, 557; United States v. Bk, of Metropolis, 15 Pet, 377. As was well said in the last case, "From the daily and unavoidable use of commercial paper by the United States, they are as much inter- ested as the community at large can be in maintaining these princi- ples." It was also conceded that genuine treasury notes, like those now in question, were, before their maturity, part of the negotiable commercial paper of the country. We so held at the last term, in Vermilye & Co. v. Express Co,, 21 Wall. 138. It is, undoubtedly, also true, as a general rule of commercial law, that where one accepts forged paper purporting to be his own, and made to the plaintiff's intestate; that the defendant paid the plaintiff the amount of the note, and took it up, passing to him in part payment, a note for $150, purporting to be executed by the intestate payable to Isaac Krieder, by him assigned to Joseph Allen, and by Allen assigned to the defendant. It was further shown, that the note was a forgery; but it was admitted by the parties, that the defendant, at the time of the transfer, had no knowledge that it was forged." On appeal the court said : "A person who appears to be a contracting party to forged negotiable paper, is charged with a knowl- edge of its genuineness, and acts at his peril, when called upon by an inno- cent holder, for performance of the contract. If he accepts, or promises to pay, he is not permitted to repudiate his act because of the forgery, but is bound to perform it. If he pays, he cannot recover back the money; he takes upon hims<'lf the risk of the genuineness of the instrument. As be- tween other persons, who are not connected with the paper as parties, and stand in eriual relations, each having the same means of ascertaining its gen- uineness, the rule is essentially different; the question of authenticity is at the risk of the person passing the paper. * * * We are of the opinion it would be carrying the rule to an unreasonable extent, to charge the admin- istrator with knowledge of the genuineness of an instrument, to which the name of his intestate purports to be affixed, as maker." NEGOTIABLE INSTRUMENTS. 383 pays it to a holder for value, he cannot recall the payment. The operative fact in this rule is the acceptance, or more properly, per- haps, the adoption of the paper as genuine by its apparent maker. Often the bare receipt of the paper accompanied by payment is equiv- alent to an adoption within the meaning of the rule ; because, as every man is presumed to know his own signature, and ought to detect its forgery by simple inspection, the examination which he can give when the demand upon him is made is all that the law considers necessary for his protection. He must repudiate as soon as he ought to have discovered the forgery, otherwise he will be regarded as accepting the paper. Unnecessary delay under such circumstances is unreasonable ; and unreasonable delay is negligence, which throws the burden of the loss upon him who is guilty of it, rather than upon one who is not. The rule is thus well stated in Gloucester Bank V. Salem Bank, 17 Mass. 45: "The party receiving such notes must examine them as soon as he has opportunity, and return them im- mediately: if he does not, he is negligent; and negligence will de- feat his action." When, therefore, a party is entitled to something more than a mere inspection of the paper before he can be required to pass finally upon its character, — as, for example, an examination of accounts or records kept by him for the purposes of verification, — negligence sufficient to charge him with the loss cannot be claimed until this examination ought to have been completed. If, in the ordinary course of business, this might have been done before pay- ment, it ought to have been, and payment without it will have the effect of acceptance and adoption. But if the presentation is made at a time when, or at a place where, such an examination cannot be had, time must be allowed for that purpose ; and, if the money is then paid, the parties, the one in paying and the other in receiving payment, are to be understood as agreeing that a re- ceipt and payment under such circumstances shall not amount to an adoption, but that further inquiry may be made, and, if the paper is found to be counterfeit, it may be returned within a reason- able time. What is reasonable must in every case depend upon circumstances ; but, until a reasonable time has in fact elapsed, the law will not impute negligence on account of delay. So, too, if the paper is received and paid for by an agent, the principal is not charged unless the agent had authority to act for him in passing upon the character of the instrument. It is the negligence of the principal that binds ; and that of the agent has no effect, except to the extent that it is chargeable to the principal. Laches is not imputable to the government, in its character as sovereign, by those subject to its dominion. United States v. Kil- patrick, 9 Wheat. 735 ; Gibbons v. United States, 8 Wall. 269. Still a government may suffer loss through the negligence of its officers. If it comes down from its position of sovereignty, and enters the domain of commerce, it submits itself to the same laws that govern individuals there. Thus, if it becomes the holder of 384 '> MISTAKE OF FACT, a bill of exchange, it must use the same diligence to charge the drawers and indorsers that is required of individuals ; and, if it fails in this, its claim upon the parties is lost. United States v. Barker, 12 Wheat. 559. Generally, in respect to all the commercial business of the government, if an officer specially charged with the performance of any duty, and authorized to represent the government in that behalf, neglects that duty, and loss ensues, the government must bear the consequences of his neglect. But this cannot happen until the officer specially charged with the duty, if there be one, has acted, or ought to have acted. As the government can only act through its officers, it may select for its work whomsoever it will ; but it must have some representative authorized to act in all the emergencies of its commercial transactions. If it fail in this, it fails in the performance of its own duties, and must be charged with the consequences that follow such omissions in the commercial world. * * * Mr. Justice Clifford (with whom concurred Mr, Justice Field and Mr, Justice Br.\dley), dissenting — I dissent from the opinion of the court in this case, — 1. Because I am of the opinion that the United States are not liable for forged paper under any circumstances, 2, Because I am of the opinion that the United States are not liable for its paper-promises fraudulently or surreptitiously put into circulation, not even if the fraudulent act was perpetrated by treas- ury officials.^ RIVERSIDE BANK v. FIRST NAT. BANK OF SHENAN- DOAH. 74 Fed. 276; 38 U. S. App. 674. — 1896. In error to the circuit court of the United States for the south- ern district of New York. Error is assigned of the ruling of the trial judge in directing the jury to find a verdict for the defendant. The defendant was ^In Welch v. Goodwin, 123 Mass. 71, "jj (1877), the court says: "The question which we are called upon to decide is, whether, under any circum- stances, a party may recover back money paid upon a security bearing a forged signature of himself, supposing it, at the time of payment, to be his own genuine signature. We can have no doubt that he may. This is en- tirely clear in case he was induced to make the payment by fraud or mis- representation. Nor is it necessary that fraud or misrepresentation should exist. An innocent mistake, whether arising from natural or temporary in- firmity or otherwise, made without fault upon his part, entitles him to the same relief. How far this right would be affected by neglect upon his part to give prompt notice of the mistake, or by any change affecting the situa- tion or rights of the person to whom the payment is made, we are not called upon to consider. Here notice was given immediately upon discover- ing the forgery." NEGOTIABLE INSTRUMENTS. 385 the owner, through a purchase for value, and in due course of busi- ness, of a promissory note dated May 2, 1887, made by Liebler & Co. to the order of and indorsed by Yuenghng, and payable four months after date at the banking house of the plaintiff. The note was made merely for the accommodation of Yuengling. Shortly be- fore maturity the defendant forwarded the note for collection to its correspondent at New York City, the National Park Bank, and that bank, through its uptown collecting agent, on September 3, 1887, presented the note to the plaintiff, with a request for certification. Liebler & Co. were customers of the plaintiff, and the plaintiff, sup- posing the account of the firm to be good for the amount of the note, made the certification. Shortly afterwards the plaintiff* dis- covered that in fact the account of Liebler & Co. was not good for the amount of the note. Thereupon plaintiff endeavored to ascertain what bank was the owner of the note or had caused it to be pre- sented for certification, but was unable to do so until late in the afternoon of September 5th. On the morning of September 6th plaintiff notified the National Park Bank that the note had been certified by mistake, and that at the time plaintiff was not in funds of Liebler & Co. sufficient to pay it, and requested that bank to withhold the note from its exchanges for the clearing house ; but that bank refused to withhold the note. The First National Bank was the clearing-house bank for the plaintiff, and by the rules of the clearing house was obligated to pay all items against banks for which it cleared in the exchanges. When the note was sent, with the other exchanges of the National Park Bank, to the clearing house, the First National Bank paid it conformably with the rules. The rules of the clearing house provide that: "Errors of the ex- changes, and claims arising from return of checks or from any other cause, are to be adjusted directly between the banks who are parties to them, and not through the clearing house ; the association being in no way responsible in respect to them. All checks, drafts, notes, or other items in the exchanges returned as not good or missent shall be returned the same day directly to the bank from whom they were received, and the said bank shall immediately re- fund to the bank returning the same the amount which it has re- ceived through the clearing house for said check, draft, notes, or other items so returned to it, in specie or legal tender notes." The First National Bank did not return the note to the National Park Bank, but on September 6th the plaintiff caused it to be formally presented for payment and protested for nonpayment, giv- ing notice thereof to Yuengling. The plaintiff produced the note, and offered to surrender it to the defendant. Wallace, Circuit Judge (after stating the facts as above). — We are unable to discover any ground upon which the plaintiff was entitled to recover. The certification of the note by the plaintiff was an agreement to pay the amount, and the contract can no more be rescinded than could any other contract because one of the parties Woodruff's Cases — 25 386 MISTAKE OF FACT. in making it was under a misapprehension of fact. A note made payable at a bank where the maker keeps an account is equivalent to a check drawn by him upon the bank ; and the bank, if in funds, owes him a duty to pay it on presentation. Aetna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 88; Indig v. Bank, 80 N. Y. 100. The certification of a check drawn upon a bank is equivalent to the acceptance of a bill of exchange, and imposes upon the bank an obligation to pay the amount for which the check is drawn to the holder, upon demand, at any time before the statute of limitations attaches. Farmers' & Mechanics' Bank v. Butchers' & Drovers' Bank, 16 N. Y. 125. In Merchants' Bank v. State Bank, 10 Wall. 604, the court used this language : *'By the law merchant of this country the certificate of the bank that a check is good is equivalent to acceptance. It implies that the check is drawn upon sufficient funds in the hands of the drawee, that they have been set apart for its satisfaction, and that they shall be so applied whenever the check is presented for payment. It is an undertaking that the check is good then, and shall continue good ; and this agreement is binding on the bank as its notes of circulation, a certificate of deposit payable to the order of the de- positor, or any other obligation it can assume." In Meads v. Bank, 25 N. Y. 143, it was held that the certification as good of a promissory note payable at bank, where the course of business between banks is, instead of actually paying notes of cus- tomers, when in funds, on presentment, to mark them as good, and settle in the exchanges, is an absolute promise to pay ; not the agreement to pay the debt of another, but the engagement of the bank to pay its own debt to the holder of the note. The certifica- tion entitles the holder to suspend any remedy against the maker, and relax steps to charge the indorser of the paper. The bank has authority from the note itself to apply to its payment the funds of the maker (Kymer v. Laurie, 18 Law J. Q. B. 218), and when the holder accepts the certification the customer becomes a debtor to the bank. Thus the contract implied by the certification has both the elements of a good consideration, a resulting disadvantage to the promisee, and an accruing advantage to the promisor. Money paid under a mistake of fact is recoverable of the party receiving it, be- cause good conscience forbids him to retain that which justly be- longs to the other party ; but the principle has no application to the case where. the recipient has a right to retain the money because it has been paid pursuant to a contract which he was entitled to en- force. Assuming that the certification of the note, and its pay- ment through the clearing house, was equivalent to a payment by the plaintiff over its counter to the defendant, the case falls within one of those exceptions to the general right to recover back money paid by mistake which are found in the law of negotiable paper. One of these exceptions is that the drawee of a bill of exchange is presumed to know the signature of the drawer, and payment by the drawee of the bill is ordinarily an admission of the genuineness of NEGOTIABLE INSTRUMENTS. 387 the sig-nature, which he is not afterwards, in a controversy between himself and the holder, at liberty to dispute. Another exception, recognized by the decided weight of authority, is that the payment of a check or of a note by the bank at which it is made payable, although made under misapprehension of the state of the maker's account with the bank, concludes the bank as against the holder of the paper. Bolton v. Richard, 6 Term R. 139; Aiken v. Short, i Hurl. & N. 210 ; Levy v. Bank, 4 Dall. 236 ; Peterson v. Bank, 52 Pa. St. 206 ; Oddie v. Bank, 45 N. Y. 735 ; Bank v. Swift, 70 Md. 515, 17 Atl. 336; Bank v. Burkham, 32 Mich. 328. The cases of Bank v. Wetherald, 36 N. Y. 335, and National Park Bank v. Steele & Johnson Manuf'g Co., 58 Hun, 81, 11 N. Y. Supp. 538, are cited as authorities to the contrary. In Bank v. Wetherald the question was not whether the money could be recovered back from the party to whom it had been paid, but whether a payment made to that party, the holder of the note, after the bank had discovered its mistake, and made to enable the bank to resume the control of the paper, and take steps to charge the indorsers, was an extinguish- ment of the note. That adjudication is, therefore, not in point. The case of National Park Bank v. Steele & Johnson Manuf'g Co. is in point, and is entitled to respectful consideration, although not a judgment of the court of last resort ; but we are unable to accede to its conclusions. ^ Upon principle, where the holder of a note presents it at the bank at which it is made payable, receives the money, and surrenders the paper, the transaction is, in effect, a purchase from the holder. It is a completed transaction, which cannot be rescinded except for fraud, or in case of mutual mistake. Where forged paper is deliv- ered, the consideration fails and a different rule obtains. A case strictly analogous is where a bank accepts the check of a customer, and credits the amount to the account of the depositor. Of such a case the supreme court used this language : "When a check on itself is offered to a bank as a deposit, the bank has the option to accept or reject it, or to receive it upon such con- ditions as may be agreed upon. If it be rejected, there is no room for any doubt or question between the parties. If, on the other hand, the check is offered as a deposit, and received as a deposit, there being no fraud, and the check genuine, the parties are no less bound and concluded than in the former case. Neither can disavow or repudiate what has been done. The case is simply one of an ex- ^In addition to the New York cases quoted in this paragraph, see Whit- ing et al. V. City Bank, yj N. Y. z^^z (i879). In this case the court says:. "If the payment was not made by the bank by mistake, but was made voluntarily on the credit of the maker of the note, it is very clear that it could not be retracted. The payment of the note under such circumstances discharged the obligation of the indorser, and that obligation could not be revived by the bank, nor by any transaction between it and the plaintiffs. * * * * There is no legal presumption that payments made by a bank are made by mistake, even when the account of the party for whom they are made is not good. The fact, if material, must be proved." 388 MISTAKE OF FACT. ecuted contract. There are the requisite parties, the requisite con- sideration, and the requisite concurrence and assent of the minds of those concerned." Bank v. Burkhardt, 100 U. S. 686. To permit a bank which has paid a note or check of a customer to rescind the transaction because it discovers that it was mistaken in the state of the customer's account, would, as is pointed out by Judge Cooley in Bank v. Burkham, supra, reverse the rule of com- mercial law, and transfer from the acceptor to the payee the re- sponsibility which the former assumes by the acceptance and the loss, which should be left where it fell. He said : "We think it would be an exceedingly unsafe doctrine in com- mercial law that one who has discounted a bill in good faith, and received notice of payment, the strongest possible assurance that it was drawn with proper authority should afterwards hold the moneys subject to such a showing as the drawee might be able to make as to the influences operating upon his mind to induce him to make payment. The beauty and value of the rules governing com- mercial paper consists in their perfect certainty and reliability. They would be worse than useless if the ultimate responsibility for such paper, as between payee and drawee, both acting in good faith, could be made to depend on the motives which influenced the latter to honor the paper." The facts of this case illustrate the truth of these observations. The defendant, relying upon a certification by the plaintiff, took no steps to charge the indorser upon the note ; and, if this action could be maintained, in order to regain the situation in which it was placed by the act of the plaintiff, would be obliged to resort to the uncertain chances of a litigation with the indorser. Treat- ing the case as one in which the money was paid by the plaintiff over its counter to the defendant, the language of the court in Aiken V. Short is apposite : "The plaintiffs, having voluntarily parted with their money to purchase that which the defendant had to sell, though no doubt it turned out different to and of less value than what they expected, cannot maintain the action." * * * The trial judge properly directed a verdict for the defendant, and the judgment should be affirmed. ^ ^Accord, Chambers v. Miller, 13 C. B. N. S. 125 (1862). agent's authority. 389 8. MISTAKE AS TO AGENt's AUTHORITY. HAWTAYNE v. BOURNE. 7 M. & W. (ExCH.) 595-— 1841. Debt for money lent, and on an account stated. Plea nunquam indebitatus. The defendant, who resides at Liverpool, was the holder of 100 shares in a company established for the working of a mine called the Trewolvas Mine, in the parish of St. Columb Major, Cornwall. The mine was managed by an agent, appointed by the directors of the company for that purpose. In March, 1839, in consequence of the shareholders not having paid up the calls regularly, the concern fell into difficulties, and the agent, from want of funds, became unable to pay the laborers ; a considerable number of whom, their wages being in arrear applied to the magistrates, and obtained war- rants of distress upon the materials belonging to the mine. The agent, finding that these warrants were about to be put into execu- tion, applied in the name of the company, but in fact upon his own responsibility, and without the knowledge of the shareholders, to the St. Columb branch of the Western District Banking Company for a loan of £400 for three months, which was advanced accordingly and placed by the bank to the credit of the company, and out of it the arrears of wages w^ere discharged. To recover the balance of that sum the present action was brought. There was some evidence of a conversation between the defendant and the agent, in which the former had asked whether they could not get money from the bank to keep the concern going ; but this evidence was not left to the jury. The learned judge, in summing up, stated to the jury, that although under ordinary circumstances an agent could not, without express authority, borrow money in the name of his prin- cipal so as to bind him, yet, if it became absolutely necessary to raise money in order to preserve the property of the principal, the law would imply an authority in the agent to do so, to the extent of that necessity ; and he left it to the jury to say whether the pressure on the concern was such as to render the advance of this money a case of such necessity. The jury found for the plaintiff. Parke, B. — This is an action brought by the plaintiffs, who are bankers, to recover from the defendant, as one of the proprietors of the Trew^olvas Mine, a mine carried on in the ordinary way, the balance of a sum of £400, advanced by them to the agent appointed by the company of proprietors for the management of the mine. Now the extent of the authority conferred upon the agent by his appointment was this only — that he should conduct and carry on the affairs of the mine in the usual manner; there is no proof of ex- press authority to borrow money from bankers for that purpose, or that it w^as necessary in the ordinary course of the undertaking ; and 390 MISTAKE OF FACT. certainly no such authority could be assumed. There are two grounds on which it is said the defendant may be made responsible ; first, on that of a special authority given to the agent to borrow money ; and secondly, on the assumed principle, that every owner who appoints an agent for the management of his property must be taken to have given him authority to borrow money in cases of absolute necessity. There certainly was, in the present case, some evidence from which a jury might have inferred that a power to borrow money, for the purposes of the mine, had been expressly given to the agent : but that evidence does not appear to have been left to the jury, and therefore the verdict cannot be supported on the first ground. Then as to the second ground, it appears that the learned judge told the jury that they might infer an authority in the agent, not only to conduct the general business of the mine, but also, in cases of necessity, to raise money for that purpose. I am not aware that any authority is to be found in our law to support this proposition. No such power exists, except in the cases alluded to in the argument, of the master of a ship, and of the acceptor of a bill of exchange for the honor of the drawer. The latter derives its existence from the law of merchants ; and in the former case the law, which, generally provides for ordinary events, and not for cases which are of rare occurrence, considers how likely and frequent are accidents at sea, when it may be necessary, in order to have the vessel repaired, or to provide the means of continuing the voyage, to pledge the credit of her owners ; and therefore it is that the law invests the master with power to raise money, and, by an instru- ment of hypothecation, to pledge the ship itself if necessary. If that case be analogous to this, it follows that the agent had power not only to borrow money, but, in the event of security being re- quired, to mortgage the mine itself. The authority of the master of a ship rests upon the peculiar character of his office, and af- fords no analogy to the case of an ordinary agent. I am therefore of opinion, that the agent of this mine had not the authority con- tended for. Whether he had or had not was a question for the jury; but, on the general principles of law, it seems to me that the ruling of the learned judge cannot be supported, and therefore that the rule for a new trial must be made absolute. [Alderson, B., concurs in an opinion; Rolfe, B., concurs.] KELLEY V. LINDSEY. 7 Gray (Mass.) 287.-1856. Action of contract on a check payable to the plaintiflf and signed "Benjamin Lindscy, by George G. Coffin." There were also counts for money lent and money had and received. The evidence tended to agent's authority. 391 show that Coffin was at the time the check was drawn, the financial agent and confidential clerk of defendant. Dewey, J. — * ''' * If Coffin had no authority to borrow money on account of the defendant, to expend in his business and to pay his debts, the money advanced for that purpose, though so applied, created no debt against the defendant. No one can thus make him- self a creditor of another by the unsolicited payment of his debts ; and it is not enough to create a liability, that the defendant had the benefit of the money, by reason of its being expended in his business or in the payment of his debts. There must have been shown some authority to make such advance or payment of money, proceeding from the defendant, in addition to the mere fact of its being applied for his benefit, in order to charge him with the same in a suit at law. For this reason, the court are of opinion that the verdict must be set aside and a New trial had. SPOONER V. THOMPSON and wife. 48 Vt. 259.— 1876. Redfield, J. — The plaintiff claims to recover for money loaned to the defendant, Lois Thompson, while sole and unmarried. It is not denied that J. P. Cutting was the agent of said Lois, in buying and selling goods at her store in Richford, and that said Cutting, acting as such agent, borrowed money of the plaintiff. The plaintiff claims in argument that the written articles of agreement authorize Cutting to borrow on the credit of said Lois. The written stipulations provide that "she will furnish capital, or authorize him (Cutting) to employ or obtain credit on her name and responsi- bility, for the purchase of goods to supply said store and business as aforesaid, to an amount not exceeding $4,000." That "the entire purchases, including purchases for cash down, and credit, shall not exceed four thousand dollars." "That while acting within the limits herein before mentioned, as agent, and to the extent of capital employed in the purchases aforesaid, and the legal and proper trans- action of said business, and to no other or further extent, the acts of her agent shall be binding on her." The agency of Cutting was express and limited, and, we think, conferred no authority to borrow money on her credit. II. It was claimed that a portion of the money loaned by the plaintiff was paid by Cutting to Holmes & Ross, for purchases, made of said firm to supply said store, and that defendants thus had the benefit of it. This was denied by the defendants. It seems that Cutting settled the account with Holmes & Ross, and that said Lois gave her note for the balance found due, and afterwards paid it. The plaintiff requested the court to charge the jury, "that if Mrs. Post (now Lois Thompson) settled the claim of Holmes & Ross, 392 MISTAKE OF FACT. on which the $ioo borrowed of the plaintiff was credited, to that extent, at least, she is bound." The court refused so to charge, and did charge, that if the money went into her business, and she had the benefit of it, "she would be holden to pay it, provided the jury find that she afterwards promised to pay it." The defendant's evidence tended to show that Mrs. Post had no knowledge that any money borrowed of the plaintiff went to pay Holmes & Ross ; or that any such money appeared on the books of said store ; and de- nied that any such money went for her benefit, or into the business of said store. If Cutting borrowed money of the plaintiff on the credit of Mrs. Post, without her authority, and paid a part of it to Holmes & Ross without her knowledge, it could give the plaintiff no right of action against her. She could not be made the debtor of the plaintiff without her consent. If Cutting borrowed money in her name, without authority, and she, having knowledge of the fact, and that the money went into her business, and she had the benefit of it, she thereby adopts the transaction, and makes it her own. The request to charge the jury, by the plaintiff, was, therefore, properly refused, and the charge of the court, so far as it is stated, is sound law. And the case does not show that the court omitted to charge properly on the subject of adopting the acts of Cutting, and ratifiying them by allowing them to go to her benefit with full knowledge of the transaction. The legal inference is, that the court gave correct instruction to the jury as to every phase of the case, and it is the duty of the excepting party to show affirmatively that there was error. * * * Judgment affirmed. ^ ^Accord, Baldwin v. Burrows, 47 N. Y. 199 (1872) ; Bohart v. Oberne, 2^ Kan. 284 (1887). In Fay v. Slaughter et al., 194 111. 157 (igoi), plaintiff in error. Fay, gave to his clerk a power of attorney "to be my true and lawful attorney, for me and in my name to draw checks, bills of exchange, and drafts, and make orders and overdrafts upon the Northern Trust Company of Chicago, and in tmy name to indorse checks, drafts, bills of exchange, notes, and orders for deposit in said Northern Trust Company, hereby con- firming all that my said attorney shall do under above authority." The clerk abstracted stock certificates belonging to Fay and, forging Fay's name to the assignment, transferred them to innocent purchasers, Slaughter & Co., the defendants in error. In payment, the latter sent to the clerk, checks payable to the order of Fay. The clerk endorsed them with Fay's name, deposited them with the Northern Trust Company and they were credited to Fay. The clerk, in Fay's name, afterwards drew checks upon the trust company and appropriated the proceeds. After the facts were discovered, Slaughter & Co. made restitution of the stock to Fay and then sued Fay in this action for money had and received. The court said (p. 170) : "We are unable to concur in the view that the mere passing of this money through the bank account of plaintiff in error without authority given by him, and in the absence of evidence showing it went to his benefit or was used by or for him, can be held to be such receiving of the 7 App. D. (N. Y.) 345 (1899). / IN GENERAL. 4I5 WILLIAM CULBREATH v. JAMES M. AND DANIEL G. CULBREATH. 7 Ga. 64. — 1849. Obadiah M. Culbreath died intestate leaving neither wife nor children. His nearest of kin were seven surviving brothers and sis- ters and the children of a deceased sister. William Culbreath, the administrator, under a misapprehension of the law, divided the estate equally between the seven brothers and sisters, to the exclusion of the children of the deceased sister. Subsequently, these children in- stituted suit against the administrator and recovered the one-eighth of the estate. The present action was by William Culbreath against two of the distributees, to recover back the amount overpaid on ac- count of this mistake. Upon an agreed statement of the facts in the court below, the presiding judge awarded a nonsuit against the plaintiff, who appealed to this court. Nisbet, J. — * * * * 'Yi^Q question is, can a party recover back money paid, W'ith a knowledge of all the facts, through mistake of the law ? We are fully aware that the authorities upon this question are in conflict, as well in England as in this country. Great names and courts of eminent authority are arrayed on either side. It is not one of those questions upon which the mind promptly and satisfac- torily arrives at a conclusion. This is true in reference both to prin- ciple and authority. It is not surprising, therefore, that Judge Alexander and this court should differ. I think, and I shall try to prove, that the weight of authority is with us. If it were not so — if authorities were balanced — we feel justified in kicking the beam, and ruling according to that naked and changeless equity which forbids that one man should retain the money of his neighbor, for which he paid nothing, and for which his neighbor received nothing; an equity which is natural, which savages understand, which cultivated reason approves, and which Christianity not only sanctions but in a thousand forms has ordained. In ruling in favor of these actions, we aim at no visionary moral perfectibility. We feel the necessity of practicable rules, by which rights are to be protected and wrongs redressed. We know the necessity, too, of general rules, and how absurd would be that attempt, which seeks to administer the equity which springs from each and every case. The insufficiency which marks all lawgivers, laws, and tribunals of justice, makes that a hopeless thing. Still, where neither positive law nor a w^ell settled train of decisions impose upon courts a prohibition, they are at lib- erty, nay, bound to respect the authority of natural equity and sound morality. Where these are found on one side of a doubtful ques- tion, they ought to cast the scale. Moreover, we believe that the rule we are about to lay down may be so guarded, as in its application to be both practicable and politic. 4l6 MISTAKE OF LAW. It is difficult to say that an action for the recovery of money paid by mistake of the law will not lie, upon those principles which gov- ern the action of assumpsit for money had and received. Those principles are well settled since the great case of Moses v. Macfer- lan, in 2 Burrow 1005. The grounds upon which that necessary and most benign remedy goes, are there laid down by Lord Mansfield. This claim falls within the principles there settled, and cannot be distinguished from cases which have been ruled to fall within them, but by an arbitrary exclusion. I am not now using the case of Moses V. Macferlan as the authority of a judgment upon the precise ques- tion made in this record ; although Lord Mansfield there held, that money paid by mistake could be recovered back in this action, with- out distinguishing between mistake of law and fact. I refer to it, to demonstrate what are the principles upon which the action is founded. It is not founded upon the idea of a contract. In answer to the objection, that assumpsit would lie only upon a contract, ex- press or implied. Lord Mansfield said, "If the defendant be under an obligation, from the ties of natural justice, to refund, the law implies a debt, and gives this action, founded in the equity of the plaintiff's case, as if it were upon contract." Again : "One great benefit derived to a suitor from the nature of this action is, that he need not state the special circumstances from which he concludes that ex aequo et bono the money received by the defendant ought to be deemed belonging to him." "The defendant," says his Lordship, farther, "may defend him- self by everything which shows that the plaintiff, ex aequo et bono, is not entitled to the whole of his demand, or to any part of it." His summary is in the following words : "In one word, the gist of this action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money." In the language of the civilians, from whom Lord Mans- field borrowed many valuable principles, "Hoc natiira aequiim est, neminem cum altcrius detrimcnto fieri locupletiorem." If there is justice in the plaintiff's demand, and injustice or un- conscientiousness in the defendant's withholding it, the action lies ; or, to use more appropriate language, the law will compel him to pay. Now, when money is paid to another, under a mistake as to the payer's legal obligation to pay, and the payee's legal right to re- ceive it, and there is no consideration, moral or honorary or benevo- lent, between the parties, by the ties of natural justice the payer's right to recover it back is perfect, and the payee's obligation to re- fund is also perfect, — it becomes a debt. It is a case fully within the range of the ex aequo et bono rule. This is that case. It falls with- in none of the exceptions mentioned by Lord Mansfield. It was not paid as a debt due in honor or honesty, as in case of a debt barred by statute ; it is not paid as a donation ; it was not paid as a debt con- tracted in violation of public law ; for example, money fairly lost at play. In all such cases it is conscientious for the defendant to keep it. In this case there is no right or equity or conscience upon which IN GENERAL. 417 the defendant can plant himself. Why, then, is not the case of a pay- ment by mistake of the law within the principles of Moses v. Mac- ferlan ? Right here the argument might rest on principle. Just here the onus is cast upon the other side, to show how and why this case is distinguishable from other cases falling confessedly within the prin- ciples upon which the action for money had and received is based. We shall see upon what footing the distinction is placed by Lord Ellenborough. It is that of policy. The doctrine which I am now repelling never w^as defended upon principle ; it never can be. No British or American judge ever attempted its defense on principle. It was ruled on policy, and followed upon the authority of a few precedents. A policy which, it must be conceded, does private wrong, for the sake of an alleged public good ; or, I should more appropriately say, rather than risk a doubtful public evil. It was, no doubt, this view of the subject which startled the calm phila- sophical equity of Marshall's mind, when yielding, in Hunt v. Rouse- manier, to precedent, he still gave in his personal protest against the doctrine. For what he said in that case can be viewed in no other light than as a personal protest. It is wise, it is necessary for courts to yield to established authority ; but, inasmuch as the use of prece- dent is to illustrate principle, a single precedent or a number of prece- dents should not control, when they are against principle. We guard this doctrine by saying, that the action is not main- tainable, w^here money is paid through mere ignorance of the law, or in fulfillment of a moral obligation, or on a contract against public law, or on any account which will make it consistent with equity and good conscience for the defendant to retain it. Nor does the judgment of this court embrace cases of concealment, fraud, or mis- representation. They depend upon principles peculiar to themselves. And farther, it is scarcely necessary to add that a recovery cannot be had, unless it is proven that the plaintiff acted upon a mistake of the law. 2. There is a clear and practical distinction betw^een ignorance and mistake of the law.^ Much of the confusion in the books, and ^Accord, Lawrence v. Beaubien, 2 Bai. (S. C.) 623 (1831) ; Hutton v. Ed- gerton, 6 S. C. 485 (1875). Doubted in Robinson v. City Council, 2 Rich. L. (S. C.) 317, 320 (1846), and in Cuningham v. Cuningham, 20 S. C. 317 (1883), where the court says (p. 332) : "In this state, however, the distinction has been sharply drawn between ignorance of law and mistake of law. In Law- rence V. Beaubien, 2 Bail. 623, and in Lowndes v. Chisholm, 2 McCord Ch. 455, the court holding that in cases of mistake, the court could give relief, and that it would be refused in cases of mere ignorance. The principal reason given being that mistake could be proved and that ignorance could not. As parties can now testifj^ in their own behalf, it may be doubtful if this reason can be longer sufficient to justify the distinction." Contra, Jacobs v. Morange, 47 N. Y. 57 (1871). In Champlin v. Laytin, 18 Wend. (N. Y.) 407, 415 (1837), Bronson, J., says: "Lawrence v. Beaubien, 2 Bailey's S. Car. R. 623, is the only case I have met with where a distinction WoODKUFp's Cases — 27 4l8 MISTAKE OF LAW. in the minds of professional men, upon this subject, has grown out of a confounding of the two. It may be conceded, that at first view, the distinction is not apparent ; but it is insisted that upon close in- spection it becomes quite obvious. It has been ridiculed as a quibble, but we shall see that it has been taken by able men, and acted ui)on by eminent courts. Ignorance implies passiveness ; mistake implies action. Ignorance does not pretend to knowledge, but mistake as- sumes to know. Ignorance may be the result of laches, which is criminal ; mistake argues diligence, which is commendable. Mere ignorance is no mistake, but a mistake always involves ignorance, yet not that alone. The difiference may be well illustrated by the case made in this record. If the plaintiff, the administrator, had refused to pay the distributive share in the estate which he repre- sented, to the children of his intestate's deceased sister, upon the ground that they were not entitled in law, that would have been a case of ignorance, and he would not be heard for a moment upon a plea, that being ignorant of the law he is not liable to pay interest on their money in his hands. But the case is, that he was not only ignorant of their right in law, but believed that the defendants were entitled to their exclusion, and acted upon that belief, by paying the money to them. The ignorance in this case of their right, and the belief in the right of the defendants, and action on that belief, consti- tute the mistake. The distinction is a practical one, in this, that mere ignorance of the law is not susceptible of proof. Proof cannot reach the convic- tions of the mind, undeveloped in action ; whereas, a mistake of the law, developed in overt acts, is capable of proof, like other facts. 3. The usual reply to all this is the time-honored maxim ignorantia juris non excusat. We do not make void this maxim in any fair construction of it. It is an indispensable rule of legal and social policy: it is that without which crime could not be punished, right asserted, or wrong redressed. What if its application does, in some cases, work injustice? Its overruling necessity, and the vast pre- ponderance of its benefits over its evils, have reconciled the civilized world to its immovable status as a rule of action. The idea of ex- cuse implies delinquency. No man can be excused upon a plea of ignorance of the law, for disobeying its injunctions or violating its provisions or abiding his just contracts. He is presumed to know the law, and if he does not know it, he is equally presumed to be de- was attempted between ignorance and mistake of the law, and holding that in the latter case, though not in the former, relief might be granted. I think the distinction rests on no solid foundation. Whether money paid in ignorance of the law could be recovered back was elaborately discussed by the counsel in Haven v. Foster, 9 Pick. 112, but the decision turned upon another point. The court, however, assert the principle, as applicable alike to civil and crimi- nal proceedings, that every man is prestmicd to know the law of the land. Wheaton v. Wheaton, 9 Conn. R. 96, and Hunt v. Rousmanier, i Peters i, both affirm the doctrine that a party cannot be relieved on the ground of a mistake in matter of law." IN GENERAL. 4I9 Hnqnent . I remark, to avoid misconstruction, that it is of universal application in criminal cases. In civil matters, it ought not to be used to effectuate a wrong. That is to say, it cannot be a sufficient response to the claim of an injured person, that he has been injured by his own mistake of the law, when the respondent, against con- science, is the holder of an advantage resulting from that mistake. The meaning, then, of this maxim is this : no man can shelter him- self from the punishment due to crime, or excuse a wrong done to, or a right withheld from another, under a plea of ignorance of the law. The maxim contemplates the punishment of crime, the re- dress of wrong, and the protection of rights. Is it not unreasonable so to construe it as to apply it to one who has not only done no wrong and withheld no right, but is himself the injured party, as in this case ? The plaintiff has violated no law, withheld no right from the defendants, and in no particular wronged them ; but on the con- trary, he has been injured to the extent of the money which they un- righteously withhold from him. In this view of it, too, the public policy of the maxim is sustained. I cannot see that its utility is les- sened by this limitation of its application. In the language of Sir W. D. Evans, "The effect of the doctrine is carried sufficiently far for the purposes of public utility, by holding that no man shall ex- empt himself from a duty, or shelter himself from the consequences of infringing a prohibition imposed by law, or acquire an advantage in opposition to the legal rights and interests of another, by pre- tending error or ignorance of the law," 2 Poth. Obi. App. 297. The distinction between ignorance and mistake of the law is rec- ognized by Lord Roslyn in Fletcher v, Talbot, 5 Ves. 14 ; by Lord Manners, in Leonard v. Leonard, 2 Ball. & B. 180, 183; by the Court of Appeals of South Carolina, in Lawrence v. Beaubien, 2 Bai. 623 ; and in the Executors of Hopkins v. Mazyck et al, i Hill Ch. 251. In England the authorities are pretty nearly in cquilihrio, yet I must think that the preponderance, taking the cases at law and in equity together, is on the side of the principle which I am laboring to establish. This action for money had and received is an equitable remedy, and lies generally where a bill will lie ; decisions, therefore, in chancery which recognize the principle may be justly held to sus- tain it. The first case, then, in order of time, is that of Lansdowne V. Lansdowne, reported in Moseley 364, decided by Lord Chancellor King. That case was this : The second of four brothers died seised of land, and the eldest entered upon it. But the youngest also claimed it. They agreed to leave the question of inheritance to one Hughes, a schoolmaster, who determined against the eldest brother, on the ground that lands could not ascend. Whereupon, the eldest agreed to divide the estate, and deeds were executed accordingly. Lord King decreed that they should be delivered up and canceled, as having been obtained by mistake. There is no doubt whatever, but the mistake was one of law as to the legal rights of the elder brother. It is a case in point. It is true that it has been greatly 420 MISTAKE OF LAW. criticized. Moseley, the reporter, has been charged with inaccuracy, and was very much in disfavor with Lord Mansfield. Indeed, it is said that his lordship did, on one occasion, order his reports not to be read before him. Yet there stands the case, and if supported by nothing else, it is sustained by its reasonableness. Judge Mar- shall, in referring to it, says that it cannot be wholly disregarded. The case of Bize v. Dickason was decided by Lord Mansfield in the Court of King's Bench. The judgment of the court was deliv- ered as follows : "The rule has always been that if a man has actu- ally paid what the law would not have compelled him to pay, but what in equity and conscience he ought, he cannot recover it back again in an action for money had and received. So, where a man has paid a debt which would otherwise have been barred by the stat- ute of limitations, or a debt contracted during his infancy, which in justice he ought to discharge, though the law would not have com- pelled the payment, yet, the money being paid, it will not oblige the payee to refund it ; but where money is paid under a mistake, which there was no ground to claim in conscience, the party may recover it back again in this kind of action," i T. R. 285. This authority is incontrovertible, and has not been controverted. The case made shows a mistake of law. The mistake spoken of by Lord Mansfield could not have been a mistake of facts, because the case exhibits no mistake of facts, but does exhibit a mistake of the law. The principle was sustained by a decree in Bingham v. Bingham, I Ves. 126. There the bill was filed on the ground of a mistake in law. The master of the rolls said, "Though no fraud appeared, and the defendant apprehended he had a right, yet it was a plain mistake, such as the court was warranted to relieve against, and not to sufifer the defendant to run away with the money in consideration of the sale of an estate to which he had no right." See the note to this case in Belt's Supplement 79, which shows the mistake to have been one of law. Also recognized in Turner v. Turner, 2 Ch. R. 154; in Leonard v. Leonard, 2 Ball & B. 171, by Lord Manners; by Lord TiiuRLOw, in Jones v. Morgan, i Bro. C. C. 219, and by Lord El- DON, in Stockly v. Stockly, i Ves. & Bea. 23, 31, and in Anchor v. The Bank of England, Doug. 638. To these authorities may be added the dicta of Lord Ch. J. De Grey, in Farmer v. Arundel, 2 Black. R. 824, who declared, "That where money is paid by one man to another on a mistake either of fact or of law, or by deceit, this action will certainly lie." Of Lord Kenyon, in the case of Chatfield and Paxton, see Chitty on Bills 102, and of Ciiambre, J., in Brisbane v. Dacres, 5 Taunt. 157. This judge, arguing the point with great strength, says, "It seems to me a most dangerous doctrine, that a man getting possession of money to any extent, in consequence of another party's ignorance of the law, cannot be called on to repay it." He illustrates by putting the very case made in principle in this record. "Suppose," says he, "an IN GENERAL. 421 administrator pays money per capita, in misapplication of the effects of the intestate, shall it be said that he cannot recover it back?" Opposed to this weight of authority in England, stand the two cases of Bilbie v. Lumley, 2 East 469, and Brisbane v. Dacres, 5 Taunt. 157, — in the latter case Ciiambre, J., dissenting, — and the obiter opinion of Buller, J. It is worthy of remark that Lord Ellenbrougii, who presided in Bilbie v. Lumley, afterward in Perrott v. Perrott, 14 East 423, holds language irreconcilable with his opinion in that case. In the latter case, he is reported to say, "Mrs. Territ either mistook the con- tents of her will, which would be a mistake in fact, or its legal opera- tion, which would be a mistake in law, and in either case we think the mistake annulled the cancellation." Thus it is manifest that our judgment in this case is not without precedent in the English books. The authority of Bilbie v. Lumley has been followed in this coun- try by Chancelor Kent, Shotwell v. Mundy, i Johns. Ch. 512; Lyon V. Richmond, 2 Johns. Ch. 51 ; 6 Johns. Ch. 169, 170, and by the su- preme court in Hunt v. Rousmanier, i Pet. i. In the same case, how- ever, in 8 Wheat. 215, Ch. J. Marshall says : "Although we do not find the naked principle, that relief may be granted on account of ig- norance of the law, asserted in the books, we find no case in v/hich it has been decided that a plain and acknowledged mistake in law is be- yond the reach of equity." The case in i Peters i, was decided, how- ever, upon other principles than that one now under discussion. The same may be said of the cases in Johnson's Chancery Reports, above referred to. Yet it may not be denied but that the courts there rec- ognize the rule as settled in Bilbie v. Lumley. It may be ques- tioned whether the recognition of that authority by the supreme court is worth as much as the opinion of Ch. J. Marshall, inti- mated so plainly in the above extract, as to the rule in chancery. The leaning of Mr. J. Story, in his Commentaries on Equity, is the same way ; and yet he says, "It has been laid down as unquestionable doctrine, that if a party, acting in ignorance of a plain and settled principle of law, is induced to give up a portion of his indisputable property to another, under the name of a compromise, a court of equity will relieve him from the effect of his mistake," i Story Eq., Why it is that a party may be relieved from the consequences of a mistake of the law, where he gives up his property, under the name of a comproniise, and not under other circumstances, it is diffi- cult to see. Mistake of the law has been held without relief in Illinois (3 Gil- man 162), in Tennessee (8 Yerger 298), in New Jersey (i Green's Ch. Rep. 145), and in Alabama (9 Ala. 662), and it may be else- where, beyond my time for ascertainment. The contrary was expressly ruled by the Court of Appeals in South Carolina, in Lowndes v. Chisholm (2 McCord's Ch. R. 455), in 1827. This was followed by the great case before the same court 422 MISTAKE OF LAW. in 1832, of Lawrence v. Beaubien. I call it great because of the af- fluence of learning displayed in the argument by Messrs. Holmes and King on one side, and Pettigru and Bailey on the other, and because of the perspicuous condensation and ability of the opinion of Mr. J. Johnson. The doctrine, in all its bearings, is there dis- cussed with extraordinary power, and the court unanimously de- cided that, "A mistake of law is a ground of relief from the obliga- tions of a contract by which one party acquired nothing and the other neither parted with any right, nor suffered any loss, and which, ex aequo et bono, ought not to be binding; and that it makes no dif- ference that the parties were fully and correctly informed of the facts, and the mistake as to the law was reciprocal, but there must be evidence of a palpable mistake, and not mere ignorance of the law." The case of Lawrence v. Beaubien was reviewed in 1833, by the court of appeals, in Executors of Hopkins v. Mazyck and others, and its doctrines affirmed, i Hill's Ch. R. 242. So that in South Carolina the question is definitely settled. So, also, in Massachu- setts, in the same way. See May v. Coffin, 4 Mass. 342. Warder v. Tucker, 7 Mass. 452 ; Freeman v. Boynton, 7 Mass. 488. See, also, Haven v. Foster, 9 Pick. 112. The writers on the civil law are divided as to the question whether money paid under a mistake of law is liable to repetition. Vinnius and D'Aguesseau hold the affirmative ; so Sir W. D. Evans. The argument of the great French chancellor, D'Aguesseau, is, to my mind, unanswerable (which see in 2 Evans' Pothier, Appendix 308). Pothier and Heineccius maintain the negative ; and it is said that the text of the Roman law is with them. See Rogers v. Atkinson, i Kelly, 25, 26 ; Collier v. Lanier, i Kelly 238. Let the judgment of the court below be reversed.^ *In City of Covington v. Powell, 2 Met. (Ky.) 226, 228 (1859), the court says : "It may be now regarded as well settled in this state that when money has been paid through a clear and palpable mistake of law or fact, essentially affecting the rights of the parties, which, in law, honor, or conscience, was not due and payable, and which ought not to be retained by the party to whom it was paid, it may be recovered back. (4 Dana 309; 3 B. Mon. 513; i Met. 153.)" In Northrup's Executors v. Graves, 19 Conn. 548, 554 (1849), the court says : "We mean distinctly to assert, that, when money is paid by one, under a mistake of his rights and his duty, and which he was under no legal or moral obligation to pay, and which the recipient has no right in good conscience to retain, it may be recovered back, in an action of indebitatus assumpsit, whether such mistake be one of fact or of law ; and this we insist, may be done, both upon the principle of Christian morals and the common law. And such only was the doctrine of the charge to the jury in the present case. In such a case as we have stated, there can be no reasonal)le presumption that a gratuity is intended; nor is the maxim Volenti nan fit injuria at all invaded. The mind no more assents to the payment under a mistake of the law than if made under a mistake of the facts; the delusion is the same in both cases; in both alike, the mind is influenced by false motives." VOID ORDINANCES. 423 ii. Void Ordinances. TOWN COUNCIL OF CAHABA v. BURNETT. 34 Ala. 400. — 1859. Action to recover back money paid for a license under an ordi- nance which was thereafter held to be void. A. J. Walker, C, J. — It is the law of this state that where money has been voiuntarily paid, through mistake or ignorance of law, with a full knowledge of the facts, and without fraud or imposition, it cannot be reclaimed, either at law or in equity. While we are aware that this proposition is too broad to harmonize with all the decisions, yet it is supported by the great preponderance of adjudged cases, both in England and America, and by what we conceive to be a sound policy, and has been too often recognized in our jurisprudence to be now denied. For these reasons, and because the subject has been recently exam«ined with care in this court, we decline to enter upon a discussion of the subject. Gwynn & Wife v. Hamilton, 29 Ala. 233 ; Rutherford v. Mclvor, 21 Ala. 756; Knox v. Abercrombie, 1 1 Ala. 997. That the payment of the money sought to be regained by this suit was made with a full knowledge of all the facts, in the absence of fraud or imposition, and on account of a mistake or ignorance of the law, is clear, and is not controverted. The proposition with which this opinion commences therefore leaves the plaintiff no ground for his demand, if the payment was vokmtary ; and the fate of the case hangs upon the single question whether, in the eye of the law, the payment was voluntary or compulsory. Without being thereto directly called or requested, the plaintiff went to the proper officer of the town council, and paid to him the sum required by the ordinance to procure license to retail liquor in the town for the remainder of the year. The money was accepted, the license issued, and the defendant accordingly retailed liquor within the town. The ordinance fixing the price of the license has since been declared void. Other ordinances prescribed a liability to a fine of $50 for every day upon which any person might retail liquor without license, and to imprisonment for a time not exceeding three days, if the fine was not paid. The payment of the price of the license was purely voluntary, unless the prospect of proceedings whereby he would be subjected to fine and imprisonment (if he failed to pay it) amounted to compulsion. There was no fraud, no confidential relation, no personal exaction. The ordinances do not appear to have been adopted otherwise than in the fullest confidence of their validitv, and it is most probable that the plaintiff's proposal to pay the prescribed sum was under a conviction of legal duty. It does not affirmatively appear that the plaintiff was influenced by an apprehension of proceedings against him ; but, if the presumption 424 MISTAKE OF LAW. that he was can be indulged, it does not afford a snfificient predicate for the conclusion that he acted under what the law deems compul- sion. That money has been paid under the apprehension of judicial proceedings, is no reason why there should be a reclamation. If the influence of the mere apprehension of judicial proceedings is legal compulsion — if, when a party, having the alternative to pay or submit to a judicial investigation, elects the former, he can be said to act under a legal duress, then the distrust of the adequacy of the courts to protect and maintain the right is justified, and it is acknowledged that the perils of justice and right in the judicial tribunals are so great as to deprive one of his free volition, and shield him from responsibility. The law does not recognize its amenabil- ity to such a reproach. In consequence of the imperfection incident to all that is human, wrong may sometimes prevail in the purest and wisest judicial tribunals ; yet, in theory, there is in our law a security for every right, and a redress for every wrong; and the practical operation of the law corresponds, in the main, with its profession. No one can be heard to say that he had the right and the law with him, but he feared his adversary would carry him into court, and that he would be unlawfully fined and imprisoned ; and that being thereby deprived of his free will, he yielded to the wrong, and the courts must assist him to a reclamation. Again : Another reason why a recovery should not be had in such a case is, that it would enable one, by paying a claim about to be a€- serted by suit, to fix his own time, within the statute of limitations, for the litigation. He might prefer to pay off the claim, and take the chance of his adversary's losing his testimony within the period of limitation from the time of payment ; thus affording him an op- portunity tX3 regain the sum paid, when peradventure it might be made to appear, under the facts then extant, that the payment was not required by the law. Furthermore, if the principles contended for were allowed, it would injuriously affect the party to whom the payment was made. Regarding the money as his own, he might be induced to adopt a style of living, or to dispense benefactions not justified by his for- tune. So far has this been carried in Pennsylvania, that a recovery of taxes illegally assessed was denied, because the borough which had received the payment had expended it in improvements. Bor- ough of Allentown v. Saeger, 20 Penn. State R. (9 Har.) 421. While we will not now endorse that case in its full extent, it illus- trates the view which the courts take of the injustice involved in such suits ; and it is the more appropriate here, because it was proved that most, if not all the money, had been expended by the corporation ; and, it may be, in improvements, the benefits of which are shared by the plaintiff himself. ''' '^' * If money be extorted as a condition upon which an officer will grant a license, the clearance of a vessel, or the like, when the party is legally entitled to it, the payment is involuntary. Morgan v. Parmer, 2 B. & C. 733 ; Ripley v. Gelston, 9 Johns 201, and Elliott v. Swart- VOID ORDINANCES. 425 wout, 10 Pet. 137. The plaintiff cannot invoke that principle, because if it be conceded that he was entitled to have license issued from the corporation, the money was not extorted from him as the only agency by which he could obtain the license, but of his own volition he went forward and proposed the payment. He who received the payment was merely passive : he made no demand, no exaction. The distinction is between the cases where a party, acting from his own volition, makes a payment, upon the suggestion of his own mind that it is legal, to an officer wlio accepts it because he also deems it legal ; and where a party demands that which is due him from the officer, and the latter exacts the payment as the only condition upon which he can obtain that which is legally due from that officer. In the former case, the payment is voluntary ; in the latter, involuntary. This distinction is taken and sustained in several of the cases above cited. Robinson v. City of Charleston, 2 Richardson 317; Sprague v, Birdsall, 2 Cow. 419; Maxwell v. Griswold, 10 How. 256; Elliott v. Swartwout, 10 Peters 137; Atlee v. Backhouse, 3 M, & W. 632; Amesbury Woolen & Cotton Man. Co. v. Inhabitants of Amesbury, 17 Mass. 461. Upon the last point above stated in this opinion my brethren ex- press no opinion. They think there is no necessity for deciding that point, and that the decision of the other points is conclusive as to whether the payment was voluntary. I think differently. I under- stand the plaintiff to plant himself upon the proposition that the pay- ment was involuntary for two reasons : First, because of the liabil- ity to fine and imprisonment in the event of his not paying ; and, second, because the payment was made to procure a license to which he was entitled without such payment. In my opinion, we are not authorized to affirm that there was error in the overruling of the demurrer to evidence, unless we can decide both these propositions against the plaintiff. The court is unanimous in the conclusion, that, upon the facts, the plaintiff had no right of action whatever, and the court erred in adjudging the demurrer to evidence in his favor. ^ ^Accord, Cook v. Boston, 9 Allen (Mass.) 393 (1864), the court saying: "The plaintiffs here voluntarily sought and obtained a privilege, and enjoyed it during the term of their license. They elected to take it, knowing that the city claimed therefor the sum they paid, as the just and proper sum to be paid therefor. They could have been subjected to no penalties for breach of the by-laws of the city in the use of their wagons, without a full opportunity to contest their legality. Their case is not one where the money can be recov- ered back on the ground of duress;" and adding as to the effect of protest that "the fact that the money was paid to the defendants under protest does not afifect the case, where the payment was made under circumstances like the present." Accord, Camden v. Green, 54 N. J. L. 591 (1892). Upon the question as to whether a license fee is a tax the court in Mays V. Cincinnati, i Oh. St. 268, 273 (1853), says: "Was the sum demanded by the ordinance for the license to trade a tax? The sum required is limited only by the discretion of the council, but whatever it may be, it goes into the city treasuiy and constitutes a part of its general fund. The term has been correctly defined to be one of general import, including almost every species 426 MISTAKE OF LAW. MAYOR AND COUNCIL OF WILMINGTON v. WICKS. 2 Marv. (Del.) 297. — 1896. This was an action brought to recover back $10, amount paid for license under what was termed the milk ordinance, which provided : Section 3. Each and every person or persons desiring to engage in the business of selling milk or cream in the City of Wilmington shall apply to the board of health for a license. Section 5. Provided that any person engaged in said business who should not take out such a license, should, upon conviction before the municipal court, forfeit and pay a sum not exceeding $10 for the first offense, and for the second offense, $25, and should forfeit his license. Section ii. Provided that the milk inspector shall prosecute be- fore the municipal court all offenders against this ordinance. At the trial it was admitted that the money paid has passed into the city treasury and is now in possession of the defendant ; and that this ordinance, subsequent to the payment by the plaintiff of the fee for his license, was declared void. The plaintiff testified that he was engaged in the milk business previous to the i8th day of April, 1895, the date of the passage of the milk ordinance; that during the month of May, of 1895, he re- ceived notice from the city with a copy of the ordinance, and a few days after that the following notice appeared in the newspapers : "All persons engaged in the sale of milk are hereby notified to take out a license, as provided in the ordinance, on or before Satur- day next, June 8. After that time any person engaged in the sale of milk who has not complied with the law will be prosecuted. By order of the board of health. W. C. R. Colquhoun, Secretary." He said that in preference to being fined and having to pay for the license, he considered it best to pay the license, and went to the of- fice of the board of health and paid it to Mr. Colquhoun. "If that is the law I propose to be a law-abiding citizen, and if this is not the law expect to have my money back." He said, "Well, I will tell you straight ; I will be damned if you get your money back." He also said, "If I sold a half-pint of milk, I had to pay that license or be arrested." The plaintiff thereupon paid the fee and got the li- cense. of imposition on persons or property for supplying the public treasury, as tolls, tribute, subsidy, excise, impost or customs. In a more limited sense, it is the sum laid for the same purpose upon polls, lands, houses, personal prop- erty, professions and occupations. Whether regarded in the larger or more limited sense, the sum here exacted is clearly included. A license may include a tax or it may not. If the exaction goes no further than to cover the neces- sary expenses of issiu"ng it, it docs not; but if it is made a means of supply- ing money for the public treasury, we agree with tlio court in State v. Rob- erts, 1 1 Gill & Johns. 506, that it 'is a tax, is too palpable for discussion.' '' VOID ORDIXAXCES. 42/ Lore, C. J. (charging the jury). — This is an action brought to recover back money that was paid by Wicks, the plaintiff, to the City of Wilmington for a license to sell milk. Wicks claims to have paid the money under protest and involuntarily. Upon an examina- tion of the case, as presented to the court and jury, the court think that it is a case of voluntary payment, and not of involuntary pay- ment in contemplation of law. We therefore direct you to find a ver- dict in favor of the mayor and council of Wilmington, defendant be- low, appellant. r CITY OF HELENA v. DWYER et al. 65 Ark. 155.— 1898. Action by Dwyer Bros, against the city of Helena. From a judgment for plaintiffs, defendant appeals. Reversed. The appellees, Dwyer Bros., brought sviit in the Phillips circuit court against the appellant to recover certain sums of money which were paid by them at various times from January, 1893, to February I, 1895, as a license for keeping a meat market in the city of Helena, amounting in the aggregate to the sum of $109. The complaint, among other things, alleges that these various amounts were paid to the said defendant (appellant) against their will, illegally, and under protest and duress of law, as a license to them for keeping a meat mar- ket in said city ; that the amounts were collected at different times by the collector of said city, who was also the chief of police thereof, un- der an ordinance passed by said city; that they were compelled to pay said sums of money in installments, from time to time, whenever called upon by said city officers, to prevent being arrested and sub- jected to the payment of a fine upon their failure to pay the same, there being a penalty attached to said ordinance, which subjected one to the payment of a fine, and arrest, who failed to pay the same w^hen called upon by the proper officers of said city ; that the ordinance was unconstitutional and contrary to the laws of the state ; and that the city had no right to collect the same. The appellant answered, denying the illegality of the ordinance, and charged that the various sums paid to appellant by appellees were paid freely and voluntarily, without question, fraud, mistake, threats of arrest, or duress of any kind whatsoever, and were also paid prior to the repeal of ordinance referred to. The section of the ordinance prescribing the penalty for violation of this ordinance is as follows : "Be it ordained, that any violation of this ordinance shall subject the offender to a fine of not more than $25 for each offense, to be adjudged by the mayor or jury trying the case." This is the only part of the ordinance necessary to set out, as the appellant does not contend here that the ordinance was valid, but only con- tends that the payments by appellees were voluntary. The court 428 MISTAKE OF LAW. found the facts to be as follows : "That while the ordinance pro- vided a failure to pay the license rendered the offender liable to a criminal prosecution and a penalty, the amounts sued for were paid to enable plaintiffs to carry on their legitimate business, and not to be adjudged criminals; that the amounts were paid to F. D. Clancey as city collector, and not as chief of police ; that he, as such collector, had no authority to make arrests ; that the amounts were paid without objection or protest, but for the reason that their failure would subject them to arrest and prosecution for a failure to pay ; that appellees were never threatened with arrest, or arrested, at the time the payments were made." Appellant asked the court to declare the law as follows : "The payment by the plaintiffs must have been made under compulsion, under protest, and to prevent the immediate arrest and detention of his person, and not voluntarily made," — which the court refused, but declared the law as follows : "That the payments made by plaintiffs were made imder a legal duress and compulsion, and, in law, not voluntarily ; that an ordinance which requires the payment of an amount of money before going into business, when paid becomes a payment under duress of law, and the party paying is entitled to recover the same back by suit at law." Wood, J, — Judge Dillon says : "The coercion or duress which will render a payment of taxes involuntary must in general consist of some actual or threatened exercise of power possessed, or be- lieved to be possessed, by the party exacting or receiving the pay- ment, over the person or property of another, from which the latter has no other means, or reasonable means, of immediate relief, except by making payment." 2 Dill. Mun. Corp. § 943. Again he says : "Money voluntarily paid to a corporation under a claim of right, without fraud or imposition, for an illegal tax, license, or fine, cannot, without statutory aid — there being no coercion, no ignorance or mistake of facts, but only ignorance or mistake of the law, — be recovered back from the corporation, either at law or in equity, even though such tax, license fee, or fine, could not have been legally demanded and enforced." Id. § 944. Judge Cooley enu- merates, as one of the conditions upon which illegal and void taxes paid to a municipal corporation may be recovered, the following: "It must have been paid under compulsion, or the legal equivalent." Cooley, Tax'n, p. 805. And he defines a "compulsory payment" as follows : "A payment made to relieve the person from arrest, * * * or to prevent a seizure, when it is threatened." Id. p. 84. The principles here announced were approved by this court in Town of Magnolia v. Sharman, 46 Ark. 358. It will be seen, by applying these principles to the facts as found by the court in the present case, that the court erred in its declaration of law, and in refusing to flcclarc the law as asked by the appellant. We are of the opinion that the payments made by appellees, under the facts stated, cannot be construed otherwise than as voluntary payments. See First Nat. VOID ORDINANCES. 429 Bank v. Mayor, etc., of Americus, 68 Ga. 119, and numerous cases cited in brief of appellant. Reversed and remanded for new trial. NEUMANN V. CITY OF LA CROSSE. 94 Wis. 103. — 1896. Cassoday^ C. J. — It appears from the record that for six consecu- tive years immediately prior to the commencement of this action, the plaintifif was engaged in the business of selling fresh meats in the city ; that in each of those years the defendant, loy its police officers, exacted of the plaintiff a license fee of $12, under an ordinance of the city which, on the trial, was conceded to be entirely void and of no effect. The plaintiff paid each of such exactions, and now brings this suit to recover back the amount so paid, with interest, on the ground, as alleged, that he paid the same under duress. The defendant denied liability, and succeeded in the justice's court, but on the appeal and retrial in the circuit court the plaintiff recovered a verdict of $86.36, and from the judgment entered thereon the defendant appealed to this court, prior to the enactment of chapter 215, Laws 1895. We are constrained to hold that there is evidence sufficient to sustain the verdict, to the effect that each of the several payments were made to avoid threatened arrest by the defendant's policemen, and hence made under duress. The city charter authorized the arrest of persons for violating its ordinances, on warrant duly issued. Laws 1887, c. 162, subc. 14, § i. There is evidence tending to prove that the plaintiff did not know but that each such police officer had such warrant at the time of making such threat, and that the plaintiff at no time conceded his liability to pay such exaction, but at all times denied the same. These views are supported by repeated rulings of this court. Judd v. Town of Fox Lake, 28 Wis. 583 ; Parcher v. Marathon Co., 52 Wis. 388. 9 N. W, 23 ; Ruggles V, City of Fond du Lac, 53 Wis. 436, 10 N. W. 565. It requires no authorities to show that a threatened arrest is far more per- suasive than a threatened levy. The verdict is conclusive that the jury believed the evidence on the part of the plaintiff, and, if that is true, then the payment was not voluntary ; and hence the case is distinguished from those cited by counsel for the defendant. * * *i ^Accord, Buckley v. Mayor, &c., of New York, 30 App. Div. (N. Y.) 463 (1898), where defendant's building inspector threatened the arrest of plain- tiff unless plaintiff took out a license to build a vault which the law permitted him to do without a license. In Harvey & Boyd v. Town of Olney, 42 111. 336, 339, 340 (1866), the court says : "A person to whom a town offers the alternative of payina: for a li- cense, or undergoing a prosecution before the police magistrate, which would 430 MISTAKE OF LAW. iii. Change of Law. HARRIS V. JEX ET AL. 55 N. Y. 421.— 1874. This was an action to foreclose two mortgages, one executed in March, 1858, the other in March, 1861. The premises were con- veyed to defendant Jex subject to the mortgages. He alone de- fended, setting up and proving a tender in October, 1870, of the amount of the mortgages in legal tender notes, which tender was refused. Further facts appear in the opinion. Judgment was given in currency, to the amount of the mortgages being added the pre- mium on gold. Plaintiff subsequently remitted the premium, and the judgment thus modified, was affirmed by the General Term. Andrews, J. — The mortgages, to foreclose which this action was brought, were executed prior to the enactment by congress, in 1862, of the act known as the legal tender act, to secure the payment by the mortgagor to the mortgagee of the sum of $7,000, according to the condition of certain bonds, bearing even date with the mort- gages. The time for the payment of the mortgage debt was sub- sequently extended, by an agreement between the parties, to the 1st day of March, 1870, and on that day the defendant Jex, who had become the grantee of the mortgaged premises by a convey- ance which in terms was made subject to the mortgages, but which contained no covenant on his part to pay them, tendered to the plain- tiff, to whom the bonds and mortgages had been assigned, the amount of the mortgage debt in United States legal tender notes in satisfaction of the mortgages. The plaintiff refused to accept them on the ground that she was entitled to payment in gold or in its equivalent in currency. This action was then brought, and the only question presented upon the record is whether the tender dis- charged the lien of the mortgages. * * * The legal tender act by its terms made the notes authorized to be issued under it lawful money and a legal tender in payment of all debts, public and private, within the United States, with certain ex- result in fine and imprisonment, if the ordinance under which the city acts should he held valid, may certainly pay his money under protest, without los- inpT his rij,dits, and cannot he required to incur the hazard of the magistrate's decision upon the validity of the ordinance, and possihly he driven to a writ of habeas corpus, to relieve himself from imprisonment. Such payment would not he voluntary. * * * jf the money was paid hy the appellants under threats of prosecution, or imder a belief, induced by the ofificcrs of the town, that only by payment could they escape prosecution, and was paid by them imder protest, then such payment can in no just sense be called voluntary. County of La Salle v. Simmons, 5 Gilm. 515. Such a slate of facts would make this case very unlike the case of Rohinson v. The City of Charleston, 2 Rich. 317, cited by counsel for appellees, and the case of Elston v. The City of Chicago, 40 111, 514, in both of which the payment was purely voluntary." CHANGE OF LAW. 43 1 captions not necessary to be noticed. The Supreme Court of the United States, in Hepburn v. Grisvvold, 8 Wal. 605, determined that the act, so far as it related to debts existing at the time of its pas- sage, was in violation of the Constitution of the United States, and was void. The court declared that contracts for the payment of money made before that time were in legal effect contracts for pay- ment in coin, and that Congress could not compel a creditor to accept legal tender notes in payment of a debt antecedently created. The tender made by the defendants was made after the decision in Hepburn v. Griswold had been pronounced, and before its reversal by the case of Knox v. I.ee (12 Wal. 457). It is insisted on the part of the defendant that notwithstanding the fact that at the time the tender was made the Supreme Court of the United States, the ultimate judicial authority on all questions arising under the Constitution and laws of the United States, had decided that the legal tender act, so far as it applied to debts like that of the plaintiff, was void, and that he was entitled to demand payment of his debt in coin, yet he was bound to know the law to be as it was subsequently declared, and that a refusal to accept the ten- der involved the loss of his security. I think the law did not impose upon the plaintiff so unreasonable a burden. The claim is sought to be justified by the maxim, ignorantia juris non excusat, the rea- son of which is stated by Lord Ellenborough in Bilbie v. Lumley (2 East. 469), to be, that otherwise there is no saying to what extent the ignorance might not be carried, and that it would be urged in almost every case. The reason of the rule has no application to a case like this. The plaintiff had a right to repose upon the decision of the highest judicial tribunal in the land. It was, as applied to the relations between these parties and to this case, the law, and not the mere evidence of the law. Respect for the de- cisions of courts is a duty inculcated by writers upon the law, and enforced by considerations of public policy. It is said by Kent (l Com. 476): "If a decision has been made upon solemn argu- ment and mature deliberation, the presumption is in favor of its correctness, and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it." The transactions of life would be involved in great and distressing perplexity and uncertainty, if the maxim quoted is to be applied and extended to cases like this. It is pro- vided in this State by statute (2 R. S. 624, sec, 66) that every act done in good faith, in conformity with a construction by the Supreme Court of any penal or other statute, after such decision was made and before reversal by the Court for the Correction of Errors, shall be so far valid that the party doing said act shall not be liable to any penalty or forfeiture therefor. In the absence of a statutory provision covering this case, I am of opinion that the same equitable principle should be applied as is contained in the statute cited, and that it should be held that the .\ 432 MISTAKE OF LAW. tender by the defendant did not discharge the hen of the mortgage, it being insufficient according to the law as then declared. If the tender had been kept good, the defendant might have been discharged from the payment of interest and costs. The judgment should be affirmed, with costs. All concur. Judgment affirmed.^ CENTER SCHOOL TOWNSHIP v. STATE, ex rel. BOARD OF SCHOOL COMMISSIONERS. 150 Ind. 168. — 1898. The State of Indiana, on the relation of the board of school com- missioners of the city of Indianapolis, instituted this action against Center school township of Marion county, Ind., to recover money arising out of the surplus dog-tax fund which it is claimed was due to said board of school commissioners for the years 1893, 1894 and 1895. Demurrer. Judgment for plaintiff. Defendant appeals. The charge made by the complaint against the appellant is, in substance, and to the effect, that on the first Monday in March in each of the aforesaid designated years, under section 8654, Burns' Rev. St. 1894, the dog fund in excess of $50 was, by the provisions of said section, required by the proper township trustee to be dis- tributed to the school corporation represented by the relator in pro- portion to its enumeration for school purposes ; that the trustee failed and neglected to discharge this duty, but, on the contrary, appropriated and expended all of said surplus fund in his hands for the benefit and use of the schools of Center school township ; and that no part thereof was paid over to or received by the relator for the use of its schools. By the construction placed upon section 8654, supra, in the decisions of this court in Taggart v. State, 142 Ind. 668, 40 N. E, 260, and 42 N. E. 352, and Gold v. State, 143 Ind. 706, 40 N. E, 263, the appellee's right to its proportionate part of the surplus dog tax in the hands of the township trustee of Center school township for the years in question is settled in its favor. In the Taggart Case, decided March 21, 1895, this court expressly overruled that of School City of South Bend v. Jaquith, ^In Troy, Adm'r, v. Bland, 58 Ala. 197 (1877), Bland owed plaintiff's in- testate upon debts contracted in 1858; and in 1870, after the decision in Hep- burn V. Griswold, demand was made for payment. Bland tendered legal tender United States notes. Gold was then at 15 per cent, and silver at 10 per cent, premium. Plaintiff offered to take the notes, but only at 15 per cent, discount. Bland refused to accede; there was a controversy which was finally settled by payment being made in the United States notes at 10 per cent, discount. Thereafter Hepburn v. Griswold was overruled, and Bland sued to recover back the excess paid as premium, but recovery was denied upon the ground that it was paid in compromise of a disputed claim. CHANGE OF LAW. 433 90 Ind. 495, decided in 1883, wherein, under the provisions of sec- tion 5 of an act of the legislature of 188 1 (section 2651, Rev. St. 1881), which were, in effect, the same as are those in section 8654, supra, it was held that no part of the surplus dog fund belonged to the city school corporation, but that such fund belonged to, and should be distributed wholly to, the school township. Counsel for appellant do not insist but what the construction given to the statute in the Taggart appeal was correct, and virtually concede that the decision in the case of School City of South Bend v. Jaquith, supra, was properly overruled. But their principal contention in support of this appeal seemingly is that our decision overruling the case must not be held to be retrospective, and thereby invade what they term the vested rights of the appellant to the money in controversy, Jordan, J. — * * * '■' Shall we confine the change made in the interpretation of the law by the Taggart Case so as to operate prospectively only, and thereby not affect appellant in its claim to the entire surplus dog fund distributed to and received by it prior to March 21, 1895, or shall the new construction of the statute be held to be binding on it as to the money in dispute? The decisions of a court of last resort, the authorities assert, are not the law, but are only the evidence or exposition of what the court construes the law to be ; and in overruling a former decision by a subsequent one the court does not declare the one overruled to be bad law, but that it never was the law, and the court was therefore simply mistaken in regard to the law in its former decision. The first decision, upon the point on which it is overruled, is wholly obliterated, and the law as therein construed or declared must be considered as though it never existed, and that the law always has been as expounded by the last decision. Haskett v. Maxey, 134 Ind. 182, 33 N. E. 358; Ram, Judgm. 47. This rule, however, is subject to the well-settled doctrine that courts will not so apply a change made in the con- struction of the law as it was held to be in the overruled case, as to invade what is considered vested rights ; or, in other words, while, as a general rule, the law as expounded by the last decision operates both prospectively and retrospectively, still courts are required to and do confine it in its operation so as not to impair vested rights, such as property rights, or those resting on contracts, express or implied. Haskett v. Maxey, supra; Stephenson v. Boody, 139 Ind. 60, 38 N. E. 331. The true rule afiirmed by the authorities, and the prevailing one, is to give a change of judicial construction in regard to a statute the same effect in its operation, so as not to disturb vested rights, as would be given to a legislative amendment ; that is, apply the change in the interpretation of the law so as to operate prospectively, and not retroactively. Douglass v. Pike Co., loi U. S. 677. But the rights which the law protects must be real. They must be rights of property, or those founded on contract, express or implied. Suth. St. Const., § 164, states the rule in this respect as follows : "When a right has arisen on a contract or a Woodruff's Cases — 28 434 MISTAKE OF LAW. transaction in the nature of a contract authorized by a statute, and has been so far perfected that nothing remains to be done by the party asserting such right, the repeal of the statute will not affect it or an action for its enforcement. It has become a vested right, which stands independently of the statute. * "*•' * This is a principle of general jurisprudence; but a right, to be within its pro- tection must be a vested right. It must be something more than a mere expectation based upon anticipated continuance of the exist- ing law. It must have become a title, legal or equitable, to the present or future enjoyment of property, or to the present or future enforcement of a demand, or a legal exemption from a demand made by another." But can the appellant in any sense, under the facts and circum- stances in this case, be said to have acquired a vested right to the surplus dog fund involved in this action, so as to bring it within the protection of the rule to which we have referred, and thereby be entitled to deny appellee's right of recovery? It is evident that the money received by it under the construction placed on the law by a former decision of this court was not embraced in any contract or property rights in the legal acceptation of those terms. The fund out of which the money in dispute was distributed to appellant was collected and accrued under legislative authority, and, in a legal sense, was the property of the state ; and the surplus certainly was subject to be disposed of or applied by legislative authority to any public purpose not inconsistent with the constitution. Appellant is a public corporation ; the creature of the legislature ; or, in other words, but an instrument in the hands of the latter to carry out its will in regard to the common-school system of the state, and there- fore at all times, in respect to the control or disposition of its funds, it is subject to the will of the law-making power, provided, of course, that such will must not be so exercised as to disturb existing contract rights. The rule is well settled that the control of the state over a public corporation is subject to no such limitations as operate in favor of corporations of a private character ; consequently the law makes a distinction between the rights of the individual or ])rivate corporations and those of a public corporation. It must follow, as a necessary result of these principles, which are controlling over appellant, that it, under the circumstances, is not in a position to raise any question in respect to vested rights which it claims were invaded by the change in judicial construc- tion of the statute providing for the disposition of the surplus dog fund. Taggart v. State, supra; Endlich Interp. St., § 284 ; Wade, Retro. Laws, §§ 21, 22; People v. Morris. 13 Wend. 325; Beach, Pub. Corp., §v< 720-722. Appellant, therefore, having received the money through a judicial misinterpretation of the law, cannot be successfully heard to deny appellee's right thereto, which existed in the first instance, under the proper construction of the statute whereby the legislature had declared its will in respect to the dispo- . / PAYMENT RY PUBLIC OFFICERS. 435 sition of the surplus dog fund. The complaint is sufficient, and the judgment is therefore affirmed. iv. Payment by Public Officers. FREDERICK v. DOUGLAS COUNTY et al. 96 Wis. 411. — 1897, This action was commenced November i6, 1895, by the plaintifif, for himself and all other taxpayers of said county, to restrain the county and its officers from paying to the defendant H. H. Grace or issuing warrants to him for the payment of anything whatever for or on account of his services as attorney, rendered or to be ren- dered to the county, and to compel the said Grace to pay back to the county $2,012, which had previously been paid to him. WiNSLOW, J. — * * * * ^11 ^|-,g members of this court agree that Mr. Grace cannot be compelled to pay back the money he has actually received for the legal services rendered by him to the county prior to the commencement of this action, but the remaining members of the court do not agree with the Chief Justice as to the legal grounds upon which such decision should be based, and I have been requested by my colleagues to present, as best I may, their views upon that subject. In our judgment, it would be dangerous to hold that because Mr. Grace had actually rendered services, and the county had volun- tarily paid for the same with knowledge of the facts, such money so paid could not be recovered. There are many cases which hold that, as between man and man, money paid voluntarily, with knowl- edge of all the facts, and without fraud or duress, cannot be re- covered merely on account of ignorance or mistake of the law. A number of these cases are cited in the opinion of the Chief Justice, and it is not my province to combat this principle. This is simply the doctrine of voluntary payment. It is frequently applied to the payment of illegal taxes. It is founded upon the general principle that a man may do what he will with his own. He may give it away, or buy his peace ; and, if he does so with knowledge of the facts, he is generally remediless. But public officials do not stand upon the same basis. They are not dealing with their own. They are trustees for the taxpayers, and, in dealing with public funds, they are dealing with trust funds. All who deal with them know also that the public officials are acting in this trust capacity. To hold that, when public officers have paid out money in pursuance of an il- legal and unwarranted contract, such moneys cannot be recovered in a proper action brought upon behalf of the public, merely because the payment has been voluntarily made for services actually rendered, 436 MISTAKE OF LAW. would be to introduce a vicious principle into municipal law, and a principle which would necessarily sweep away many of the safe- guards now surrounding the administration of public affairs. Were this, in fact, the law, it can readily be seen that public officials could at all times, with a little ingenuity, subvert and nullify that wholesome principle of law which prohibits their spending the public funds for illegal purposes. All that would be necessary to be done would be to make the contract, have the labor performed, pay out the money, and the public would be remediless. We cannot approve of such a doc- trine. The rules of law concerning ratification and estoppel, as ap- plied to the illegal or unauthorized acts of public officials, are simple and well understood. A municipal corporation may undoubtedly ratify an unauthorized contract made by its agents, which is within the general scope of its corporate powers ; but it is equally certain that it cannot ratify such unauthorized acts of its agents as are be- yond its scope, or such contracts as it had no power to make original- ly. Trester v. City of Sheboygan, 87 Wis. 496, 58 N. W. 747 ; Koch V. City of Milwaukee, 89 Wis. 220, 62 N. W. 918. Ratification and estoppel are of very much the same nature, and the principles which apply to ratification substantially apply also to estoppel. As said by Mr. Dillon in the passage quoted by the Chief Justice : "The gen- eral doctrine is undoubted that there is ordinarily no estoppel in respect to acts which are in violation of the constitution or of an act of the legislature, or which are obviously, and in the strict and proper sense of the term, ultra vires. * * * -^Ye mean by it, as here used, the want of legislative power, under any circumstances or conditions, to do the particular act in question." This passage, we believe, expresses the law with clearness. This court decides in the present case that "the county board had no authority to employ Mr. Grace to take charge of and conduct the tax litigation men- tioned." They had no authority under any circumstances then ex- isting, because they had a district attorney qualified and acting. Therefore the employment of Mr. Grace was to the full extent an act beyond their power, and hence incapable of ratification. It is not difficult to find cases holding to the full extent the doctrine that where public officers have made an illegal appropriation of public money, and the money has been paid, it may be recovered in a proper action brought either by the corporation or by taxpayers on behalf of the public. Such actions have generally been actions in equity, brought to restrain the further misappropriation of funds, and, as an incident of full relief, to recover back moneys already paid ; and it may be stated as a uniform rule that in such cases such moneys may be recovered back, especially where there is any ground to charge fraud, corruption, or concealment in the trans- action. A case in point is that of Russell v. Tate, 52 Ark. 541, 13 S. W. 130, in which an illegal appropriation of town funds was made to aid in completing a county court house. A part of the ai)propriation was paid over immediately. As said in the opinion : PAYMENT BY PUBLIC OFFICERS, 437 "The appropriaton was made, and the warrant drawn, and the money paid by the treasurer, before an attorney could have com- prehended the situation, and written the caption of a complaint." And the court held that the amount already paid could be recovered, as well as that there should be an injunction against any further pay- ment, thus doing complete justice in one action. Other cases in which voluntary payments by municipal officials have been recovered back may be cited, as follows : Demarest v. Inhabitants, 40 N. J. Law, 604; Weeks v. Texarkana, 50 Ark. 81, 6 S. W. 504: Tacoma v. Lillis, 4 Wash. 797, 31 Pac. 321. The principle is also recog- nized in Willard v. Comstock, 58 Wis. 565, 17 N. W. 401. But while we believe it to be salutary and a correct principle of law to hold that moneys paid out by municipal officials in violation of law may be recovered from the recipient in an action seasonably brought, especially where the transaction is marked by haste, fraud, collu- sion, or concealment, we believe there are cases in which the cir- cumstances are such that a court of equity ought not to decree the return of money merely because the appropriation thereof was un- authorized, and such a case we believe to be before us now. The evidence and the findings show that Mr. Grace's employment began in January, 1895, and it was a matter of public notoriety, and the plaintiff himself and presumably all taxpayers who kept track of the public proceedings knew that he was employed as early as the spring of 1895 ; that he performed large and valuable services, for which he was from time to time paid ; and that not only he, but the county board, acted in entire good faith in the matter. There was no haste and no evidence of collusion or concealment. Mr. Grace's services ran through a number of months, and he undoubt- edly has fully earned all the money which has been paid him. Dur- ing all this time the plaintiff and his fellow taxpayers remained silent, and allowed the services to be rendered and the money to be paid. They took no action until the latter part of November, 1895. Then they came into a court of equity, and asked for the stoppage of all payments in the future, and to this they are undoubtedly en- titled. But he who comes into a court of equity must do equity. Could it, under any view of the circumstances, be said to be equit- able to compel Mr. Grace to pay back the money which he received for long and valuable labors, rendered honestly and in good faith, the benefit of which the corporation has received, and concerning which the taxpayers of Superior were, or ought to have been, fully informed during their entire progress? Were a court of equity to make tliis judgment under the circumstnces, we should regard it as having become an engine of oppression, rather than an instru- ment of justice. We do not rest this decision entirely upon the ground that the remedy has been lost by laches, or that the county has become estopped, but upon the ground that, under all the cir- cumstances, the plaintiff having invoked the relief of a court of 438 MISTAKE OF LAW. equity, that court, in granting the relief, will not take away the fruit of honest labor. Mayor, etc., v. Huff, 60 Ga. 221.* V. Payment to an Officer of the Court. GILLIG V. GRANT, as receiver. 23 App. Div. (N. Y.) 596. — 1897. Appeal by the defendant, Hugh J. Grant, as receiver of the St. Nicholas Bank of New York, from a judgment of the Supreme Court in favor of plaintiff, entered in the office of the clerk of the county of New York on the 12th day of October, 1897, upon the verdict of a jury rendered by direction of the court, and also from an order entered in said clerk's office on the 14th day of October, 1897, denying the defendant's motion for a new trial made upon the minutes. ^ In United States v. Dempsey, 104 Fed. 197 (1900), where a paymaster of the United States army, by mistake of law overpaid an army officer, the court said (p. 199) : "The next question is, the money having been paid over to and received by the defendant by reason of an erroneous construction of the law, can the same be recovered from the defendant by the government in this suit? The paymaster who paid the defendant the above sum of money could go no further in this matter than he was authorized by law. The law limited his powers. He could bind the government only to the extent au- thorized by law. The government was not bound when he exceeded the authority given him by the federal statutes. The money paid to the defend- ant was the money of the government, and, as stated above, the government having provided the defendant with suitable quarters free of charge, the pay- master was not authorized to pay him this money. That belonged to the government. Under such circumstances the following decisions maintain the rule that the government may sue for and can recover back this sum of money so paid: McElrath v. United States, 102 U. S. 441, 26 L. Ed. 189; Wis- consin Central R. R. Co. v. United States, 164 U. S. 190, 17 Sup. Ct. 45, 41 L. Ed. 399." Contra, in Wayne County v. Randall, 43 Mich. 137, 139 (1880), the court says : "The claim in question was presented to the board of auditors, and they fully informed of all the facts relating thereto and also that doubts existed as to the liability of the county therefor. It further appears that the board took advice regarding the liability of the county, allowed the claim, and that it was paid. Under such a state of facts we are of opinion that the sum so paid cannot be recovered back. The mistake was one of law and not of fact. The same reasons which would prev-cnt an individual from recovering back money paid under such a state of facts should apply here also. Our views upon this point are more fully set forth in Detroit v. Advertiser &c. Co., ante p. 116, decided at the present term, and need not here be repented." And in Village of Morgan Park v. Knopf, 199 111. 444. 446 (1902), the court says: "There was no fratid or mistake of fact, and if there was any mistake it was one of law, and the money having been voluntarily paid under such circum- stances, no action would lie to recover it back. This rule, which is well settled as between individuals, has been extended to municipal corporations under similar circumstances. People v. Foster, 133 111. 496." PAYMENT TO COURT OFFICER. 439 This action was brought to recover money received by the de- fendant as the proceeds of an execution sale against tlie George C. Treadwell Company. In January, 1894, the plaintiff brought an action against the company, in which a warrant of attachment was issued to the sheriff of Albany county. On January 9, 1894, a levy was made under this warrant and property set apart for the satisfac- tion of the plaintiff's claim. The following day a warrant of attach- ment against the company was issued in an action brought by the defendant, and on January 11, 1894, a levy was made under this warrant, and property set apart for the satisfaction of the defend- ant's claim. The property attached under the plaintiff's warrant was sold under an execution subsequently issued upon a judgment obtained by him in the action, but proved insufficient to satisfy such judgment. Plaintiff thereupon moved in Albany county to compel the sheriff to sell the property held under the defendant's warrant and apply the proceeds upon the plaintiff's judgment. This motion was denied at Special Term on February 12, 1895, and the order w^as affirmed by the General Term of the third department in the following March. In January, 1896, the Court of Appeals reversed these orders and granted the motion. In the meantime, in July, 1895, the sheriff, not being stayed from so doing, sold the property held under the defendant's warrant and paid over the proceeds to him. After the decision of the Court of Appeals, a motion was made by the plaintiff to compel the defendant to pay him the amount received from the sheriff. The order entered upon this motion on May 26, 1897, withheld decision as to the plaintiff's right to compel payment, but granted him leave to bring an action to recover the amount. In pursuance of this order the present action was begun. Barrett, J. — There are two grounds upon which the judgment in this action should be sustained : First, a party's right to follow prop- erty upon which he has a lien into the hands of one who has received the property with knowledge of that lien, and who is not a bona Ude purchaser for value ; second, the well-recognized exception to the general rule that money paid under a mistake of law cannot be recovered back, namely, where the money is so paid to an officer of the court. {After sustaining the judgment upon the first ground, the court proceeds to the second ground.] The rule that money paid under a mistake of law cannot ordin- arily be recovered back is entirely inapplicable to the present state of facts. This action is not against the sheriff, nor is it brought in the right of the sheriff. It is brought in the plaintiff's own right to recover money, to which he is entitled, from one who has pos- session of it without right. But even if the money had been paid by the sheriff to Gillig, and the latter, under a misconception of his legal rights under the statute, had paid it over to the receiver, an action to recover it back would lie, for the general rule is subject to the limitation that money paid under a mistake of law to an officer' 440 MISTAKE OF LAW. of the court can be recovered. In Ex parte James (9 L. R. [Ch. App. Cas.] 609) Lord Justice James applied this Hmitation to a trustee in bankruptcy with the observation that the general rule "must not be pressed too far." There a creditor had received money to which he was actually entitled under an execution sale against the bankrupt. He paid this money over to the trustee under the mistaken supposition that the latter was entitled thereto as a matter of law. "I am of opinion," said Lord Justice James, "that a trustee in bankruptcy is an officer of the court. He has in- quisitorial powers given him by the court, and the court regards him as its officer, and he is to hold money in his hands upon trust for its equitable distribution among the creditors. The court then, finding that he has in his hands money which in equity belongs to some one else, ought to set an example to the world by paying it to the person really entitled to it. In my opinion the Court of Bankruptcy ought to be as honest as other people." This decision was followed in Ex parte Simmonds (L. R. [16 O. B.] 308), where Lord EsHER observed that, although the court will in general per- mit an individual litigant to do a "shabby thing," namely, to keep the money thus acquired, it will not allow its own officer to do this. "It will," said this learned judge, "direct its officer to do that which any high-minded man would do, viz., not to take advantage of the mistake of law. This rule is not confined to the Court of Bank- ruptcy. If money had by mistake of law come into the hands of an officer of a court of common law the court would order him to repay it as soon as the mistake was discovered." The doctrine of these cases commends itself to both reason and justice. In quoting with approval the expressions of these learned English judges, we mean no reflection, even indirectly, upon the receiver or his learned counsel. Indeed, the diligence and tenacity of these gentleman, in the pursuit of property for the benefit of the trust estate represented by them, are commendable. It would, however, be a reproach upon the administration of justice should the court, when the question is squarely before it, hesitate to admonish its officer to desist from further efforts to augment his trust estate at the expense of one who is clearly entitled to the money which that officer holds. We think, therefore, that the direction below was right and that the judgment appealed from should be affirmed, with costs. Williams and Patterson, JJ., concurred ; Van Brunt, P. J., and Rumsey, J., concurred in result upon second ground stated in opinion. Judgment affirmed with costs. ^ Mn Wilde v. Baker and others, 14 Allen 349 (1867), Baker, who was ap- pointed by the court to be receiver of an insolvent insurance company, levied an assessment upon the mcml)ers, which plaintiff paid to him. The assess- ment was afterward held to be invalid by Traders' Ins. Co. v. Stone, 9 Allen 483. The opinion of the court, in full, in the present case is: "Chapman, FOREIGN LAW. 44 vi. Foreign Law. HAVEN V. FOSTER. Q Pick. (Mass.) 112. — 1829. Assumpsit for money had and received and for money paid. Andrew Craigie, of Cambridge, Mass., died there intestate, being seised of real estate in Massachusetts and in New York. His heirs at law were his nephews, Andrew Foster, John Foster, and Thomas Foster — all sons of the intestate's deceased sister Mary ; and also a niece, Elizabeth Haven (wife of the plaintiff), who was the daughter of intestate's deceased sister Elizabeth. By the statute of New York the land there descended one moiety to the neice, and the other moiety to the nephews. The neice (with her husband) and the nephews sold land in New York, and the purchaser gave to the husband and the three nephews each a bond for one quarter of the purchase money, which bonds were later paid. The husband on discovering that half of the land descended to his wife, brought this action against one of the nephews to recover one-third of the fourth of the purchase money. Morton, J. — [After stating some of the facts,] By the statute of distributions of this State these heirs, standing in the same de- gree of relationship to the intestate, inherited his estate in equal proportions. But by the statute of New York, which carries the doctrine of representation farther than the law of this State, or indeed than the civil or common law, these heirs inherited per stirpes and not per capita. So that the estate in New York de- scended, one-half to the wife of the plaintiff, and the other half to the defendant and his two brothers ; being one-sixth instead of one-quarter to each. Of the provisions and even existence of this statute, all the heirs were entirely ignorant during the whole of the transactions stated in the case. The plaintiff, having dis- covered the mistake, now seeks by this action to reclaim of the defendant one-third of the amount received by him on account of the sale of the New York lands, with interest from the time of its receipt. And the question now submitted to our decision is, whether he is entitled to a repetition of the whole or any part of this amount. * * * * The principal objection to the plaintiff's recovery, and the one most relied upon by the defendant's counsel, is, that the payment J. — The money sought to be recovered in this action was paid to Baker as re- ceiver of an insolvent insurance company, appointed by this court. He and his sureties are liable, unless the money was received under such circum- stances that he is liable to repay it to those from whom he received it. But the facts show that the payments were so far voluntary that they cannot be recovered back. Benson v. Monroe, 7 Cush. 125. Judgment for the plaintifif." y 442 MISTAKE OF LAW. to the defendant was made through misapprehension of the law, and therefore that the money cannot be reclaimed. It is alleged, that to allow the plaintiff to recover in the present action, would be to disregard the common presumption of a knowl- edge of the law, and to violate the wholesome and necessary maxim I gnorantia juris quod quisque tenetur scire, ncminem excusat. This objection has been strongly urged by the defendant's counsel, and learnedly and elaborately discussed by the counsel on both sides. It is believed that all of the authorities applicable on the point, from the civil as well as the common law, have been brought before the court. Whether money paid through ignorance of the law can be re- covered back, is a question much vexed and involved in no incon- siderable perplexity. We do not court the investigation of it, and before attempting its solution, it may be well to ascertain, whether it is necessary to the decision of the case before us. That a mistake in fact is a ground of repetition, is too clear and too well settled to require argument or authority in its support. The misapprehension or ignorance of the parties to this suit re- lated to a statute of the State of New York. Is this, in the present question, to be considered fact or law? The existence of any foreign law must be proved by evidence showing what it is. And there is no legal presumption that the law of a foreign state is the same as it is here. 2 Stark. Ev. (Met- calf's ed.) 568; Male v. Roberts, 3 Esp. 163. If a foreign law is unwritten, it may be proved by parol evidence ; but if writtten, it must be proved by documentary evidence.' Kenny v. Clarkson, i Johns. 385 ; Frith v. Sprague, 14 Mass. 455 ; Consequa v. Willings, I Pet. C. C. 229. The laws of other States in the union are in these respects foreign laws. Raynham v. Canton, 3 Pick. 293. The courts of this State are not presumed to know the laws of other States or foreign nations, nor can they take judicial cogni- zance of them till they are legally proved before them. But when established by legal proof, they are to be construed by the same rules and to have the same effect upon all subjects coming within their operation, as the laws of this State. That the lex loci rci sitae must govern the descent of real estate, is a principle of our law with which every one is presumed to be acquainted. But what the lex loci is, the court can only learn from proof adduced before them. The parties knew, in fact, that the intestate died seised of estate situated in the State of New York. They must be presumed to know that the distribution of that estate must be governed by the laws of New York. But are they bound, on their peril, to know what the provisions of these laws are? If the judicial tribinials arc not presumed to know, why should private citizens be? If they arc to be made known to the court by proof, like other facts, why should not ignorance of them by private indi- viduals have the same effect upon their acts as ignorance of other FOREIGiV LAW. 443 facts? Juris ignorantia est, cum jus nostrum ignoramus, and does not extend to foreign laws or the statutes of other States. We are of opinion, that in relation to the question now before us, the statute of New York is to be considered as a fact the ignorance of which may be ground of repetition. And whether ignorantia legis furnishes a similar ground of repetition, either by the civil law, the law of England, or the law of this Commonwealth, it is not necessary for us to determine. The examination, comparison, and reconciliation of all the conflicting dicta and authorities on this much discussed question is a labor which we have neither leisure nor inclination to undertake. In the view which we have taken of this case, it appears that the defendant received a part of the consideration for which the plain- tiff's estate was sold ; that it was received by mistake ; and that this mistake was in a matter of fact. He, therefore, has in his hands money which ex aequo et bono he is bound to repay, and there is no principle of law which interposes to prevent the recovery of it out of his hands. The action for money had and received, which for its equitable properties is ever viewed with favor, is the proper remedy for its repetition. The mode in which the payment was originally secured by bond and mortgage forms no objection to the recovery, inasmuch as the money was in fact paid before the action was c"ommenced. * * Upon a view of the whole case, it is the opinion of the court, that the plaintiff recover one-third of the whole amount received by the defendant on account of the sale of lands in New York, with interest from the service of the writ.^ Johnson, J., in BANK OF CHILLICOTHE (Ohio) v. DODGE. 8 Barb. (N. Y.) 233, 237. — 1850. The paper negotiated by the defendant to the plaintiffs, upon which the money was advanced, was a time draft issued by the Farmers' Bank of Seneca County [N. Y.], an incorporated banking institution, payable three months after date, to the order of the de- fendant. The defendant's counsel, upon the trial insisted, and the judge held, that this paper was issued by the bank without authority and was void, and that no recovery could be had upon it. This posi- tion was clearly right. The statute forbids such paper to be issued, and it was utterly fraudulent and void. No person, by any act, could give validity or vitality to it as commercial paper, anywhere. And so are all the cases. Leavitt, Receiver, v. Blatchford and Others, 5 Barb. 9. Affirmed in Court of Appeals, 3 Comst. 19. So far ^ Accord, that mistake of law of another state is mistake of fact, Rosen- baum V. United States Credit System Co., 64 N. J. L. 34 (1899). 444 MISTAKE OF LAW. the judge ruled as requested by defendant's counsel. But the justice went farther, and instructed the jury that as this paper was made void by an act of our state legislature, of which the plaintiffs, being non-residents of the state, were not bound to take nor sup- posed '^o have notice, and as they had in good faith advanced to the defendant the money upon it, they were entitled to recover the money thus advanced. To this part of the charge the defendant's counsel excepted. In this I think the learned justice was entirely correct. The defendant was a resident of this state, and chargeable with a knowledge of all legislative enactments here. The law im- putes to him knowledge that this paper, negotiated by him, was utterly void and worthless — no better than mere blank paper. The money was then advanced and paid to him without consideration. It was advanced in Ohio, and the plaintiffs are a corporate body of that state. They are not presumed to have notice of our statutes. The statutes of our state are only brought to the notice of courts and citizens of that state by proof. Had it been shown that the plaintiffs, or the officers of the bank, had actual knowledge of the stat- ute in question, they might, notwithstanding their non-residence, be placed upon the footing of persons mutually dealing in illegal transactions. But there is no such question here. It is not pre- tended that officers of the bank had any knowledge in fact of our statute. The cause was evidently tried upon the assumption that the money was advanced upon the draft, in good faith, by the plaintiffs, supposing it to be good. No question of that kind was raised at the trial. The plaintiffs then stand in precisely the same situation as though the money had been paid by them under a mistake as to material facts. Ignorance of the law of a foreign government is ignorance of fact — and in this respect the statute laws of other states of this union are foreign laws. Haven v. Foster, 9 Pick. 112. Norton v. Harden, 3 Shepley 45. And this proceeds upon the principle that foreign laws are matters to be proved, like other facts, before even courts can notice them. It is an elementary principle that money paid under a mistake of material facts, where the party paying de- rives no benefit from it, may be recovered back. New trial denied. (^i CONSTRAINT BY FAULT OF DEFENDANT. (445,^ 2. CONSTRAINT, a. Constraint by Fault of Defendant. i. In General. HOGG V. LONGSTRETH. 97 Pa. St. 255.— i88i. This was an action of assumpsit by William Hogg, Jr., against John Longstreth,s^o recover the amount of certain taxes paid by the plaintiff on premises of which the plaintiff was mortgagee and the defendant was terre-tenant.\ Mr. Justice Trunkey.— Henry Myers gave to the plaintiff three mortgages, dated May 31, 1872, each being on a separate lot in Phila- delphia. Subsequently Myers conveyed the lots to Kaign, Kaign con- veyed to Taylor, and Taylor, by deed dated February 6, 1874, con- veyed to Longstreth, the defendant ; each conveyance being subject to said mortgages. In 1879 ^ scire facias was issued on each mort- gage, against Myers with notice to Longstreth, as terre-tenant, and the judgments thereon aggregated nearly $6,000. Hogg, the mort- gagee, purchased the lots at sheriff's sale, on his judgments. During the five years that Longstreth owned the lots, he neglected to pay the taxes. Judgment had been obtained for the taxes of the first three years. After his purchase at sheriff's sale, the mortgagee paid that judgment, and also the taxes for the remaining two years, the pro- ceeds of sale having been insufficient to cover them, and he claims to recover the amount of said judgment and taxes in this suit. There is no evidence that the defendant agreed to pay the mort- gage debt. Hence he was not personally liable therefor, and was un- der no obligation to the plaintiff, arising out of a contract. As against all the world, except the mortgagee, he held the lots by abso- lute title, and he could divest the mortgagee's estate by paying the debt. The mortgagee was liable to be taxed for money at interest secured by the mortgages ; the defendant, holding title under the mortgagor, was liable for the taxes on the land. Being in possession, he was not only legally liable, but had no equity for the attempt to impose payment of the taxes on another person. By force of law the taxes were a personal charge against the defendant, as well as a lien on the real estate. This lien was not only entitled to preference over other liens, but would not be discharged by a judicial sale on any other lien, unless the proceeds were sufificient to pay it. Therefore, the plaintiff had no alternative but to pay the taxes owing by the de- fendant, or lose the land. Had the taxes been prosecuted to collec- tion before the foreclosure of the mortgage, the plaintiff must have paid them, or have lost his security. A mortgagee in possession, 446 CONSTRAINT BY FAULT OF DEFENDANT, holding a living pledge, may pay the taxes on the land, and treat the sum so paid as part of his debt, which he is entitled to receive out of the profits. When the mortgagor is in possession, and neglects to pay taxes which are a lien on the land, the mortgagee may pay them not only in reliance on the personal liability of the owner, but in re- liance that the land is liable, and the lien will be deemed as trans- ferred by the state to him in favor of the mortgage debt ; Kortright V. Cady, 23 Barb. 490. Where a mortgagee is under the necessity of satisfying an execution on a prior judgment, to preserve his se- curity, he is held by right of substitution to stand in the place of the judgment creditor, and on sale of the land is entitled to receive the amount of the judgment out of the fund as well as the mortgage debt. The payment of the judgment is an act which the mortgagee was compelled to do for his own safety : Silver Lake Bank v. North, 4 Johns. Ch. 370. The principle of subrogation in such case, for purposes of lien and distribution, is familiar, and it often applies when there can be no recovery in a personal action. It is a clearly established principle that no assumpsit will be raised by the mere voluntary payment of the debt of another person ; from such act a request and promise are not implied. Another principle is, that when the plaintiff is compelled to pay the defendant's debt, in consequence of his omission so to do, the law infers that he re- quested the plaintiff to make the payment for him. As when the plaintiff, at the request of the defendant, left a carriage on the de- fendant's premises, and the carriage was distrained for rent, it was held that the plaintiff', having paid the rent, could recover it. In such case and the like, it is not permitted to the defendant to defend on the ground that the payment was voluntary. In some cases when a plaintiff has voluntarily performed a duty which the defendant was under a strict legal liability to perform, he may recover the money expended, although there had been no express consent or request by the defendant to the plaintiff's act. As when a man, in the ab- sence of the husband, incurs expense in burying the deceased wife in a manner suitable to the husband's condition. There was a strict legal liability on the defendant to pay the taxes. And it was his duty. Prompt payment of taxes is to the public ad- vantage. Attempts by him who owes and ought to pay them to evade payment, or shift the burden upon another, ought not to be encouraged. The defendant has shown nothing which in good con- science should relieve him. He wittingly became owner and held possession of the lots subject to the mortgages, and had as little right to create or suffer an encumbrance, which would take preference of the mortgage as the mortgagor would have had. had he remained owner and in possession. The mortgagee was compelled to pay the taxes in relief of the land purchased for his debt, the land not rais- ing a fund sufficient to pay both liens. We are of opinion this is a clear case for application of the principle that he who is compelled to pay another's debt, because of his omission to do so, may recover IN GENERAL. 447 on the ground that the law infers that the debtor requested such payment. The plaintiff's first point should have been affirmed. Judgment reversed, and a venire facias de novo awarded.^ NICHOLS V. D. P. BUCKNAM. 117 Mass. 488.— 1875. Contract. The first and second counts were for money paid to prevent the enforcement of a mechanic's Hen for labor on a block of houses owned by the plaintiff, which money the defendant agreed to pay. Milo Scott entered into a written contract with the plaintiff to fur- nish the labor and materials and build a block of houses on the land of the plaintiff in Somerville, for the sum of $5,450. The defendant verbally agreed with Scott to furnish material and do the plaster and brick work of the block, and thereafter actually furnished the ma- terial and performed the work. In so doing the defendant employed William E. Bucknam, his brother, with other men, to work on the block ; and William E. actually worked on said block for the de- fendant from August 5, 1870, to October, 1870, charging therefor the sum of $253.25, and agreeing not to call on the defendant for his pay till Scott had paid him. In November, 1870, William E. Buck- nam commenced proceedings to enforce his lien against said land and block of houses, and obtained a verdict in the superior court for the county of Middlesex on January 15, 1872, for the sum of $206.82, as damages, and costs taxed at $45.42, though no decree for a sale of the premises was ever entered. The defendant knew of the pro- ceedings to enforce said lien, and was present, and testified in favor of his brother at the trial. The plaintiff, on March 14, 1872, paid William E. Bucknam the amount of said verdict and costs, as above stated, to avoid further proceedings for the enforcement of said lien ; and at March term, 1872, of said court, W^illiam E. gave the plaintiff" a writing acknowledging "full satisfaction of the debt and costs of suit, and of judginent and decree therein," and the same was filed in the court on March 14, 1872, The plaintiff paid $68, as wit- ness and counsel fees in defending said lien suit, and demanded of the defendant, before service of his writ, the sum of $382.21, the amount of said verdict, costs and expenses, which the defendant re- fused to pay. The plaintiff had overpaid Scott on his contract to the amount of $264, before the commencement of the proceedings, to en- force said lien. Both plaintiff and defendant alleged exceptions. Ames, J. — It appears upon this report that the plaintiff, in order to ^Accord, Irvine v. Angus, 93 Fed. 629 (1899), where lienholder upon stock paid assessments to preserve his lien. 448 CONSTRAINT BY FAULT OF DEFENDANT. save his property from being sold on legal process, has been com- pelled to pay a debt which was really due from the defendant. Un- der such circumstances, the law implies a request on the defendant's part, and a promise to repay ; and the plaintiff has the same right of action as if he had paid the money at the defendant's express request. Exall V. Partridge, 8 T. R. 308; i Smith Lead. Cas. (5th Am. ed.) 70a, 73 ; Hale v. Huse, 10 Gray 99. But the costs incurred in defending against the claim stand on other grounds. The judge in the court below has held that they should be disallowed ; his decision in matter of fact is conclusive ; and there is nothing in the bill of exceptions to show that he erred in matter of law in so holding. * * * Overruled.^ TICONIC BANK v. DAVID SMILEY. 27 Me. 225. — 1847. Whitman, C. J. — This being an action of assumpsit, to maintain it, there must be evidence of a promise, either express or implied. It is not pretended that there was any express promise. Was there an implied one ? The defendant was the holder of a note of hand, made to him by one Romans, and lent it to Thomas Smiley, in order that he might pledge it to the plaintiffs, and thereby obtain delay of pay- ment for a debt he owed them ; and he having deposited it for that purpose before it had been indorsed by the defendant, an agent of the plaintiffs called on him to indorse it, and he thereupon put upon the back of the note, "indorser not holden, David Smiley ;" at the same time remarking, he had no doubt the note was good, and he was then aware of the object of Thomas in putting the note into the hands of the plaintiffs. It appears that, at the same time, Romans had an account with the defendant, on which there was a balance of $51.80 due from the latter, which, as the note had then been due for a long time, it would be the right of the maker to have set off, as in payment of it pro tanto, in whose ever hands it might be found ; and this right he availed himself of when sued by the plaintiffs. This balance, it is insisted, under these circumstances, that the defendant must be considered as having impliedly promised to pay to the plaintiffs. If the defendant is liable for the amount claimed upon the ground of an implied promise, it must be because he has received that amount for the plaintiffs, or because they have paid that amount for him. There is no other possible ground upon which such a promise can be raised. Now, has he received any sum of money for them? It does not appear that he had ever received any sum whatever, ex- pressly in payment of the note. When, therefore, he received the balance due on the account he could not have received it for the plain- tiffs. But, by the operation of law, the plaintiffs have been com- ' See also, Constantinidcs v. Walsh, reported herein, ante, p. 30. I IN GENERAL, 449 pelled, in effect, to pay a debt due from him. The note was trans- ferred to the plaintiffs as bcinp^ wholly due, lioth parties must so have understood it, and so in fact it was, but the maker had a balance of an account against the defendant, constituting a debt due by the lat- ter to the former. This, at the time the plaintiffs took the note, and when the defendant indorsed it, was unknown to them. If the de- fendant was aware of it, he did not acquaint them with the fact, and from his conduct we must presume it did not occur to him. The plaintiffs, not being apprised of any such claim in set-off, were en- titled to find the note free from any such claim, but by operation of law, were, nevertheless, compelled to pay a debt, which in equity and good conscience the defendant should have kept from being so claimed and paid. He therefore may be considered as having, in effect, requested, or perhaps more properly, as having compelled the plaintiffs to pay the amount claimed. The mode in which the defendant indorsed the note exonerates him, only, from being liable in the case of the avoidance or inability of the maker, and is no bar to a claim like the one here set up. Such indorsements are very common, and the extent of the meaning of them is well understood and defined. It is never understood, in such cases, if payments have been made, or if set-offs can be claimed, when the note exhibits no indication of them, and the indorser leaves the indorsee in entire ignorance of anything of the kind, that the indorser is free from responsibility. Defendant defaulted.^ SARGENT V, CURRIER. 49 N. H. 310.— 1870. Assumpsit, by Jacob Sargent against Levi Currier, for money paid, and money had and received. Writ dated May 27, 1868. Plea: The general issue and brief statement of the statute of limitations. The plaintiff claimed to recover $100 and interest from June 2, 1862. One Carter, owning a horse, mortgaged it to one Hill, and afterward sold it to defendant, September 4, 1861 ; and, in one or two months ^ In Van Santen v. Standard Oil Co., 81 N. Y. 171 (1880), "plaintiff's com- plaint alleged in substance that defendant, at the request of S., loaded a ves- sel with petroleum, and by representations that it had put on board no barrels more than it had in fact, induced the master of the vessel to give to S. a bill of lading for that amount in excess of the actual amount loaded, and S. paid defendant therefor; that S. assigned the bill of lading, and the assignees, on arrival, compelled the master to pay for the deficiency. Plaintiff claimed, as assignee of the master, to recover the amount so paid. Held, that a de- murrer to the complaint was properly overruled ; that as the payment was compulsory, caused bv the act of defendant, the law implied a promise on his part to repay it."' — Syllabus. Woodruff's Cases — 29 450 CONSTRAINT BY FAULT OF DEFENDANT. after that time, the horse passed by exchange from defendant to plaintiff, and by exchange the horse afterward passed to one Phil- brick, and from him to one Hodgdon. Hill then took the horse on his mortgage from Hodgdon, and sold the horse on the mortgage for $ioo, at an auction sale June 2, 1862; one Sawyer being the pur- chaser. Hodgdon soon afterward bought the horse of Sawyer and paid him $100. The defendant, plaintiff, Philbrick and Hodgdon were not aware of the existence of the mortgage, until Hill took the horse from Hodg- don. Upon demand made by Hodgdon, Philbrick paid him $100, and upon demand made by Philbrick, plaintiff paid him $100, plain- tiff made demand on defendant, and he refused to pay him anything. This suit was brought within six years of the sale on the mortgage, and the payment made by plaintiff to Philbrick, but m.ore than six years after the contract of exchange between plaintiff and defendant. Two questions were reserved : First, can assumpsit for money paid, or had and received, be maintained? Secondly, is plaintiff's claim barred by the statute of limitations ? Smith, J. — When the defendant exchanged horses with the plain- tiff, he impliedly warranted the title to the horse given by him in exchange, and the defendant thereby became answerable to the plain- tiff, in case the title proved defective, whether the defendant knew the defect of his title or not : i Par. on Con. 4th Ed. 457-8 ; 2 Kent's Com. 478. This implied warranty is not confined to the vender's right to sell, but is, in substance, a warranty that his title is perfect, and free from all liens and incvimbrances. See Dresser v. Ainsworth, 9 Barbour 619. The plaintiff, having paid Philbrick, who paid Hodgdon, who paid the amount requisite to relieve the property from the mortgage, is entitled, as against the defendant, to be regarded as having himself discharged the incumbrance. The property could not have been relieved from the mortgage without the payment ; the pay- ment, therefore, was not voluntary, but compulsory. See Grose, J., in Exall v. Partridge, 8 Term 308, p. 311 ; Wilde, J., in Gleason v. Dyke, 22 Pick. 390, p. 393-4. The plaintiff has been compelled to pay money, which the defendant ought to have paid ; and which, as be- tween plaintiff and defendant, the defendant was primarily liable to pay. A request may be implied, "if money be paid by a person in consequence of a legal liability to which he is subject, but from which a third person ought to have relieved him by himself paying the amount ;" i Ch. PI. 13th Am. Ed. 350, 351 ; 2 Green. Ev., § 114. It is upon the ground of an implied request that sureties are allowed to maintain a count for money paid against their principals. Hunt v. Amidon. 4 Hill (N. Y.) 345, is an authority to the point, that the vendor of incumbered property is liable, in a count for money paid to the purchaser, who is compelled to discharge the incumbrance in order to retain the propcrtv. See, also, Ticonic P>ank v. Smiley, 27 Mc. 225; Exall V. Partridge, 8 Term 308; AlcTntyre v. Ward, 18 Vt. 434; Kearney v. Tanner, 17 Serg. 8z Rawle 94: Francisco v. Wright, 2 Gilman (111.) 69T, may, perha]>6, be regarded as an au- CONTRIBUTION. 45 1 thority favorable to the defendant. Our conclusion is that the plaiu- tifif may maintain the count for money paid ; and that the statute of limitations is not a bar, because the cause of action did not accrue till the money was paid. It is unnecessary to consider whether the other count can be maintained. Case discharged. ii. Contribution. I. CONTRACTORS. CHIPMAN V. MORRILL & WEBSTER. 20 CaL. 131. — 1862. Field, C. J., delivered the opinion of the court. Norton, J., con- curring. — The property of the plaintiff was sold under execution to satisfy a judgment recovered against the plaintiff and the defendants, and this action is brought to enforce payment from the defendants of their proportionate charge. The questions for determination arise upon the pleadings. The papers read on the motion for a new trial we cannot look into, as there is no appeal from the order denying the motion. The complaint sets forth that in December, 1853, the plain- tiff and the defendants purchased certain real estate situated in Ala- meda county, and gave to the vendor, in part payment for the same, their joint promissory note for $11,666, secured by a mortgage upon the property ; that the plaintiff by the purchase became the owner of one undivided half of the premises, and each of the defendants be- came the owner of one undivided fourth ; that the note was not paid, and that suit was commenced for the foreclosure of the mortgage, in which judgment was recovered against the plaintiff and the defend- ants for $11,666, and a decree entered directing the sale of the prem- ises for the satisfaction of the judgment ; that under the decree the mortgaged premises were sold, and after the application of the pro- ceeds to the payment of the amount due upon the judgment, there remained a deficiency of $8,040 ; that, for this deficiency, and the percentage, interest and costs an execution was issued on the ist of July, 1856, and under it, on the 30th of the same month, prop- erty of the plaintiff was sold for the svmi of $12,000, and the amount applied to the satisfaction of the deficiency and interest, percentage and costs ; that the deficiency was due from the plaintiff and de- fendants in the same proportions between themselves, as they were the purchasers and owners of the premises ; that is, one-half from the plaintiff, and one-fourth from each of the defendants ; but as the whole amount was paid by the plaintiff, the defendants are bound to make contribution to him in proportion to their interests. Then fol- lows a prayer for judgment that each defendant be required to pay 452 CONSTRAINT BY FAULT OF DEFENDANT. the plaintiff the sum of $3,000, with interest from July 30, 1856, and for such other and further relief as to equity shall seem meet. To this complaint, the defendant, Webster, demurred on various grounds, and among others, on the ground that there was a mis- joinder of parties, because the cause of action was several against each of the defendants, and on the ground that it appeared that more than two years had elapsed from the time the cause of action accrued before the suit was commenced. The court sustained a demurrer, and the plaintiff declining to amend his complaint, final judgment was entered thereon. The defendant, Morrill, answered, denying, to use the language of his answer, "the greater part of the allegations of the complaint," without saying what those allegations were, and set- ting up, or rather attempting to do so, the statute of limitations and a discharge under the insolvent lav/ of the state. The plaintiff, instead of demurring to the defective answer, filed a replication to it, denying the bar of the statute and the discharge in insolvency. The case was then submitted upon the pleadings. Upon them the court gave judg- ment for the defendant. It is from these two judgments, one in favor of the defendant, Webster, on the demurrer, and the other in favor of the defendant, Morrill, on the pleadings, that the appeal is taken. The appellant, in his argument of the appeal, takes two positions : First, that the action is one in equity to enforce a contribution from two or three obligors, to which the statute does not create a bar until after the lapse of four years (Act of April 22, 1850, defining the time for commencing civil actions, § 19) ; and second, that if the ac- tion be regarded as depending upon contract, that such contract is founded upon an instrument in writing, and to the action the statute, in consequence, fixes a like limitation of four years. I. In support of the first position, the appellant cites various au- thorities upon the doctrine of contributions as between co-sureties, to the effect that such doctrine depends more upon a principle of equity than upon contract. Such is undoubtedly the case as between co-sureties, and the principle is, that where there is a common liabil- ity, equality of burthen is equity. Courts of equity, therefore, natu- rally took jurisdiction of cases of contribution where one surety had paid more than his just proportion. But the equitable doctrine, in progress of time, became so well established that parties were pre- sumed to enter into contracts of suretyship upon its knowledge ; and consequently, upon a mutual understanding that if the principal failed, each would be bound to share with the others a proportionate loss. Courts of common law thereupon assumed jurisdiction to en- force contribution between the sureties, proceeding on the principle that from their joint undertaking there was an implied promise on the part of each surety to contribute his share, if necessary, to make up the common loss. Craythorne v. Swinburne, 14 Vcs. 164; Sans- dale's Administrators and Heirs v. Cox, 7 Mon. 403 ; Campbell v. Mesier, 4 Johns. Ch. 339 ; 8 Am. Dec. 570 ; i Madd. 236 ; Fletcher V. Grovcr, ii N. H. 369; 28 Am. Dec. 359. This jurisdiction of the common-law courts did not, however, impair the concurrent jurisdic- CONTRIBUTION. 453 tion of equity. Indeed, in many cases, especially where the sureties were numerous, and some of them insolvent, or where some of the sureties had died, courts of equity were alone adequate to afford a complete remedy. Wright v. Hunter, 5 Ves. 194; Wayland v. Tucker, 4 Gratt. 268 ; 50 Am. Dec. y^ ; Couch v. Terry's Adm'rs, 12 Ala. 228. It is also true that the doctrine of contribution applies equally be- tween those who are original co-contractors ; that is, between those who are jointly bound on their own account (not being co-partners), as it does between those who are co-sureties; that is, jointly bound to answer for the debt or default of another. Thus, if a note were given for the cost of a partition wall by the owners of the adjoining premises, between which the wall was constructed, and one of the parties should pay the entire amount of the note, or more than his proportionate part, he could claim a contribution from the other. Campbell v. Mesier, 4 Johns. Ch. 335. But the present case is not one for contribution between parties who have sustained a common loss upon a common liability. The note of the plaintiff and defendants, upon which the judgment was rendered, was given upon the purchase of real estate in which the parties took separate and distinct interests — the plaintiff one undi- vided half, and each of the defendants one undivided fourth, and be- tween themselves the obligation of each was to pay for his respective interest. In giving their joint note for the whole amount of the purchase money, each party was principal for the amount of his own interest, and co-surety for the remaining interests. Thus, the plaintiff was principal for one-half of the purchase money and co-surety with Webster for one-fourth of the same for Morrill, and co-surety with Morrill for one-fourth for Webster. Goodall V. Wentworth, 20 Me. 322. When, therefore, the plaintiff paid the entire amount of the judgment recovered upon the note — or what is the same thing, when the proceeds of the property of the plaintiff sold under execution were applied to such payment — he became entitled to maintain an action against the defendants for moneys paid on their account. The demands which he could then assert were several in their character. They were demands not for contribution, but for reimbursement of moneys paid. The action should, therefore, have been against the defendants separately, upon the assumpsit, which the law implies, where a surety is compelled to advance money for his principal. Parker v. Ellis, 2 Sandf. 223 ; Odlin V. Greenleaf, 3 N. H. 270; Murice v. Hefferman, 13 Johns. 59; Lapham v. Barnes, 2 Vt. 213; Frazier v. Goode, 3 Rich. 199; Babcock v. Hubbard, 2 Conn. 536; Ward v. Henry, 5 Conn. 596; 13 Am. Dec. 1 19. Judgment affirmed. 454 CONSTRAINT BY FAULT OF DEFENDANT. GOLSEN V. BRAND. 75 III. 148.— 1874. Mr. Justice Sheldon. — This was an action of assumpsit, brought by Brand against Golsen, for contribution. Otto Hartung and Ida Hartung, his wife, made their promissory note, bearing date Febru- ary I, 1873, payable six months after date, with ten per cent, inter- est, to Jacob Keller. Before the delivery of the note to Keller, Gol- sen and Brand, at the instance of the maker, Hartung, and on require- ment of the payee, wrote their names in blank upon the back of the note, Golsen writing his first ; and on the 26th day of July, 1873, Otto Hartung, having previously gone into bankruptcy. Brand paid the note to Keller, and afterward brought this action against Golsen, to recover one-half of the amount so paid. He recovered in the court below, and Golsen appealed. The obligation which Golsen and Brand assumed by writing their names upon the back of the note, was, under the decisions in this state, that of guarantors. No question is made in this respect, but, inasmuch as the proof shows that Golsen and Brand made the in- dorsements of their names at different times, not in the presence of each other, and without any agreement or concert between themselves in the matter, it is claimed by appellant that the parties entered into the guarantees they made, severally, and that there is no liability to contribution ; that to enforce contribution, the parties must have been joint guarantors. Such a claim is without any legal support. It was enough that the parties were co-guarantors; they were not required to be otherwise joint guarantors. The right to contribution does not arise out of any contract or agreement between co-sureties to indemnify each other, but on the principle of equity, which courts of law enforce, that where two persons are subject to a common burden, it shall be borne equally between them. It is well settled that different sureties occupy toward each other the relation of co- sureties, and that contribution may be enforced between them, al- though they may have become bound jointly, or severally, by differ- ent instruments, at different times, and without the knowledge of each other, provided that the obligations into which they enter are for the same engagement and for the same principal, and it does not appear that one obligation was intended to be secondary or collateral to the others. It is sufficient for the right to claim contribution, that it appears that the parties were under obligation to pay the same debt as sureties for a third person. These principles find support in the following, among other authorities: Norton v. Coons, 3 Denio, 132; Armitage v. Pulvcr, 37 N. Y. 494; Warren v. Morrison, 3 Allen 567: Dcring v. Earl of Winchelsea, i Lead. Cas. Eq. 131; s. c. I Cox's Cases 318; s. c. 2 B. & P. 270; Burge on Suretyship 384-5; Breckenridge v. Taylor, 5 Dana 112; i Story's Eq. Ju., sec. CONTRIBUTION^, 455 495-^ We apprehend it is not to be denied that the same rules of contribution govern between guarantors as between sureties. Appellant's counsel, in support of their view, cite 2 Pars, on Notes and Bills 140, where it is said : "A guarantor is not liable for con- tribution to a maker, or any other party on a note or bill, or to any person except one who is a joint guarantor wdth himself." But by "joint guarantor" the author unquestionably meant no more than co-guarantor. The author's text refers only to Langley v. Griggs, 10 Pick. 121, and nothing in that decision justified the use of the word *'joint" in the sense which is here claimed by appellant. The same may be said in reference to the other citation, that "the undertaking which is to serve as the foundation of a claim for contribution must be joint, and not separate and successive." i Pars, on Contracts 35. In neither citation does there appear any intention to draw a dis- tinction in the case of co-guarantors, or co-sureties, between whether they are bound jointly or severally, and to hold that the right of contribution exists only in the former and not in the latter case. They afford no countenance to such a doctrine. * * * * It is lastly objected that Brand paid the note before it was due, on the 26th of Jul^', when it was not due until August i ; that there was no present legal liability to pay the note at the time when it was paid, and so no implied request to pay it. But there was evi- dence in the case, from which the jury might have been warranted in finding an express request by Golsen to Brand to pay the note at the time he did. Besides, it has been held that payment in such a case, before maturity, is not necessarily voluntary, and that event- ual liability is equivalent to a precedent request. Craig v. Craig, 5 Rawle, 98. We perceive no ground for reversing the judgment, and it will be affirmed. Judgment affirmed. NORRIS V. CHURCHILL. 20 Ind. App. 668. — 1898. Action by William Churchill against Benjamin F. Norris, From a judgment for plaintiff, defendant appeals. Affirmed. Black, J. — The appellee sued the appellant for contribution. They, with three others, jointly purchased a horse, each of the five purchasers paying one-sixth part of the price. The remaining one- sixth part of the purchase money they borrowed from a bank upon their joint promissory note payable at said bank upon demand. The appellant, without the knowledge or consent of the appellee, paid to the bank the one-fifth part of the amount of the note in cash. ^Accord, Harris v. Ferguson, 2 Bailey (S. C.) 397 (1831). 456 CONSTRAINT BY FAULT OF DEFENDANT. The other makers thereof, on the same day, gave their joint prom- issory note, negotiable by the law merchant, to the bank for the balance, being four-fifths of the amount of the debt, the appellant not joining with the other makers in the execution of the latter note. Prior to the appellant's said payment of a part of the debt, two of the makers of the original note, Joseph T. Johnson and Owen Kincaid, had become insolvent, and they so continued thereafter. When the second note became due the makers thereof renewed it, and upon this third note the bank sued and recovered judgment thereon against the makers thereof. The appellee paid the judg- ment by giving his note, negotiable by the law merchant, to the bank, and the bank assigned the judgment to the appellee. The appellee thus paid all the original debt except the one-fifth part thereof so paid by the appellant. The five makers of the original note owned equal interests in the horse. When the makers of the original note borrowed the money for which it was given, they agreed between themselves that each should pay one-fifth of the amount borrowed. The questions saved and presented in this court may be disposed of by deciding whether, upon such a state of facts, the appellee was entitled to contribution from the appellant. It is contended, in effect, that as the appellant paid in cash his agreed share of the original note, and as the balance thereof was paid to the bank by the promissory note, negotiable by the law merchant, of the other makers of the original note, the appellee could not acquire the right to contribution from the appellant by the appellee's final compulsory payment of the balance of the debt represented by the renewed promissory note negotiable by the law merchant, given by the makers of the original note other than the appellant. Each of the makers of the joint obliga- tion was principal as to his part, and co-surety for the others as to their respective parts. Goodall v. Wentworth, 20 Me, 322 ; Bragg V. Patterson, 85 Ala. 233, 4 South. 716. The right to con- tribution originated in equity, and is based upon natural justice. It applies to any relation, including that of joint contractors, where equity between the parties is equality of burden, and one of them discharges more than his share of the common obligation. Bragg V. Patterson, supra; Aspinwall v. Sacchi, 57 N. Y, 331; Sexton v. Sexton, 35 Ind. 88. Where a number of persons borrowed a sum jointly, but received different portions for their several uses, and one of the borrowers became insolvent, it was held that the others should contribute to pay his share in proportion to the amount re- ceived by each. Kincaid v. Hocker, 7 J. J. Marsh. 333. In the case at bar the makers of the original joint note derived benefit equally from the proceeds of that note. When there is an entire debt owed equally by several, the solvent debtors must share equally in any burden thrown upon them by the insolvency of a part of their ntmibcr. North v. Pjracc, 30 Conn. 60, 72. Sureties who are in- solvent arc to be excluded in determining the proportions. See New- CONTRIBUTION. 457 ton V. Pence, lo Ind. App. 672, 38 N. E. 484 ; Michael v. Allbright, 126 Ind. 172, 25 N. E. 902. The agreement between the joint makers of the note that, as between themselves, they were to be bound to discharge the common obligation to the payee equally, each paying his equal share, would not relieve any one of them who had paid his ratable share from the equitable obligation to contribute to another of the joint makers who was compelled to pay more than his ratable share. Such a contract or understanding between the joint makers would not create a relation between them different from that which would exist by law by reason of the makers being bound by a common obligation ; for, in such a case, there is an implied contract that each will pay and discharge the common obligation equally. The obligation to make contribution is based upon an implied contract which exists from the date of the creation of the relation between the parties. The right is inchoate from that date. It becomes complete upon payment, but it relates back to the time the relation commenced out of which the right springs. Nally v. Long, 56 Aid. 567 ; Bragg v. Patterson, supra; Sexton v. Sexton, supra. It is no defense to an action for contribution that the defendant has been released by the original creditor. Clapp v. Rice, 15 Gray, 557. The appellant had not performed his implied contract arising at the original creation of the joint debt. The suit for contribution was not based upon any note or judgment, but was founded upon that implied contract. Equity looks through mere forms to find the natural justice of the whole transaction. Two of the five original joint debtors being insolvent, and the appellee having been compelled to pay, in addi- tion to his own share, the shares of these two insolvents, equity, which is equality, demanded that the debtors who were not insol- vent should equally bear the burden of the shares of the insolvents so paid ; that the appellant should reimburse the appellee to the extent of one-third of the amount which the latter had thus been compelled to pay in excess of his ratable share of the joint debt. Counsel for appellee have suggested that no question as to the amount of the recovery was saved by the motion for a new trial, wherein it was assigned as cause that "the damages assessed by the court are excessive." which is the fourth statutory cause, and can be properly assigned only in cases of tort. This suggestion is sup- ported by decisions. Railroad Co. v. Acres, 108 Ind. 548, 9 N. E. 453; Thomas v. Merry, 113 Ind. 83, 91, 15 N. E. 244; Western Assur. Co. V. Studebaker Bros. Mfg. Co., 124 Ind. 176, 182, 23 N. E. 1 138. The judgment is affirmed. Henley, C. J., took no part in the consideration or decision of this cause. CONSTRAINT BY FAULT OF DEFENDANT. DEDMAN V. WILLIAMS. 2 III. 154.— 1834. Lock WOOD, J. — This was an action brought before a justice of the peace, by Williams against Dedman, for money paid by Wil- liams for the use of Dedman. On the trial before the justice, a judgment was rendered in favor of Williams for $72,371/2. The cause was brought by appeal into the Circuit Court of Hancock County, where it was tried before a jury, and judgment for $76.38 recovered. On the trial in the Circuit Court, the plaintiff below proved in substance, that one Whitney and others purchased a number of cattle at an administrator's sale, for which they gave their notes to the administrator. That afterwards the plaintiff and defendant, with another person, purchased half of said lot of cattle of Whitney and others, paying them $30 for their bargain, and agreed to give their note in lieu of said Whitney's note to said ad- ministrator, he agreeing to accept plaintiff's and defendant's note with security, for one half of the amount of Whitney's note, which had been given for the original purchase money. That after the purchase made by plaintiff and defendant, and the agreement of the administrator to take plaintiff's and defendant's note for half of the purchase money as aforesaid, plaintiff and defendant took pos- session of the half of said lot of cattle as their joint property. It was also proved that plaintiff and defendant were to execute their note to said administrator, at some convenient time. That shortly after these contracts, Dedman started with the cattle to Galena, to sell them on the joint account of plaintiff and defendant ; that during the absence of Dedman, Williams gave his note with security to said administrator, for the price of said cattle, so purchased of said Whitney. And the said Whitney, upon the surrender of the original note, executed his note to said administrator for the other half of the original purchase money for the cattle bought at said administrator's sale. That when Dedman returned from Galena, he divided with Williams the proceeds of the sale of the cattle. The administrator testified that he held and considered Dedman liable to him on the promise to give his note, and that he had not released him. On this state of the case, Williams brought his suit against Dedman, to recover one-half of the amount for which plain- tiff and defendant had agreed to give their joint note with security to said administrator. Some irrelevant testimony was also pro- duced, which it is not necessary to notice. After the plaintiff, Wil- liams, had concluded the testimony as above detailed, Dedman's counsel moved the court to instruct the jury to find for the defend- ant, as in case of a non-suit, which motion, after argument, was over- ruled by the court. After this motion was overruled, testimony was introduced by defendant, and other instructions were asked ; but from the view taken of the cases it will be unnecessary to notice '^Er COXTRIliUTION. 459 any other point except the question whether the Court ought to have instructed the jtu-y that the ])laintift' was not entitled to recover upon the evidence that he had adchiced. What was the character of the contract between the plaintiff and defendant ? They purchased of Whitney a lot of cattle, and paid him $30 down, and for the remainder of the purchase money agreed to give their joint note to an administrator at whose sale Whitney had purchased the same cattle. When the note was to be made payable does not appear from the testimony. It is, however, a fair presumption that some time was to intervene before it became due. Can, then, one of two joint purchasers of property on a credit, be- fore the time of credit has expired, by giving his individual note for the purchase money, immediately sue his co-purchaser for his proportion of the joint debt? We think not. The rule of law is well settled, that one man cannot make himself, by his own voluntary act, the creditor of another. The relation that existed between Williams and Dedman, by the purchase of the cattle, was that of joint own- ers or partners, not that of debtor and creditor to each other. Both were bound, when the time of payment arrived, to make payment either to Whitney or to the administrator ; and neither could, by any act of his own, coerce payment from the other until the time of payment for the cattle had arrived. Nor would it vary the result of the case if the time of payment for the cattle had elapsed when this suit was brought. The giving of the note by Williams for the property purchased for the joint use of himself and Dedman, was no payment so far as Dedman was concerned. Dedman was cer- tainly bound to pay his moiety for these cattle, either to Whitney or to the administrator of whom Whitney purchased. If his prom- ise to give his note to the administrator should be void under the statute of frauds, upon which point it is unnecessary to give an opinion, he would still be bound to pay Whitney, of whom he and Williams made the purchase. As we, however, consider the law well settled, that one co-partner or co-purchaser can in no case recover, in an action for money paid, against his co-partner or co- purchaser, vmtil the money has actually been paid, nor then until the time of payment has arrived, we are of opinion that the instruc- tion ought to have been given. Had the instruction been given, the plaintiff would doubtless have submitted to a non-suit. This court, therefore, reverses the judgment below, and renders such judgment as ought to have been rendered, to wit, a judgment as in case of non-suit with costs. Judgment reversed, and judgment of non-suit rendered.^ ^ In Witherby v. Mann, 11 Johns. 518 (1814), the court says (p. 520) : "The mere giving a bond for the debt of another is no payment ; and an action for money paid, laid out and expended for the use of the person for whose debt the obligation is j^iven, will not lie. The money must actually be ad- vanced to sustain the action. (Cummings v. Hackley. 8 Johns. Rep. 202.) But this principle has not been extended to all kinds of securities thus given. There are cases in which negotiable paper has been held equivalent to the 460 CONSTRAINT BY FAULT OF DEFENDANT. CRAIG V. CRAIG. 5 Rawle (Pa.) 91.— 1835. Indebitatus assumpsit, brought by Charles against Thomas Craig, to recover one-half of two bonds, each in the sum of three hundred dollars, in which they were jointly bound to their father, General Craig ; the whole of which Charles alleged that he had paid. The declaration contains counts for money paid, laid out and ex- pended ; for money lent and advanced ; and for money had and re- ceived. The plea was non assumpsit. The defendant's counsel requested the answer of the court to the following points, in their charge to the jury. * * * * 2. If the plaintifif voluntarily paid more than his portion of the bonds before they fell due, is he entitled to recover in this ac- tion p * * ^ ^ Answer to the second point. If the plaintiff, being one of the co-obligors, did pay the money to General Craig before the bond became due, he is entitled to recover of the defendant his share of the money after the time mentioned for the payment of the bonds has expired, and not before. * * * * To which opinion of the court the defendant, by his counsel, ex- cepted. * * * * Gibson, C. J. — * * * * The exceptions to the charge are not sustained. Proof of payment in money is not absolutely indispens- able to a count for money expended to the defendant's use ; though it must be admitted that the only exception recognized in the books, is the case of payment in negotiable paper. But the direction on this head was in substantial accordance with the prayer. As to the position taken, that payment before the bonds fell due would be essentially voluntary, it is proper to remark, that the principle was ruled differently in Armstrong v. Gilchrist, 2 Johns. Ca. 429, where it was held that a guarantee of a note who had compromised and paid it for his own indemnity before it had become due, was entitled to recover. That a surety is to wait until payment is extorted from him is not pretended ; but it is said that payment before maturity is necessarily voluntary, and that eventual liability is not equivalent to a precedent request. There is no authority for that, and it seems not to be defensible on principle. Why may not a surety take meas- payment of money, to -which it is in some measure analogous, as when the note has been negotiated and is in the hands of an innocent endorsee. He, of course, would be protected; and, unless it was considered as a payment of the original debt, the drawer might be made to pay twice. So when the note has been accepted and paid in satisfaction of the debt. The note, in this case, has not been negotiated, but has been accepted and received by the party in whose favor the judgment was obtained, in satisfaction of the debt, which is sufficient to authorize this recovery. The decisions cited against this apply only to cases where the note or bill has not been accepted in satisfaction for the debt," CONTRIBUTION. 461 ures of precaution against loss from a change in the circumstances of his principal, and accept terms of compromise before the day which may not be obtainable after it. He may ultimately have to bear the burthen of the debt, and may therefore provide for the contingency by reducing the weight of it. Nor is he bound to sub- ject himself to the risk of an action by waiting till the creditor has a cause of action. He may, in short, consult his own safety and resort to any measure calculated to assure him of it which does not involve a wanton sacrifice of the interest of his principal. If then, General Craig delivered these bonds on a promise of payment, abso- lute or conditional, there cannot be a doubt that actual payment in pursuance of it would entitle the plaintiff to contribution. All that can be said is that it could not have been enforced before the bonds were due. * * * 2. TORTFEASORS. MERRYWEATHER v. NIXAN. 8 T. R. (K. B.) 186.— 1799. One Starkey brought an action on the case against the present plaintiff and defendant for an injury done by them to his reversion- ary estate in a mill, in which was included a count in trover for the machinery belonging to the mill ; and having recovered £840 he levied the whole on the present plaintiff, who thereupon brought this action against the defendant for a contribution of a moiety, as for so much money paid to his use. At the trial before Mr. Baron Thomson at the last York assizes the plaintiif was non-suited, the learned judge being of opinion that no contribution could by law be claimed as between joint wrong- doers ; and consequently this action upon an implied assumpsit could not be maintained on the mere ground that the plaintiff had alone paid the money which had been recovered against him and the other defendant in that action. Chambre now moved to set aside the non-suit ; contending that, as the former plaintiif had recovered against both these parties, both of them ought to contribute to pay the damages. But Lord Kenyon. C. J., said there could be no doubt but that the non-suit was proper ; that he had never before heard of such an action having been brought where the former recovery was for a tort. That the distinction was clear between this case and that of a joint judgment against several defendants in an action of assump- sit. And that this decision would not affect cases of indemnity, where one man employed another to do acts, not unlawful in them- selyes, for the purpose of asserting a right. Rule refused. 462 CONSTRAINT BY FAULT OF DEFENDANT. The case of Philips v. Biggs, Hardres, 164, was mentioned by Law, for the defendant, as the only case to be found in the books in which the point had been raised ; but it did not appear what was ultimately done upon it. ARMSTRONG COUNTY v. CLARION COUNTY. 66 Pa. St. 218.— 1870. Read, J. — The bridge across Red Bank creek, between the coun- ties of Armstrong and Clarion, at the place known as the Rockport Mills, was a county bridge, maintained and kept in repair at the joint and equal charge of both counties. Whilst John A. Hum- phreys was crossing the bridge it fell, and he was severely injured; he brought suit for damages against the county of Armstrong ; and on the trial, under the charge of the court, there was a verdict for defendant. This was reversed on writ of error (6 P. F. Smith 204), and upon a second trial there was a verdict for the plaintiff for $1,100 damages, on which judgment was entered. This judg- ment with interest and costs, was paid by Armstrong county, and the present suit is to recover contribution from Clarion county. On the trial the learned judge non-suited the plaintiff on the ground that one of two joint wrongdoers cannot have contribution from the other. The commissioners of the two counties had examined the bridge in the summer and ordered some repairs, which were made. There can be little doubt that morally Clarion county was bound to pay one-half of the sum recovered from and paid by Armstrong county ; and the question is, does not the law make the moral obligation a legal one? Merry weather v. Nixan, 8 T. R. 186, the leading case on the subject, was of a joint injury to real estate, and for the joint conversion of personal property, being machinery in a mill. In Col- burn V. Patmore, i Cr. M. & R. 73, the proprietor of a newspaper, who, for a libel published in it, was subjected to a criminal informa- tion, convicted and fined, sought to recover from his editor, who was the author of the libel, the expenses which he had incurred by his misfeasance ; Lord Lyndhurst said : 'T know of no case in which a person who has committed an act declared by the law to be crim- inal, has been permitted to recover compensation against a person who has acted jointly with him in the commission of the crime." So in Arnold v. Clifford, 2 Sumner, 238, it was held, a promise to indemnify the publisher of a libel is void. "No one," said Judge Story, "ever imagined that a promise to pay for the poisoning of another was capable of being enforced in a court of justice." In Mil- ler V. Fcnton, it I'aige t8, the wrongdoers were two of the officers of a bank, who had fraudulently abstracted its funds, and of course there could be no contribution between criminals. In the case of The Attorney-General v. Wilson, 4 Jurist 1174, cited in the above CONTIU BUTTON. 463 case by the chancellor, and also reported in i Craig & Phillips i, where it was contended that all the persons charged with the breach of trust should be made parties, Lord Cotteniiam said: "In cases of this kind where the liability arises from the wrongful act of the parties, each is liable for all the consequences, and there is no con- tribution between them, and each case is distinct, depending upon the evidence against each party. It is, therefore, not necessary to make all parties who may more or less have joined in the act com- plained of." Seddon v. Connell, 10 Sim. 81, is to the same efifect. In Story on Partnership, i< 220, after speaking of the general rule that there is no contribution between joint wrongdoers, the author says : "But the rule is to be understood according to its true sense and meaning, which is, where the tort is a known medi- tated wrong, and not where the party is acting under the suppo- sition of the entire innocence and propriety of the act, and the tort is merely one by construction, or inference of law. In the latter case, although not in the former, there may be and properly is a contribution allowed by law for such payments and expenses between constructive wrongdoers, whether partners or not." The case of Adamson v. Jarvis, cited by the learned commentators, is in 4 Bing. 66, in which Lord Chief Justice Best, after noticing Merryweather V. Nixan, says : "The case of Philips v. Biggs," Hardres, 164, (which was on the equity side of the Exchequer), "was never de- cided ; but the court of chancery seemed to consider the case of two sheriffs of Middlesex, where one had paid the damages in an action for an escape, and sued the other for contribution, as like the case of two joint obligors. From the inclination of the court in this last case, and from the concluding part of Lord Kenyon's judgment in Merryweather v. Nixan, and from reason, justice, and sound policy, the rule that wrongdoers cannot have redress or contribution against each other is confined to cases where the person seeking redress must be presumed to have known he was doing an unlawful act." In Betts v. Gibbins, 2 A. & E. 57, Lord Denman said : "The case of Merryweather v. Nixan, 8 T. R. 186, seems to me to have been strained beyond what the decision will bear — the present case is an exception to the general rule. The general rule is, that between wrongdoers there is neither indemnity nor contribution. The ex- ception is where the act is not clearly illegal in itself, and Merry- weather v. Nixan was only a refusal of a rule nisi. In Adamson v. Jarvis, 4 Bing. 66, we have the observations of a learned person familiar with commercial law." A promise to indemnify against an act not known to the promisee at the time to be unlawful is valid. Coventry v. Barton, 17 Johns. 142; Stone V. Hooker, 9 Cow. 154. In Pearson v. Skelton, i M. & W. 504, where one stage-coach pro- prietor had been sued for the negligence of a driver, and damages had been recovered against him, which he had paid, and he sought contribution from another of the proprietors, it was held that the rule there, no contribution between joint tort-feasors, does not apply CONSTRAINT BY FAULT OF DEFENDANT. to a case where the party seeking contribution was a tort-feasor only by inference of law, but is confined to cases where it must be pre- sumed that the party knew he was committing- an unlawful act. The same doctrine was maintained in Wooley v. Batte, 2 C. & P. 417- These cases have been followed in this court in Horbach's Admin- istrators V. Elder, 6 Harris 33. "Here," said Judge Coulter, "the plaintiff and defendant are in aequali jure. The plaintiff has ex- clusively borne the burden which ought to have been shared by the defendant, who therefore ought to contribute his share." "Contribution," says Lord Chief Baron Eyre, in Deering v. Earl of Winchelsea, i Cox 318, "is bottomed and fixed on general prin- ciples of natural justice, and does not spring from contract." These principles rule the case before us. The parties plaintiff and defendant are two municipal corporations, jointly bound to keep this bridge in repair. These bodies can act only by their legally constituted agents, their commissioners, who examine the structure and order repair, which is done. They erred in judgment, and both were liable for the conseqences of that error, and one hav- ing paid the whole of the damages is entitled to contribution from the other. Judgment reversed, and venire de novo awarded. UNION STOCK YARDS CO. OF OMAHA v. CHICAGO, BURLINGTON & QUINCY R. R. 25 Supreme Court Reporter (U. S.) 226. — 1905. On a certificate from the U. S. Circuit Court of Appeals for the Eighth Circuit. Upon this certificate the circuit court of appeals propounds the following question : "Is a railroad company which delivers a car in bad order to a terminal company, that is under contract to deliver it to its ultimate destination on its premises for a fixed compensation, to be paid to it by the railroad company, liable to the terminal company for the damages which the latter has been compelled to pay to one of its employes on account of injuries he sustained while in the customary discharge of his duty of operating the car, by reason of the defect in it, in a case in which the defect is discoverable upon reasonable inspection ?" Mr. Justice Day. — We take it that this inquiry must be read in the light of the statement accompanying it. While instruction is asked broadly as to the liability of the railroad company to the terminal company, for damages which the latter has been compelled to pay to one of its own employes on account of injuries sustained, CONTRinUTION. 465 it is doubtless meant to limit the in(|uiry to cases wherein such re- covery was had because of the established negligence of the terminal company in the performance of the specific duty stated, and which it owed to the employe. For it must be taken as settled that the terminal company was guilty of negligence after it received the car in question, in failing to perform the duty of inspection required of it as to its own employe. The case referred to in the certificate (Union Stock Yards Co. v. Goodwin, 57 Neb. 138, 'jy N. W. 357) is a final adjudication between the terminal company and the em- ploye, and it therein appears that the liability of the company was based upon the defective character of the brake, which defect a reasonably careful inspection by a competent inspector would have revealed, and it was held that in permitting the employe to use the car without discovering the defect the company was rendered liable to him for the damages sustained. We have, therefore, a case in which the question of the plaintiff's negligence has been established by a competent tribunal, and the inquiry here is, may the terminal company recover contribution, or, more strictly speaking, indemnity, from the railroad company because of the damages which it has been compelled to pay under the circumstances stated? Nor is the question to be complicated by. a decision of the liability of the railroad company to the employe of the terminal company, had the latter seen fit to bring the action against the railroad com- pany alone, or against both companies jointly. There seems to be a diversity of holding upon the subject of the railroad company's liability under such circumstances, in courts of high authority. In Moon v. Northern P. R. Co., 46 Minn. 106, 24 Am. St. Rep. 194, 48 N. W. 679, and Pennsylvania R. Co. v. Snyder, 55 Ohio St. 342, 60 Am. St. Rep. 700, 45 N. E. 559, it was held that a railroad company was liable to an employe of the receiving company who had been injured on the defective car while in the employ of the latter company wdien, under a traffic arrangement between the companies, the delivering company had undertaken to inspect the cars upon de- livery, and, as in the Moon Case, where there was a joint inspection by the inspectors of both companies. This upon the theory that the negligence of the delivering company, when it was bound to in- spect before delivery, was the primary cause of the injury, notwith- standing the receiving company was also guilty of an omission to inspect the car before permitting an employe to use the same. A different view was taken in the case of Glynn v. Central R. Co., 175 Mass. 510, 78 Am. St. Rep. 507, 56 N. E. 698, in which the opinion was delivered by Mr. Justice Holmes, then chief justice of Massachusetts, in which it was held that, as the car, after coming into the hands of the receiving company, and before it had reached the place of the accident, had crossed a point at which it should have been inspected, the liability of the delivering company for the defect in the car, which ought to have been discovered upon inspection by the receiving company, was at an end. A like view was taken by Woodruff's Cases — 30 466 CONSTRAINT BY FAULT OF DEFENDANT. the supreme court of Kansas in the case of Missouri. K. & T. R. Co. V. Merrill, 65 Kan. 436, 59 L. R. A. 711, 93 Am. St. Rep. 287, 70 Pac. 358, reversing its former decision in the same case reported in 61 Kan. 671, 60 Pac. 819. But we do not deem the determination of this question necessary to a decision of the present case. Coming to the very question to be determined here, the general principle of law is well settled that one of several wrongdoers cannot recover against another wrongdoer, although he may have been com- pelled to pay all the damages for the wrong done. In many in- stances, however, cases have been taken out of this general rule, and it has been held inoperative in order that the ultimate loss may be visited upon the principal wrongdoer, who is made to respond for all the damages, where one less culpable, although legally liable to third persons, may escape the payment of damages assessed against him by putting the ultimate loss upon the one principally responsible for the injury done. These cases have, perhaps, their principal illustration in that class wherein municipalities have been held re- sponsible for injuries to persons lawfully using the streets in a city, because of defects in the streets or sidewalks caused by the negli- gence or active fault of a property owner. In such cases, where the municipality has been called upon to respond because of its legal duty to keep public highways open and free from nuisances, a re- covery over has been permitted for indemnity against the property owner, the principal wrongdoer, whose negligence was the real cause of the injury. Of this class of cases is Washington Gaslight Co. v. District of Columbia, 161 U. S. 316, 40 L. ed. 712, 16 Sup. Ct. Rep. 564, in which a resident of the city of Washington had been injured by an open gas box, placed and maintained on the sidewalk by the gas company, for its benefit. The District was sued for damages, and, after notice to the gas company to appear and defend, damages were awarded against the District, and it was held that there might be a recovery by the District against the gas company for the amount of damages which the former had been compelled to pay. Many of the cases were reviewed in the opinion of the court, and the gen- eral principle was recognized that, notwithstanding the negligence of one, for which he has been held to respond, he may recover against the principal delinquent where the oflfense did not involve moral turpitude, in which case there could be no recovery, but was merely malum proliibitum, and the law would inquire into the real delin- quency of the parties, and place the ultimate liability upon him whose fault had been the primary cause of the injury. The same principle has been recognized in the court of appeals of the state of New York in Oceanic Steam Nav. Co. v. Campania Trans- atlantica Espanola, 134 N. Y. 461, 30 Am. St. Rep. 685, 31 N. E. 897, the seconrl proposition of the syllabus of the case being: "Where, therefore, a person has been compelled, by the judgment of a court having juriscliction, to pay damages caused by the negli- gence of another, which ought to have been paid by the wrongdoer, CONTRIBUTION. 467 he may recover of the latter the amount so paid, unless he was a party to the wrong which caused the damage." In a case cited and much relied upon at the bar (Gray v. Boston Gaslight Co., 114 Mass. 149, 19 Am. Rep. 324), a telegraph wire was fastened to the plaintiff's chimney without his consent, and, the weight of the wire having pulled the chimney over into the street, to the injury of a passing traveler, an action was brought against the property owner for damages, and notice was duly given to the gas company, which refused to defend. Having settled the dam- ages at a figure which the court thought reasonable, the property owner brought suit against the gas company, and it was held liable In the opinion the court said : "When two parties, acting together, commit an illegal or wrong- ful act, the party who is held responsible in damages for the act cannot have indemnity or contribution from the other, because both are equally culpable or participes criminis, and the damage results from their joint offense. This rule does not apply when one does the act or creates the nuisance, and the other does not join therein, but is thereby exposed to liability and suffers damage. He may re- cover from the party whose wrongful act has thus exposed him. In such case the parties are not in pari delicto as to each other, though, as to third persons, either may be held liable."^ In a later case in Massachusetts (Boston Woven Hose & Rubber Co. V. Kendall, 178 Mass. 232, 51 L. R. A. 781, 86 Am. St. Rep. 478' 59 N- E. 657), it was held that a manufacturer of an iron boiler known as a vulcanizer, which had been furnished upon an order which required a boiler which would stand a pressure of 100 pounds to the square inch, which order was accordingly accepted, the manufacturer undertaking to make the boiler in a good and workmanlike manner, but which, because of a defect, in that the hinge of the door was constructed in such a way that it did not press tight enough against the face of the boiler to stand a pressure of 75 pounds, at which pressure the packing blew out and allowed the naptha vapor to escape, was liable for the damages which the hose company had been compelled to pay to one of its employes, injured by the accident, although the defect might have been dis- covered upon reasonable inspection by the hose company. In that case the boiler was sold upon a warranty. As was said by Mr. Chief Justice Holmes, delivering the opinion of the court : "The very purpose of the warranty was that the boiler should be used in the plaintiff's works with reliance upon the defendant's judgment in a matter as to which the defendants were experts and Hie plaintiff presumably was not. Whether the false warranty be called a tort or a breach of contract, the consequences which ensued must be taken to have been contemplated and were not too remote. The fact that the reliance was not justified as toward the men does not do away with the fact that the defendants invited it, with notice ^Accord, Churchill v. Holt, 127 Mass. 165 (1879). 468 CONSTRAINT BY FAULT OF DEFENDANT. of what might be the consequences if it should be misplaced, and there is no policy of the law opposed to their being held to make their representations good." Other cases might be cited which are applications of the excep- tion engrafted upon the general rule of noncontribution among wrongdoers, holding that the law will inquire into the facts of a case of the character shown, with a view to fastening the ultimate liability upon the one whose wrong has been primarily responsible for the injury sustained. In the present case there is nothing in the facts as stated to show that any negligence or misconduct of the railroad company caused the defect in the car which resulted in the injury to the brakeman. That company received the car from its owner, the Hammond Packing Company, whether in good order or not the record does not disclose. It is true that a railroad company owes a duty of inspection to its employes as to cars received from other companies as well as to those which it may own. Baltimore & P. R. Co. v. Mackey, 157 U. S. 73, 39 L. ed. 624, 15 Sup. Ct. Rep. 491. But in the present case the omission of duty for which the railroad company was sought to be held was the failure to inspect the car with such reasonable diligence as would have discovered the defect in it. It may be conceded that, the railroad company having a contract with the terminal company to receive and transport the cars furnished, it was bound to use reasonable diligence to see that the cars were turned over in good order, and a discharge of this duty required an inspection of the cars by the railroad company upon delivery to the terminal company. But that the terminal company owed a similar duty to its employes, and neglected to perform the same, to the injury of an employe has been established by the de- cision of the supreme court of Nebraska already referred to. The case then stands in this wise : The railroad company and the terminal company have been guilty of a like neglect of duty in failing to properly inspect the car before putting it in use by those who might be injured thereby. We do not perceive that, because the duty of inspection was first required from the railroad company, that the case is thereby brought within the class which hold the one primarily responsible, as the real cause of the injury, liable to an- other less culpable, who may have been held to respond for damages for the injury inflicted. It is not like the case of the one who creates a nuisance in the public streets ; or who furnishes a defective dock ; or the case of a gas company, where it created the condition of unsafety by its own wrongful act ; or the case of the defective boiler, which blew out because it would not stand the pressure warranted by the manufacturer. In all these cases the wrongful act of the one held finally liable created the unsafe or dangerous condition from which the injury resulted. The principal and moving cause, result- ing in the injury sustained, was the act of the first wrongdoer, and the other has been held liable to third persons for failing to discover or correct the defect caused by the positive act of the other. In the present case the negligence of the parties has been of the DURESS. 469 same character. Both the railroad company and the terminal com- pany failed, by proper inspection, to discover the defective brake. The terminal company, because of its fault, has been held liable to one sustaining an injury thereby. We do not think the case comes within that exceptional class which permits one wrongdoer who has been mulcted in damages to recover indemnity or contribution from another. For the reasons stated, the question propounded will be answered in the negative. b. Duress by Defendant. i. Duress of Property. I. PERSONAL PROPERTY. CHASE v. DWINAL. 7 Greenl. (Me.) 134. — 1830. Assumpsit for money had and received. The plaintiff was conducting his raft down the Penobscot river, and when he came near the boom of the defendant, which was erected under a charter from the state, he was unable to pass it through the passageway left for that purpose ; and by force of the wind and current it was driven eastward of the passage, and stopped by the defendant's boom. The plaintiff, with other assistance, im- mediately made exertions to free it from the boom and conduct it through the passage, which in two or three hours was effected. One of the defendant's hired men, who assisted the plaintiff, de- manded seventy-five cents for this service, which the plaintiff re- fused to pay. Afterwards the defendant demanded of the plaintiff six dollars and forty cents, being the regular boomage for the raft, which the plaintiff refusing to pay, the defendant stopped and de- tained the raft till the plaintiff paid the sum demanded ; to recover which this action was brought. The jury having found for the plaintiff, the defendant filed exceptions. Weston, J. — The defendant claims, in behalf of the Penobscot boom corporation, a right to receive and retain as toll, the money attempted to be reclaimed in this action. If he has such a right, the action cannot be supported. The act, establishing this corpora- tion, grants them a toll for stopping and securing the several kinds of timber mentioned therein, whether drifted or rafted down the river. * * * * \Yg j^j-g ^g]] satisfied that the act imposes the liability to pay toll upon the owners of timber, for the security and preservation of their property ; and that it does not attach to rafts, which are intended to pass down the river, where the use and se- 470 DURESS. curity of the boom is not sought or desired. In the second section of the act it is expressly enjoined upon the corporation so to con- struct the boom as to admit the passage of rafts and boats. If the defendant was not entitled to boomage, it is secondly con- tended that the payment, being voluntary, cannot be reclaimed. * '^'^ It has been laid down as a general principle, that an action for money had and received lies for money got through imposition, extortion, oppression, or an undue advantage taken of the party's situation. Ivloses v. Macferlan, 2 Burr. 1005 ; Smith v. Bromley, cited in Doug. 696. In Astley v. Reynolds, 2 Strange 916, an action was sustained to recover money, extorted by a pawnbroker, for the redemption of plate; notwithstanding it was objected that the pay- ment was voluntary. In Hall v. Schultz, 4 Johns. 240, Spencer, J., says, this case has been overruled by Lord Kenyon in Knibbs v. Hall, [i Esp. 84.] There the plaintiff had paid, as he insisted, five guineas more rent than could have been rightfully claimed of him, to avoid a distress which was threatened. Lord Kenyon held this to be a voluntary payment, and not upon compulsion ; as the party might have protected himself from a wrongful distress by re- plevin. His lordship does not advert to the case of Astley v. Reyn- olds ; and subsequently, in Cartwright v. Rowley [2 Esp. 723] before cited, he refers with approbation to an action witiiin his recollection^ for money had and received, brought against the steward of a manor, to recover money paid for producing at a trial some deeds and court rolls, for which he had charged extravagantly. It was urged that the payment was voluntary ; but it appearing that the party could not do without the deeds, and that the money was paid through the iirgency of the case, the action was sustained. Had the distress, threatened in Knibbs v. Hall, been actually made, money paid to relieve the goods, could not have been recovered in assumpsit, upon a principle which will be subsequently noticed. Hall V. Schultz [4 Johns. 240], cited by counsel for the defendant, was commented upon in Gilpatrick v. Sayward, 5 Greenl. 465. Neither of these actions could be sustained without a violation of the statute of frauds ; and upon this ground they were defeated. In Stevenson v. Mortimore, Cowper 805, the plaintiff recovered, in an action for money had and received, an excess of fees by him paid to a custom-house officer, to obtain a document he was under the necessity of procuring. In Ripley v. Gelston, 9 Johns. 201, the plain- tiff recovered in assumpsit of the collector of New York, money ille- gally claimed by him as tonnage and light money ; and which die plaintiff paid to obtain a clearance of his vessel. In Clinton v. Strong, 9 Johns. 370, money was reclaimed, which had been wrong- fully exacted by the clerk of the district court, for the redelivery of property which had been seized. In the foregoing cases the payments were not deemed voluntary, but extorted and compulsory. It may be insisted that trespass or replevin would have been more appropriate remedies for the plaintiff. Either might doubtless have been maintained ; and where they are specific remedies, provided by DURESS OF TROrCRTY. 47I law for a peculiar class of injuries, assumpsit cannot be substituted. It was upon this ground that Lindon v. Hooper, Cowper 414, was decided. Cattle damage feasant had been wrongfully distrained, money had been paid for their liberation, and an action for money had and received brought to recover it. The action did not prevail. The court place their opinion expressly on the nature of the remedy by distress, which they say is singular, and depends upon a peculiar sys- tem of strict positive law. That the distrainor has a certain course, prescribed to him, which he must take care formally to pursue ; and that the law has provided two precise remedies for the owner of the cattle, which may happen to be wrongfully distrained, replevin and, after paying the sum claimed, trespass, in which such payment must be specially averred and set forth as an aggravation of the trespass. Then are to follow pleadings, which put directly in issue the validity of the distress. From a case of this peculiar character, decided upon this special ground, no general principle can be extracted which can govern cases, where the law of distress does not apply. ^ Irving V. Wilson, 4 D. & E. 485, is a case strongly resembling the one, now before the court. A revenue officer had seized goods, not liable to seizure, but demanded money for their release, which the owner paid. This was recovered back in an action for money had and received. It was held to be a payment not voluntary, but by coercion, the defendant having the plaintiff in his power, by stopping his goods. It does not appear to have occurred to the counsel or the court that it was a case which was affected by the decision in Lindon V. Hooper. Trespass would have been an appropriate remedy for the unlawful seizure ; but after payment, assumlysit was also appropriate. The money was extorted. The payment was not voluntary in any fair sense of that term; and the defendant had no just title to retain it. If money is voluntarily paid to close a transaction, without duress either of the person or goods, the legal maxim, volenti non fit injuria, may be allowed to operate. It would be a perversion of the maxim to apply it for the benefit of a party, who had added extortion to unjustifiable force and violence. ^ In Colvvell V. Peden, 3 Watts (Pa.) 327 (1834), the landlord issued a war- rant of distress in good faith to recover rent alleged to be in arrear, though none was due. The tenant, to relieve his goods from distress, paid the sum claimed and then sued in this action of assumpsit to recover back the money. The court said, in conclusion : "There seems, therefore, to be much force in the remark of Mr. Starkie [on Evidence] that 'the plaintiff cannot substitute this form of action for the more appropriate ones of trespass or replevin, where they are the specific ones provided by the law for the particular griev- ance.' In either of these the question may be tried as advantageously for the tenant as in an action of assumpsit ; nor is there any reason why he should be suffered to turn a cause of action essentially local into a transitory one by changing the form of the remedy and shifting the position of the parties to the issue. This last consideration was decisive of the form of the action in Mather v. Trinity, 3 Serg. & Rawle 500; and would, of itself, be decisive of it here. On principle, as well as authority, then, a tenant cannot main- tain assumpsit for money paid to relieve his goods from distress." (472.1 DURESS. The party injured often finds a convenience, in being allowed to select one of several concurrent remedies. In the case under con- sideration, replevin would have restored the property unlawfully seized. But to procure a writ, and an officer to serve it, would have occasioned delay, which might have subjected the plaintiff to greater loss than the payment of the money demanded. Besides, he must have given a bond to the officer to prosecute his suit ; and he might meet with difficulty in obtaining sufficient sureties. Had he brought trespass, several months might have elapsed, before he could have obtained a final decision ; and this delay might have been attended with serious inconvenience. By the course pursued, these difficulties were avoided. Nor is the defendant placed by it in any worse situ- ation. He has been permitted to urge in his defense any claim of right under the corporation, and he is liable to pay only the money actually received by him ; the plaintiff waiving, by the form of the action, damages for the illegal seizure. We perceive no objection in principle to the form of the action ; nor do we find it unsupported by precedent and authority. Exceptions overruled.^ SCHOLEY, Ex'r, v. MUMFORD et al. 60 N. Y. 498.— 1875. Action to recover back moneys paid under the circumstances stated in the opinion. Plaintiff and G. H. Mumford were executors of the will of Elizabeth Scholey ; defendants were Mr. Mumford's executors. Rapallo, J. — * * * * The defendants had in their possession 'In Cobb V. Charter, 32 Conn. 358, 366 (1865), the court says: "The plain- tiff was a mechanic. His chest of tools, which are held by statute sacred even from the touch of a creditor, were seized by the defendant. He refused to deliver them to the owner on demand except upon his paying, without the slightest obligation, the debt of another person. The plaintiff was thus de- prived of the means of his support. Thereupon he left the money with Strat- ton to be paid to the defendant when the chest should be sent. Stratton so informed the defendant, who at once sent the chest and then received the money. In view of such extortion, oppression, and taking an undue advan- tage of the plaintiff's situation, it seems somewhat bold in the defendant to come into a court of justice and assert that the payment was voluntary." In Harmony v. Bingham, 12 N. Y. 99, 112 (1854), the court says: "The property consisted of merchandise of great value, which had been transported to a remote part of the country, in reference to a commercial adventure m Mexico. Every precaution had been taken by the plaintiff to procure its transportation in the shortest practicable period, and it was essential to_ his interest that he should obtain possession of it immediately on its arrival. The defendants refused tn deliver the property without the payment of a greater simi for freight than they could legally claim. The plaintiff protested agnin'^t the payment of what he considered an illegal and extortionate charge, and finally, from the necessity of the case, and for the purpose of obtaining possession of his properly, he paid the illegal demand. T think that a pay- ment, under such circumstances, should not be considered as voluntary." DURESS OF PROPERTY. 473 $85,000 of bonds belonging to the estate of which the plaintiff was surviving executor. These bonds had come to the possession of the defendants through George H. Mumford, deceased, who was, in his life, the co-executor, with the plaintiff, of the will of Mrs. Scholey. The complaint alleges that the defendants refused to deliver these bonds to the plaintiff until the sum in controversy, which was alleged by the defendants to be due to the estate of George H. Mumford, deceased, for commissions, was paid to them, and that this claim was disputed by the plaintiff. The parties appeared before the surro- gate, who, in the first instance, decided that the defendants were en- titled to the commissions. The plaintiff then paid them, and after- ward applied to the surrogate for a rehearing upon the question, and upon such rehearing the surrogate reversed his former decision. The complaint alleges that the plaintiff, although advised that the first decision of the surrogate was erroneous, nevertheless paid the sum claimed, in order to obtain the delivery of the bonds to him. The defendants, in their answer, do not deny the allegation of the complaint that they refused to deliver up the bonds except upon pay- ment of the commissions, but, on the contrary, expressly admit "that they would not have delivered up the bonds except upon the terms aforesaid," i. e., the payment of the commissions. The plaintiff testi- fied that he was anxious to get the bonds ; that the defendants had, after the death of George H. Mumford, declined to give up the bonds, on the ground that commissions were due. The evidence is very meager ; but I think it sufficiently appeared, from the acts of the parties and the admission in the answer, that this claim for com- missions was disputed, and was yielded to simply as a means of ob- taining possession of the bonds to which the plaintiff was entitled, and which the defendants withheld from him for the purpose of co- ercing payment of the commissions. To constitute a voluntary payment the party paying must have had the freedom of exercising his will. When he acts under any species of compulsion the payment is not voluntary. If a party has in his possession goods, or other property, belonging to another, and refuses to deliver such property to that other unless the latter pays him a sum of money which he has no right to receive, and, in order to obtain possession of his property, he pays that sum, the money so paid is a payment made by compulsion, and may be recovered back. (Per Bayley, J., Shaw v. Woodcock, 7 B. & C. 73.) This has been frequently decided. Where a pawnbroker refused to deliver plate pawned, except upon payment of excessive interest, and the owner paid it to obtain his property, he was allowed to recover back the excess. Astley v. Reynolds, 2 Stra. 915. An action will lie to re- cover back money paid to release goods wrongfully detained on a claim of lien : Ashmole v. Wainwright, 2 A. & E. n. s. 737 ; Har- mony v. Bingham, 12 N. Y. 109, 116; or money wrongfully exacted by a corporation as a condition permitting a transfer of stock. Bates V. N. Y. Ins. Co., 3 Johns. Gas. 238. The cases to this effect are numerous. In all these cases the payment is regarded as compulsory, 474 DURESS. and not voluntary. I think the case at bar falls within the principle of these decisions. The amount of property was very large com- pared with the sum exacted ; and, from the conduct of the plaintiff, it may well be inferred that he preferred to pay it and take the chances of recovering it back, rather than to incur the hazard of hav- ing so large an amount of property in the hands of the defendants. The claim of the defendants, that after the surrogate had decided that the defendants were entitled to the commissions, the plaintiff gave up the controversy, and consented to abide by the decision, is not sustained by the facts. The uncontroverted allegations of the complaint, that the defendants refused to deliver the bonds unless the commissions were paid ; and that, after the first decision of the surrogate, the plaintiff, although advised that the decision was er- roneous, did, nevertheless, pay them, in order to have the bonds de- livered up to him, coupled with the steps which were very soon after- ward taken by the plaintiff to obtain a reversal of the decision of the surrogate ; and the allegations in the answer, that, after the first decision, the defendants notified the plaintiff that they would deliver up the bonds on payment of the amount claimed by them, and that they would not have delivered up the bonds except upon the terms aforesaid, sufficiently define the positions of the parties, and show that the payment was not the free and voluntary act of the plaintiff ; but that he had no choice, and was compelled to submit to the de- mand in order to obtain immediate possession of the bonds. The judgment should be reversed, and a new trial ordered, with costs to abide the event. All concur ; except Miller, J., dissenting. Judgment reversed.^ ^This case came again to the court of appeals in 72 N. Y. 578 (1878), and was again decided for the plaintiff, but upon the ground stated as follows by the court : "We think the case is with the plaintiff on the ground now to be stated. The original decision of the surrogate was doubtless erroneous, and having been subsequently reversed and set aside, the plaintiff was then en- titled to recover the money paid under the erroneous order. In Clark v. Pin- ney (6 Cow. 299), the court says: 'That this action (indebitatus assumpsit) lies in all cases where the defendant has in his hands money which, ex aequo et bono, belongs to the plaintiff. When money is collected upon an erroneous judgment, which, subsequent to the payment of the money is reversed, the legal conclusion is irresistible that the money belongs to the person frorn whom it was collected ; of course, he is entitled to have it returned to him.' The same principle is recognized in subsequent cases. Maghee v. Kellogg, 24 Wend. 32 ; Garr v. Martin, 20 N. Y. 306." DURESS OF PROPERTY. 475 RICHMOND ET AL. V. UNION STEAMBOAT CO. 87 N. Y. 240.— 1881. Earl, J. — On the ist day of October, 1875, the agent of the plain- tiffs, at Toledo, shipped on board the propeller "Jay Gould," which was owned by defendant, a common carrier, consigned to the plain- tiffs at Buffalo, seven thousand bushels of wet wheat. There was also shipped upon the propeller and consigned to other parties at Buffalo, upwards of twenty thousand bushels of wheat. The pro- peller went to Buffalo and discharged all the wheat into the Niagara elevator, and refused to discharge plaintiffs' wheat, upon their re- quest, into the Richmond elevator. After plaintiffs' wheat was dis- charged at the Niagara elevator, in order to obtain the same so as to place it in the Richmond elevator, they were required by the de- fendant's agent to pay the freight, to-wit, $183.66, and also incurred expense to the amount of $80.75 ^^ removing the wheat to the Rich- mond elevator. The plaintiff's claim that the defendant did not earn freight by delivering the wheat into the Niagara elevator, but that they were obliged to pay the freight under duress, in order to procure the wheat, and this action was brought to recover the amount paid for freight, as well as the expense of the removal of the wheat.* * * * Upon the question, then, of the defendant's liability, we think no error was committed in the court below. But we are of the opinion that the plaintiffs should not have recovered the freight paid. As the case now stands, the defendant has been put to the expense of carrying and delivering the grain into the Niagara elevator without any compensation whatever. This is certainly unjust and unwar- ranted. Either the plaintiffs should recover the freight paid only on the ground that that was paid under duress when it was not due to the defendant, or they should recover what it cost them to complete the defendant's contract. We are of opinion that the latter is the most just and equitable rule. That gives the plaintiffs precisely what they would have had if the contract had been performed, as they claim it should have been. They took the grain at the Niagara ele- vator and paid the entire freight stipulated. Then they caused the grain to be carried and placed in the Richmond elevator, and for that incurred an expense of $80.75. '^"'^^ that amount will furnish them a full indemnity for the defendant's breach of contract. The judgment below must, therefore, be modified by striking therefrom $183.66, and the interest thereon, and as thus modified, the judgment should be affirmed, without costs of appeal, to either party in this court. All concur. Judgment accordingly. (^ DURESS. iVv DE LA CUESTA v. INSURANCE CO. OF NORTH AMERICA. 136 Pa. St. 62. — 1890. Assumpsit against the president and directors of the Insurance Company of North America, to recover back the sum of $7,000, paid by the plaintiff to the defendant company under protest. The stockholders of the North American Insurance Company re- solved that it would be advisable to increase their capital stock. By the resolution the stock was to be increased one-half. That is to say, for every two shares one was to be issued. Those shares were to be issued as being of the par value of the stock of $10 per share ; that amount to be paid by the persons who subscribed for it ; the effect of which would be to add to the capital stock of the company $1,000,000. A majority of the stockholders were of the opinion that a still further increase of the assets of the company was advisable. They therefore desired that the right to subscribe for an additional one hundred thousand shares at $10 per share should be on condi- tion that, in exercising it, whoever subscribed $10 for one of the new shares of the stock should also pay $10 for the privilege of be- ing admitted to the new subscription. Under the ruling of the su- preme court, this condition was illegal. Under these circumstances, the new stock was issued and scrip was to be given for it, and any man who came forward and paid, as the payments fell due, at the rate of $10 for each share, and who, after having made those payments, continued to pay $10 for the privilege of buying a share and becoming a stockholder, would become en- titled to his proportion of these new shares of stock. If, however, he did not comply with all these conditions, including the condition which required him to pay $10 for the privilege, he would forfeit his right to the new stock, and, moreover, that stock would be sold to the highest bidder and acquired by third persons, which would introduce a new element into the company. Under these circumstances, the plaintiff paid the $10 which were necessary to buy the stock, and the $10 which were necessary to en- title him to the privilege of buying, declaring that he did it under protest. Mr. Chief Justice Paxson. — * * * '■' The only important question presented by this record is the legal effect of payment under protest. The plaintiff was entitled, under Cunningham's Appeal, supra^ to subscribe for the new stock at par. The company re- quired him to agree to pay an additional sum at a future time fof the privilege of subscribing. This bonus, as it was called, was to be arldcd to the surplus fund. This, however, is not material. He signed the contract to pay the additional sum, under protest, and ' 108 Pa. 547. DURESS OF TROPERTY. 477 paid under protest. This suit was brought to recover back the money thus demanded. This is the whole case. * * * * Applying the law as wc find it to the facts of this case we are of | opinion there was no duress. It is a duress either of person or goods that constitutes the coercion. It is not pretended that there was a duress of person, nor was there anything to show duress of goods. There was nothing but the denial of a right, and a declared inten- tion not to recognize a right is not duress. It is true, the denial of the right placed the plaintiff in a "dilemma," to use the expression of Judge Hare in Dawson's case. But if we adopt the principle that whenever a man is placed in a position in which the law is doubt- ful, and he is compelled to choose between two paths, in other words, to decide between conflicting views of the law, he is to be consid- ered as under duress, we shall certainly multiply litigation, even if no other end is accomplished. It is fair to test this question by supposing the company to have done what it is alleged they threatened to do. Suppose the plaintiff had tendered the company the par of the new shares to which he claims he was entitled ; that the company had declined to accept it, and had sold the right to subscribe for a corresponding number of shares. How would this have affected the rights of the plaintiff? The company could no more have sold his stock than they could have sold his house. If he had a right to certain shares by paying $io each therefor, that right could not have been divested by a sale of them by the company, nor by any other action on its part. His rights as a stockholder were fixed by the law ; a certificate would have added nothing to them ; it would have been evidence, nothing more, that he owned stock, but that already appeared upon the books of the company. The duress, if any, was not of a thing, of goods or chattels, but of an incorporeal right. Had the stock been sold he would have had no contest with the purchaser, as he would have nec- essarily had if a corporeal thing, or the title to a corporeal thing had been sold accompanied by delivery of possession. He had to do only with the company ; and, after tender of the par, could have brought this suit and recovered, as before stated, the market value of the stock, and if he wanted shares, with the money thus recovered could have bought a corresponding amount of other shares. It was urged, however, that this case is upon all fours with Motz V. Mitchell, siipra,^ where there was duress of an unrecorded deed, while in the case in hand there was duress of stock. This argument involves the assumption that a certificate had been issued for the new shares, which certificate the company unlawfully withheld from the plaintiff. In point of fact, the plaintiff never had a certificate for the new shares, for none had been issued. The plaintiff had a right to demand a certificate for them upon payment of the par, and to sue them for a refusal, as before stated. That there could not be duress of this right is too plain for argument. There was not duress of per- ^91 Pa. 114. 478 DURESS. son or goods ; there was simply the denial of a right ; a refusal to issue shares of stock to which the plaintiff was entitled, and for which refusal he had a full, complete, and convenient remedy at law. We may concede that the action of the company placed him in a "dilemma" ; he had to choose between two roads, neither of which he may have regarded as safe. In other words, he was uncertain as to his legal rights under the scheme proposed by the company. The "dilemma" was the uncertainty of the law. There was no other pressure or duress that caused the payment. However great the uncertainty of the law may be in particular cases, it has never been supposed to amount to duress of either person or goods. It was nothing more than is experienced by every lawyer in the course of his practice. He is often called upon to advise where the law is un- certain ; and, in all such cases, the client must take the risk. We attach little importance to the suggestion that the company was acting in a fiduciary capacity. This was a matter really between the stockholders, and they were evidently dealing at arms' length. The corporate organization was the means by which their scheme was carried through. Fortunately, the plaintiff suffers no injury by the afifirmance of this judgment. He receives his proportion of the new shares at the same price at which they were issued to the other stockholders. It is true he does not get shares at $io for which others paid $20, but his equity in this respect is not strong. We find no error in this record. Judgment affirmed. ^ Mr. Justice Sterrett and ]\Ir. Justice Clark dissented. 'As an appendix to 136 Pa. there is printed (pp. 658-666), at the request of members of the bar, the opinion of J. I. Clark Hare, P. J., of the Court of Common Pleas of Philadelphia county, in discharging the rule for a new trial in Dawson v. Insurance Co., which was argued with the De La Cuesta case in the supreme court. The opinion constitutes a valuable monograph on recov- ery of money paid under duress of property. In Bates v. New York Ins. Co., 3 Johns. Cas. 238 (1802), Butler had sub- scribed for fifty shares of the defendant company, and thereafter assigned his right to the shares to plaintiff, who fulfilled all the conditions of the sub- scription. But the defendant refused to transfer the shares to plaintiff un- less he would pay to defendant a debt of $465 which Butler owed to defend- ant. Plaintiff then paid Butler's debt and the defendant _ transferred the shares. Plaintiff later sued to recover back the money paid to defendant, and the court said (p. 242) : "On the whole, we are of opinion that the $465 could not, under all circumstances, be considered a voluntary payment, but as made, in some measure, by compulsion, an undue advantage having been taken of the plaintiff's situation, and that he ^ught to recover it back." DURESS OF PROPERTY. 479 McMURTRIE v. KEENAN. 109 Mass. 185. — 1872. The maker of a note secured by a mortgage with power of sale, paid the interest due thereon ; and the mortgagee promised to indorse the payment on the note, but did not do so, denied that interest had been paid, demanded it again, and threatened to sell under the mortgage unless the interest was again paid. The mortgagor then paid the interest a second time, under protest. Chapman, C. J. — If a defendant in an action has paid money to the creditor to be indorsed or applied on the demand in suit, but suf- fers the plaintiff to take judgment for the whole amount, he can- not recover the money back. He has had his day in court, and the judgment is conclusive. Public policy requires that this should be so. Loring v. Mansfield, 17 Mass. 394; Jordan v. Phelps, 3 Cush. 545 ; Sacket v. Loomis, 4 Gray 148 ; Fuller v. Shattuck, 13 Gray 70; Nettleton v. Beach, 107 Mass. 499. But if, after the creditor thus neglects to indorse or apply it, he has the means of collecting the whole debt without giving the debtor any day in court, and does so collect it ; as, for example, by warrant of distress, or by selling a pledge, or by a mortgage with power of sale, or by collecting securi- ties which are under his control, then the debtor may recover back the money which has thus been paid and not applied. There is no judgment or other proceeding which estops him. In this case the jury have found that the plaintiff paid $120 for interest, which the defendant promised to indorse, but did not. But, having his note secured by mortgage with power of sale, he threat- ened to make a sale unless the plaintiff would pay the interest which he claimed. He could do this without giving the plaintiff any day in court. The plaintiff is therefore entitled to recover back the sum that ought to have been indorsed. Exceptions overruled. 2. REAL PROPERTY. l^ :\ ^' JOANNIN ET AL. V. OGILVIE et al. 49 Minn. 564. — 1892. Action on a note. By his answer, Ogilvie admitted his liability on the note, and for counterclaim alleged that on January 31, 1890, he owned lots Nos. 93 and 95 in Block 47 in Duluth proper, and had erected buildings thereon ; that he bought doors, sash, and other goods of one A. H. Thompson, a retail dealer, and paid him for them, and used them in the buildings. Thompson had previously pur- 480 DURESS. chased these goods with others from plaintiffs, the manufacturers, to sell again at retail to his customers. Thompson was indebted to plaintiffs on account for goods so bought of them, but Ogilvie did not know this. On that day plaintiffs made and filed for record a lien statement, claiming to be due them from Thompson $682.50, and that he was a contractor with Ogilvie to furnish material for the buildings on the lots. This claim was incorrect and the lien invalid. Ogilvie was largely indebted, and pressed for money, and was ne- gotiating for a loan of $15,000, to be secured by his mortgage on this real estate. The lenders refused to make this loan unless this lien was removed. Plaintiffs refused to discharge it of record unless Ogilvie paid Thompson's debt to them. He paid it under protest March 19, 1890, and in this action asked judgment against plain- tiffs for the amount so paid (after deducting the amount due them on the note). The court found the payment by Ogilvie to plaintiffs was made under duress, and directed judgment as prayed in his answer. Mitchell, J. — * * * * fi-,g distinguishing and ruling fact in this case was the active interference of plaintiffs with defendant's property by filing the claim for a lien, which effectually prevented the defendant from using it for the purposes for which he had immediate and imperative need. It was this active interference with the prop- erty, and not the necessitous financial condition of the defendant, which constituted the controlling fact. The latter was only one, and by no means the most important, of the circumstances in the case. Counsel for plaintiffs seems to assume that the filing of the claim for a lien was the commencement of a judicial proceeding for its enforce- ment, and therefore, within the doctrine of cases cited by him, that the subsequent payment of the claim was voluntary, because defendant might have interposed his defense in these proceedings. But this is clearly wrong. Filing a lien is in no sense the commencement of ju- dicial proceedings. The only remedies open to defendant were either to commence a suit himself to determine the validity of plaintiffs' claim, or wait, perhaps a year, until the latter should commence a suit to enforce it. But with a large indebtedness hanging over him, an overdue mortgage on this very property upon which foreclosure was threatened, with no means to pay except money which he had ar- ranged to borrow on a new mortgage which he had executed on this same property, $13,000 of which was withheld and could not be obtained until plaintiffs' claim of lien had been discharged of record, it is very evident that neither of the remedies suggested "would do defendant's business." He was so situated that he could neither go backward nor forward. He had practically no choice but to submit to plaintiffs' demand. Had it been goods and chattels which plain- tiffs had withheld under like circumstances, there would be no doubt, under the doctrine of Fargusson v. Winslow, supra [34 Minn. 384], but that the payment would be held to have been made under duress. But while filing the lien did not interfere with defendant's posses- sion of the land, yet it as effectually deprived him of the use of it DURESS OF PROPERTY. 48 1 for the purposes for which he needed it as would withholding; the possession of chattel property. It has been sometimes said that there can be no such thing as duress with respect to real property, so as to render a payment of money on account of it involuntary. But this is not sustained by either principle or authority. In view of the immovable character of real property, duress with respect to it is not likely to occur as often as with respect to goods and chattels. But the question in all cases is, was the payment voluntary? and for the purpose of deter- mining that question there is no difference w'hether the duress be of goods and chattels, or of real property, or of the person. Fraser v. Pendlebury, 31 Law J. C. P. i ; Pemberton v. Williams, 87 111. 15 ; Close V. Phipps, 7 Man. & G. 586; White v. Heylman, 34 Pa. St. 142; State V. Nelson, supra [41 ]\Iinn. 25]. Considerable stress is placed upon defendant's silence and apparent acquiescence for a con- siderable time after he paid the plaintiffs' claim. This might have some bearing upon the question whether the payment was voluntary or involuntary ; but if it was in fact the latter, and a cause of action to recover back the money accrued to defendant, it would be neither waived nor barred by his subsequent silence or delay in asserting his right of action. Judgment affirmed.^ ^ Compare Wessel v. Johnston Land and Mortgage Co., 3 N. Dak. 160 (1893). In First Nat. Bank of David City v. Sargeant, 65 Neb. 594 (1902) : "S. had conveyed, by a warranty deed absolute in form, to a bank certain real estate as security for an indebtedness owing by S. to the bank. S. was in financial distress, and had no means of meeting his indebtedness save by a sale of the real estate. The bank thereafter assumed to be the absokite owner of the property and denied to S. any right, interest or equity therein, and by injunc- tion proceedings undertook to dispossess him of a portion of such land. S. procured a purchaser at an advantageous price, and endeavored to adjust his differences with the bank, so as to effectuate a sale of the property, and meet pressing demand.'-, against him. The bank refused to consent to a sale or re- lease its interest or reconvey the premises to S. so that a sale might be con- summated without the payment by S. of a large sum of money in excess of the amount justly due. Held, under the facts and circumstances as disclosed by the record, that the payment of the excess over and above the amount justly due was made under duress and compulsion, and might be recovered back in an action brought for that purpose." — (Syllabus.) In Wells v. Adams, 88 Mo. App. 215, 225 (1901), the court says: "The case here is that the defendants 'held the plaintiff by the wrists' — they had a large incumbrance on his lands. He was being pressed by other creditors and unless he could secure a release of the defendants' incumbrance, and thus be enabled to make a disposition of the property, he was likely to become a bankrupt, or, at last, suffer a great sacrifice and loss of his property. In or- der to extricate himself from this embarrassing situation he must have his property disincumbered, and this could be accomplished only by the payment of the defendants' illegal exaction. He was practically confronted with the question whether or not he should pay the defendants the amount exacted or suffer the serious consequences to be reasonably apprehended from a refusal to do so. The payment under such circumstances, it seems to us. would be under an urgent necessity — under a kind of moral duress. Duress may be shown with respect to real property as well as personal so as to render pay- WooDRUFP's Cases — 31 ^^ DURESS. ii. Injury to Business. PANTON ET AL. V. DULUTH GAS & WATER CO. 50 Minn. 175. — 1892. Dickinson, J. — The defendant is a corporation owning and oper- ating the water works by which the city of Duluth is supphed with water, and authorized by law to charge for water suppHed to the in- habitants at specified rates, measured by the quantity supplied. The plaintiffs occupy a building in the city for mercantile purposes, and keep in their service therein some forty or fifty employes. The only water supply for the premises is that afforded by the defendant. There are three water-closets in the building, and faucets elsewhere for drawing water, these all being supplied with water in the usual manner. The water thus supplied is used for the closets, for sprink- ling, washing floors and windows, for drinking, and for the ordinary daily use of the persons in the building, but not for culinary purposes. The defendant made a demand on plaintiffs for payment of a speci- fied sum for use of water during a particular period. The plain- tiffs refused to pay that sum, claiming that the water meter on the premises, put in by the defendant, did not correctly measure the amount of water passing through it, and that the amount of water for which the charge was made was much in excess of the amount actu- ally used. The defendant was about to shut off the water supply from the building because of such refusal, as it assumed the right to do, when the plaintiffs, in order to prevent the water being shut off, paid the sum charged, under protest, and now prosecute this action to recover back the amount of the alleged overcharge. 1. Upon the question of fact as to the water meter having errone- ously indicated the amount of water passing through it, the jury found in favor of the plaintiffs. The court, considering that the evidence did not justify the verdict, granted a new trial. Upon this point the case of Hicks v. Stone, 13 Minn. 434 (Gil. 398), and the numerous decisions in which the rule there announced has been re- affirmed and applied, is conclusive. The evidence was such as to justify the order. 2. The question is presented, and may be expected to again arise upon a second trial, whether the circumstances under which the plaintiffs made the payment were such that the payment may be regarded as having been so far compulsory or necessary that an action will lie to recover it back. We are of the opinion that it is to be so regarded. In buildings as now constructed in populous merit on account of it involuntary and permit it to be recovered back. Joan- nin V. Oprilvie, 49 Minn. 564: Pemberton v. Williams, iiy Til. 15; White y. ITa^^clman, .34 Pa. St. 142; Fraser v. Pendebury, 31 L. J. P. i." See also, in accord, Van Dyke v. Wood, 60 App. Div. (N. Y.) 208 (1901). INJURY TO BUSINESS. 483 cities, where there is an adequate supply of water, and especially in buildings occupied by so many persons as are shown to have been employed in the plaintiffs' store, water-closets may well be regarded as reasonably necessary. The closets provided for use on these premises, and comprising a part of the building, would have been useless unless supplied with water ; and there was no other prac- ticable source of supply save that afforded by the defendant. The defendant was under legal obligation to supply water at the proper price. It was the plaintiff's' right to have it thus supplied. The defendant of its own will merely, and without any legal determina- tion as to the disputed fact upon which the exercise of such a power depended, was about to cut off the whole water supply from these premises. This was a kind of execution in advance of judgment. The plaintiffs would be compelled to submit to being deprived of the use of water on their premises until by such legal proceedings as they might institute for that purpose, they could legally establish the fact that the charge was excessive. Their only alternative was to pay what was demanded of them. We think that such a case falls within the class in respect to which it may be said that the payment is virtually compulsory, and not voluntary, in the sense that the party is concluded by it. What was said upon the law of duress in the recent decision in Joannin v. Ogilvie, 49 Minn. 564, renders un- necessary any more full discussion of the subject. Order affirmed.^ ^Accord, Westlake v. City of St. Louis, "jj Mo. 47 (1882) ; St. Louis Brew- ing Asso. V. City of St. Louis, zy S. W. (Mo.) 525 (1896). Buckley v. Mayor, 30 App. Div. (N. Y. Supreme Ct.) 463 (1898). In Guetzkow v. Breese, 96 Wis. 591, 597 (1897), the court says: "We en- tertain no doubt that under the facts found by the circuit court there was a case of duress of goods. The case was this: The plaintiff could not obtain the insurance money due it unless the defendants joined in executing the proofs of loss and in endorsing the drafts. The defendants refused to do these things unless the plaintiff would pay them $666.74, which it did not owe. The plaintiff was in a position where it must obtain its insurance money at once in order to go on with its business and fulfill valuable out- standing contracts, or it would suffer great loss. Under these circumstances it submitted, under protest, to the unjust demand in order to obtain its own money from the insurance company. This makes a case of legal duress of goods. Vyne v. Glenn, 41 Mich. 112; Corkle v. Maxwell, 3 Blatchf. 413; Scholey v. Mumford, 60 N. Y. 498; Cobb v. Charter, 32 Conn. 358." In Carew v. Rutherford and others, 106 Mass. i (1870), which was a con- tract action, with a count also in tort, to recover back money had and re- ceived, the court says (p. 13) : "Without vmdertaking to lay down a precise rule applicable to all cases, we think it clear that the principle which is estab- lished by all the authorities cited above, whether they are actions of tort for disturbing a man in the exercise of his rights and privileges, or to recover back money tortiously obtained, extends to a case like the present. We have no doubt that a conspiracy against a mechanic, who is under the necessity of employing workmen in order to carry on his business, to obtain a sum of money from him, which he is under no legal liability to pay, by inducing his workmen to leave him, and by deterring others from entering into his em- ployment, or by threatening to do this, so that he is induced to pay the money demanded, under a reasonable apprehension that he cannot carry on his busi- DURESS. REGAN V. BALDWIN. 126 Mass. 485. — 1879. Contract. The declaration alleged that the plaintiff and defend- ant executed an indenture, whereby the defendant leased to the plain- tiff the lower floor of a building in Essex Street in Boston, and the cellar under the same, for the term of ten years from October i, 1867 ; that by the terms of the lease, a copy of which was annexed, the plaintiff was to pay the defendant a certain rent monthly, "except only in case of fire or other casualties," and to keep the premises in repair, "reasonable use and wear, and damage by accidental fire or other inevitable accidents only excepted ;" that the lease also con- tained the following clause : "Provided always, that in case the prem- ises, or any part thereof, shall, during said term, be destroyed or damaged by fire, or other unavoidable casualty, so that the same shall be thereby rendered unfit for use and habitation, then, and in such case, the rent hereinafter reserved, or a just and proportionate part thereof, according to the nature and extent of the injury sus- tained, shall be suspended or abated until said premises shall have been put in proper condition for use and habitation by the said lessor, or these presents shall be thereby determined and ended at the election of said lessor or his legal representatives." The declaration further alleged that the building on the premises was burned and injured by fire on May 30, 1873, ^^^1 the store and cellar, leased to the plaintiff, rendered unfit for use and habitation ; that the cellar was not put, by the lessor, in suitable condition and repair for occupancy, use and habitation for the space of one year and longer ; and the defendant, though often requested, refused to do so ; that the lease was not determined and ended by the defend- ant, or by any other person having authority to do so ; that the plaintiff had kept the covenants and agreements on his part to be kept and performed, and that the defendant had not kept and per- formed his part of said indenture ; that the defendant refused to abate and suspend said rent, or a just and proportionate part thereof, but exacted of, and the plaintiff had been obliged by the defendant to pay, the rent in full, as reserved in said indenture, which the plaintiff did under protest, in order to save his estate and business. The defendant demurred to the declaration, assigning as cause of demurrer that the matters therein set forth were insufficient to enable the plaintiff to maintain the action. The Superior Court sustained ness without yielding to the illegal demand, is an illegal, if not a criminal, conspiracy ; that the acts done under it are illegal ; and that the money thus obtained may be recovered back, and, if the parties succeed in injuring his business, they are liable to pay all the damage thus done to him. It is a species of annoyance and extortion which the common law has never toler- ated." INJURY TO BUSINESS. 485 the demurrer, and ordered judgment for the defendant; and the plaintiff appealed. Lord, J. — In this case the demurrer was properly sustained. The plaintiff's declaration sets forth no cause of action which entitles him to recover. The amount which he seeks to reclaim was a sum which he voluntarily paid ; he paid it under no mistake of fact, and it has long been held that money so paid cannot be recovered back. * * * * The fact that the plaintiff in this case might have been under embarrassment as to the amount of rent which he should with- hold, or which he might properly claim to rebate, does not affect the principle. It was his right to litigate that question with his lessor,/ and his election to pay the full amount rather than to resist the pay- ment of any portion of it makes the payment a voluntary one. It is not necessary to consider whether the plaintiff w^ould have been en- titled to a cross action had the lease contained an express covenant to keep the premises in repair, for the lease contains no such cove- nant, and the law raises no implied promise to do so. The lease is in the form long used in this Commonwealth, which requires the lessee himself to keep the premises in such repair as he receives them (reasonable use and wear, and damage by accidental fire or other inevitable accident only excepted), with the right, commonly reserved in such leases, to have deducted from the rent a reasonable amount, if he is deprived of the use of the premises by such casu- alty. Judgment affirmed. ATKINSON V. DENBY. 6 Hurl. & Norm. (Exch.) 778. — 1861. Action for money had and received. Plea. — Never indebted. At the trial, before Martin, B., at the Middlesex sittings, in Michaelmas Term, i860, it appeared that the action was brought to recover 50/., paid by the plaintiff to the defendant under the following circum- stances. In October, 1857, the plaintiff, a manufacturer, being in embarrassed circumstances, offered a composition to his creditors of 5s. in the pound, and a deed of composition was prepared for the purpose of carrying out the offer. The defendant, a creditor for 319/., refused to accept that offer or to sign the deed of composition, saying he never would consent to do so unless he got something more. On the 13th of October, the defendant and the plaintiff met at the office of the plaintiff's attorney, when the plaintiff and defend- ant went into a private room. The defendant pressed the plaintiff to give him 150/. in cash in addition to the 5s. in the pound, but eventually he agreed to take a bill at six months for 108/. and 50/. in cash. The defendant knew that several creditors were then wait- ing to see what he would do. The plaintiff gave the defendant 50/. and a bill for 108/. The defendant then signed the deed. Five 486 DURESS. creditors had previously executed it, and twenty signed subsequently to the signature of the defendant. The composition was paid. The plaintiff was non-suited, leave being reserved to him to move to enter a verdict for 50/. Bramwell, B. — I am of opinion that the rule ought to be abso- lute. Nothing can be more dishonest on the part of a creditor than to pretend to take a composition of 5s. in the pound, and then agree privately with the debtor for payment of a larger sum and so get more than the other creditors. It may be that I am influenced by that consideration ; but if it were not for the opinion entertained by my brother Martin, I should have thought the law plain. I agree that if a man voluntarily pays money which he was not bound to pay, as a general rule he cannot recover it back. So, if a man volun- tarily pays a bill of exchange which he was not bound to pay, he cannot say, 'T ought not to have done so, and I will now recover back the amount." I admit also, that if a man, upon a corrupt bar- gain, pays money or gives a bill of exchange, he cannot recover it back. But upon this general rule there has been engrafted what has been called judge-made law, but which I think is most salutary law. The qualification is this, that where, though the act is voluntary in one sense, the person for whom it is done has a species of power over the other, so that the latter does the act under coercion, there, though the contract is unlawful, it is not a case of par delictum, because it is a case of oppressor and oppressed. That is the qualifi- cation of the general rule, and in such cases, though the payment of the money is in a certain sense voluntary, it may be recovered back. If that is not true. Smith v. Bromley, 2 Doug. 695, n., and Smith v. Cuff, 6 M. & Sel. 160, were wrongly decided, because there the act was in one sense voluntary and the agreement illegal. But those cases having been so decided, I think we are bound by them. Then, as a general rule, a voluntary act cannot be undone, an un- lawful agreement cannot be enforced ; but the cases to which I have referred have established the qualification I have mentioned. Here, though in one sense the payment was voluntary and the agreement illegal, it was a payment under coercion, and the parties were not in pari delicto because there was an oppressor and an oppressed. At one time I doubted whether the payment ought not to be considered vol- untary, not- in the sense that the plaintiff was not bound to make it, but that at the time he paid the money he did not get the benefit of his bargain. The evidence, however, showed that the whole trans- action was imo flatu, and whether the advantage to be got by the payment occurred at the time it was made or a week afterwards seems to me to make no difference. If, indeed, the plaintiff had voluntarily paid the money after the composition was entered into, the case would not have been within the qualification I have men- tioned, and Wilson v. Ray, to A. & E. 82 (E. C. L. R. vol. 37), is an authority that the money could not have been recovered back. With groat deference to Lord Wensleydale, and the doubt he ex- pressed in Higgins v. Pitt, 4 Exch. 325, as to the soundness of the INJURY TO BUSINESS. 48 dictum of Lord Ellenrorougii and Bavley, ]., in Smith v. Cuff, 6 M. & Sel. i6o, I think that case was rightly decided. In my opinion it cannot alter the principle whether a bill is given which the debtor is obliged to pay to a bona fide holder, after the execution by the creditor of the composition deed, or whether the money is previously paid by the debtor to the creditor. It makes no difference that in the one case the form of action would be for money paid, in the other for money had and received. At first I doubted whether this was not a voluntary payment, but I should be reluctant to hold that the debtor is bound to say, after the creditor has executed the deed of composition, "I will not give you what you ask ;" it would intro- duce dishonesty. I would rather a debtor should perform his bar- gain then and recover back the money. Smith v. Bromley, 2 Doug. 695, n., is an authority that this is not a voluntary payment in the sense that the plaintiff need not have been paid the money. It was a payment for the purpose of obtaining an advantage which the de- fendant withheld, and which he extortionately granted. If this view is wrong no action could have been maintained in Smith v. Bromley, 2 Doug. 695, n., and Smith v. Cuff, 6 M. & Sel. 160. Rule absolute. [Concurring opinions by Pollock, C. B., and Wilde, B. ; dissent- ing opinion by Martin, B.] SOLINGER V. EARLE. 82 N. Y. 393-— 1880. Andrews, J. — The complaint alleges in substance that the plaintiff, to induce the defendants to imite with the other creditors of New- man & Bernhard in a composition of the debts of that firm, made a secret bargain with them to give them his negotiable note for a portion of their debt, beyond the amount to be paid by the composi- tion agreement. He gave his note pursuant to the bargain, and thereupon the defendants signed the composition. The defendants transferred the note before due to a bona Ude holder, and the plaintiff having been compelled to pay it brings this action to recover the money paid. The complaint also alleges that the plaintiff was the brother-in-law of Newnnan, and entertained for him a natural love and affection, and was solicitous to aid him in effecting the com- promise, and that the defendants knowing the facts, and taking an unfair advantage of their position, extorted the giving of the note as a condition of their becoming parties to the composition. We think this action cannot be maintained. The agreement be- tween the plaintiff and the defendants to secure to the latter payment of a part of their debt in excess of the ratable proportion payable imder the composition, was a fraud upon the other creditors. The fact that the agreement to pay such excess was not made by the 488 DURESS. debtor, but by a third person, does not divest the transaction of its fraudulent character. A composition agreement is an agreement as well between the creditors themselves, as between the creditors and their debtor. Each creditor agrees to receive the sum fixed by the agreement in full of his debt. The signing of the agreement by one creditor is often an inducement to the others to unite in it. If the composition provides for a pro rata payment to all the creditors, a secret agreement, by which a friend of the debtor undertakes to pay one of the creditors more than his pro rata share, to induce him to unite in the compo- sition, is as much a fraud upon the other creditors as if the agree- ment was directly between the debtor and such creditor. It violates the principle of equity, and the mutual confidence as between credit- ors, vipon which the agreement is based, and diminishes the motive of the creditor who is a party to the secret agreement, to act in view of the common interest in making the composition. Fair deal- ing and common honesty condemn such a transaction. If the de- fendants here were plaintiffs seeking to enforce the note, it is clear that they could not recover. Cockshott v. Bennett, 2 Term R. y62i ', Leicester v. Rose, 4 East 372. The illegality of the consideration upon well-settled principles would be a good defense. The plaintiff, although he was cognizant of the fraud, and an active participator in it, would nevertheless be allowed to allege the fraud to defeat the action, not, it is true, out of any tenderness for him, but because courts do not sit to give relief by way of enforcing illegal contracts, on the application of a party to the illegality. But if he had volun- tarily paid the note, he could not, according to the general prin- ciple applicable to executed contracts void for illegality, have main- tained an action to recover back the money paid. The same rule which would protect him in an action to enforce the note, protects the defendants in resisting an action to recover back the money paid upon it. Nellis v. Clark, 4 Hill 429. It is claimed that the general rule that a party to an illegal contract cannot recover back money paid upon it does not apply to the case of money paid by a debtor, or in his behalf, in pursuance of a secret agreement, exacted by a creditor in fraud of the composi- tion, and the cases of Smith v. Bromley (2 Doug. 696), Smith v. Cuff (6 M. & S. 160), and Atkinson v. Denby (7 H. & N. 934) are relied upon to sustain this claim. In Smith v. Bromley the defend- ant, being the chief creditor of a bankrupt, took out a commission against him, but afterward finding no dividend likely to be made, refused to sign the certificate unless he was paid part of his debt, and the plaintiff, who was the bankrupt's sister, having paid the sum exacted, brought her action to recover back the money paid, and the action was sustained. Lord Mansfield, in his judgment, referred to the statute (5 Geo. II, chap. 30, sec. 11), v/hich avoids all con- tracts made to induce a creditor to sign the certificate of the bank- rupt, and said : "The present is a case of a transgression of a law made to prevent oppression, either on the bankrupt or his family, INJURY TO BUSINESS, 489 and the plaintiff is in the case of a person oppressed, from whom money has heen extorted and advantage taken of her situation and concern for her brother." And again : "If any near relation is in- duced to pay the money for the bankrupt, it is taking an unfair ad- vantage and torturing the compassion of his family." In Howson v. Hancock (8 Term R. 575) Lord Ken yon said that Smith v. Brom- ley was decided on the ground that the money had been paid by a species of duress and oppression, and the parties were not in pari delicto, and this remark is fully sustained by reference to Lord Mansfield's judgment. Smith v. Cuff was an action brought to recover money paid by the plaintiff" to take up his note given to the defendant, for the balance of a debt owing by the plaintiff, which was exacted by the latter as a condition of his signing with the other creditors a composition. The defendant negotiated the note and the plaintiff was compelled to pay it. The plaintiff recovered. Lord Ellenborough said : "This is not a case of par delictum; it is op- pression on the one side and submission on the other ; it never can be predicated as par delictum where one holds the rod and the other bows to it." Atkinson v, Denby was the case of money paid di- rectly by the debtor to the creditor. The action was sustained on the authority of Smith v. Bromley and Smith v. Cuff. It is somewhat difficult to understand how a debtor who simply pays his debt in full can be considered the victim of oppression or extortion because such payment is exacted by the creditor as a con- dition of his signing a compromise, or to see how both the debtor and creditor are not in pari delicto. (See remark of Parke, B., in Higgins V. Pitt, 4 Exch. 312.) But the cases referred to go no farther than to hold that the debtor himself, or a near relative who out of compassion for him pays money upon the exaction of the creditor, as a condition of his signing a composition, may be regarded as having paid under duress and as not equally criminal with the creditor. These decisions cannot be upheld on the ground simply that such payment is against public policy. Doubtless the rule declared in these cases tends to discourage fraudulent transactions of this kind, but this is no legal ground for allowing one wrongdoer to recover back money paid to another in pursuance of an agreement, illegal as against public policy. It was conceded by Lord Mansfield, in Smith V. Bromley, that when both parties are equally criminal against the general laws of public policy, the rule is potior est conditio dc- fendentis, and Lord Kenyon, in Howson v. Hancock, said that there is no case where money has been actually paid by one of two parties to the other upon an illegal contract, both being particeps criminis, an action has been maintained to recover it back. It is laid down in Cro. Jac. 187, that "a mian shall not avoid his deed by duress of a stranger, for it hath been held that none shall avoid his own bond for the imprisonment or danger of anv one than himself only." And in Robinson .v. Gould (11 Cush. 57) the rule was applied where a surety sought to plead his own coercion as 490 DURESS. growing out of the fact that his principal was suffering illegal im- prisonment as a defense to an action brought upon the obligation of the surety given to secure his principal's release. But the rule in Cro. Jac. has been modified so as to allow a father to plead the duress of a child, or a husband the duress of his wife, or a child the duress of the parent. Wayne v. Sands, i Freeman 351 ; Bay- ley V. Clare, 2 Browne 276 ; i Roll. Abr. 687 ; Jacob's Law Die, "Duress." We see no ground upon which it can be held that the plaintiff in this case was not in par delictum in the transaction with the defend- ants. So far as the complaint shows he was a volunteer in entering into the fraudulent agreement. It is not even alleged that he acted at the request of the debtor. And in respect to the claim of duress, upon which Smith v. Bromley was decided, we are of opinion that the doctrine of that and the subsequent cases referred to can only be asserted in behalf of the debtor himself, or of a wife or husband, or near relative of the blood of the debtor, who intervenes in his behalf, and that a person in the situation of the plaintiff, remotely related by marriage, with the debtor, who pays money to a creditor to induce him to sign a composition, cannot be deemed to have paid under duress by reason simply of that relationship, or of the interest which he might naturally take in his relative's affairs. The plaintiff cannot complain because the defendants negotiated the note, so as to shut out the defense which he would have had to it in the hands of the defendants. The negotiation of the note was contemplated when it was given, as the words of negotiability show. It is possible that the plaintiff, while the note was held by the de- fendants, might have maintained an action to restrain the transfer, and to compel its cancellation. Jackson v. Mitchell, 13 Ves. 58J. But it is unnecessary to determine that question in this case. The plaintiff having paid the note, although under the coercion resulting from the transfer, the law leaves him where the transaction has left him. The judgment should be affirmed. All concur. Judgment affirmed. iii. N Oil- performance of a Public Duty, I. PUBLIC OFFICERS. LOVELL V. SIMPSON. 3 Esp. 153. — 1800. TiTTS was an action of debt under the statute 32 Geo. II, ch. 28, brought by the plaintiff to recover from the defendant, who was a sheriff's officer, the amount of several penalties given by that statute, for taking more money on an arrest than is allowed by that act. NON-PERFORMAXCE OF PUELIC DUTY. 49I The plaintiff gave in evidence, that having Ijeen arrested by the de- fendant, on a writ marked for bail for 500/, he gave bail to the sheriff; that the defendant charged five guineas for the bail bond and civility money ; and that two guineas and a half were actually paid. By the stat. 32 Geo. II. ch. 28, the officer is allowed to take the sum of half a guinea for the bail bond, and no more. The declara- tion contained the common money counts in debt, for money had and received, and money paid, as well as the counts for the penal- ties. The plaintiff having omitted to subpoena the witness to the bail bond, and the extortion being laid to have been committed in taking the money for the bail bond, in all the counts for the penal- ties, the plaintiff was under the necessity of abandoning those counts. His counsel then proposed to go on the count for money had and received. Mingay, for the defendant, contended that the plaintiff should be non-suited, and not be permitted to go into evidence on the money counts. That the action having been brought for the penalties for the breach of a statute, and the plaintiff having failed in establish- ing the offense, should not be allowed to go for the money taken by the officer, in the form of money had and received ; inasmuch as the money, if improperly or illegally taken, subjected him to the penalties which the plaintiff had failed in establishing. Lord Kenyon ruled, that the plaintiff might recover on the money counts ; that it was money extorted from the plaintiff by the defend- ant taking an advantage of his situation, and under a claim of right, which the plaintiff was unable to resist. That the claim arose under a settled rule of law, which entitled a party to recover back money extorted from him, which was the case here ; and the circumstance of the defendant's thereby incurring a penalty could not vary it. Verdict for the plaintiff for the money paid, deducting the sum allowed by law to the defendant.^ * Accord, Swift Co. v. United States, iii U. S. 22 (1884), in which the court says (p. 30) : "If a person illegally claims a fee colore officii, the pay- ment is not voluntary so as to preclude the party from recovering it back. Morgan v. Palmer, 2 B. & C. 729. In Steele v. Williams, 8 Exch. 625, Mar- tin, B., said : 'If a statute prescribes certain fees for certain services, and a party assuming to act under it insists upon having more, the payment can- not be said to be voluntary.' 'The common principle,' says IMr. Pollock, Prin- ciples of Contract 523, 'is, that if a man chooses to give away his money, or take his chances whether he is giving it away or not, he cannot afterward change his mind ; but it is open to him to show that he supposed the facts to be otherwise, or that he really had no choice.' Addison on Contracts 1043 ; Alton V. Durant, 2 Strobh. 257." And see also American Steamship Co. v. Young, 89 Pa. 186 (1879), in which the court says (p. 191): "We think that sound public policy requires us to hold that a public officer who, virtutc officii, demands and takes as fees for his services what is not authorized or more than is allowed by law, should be com- oelled to make restitution. He and the public who have business to transact with him do not stand upon an equal footing. It is his special business to be conversant with the law under which he acts, and to know precisely how much he is authorized to demand for his services; but with them it is different. They have neither the time nor the opportunity of acquiring the information neces- 492 DURESS. V V / / \ BRUMAGIM ET AL. V. TILLINGHAST. -;, '^ \, i8 Cal. 265— i86i. s) Defendant filed a general demurrer, which the court below sus- tained, and gave final judgment in his favor. Plaintiffs appeal. Field, C, J. delivered the opinion of the court; Baldwin, J., and Cope, J., concurring. — The Act of Legislature of April, 1858, amend- atory of the Act of April, 1857, "to provide revenue for the support of the government of this State, from a tax to be levied and col- lected from foreign and inland bills, and other matters," imposes upon bills of lading for the transportation of gold or silver coin, gold dust, or gold or silver in bars, or other form, from any point or place in this State to any point or place without the State, a stamp tax of thirty cents on the first one hundred dollars of the value of the property transported, and of one-fifth of one per cent, upon the amount of its valuation exceeding that sum, and requires that there shall be attached to each bill of lading, or stamped thereon, a stamp or stamps expressing in value the amount of such tax. The original Act of 1857 constitutes the governor, treasurer, and secre- tary of state, comimissioners of stamp duties, and, in substance, provides that they shall cause stamped paper or stamps correspond- ing with the several rates of duties prescribed by the act, to be pre- pared and delivered to the controller, to be by him distributed to the several county treasurers for sale. The original act also de- clares all contracts or instruments of writing executed after the first of July, 1857, charged with the payment of a stamp tax, absolutely void unless stamped or marked as prescribed therein, and makes the issuance of any such instruments without the stamp a misdemeanor punishable by fine. The plaintiffs are bankers, engaged in the reg- ular course of their business in shipping gold and silver coin, gold and silver in bars, and gold dust from the port of San Francisco, in this State, to the port of New York, in the State of New York, and to foreign ports ; and the present action is brought to recover $2,031, alleged to have been paid by them to the defendant, who was treasurer of the city and county of San Francisco, in the pur- chase of stamps to be affixed to bills of lading taken upon shipments made by them from the port of San Francisco to the port of New York. Two questions are presented for determination by the demurrer: 1st, Whether the Act of 1858, referred to, so far as it imposes a stamp tax upon the bills of lading mentioned, is in conflict with the Constitution of the United States ; and 2d, If the act is held to be in sary to enable them to know whether he is claiming too much or not ; and, as a general rule, relying on his honesty and integrity, they acquiesce in his de- mands." And see also, in accord. Ripley v. Gels'ton, 9 Johns. (N. Y.) 201 (1812) ; Clinton v. Strong, g Johns. (N. Y.) 370 (1812). NON-PERFORMANCE OF PUBLIC DUTY. 493 conflict with the Constitution of the United States, whether upon the facts stated in the complaint, the plaintiffs arc entitled to recover from the defendant the amounts paid by them. 1. Upon the first question presented we have the decision of the Supreme Court of the United States, rendered since the appeal in the present case has been pending. In Almy v. The People of the State of California, decided at the December term,^ the constitu- tionality of the act of this State was considered — indeed, constituted the sole question before that Court. =t: =i: * * This decision of the Sui)reme Court is conclusive upon us, and we therefore hold in accordance with it, that the Act of April, 1858, so far as it imposes a tax upon bills of lading for the transportation of gold and silver from any point in this State to any point without the State, 4s-unconstitutional and void. And, as a matter of course, the provisions of the original Act of 1857 for the enforcement of the stamp tax, must be restricted in their application to other instru- ments than such bills of lading. 2. The solution of the second question presented depends upon the character of the payments — whether they were voluntary, or made under compulsion or coercion. Notwithstanding some doubts suggested in the early cases on the subject, the rule is at this day well settled that rnoneys voluntarily paid upon a claim of right, with full^knowledge of all the facts, 'cannot be recovered back merely because the party at the time of payment was ignorant of or mis- took tKfillaw as to his liability. The illegality of the demand paid constitutes of itself no ground for relief. There must be in addition, some compulsion or coercion attending its assertion, which controls the conduct of the party making the payment. * * * * What shall constitute the compulsion or coercion which the law will recognize as sufficient to render payments invokmtary may often be a question of difficulty. It may be said in general that there must be some actual or threatened exercise of power possessed, or supposed to be possessed, by the party exacting or receiving the pay- ment over the person or property of the party making the payment, from which the latter has no other means of immediate relief than by advancing the money. In Forbes v. Appleton, 5 Cush. 117, a payment of money was made in order to prevent the obligee in a bottomry bond from attempting to enforce the same by taking pos- session of the vessel, and the court held that it was not a compul- sory but a voluntary payment, and if the money was not due, the debtor had no right of action to recover it back, although he de- clared at the time of payment that he made it under coercion, and intended to reclaim the same by action. "The principle of law," said the court, "is a very familiar and salutary one, that, where a person with full knowledge of all the circumstances, paid money voluntarily under a claim of right, he shall not afterwards recover back the money so paid. To avoid the application of the rule in the *24 How. (U. S.) 169. 494 DURESS. present case, it must appear that the plaintiff was compelled, by duress of his person or goods, to pay the same. In general, the cases that have been treated as exceptions are cases where the pos- session of the property upon which the lien was claimed was already in the party demanding the money, or cases in which the party had no other means to save himself from imprisonment, or his property from sale, on execution or warrant of distress, but by paying the money demanded." In the case of Mayor and City Council of Balti- more V. Lefferman, 4 Gill 425, the Court of Appeals of Maryland concludes an examination of numerous authorities on the subject of compulsory payments, by stating that it considers "the doctrine as established, that a payment is not to be regarded as compulsory un- less made to emancipate the person or property from an actual and existing duress, imposed upon it ^3; the party to whom the money is paid." And in Mays v. Cincinnati, i Ohio Rep. 268, the Supreme Court of Ohio concludes a like examination by observing, that "this unbroken chain of authority seems to warrant the conclusion that a payment of money upon an illegal or unjust demand, when the party is advised of all the facts, can only be considered involuntary when it is made to procure the release of the person or property of the party from detention, or when the other party is armed with ap- parent authority to seize upon either, and the payment is made to prevent it." Tested by these authorities, the question presented is one of easy solution. The complaint does not show that the payments to the defendant for the stamps were the result of any coercion on his part. It only alleges that in the ordinary course of trade, shipments of gold and silver to New York were made by lines of ocean steamers plying between San Francisco and Panama, and connecting with lines of steamers plying between Aspinwall and New York ; that they afforded the only safe and speedy means by which such ship- ments could be made ; that the owners, agents, and masters of these lines refused to issue bills of lading, unless the same were first stamped, in pursuance of the act of 1858 ; that in order to procure bills of lading for shipments made by them, the plaintiff's were forced to apply to the defendant, as county treasurer, for the purchase of the requisite stamps to be affixed to the bills, and did purchase the same from him at the prices designated in the Act, which he de- manded ; that they protested at the time against the right of the de- fendant to exact payment for the stamps, and against the acts of the Legislature as unconstitutional and void, and gave notice that they would hold him responsible for the moneys paid. No facts are here stated showing any compulsion or coercion by the defendant. The only compulsion or coercion, in fact, alleged, comes from another source — from the masters, agents, and owners of the steamers, from their refusal to issue bills of lading luiless previously stamped. But this conduct of third jiartics cannot be resorted to for the purpose of fastening liability upon the defendant. Unless he has personally done some act which the law condemns, he cannot be charged, v.o NON-PERFORMAXCE OF PUBLIC DUTY. 495 matter how arbitrarily or improperly others may have acted. Sup- pose the owners or agents of the steamers had refused to issue the bills of lading required until the plaintiffs made purchases of other articles than stamps, or bestowed certain bounties, and they had com- plied with these conditions, no one would pretend that an action could subsequently be maintained by the plaintiffs against the ven- dors in the one case, or the recipients of the bounties in the other, to recover back the money with which they had parted. But the case supposed and the case at bar are not materially different. The refusal to issue the bills of lading might as well have been placed on the one ground as the other. The existence of the Act of 1858, it is true, induced the conduct of the agents and owners of the steamers, but the justification of their conduct falls with the consti- tutionality of the act. That conduct, as we have observed, could not afifect the action of the defendant. He was entrusted with a certain quantity of stamps, and authorized to dispose of them to applicants at a fixed price. If the price were paid, he delivered the stamps, but if not paid, he retained them in his possession. The' plaintiffs were at liberty, so far as he was concerned, to purchase or 1 decline purchasing. He was not invested with power to compel ; them to purchase, nor to punish them if they chose to refrain from purchasing. Nor was he in possession of any of their property, the( delivery of which they could not obtain without such pavment. Under these circumstances, the payments made by them were in the | eye of the law, voluntary payments. They were acquainted with all \ the facts, and the case was not one which admitted of false repre- sentations as to the position or power of the defendant. T'le gist of the whole matter, as alleged by the plaintiffs, is simply this : They doubted as to the constitutionality of the Act of the Legislature, and therefore voluntarily purchased the stamps, preferring this course, as one of convenience, to taking proceedings against the owners or agents of the vessels who refused the bills of lading unless stamped. The protest accompanying the purchase and payment of the money \ did not change the character of the transaction. A protest is avail- able, as we said in McMillan v. Richards, 9 Cal. 417, only in cases of payment under duress or coercion, or where undue advantage is taken ; of one's situation. In such cases its object is to take from the pay- ment its voluntary character, and thus conserve to the party a right of action to recover back the money. But where no such compul- sion exists, or advantage is taken, there is no case for its interpo- sition, and the character of the payment is unaffected by it. Fleet- wood V. The City of New York, 4 Sandf. 476. If the payment were in truth voluntary, no language used on the occasion would change its character. Judgment affirmed. DURESS. r^ NIEDERMEYER v. CURATORS OF THE UNIVERSITY OF MISSOURI. ^ ' ^ i ' 6i Mo. App. 654.-1895. vl Smith, P. J. — The catalogue of the University of the State for the years 1891 and 1892 contained the following paragraph, amongst others : "Tuition Charges and Expenses. — Applicants for admission to any of the classes of the law department, or as special students of elective courses, are required to pay the sum of fifty dollars for the first year's attendance and forty dollars for each successive year. "(Signed) Alexander Martin, "Dean, Columbia, Mo." It appears that the plaintiff examined the said catalogue, includ- ing the above quoted paragraph, after which he concluded to enter the University with the view of availing himself of the entire course of legal study there specified. Accordingly, in October, 1892, he paid the treasurer of the University the sum of $50 and was admitted to the junior class of the law department for the year ending June, 1893- In September, 1893, the plaintiff, desiring admission to the senior class of said law department for the session ending June, 1894, offered to pay said treasurer $40 tuition for that year, which offer was rejected, and finding that the sole condition of admission was the prepayment of a tuition fee of $50, he paid that amount under protest, and was thereupon given a matriculation card. In the catalogue of 1893 and 1894 is a paragraph to the effect that law students are required to pay $50 tuition per year. On substantially the foregoing state of facts, the plaintiff brought this suit before a justice of the peace to recover $10 for "excessive tuition collected for law department, 1893 and 1894." There was a trial in the court below, where the cause was removed by appeal, which resulted in judgment for the defendant, from which plaintiff has appealed. The paragraph in the catalogue of 1892 and 1893 was by its very terms a public offer to admit persons as students to any of the classes of the law department of the University, on payment of $50 for the first year and v$40 for each successive year. The plaintiff's payment of $50 and receipt of his matriculation card for the years 1892 and 1893 constituted an implied acceptance and also notice of such ac- ceptance. The contractual relations created between the parties thus became complete and binding. Society v. Broomfield, 102 Ind. 146; Bishop on Contracts, sec. 322 ; Wharton on Contracts, sec. 241 ; Love- joy V. Railroad, 53 Mo. App. 386. Difl the acceptance by plaintiff of the defendant's offer constitute an entire contract ? To determine this requires a construction of the con- tract, and in doing so we must not only consider the language cm- ployed and the subject matter, but view them in the light of the ^/V NON-PERFORMANCE OF PUBLIC DUTY, 497 circumstances, to ascertain what the parties actually understood or intended. 2 Parsons on Contracts (7 ed.) 517. It is manifest that the purpose of the defendants was to secure the attendance of students who would complete the entire course by offering them as an inducement a reduction of the tuition for the successive years which would be required to complete the entire course. The un- disputed evidence shows that the plaintiff entered for the purpose of taking, and did take, the entire course. In view of the language of the offer and the facts just stated, we think that the contract be- tween the parties was an entirety. If, as suggested by the plaintiff, it should be contended the offer and acceptance is a contract for the first year, with an option to take the second year by paying $40, then it is binding on defend- ants, as the plaintiff not only appeared and demanded the right to enter under the option, before the term expired, but paid a valuable consideration for the option, which could not be withdrawn. Bishop on Contracts (ed. 1887), section 325 ; Tiedeman on Sales, section 41 ; Cherry v. Cook, 7 Wis. 413. But, suppose it be conceded that under the contract existing be- tween plaintiff and defendants, the former was entitled to admission to the senior class of law department, for the term ending in June, 1894, on payment of a tuition fee of $40; and suppose, too, it be further conceded that the defendants, by their treasurer, demanded of the plaintiff the payment of the tuition of $50 for said year, as a condition precedent to his admission, and that plaintiff paid the ex- cess above $40 under protest, yet can he recover back such excess in an action of assumpsit for money had and received ? [Then follozvs a review or citation of the follozmng cases: Bris- bane V. Dacres, 5 Taunt. 143 ; Buchanan v. Sahlcin, 9 Mo. App. 563 ; Boston V. Boston, 4 Mete. 181 ; Wolff v. Marshall, 52 Mo. 171 ; Magnire v. Savings Ass'n, 62 Mo. 344 ; Westlake v. St. Louis, yj Mo. 47; Warrensburg v. Miller, yy Mo. 56; Loring v. St. Louis, 80 Mo. 461.] Although in the present case the payment of the excess was not made to preserve the inviolability of the person, or to redeem prop- erty illegally held, or to prevent its unlawful seizure, yet it was made to secure admission. It was paid to remove what was otherwise an in- surmountable barrier to the completion of plaintiff's legal education in the University of his state ; to avoid being compelled to go abroad to seek university advantages, amply provided by his own state for all its citizens ; to enable plaintiff to gain admission to the senior class of the law department and thus speedily obtain his degree ; and to prevent an interference and break in the course of his legal education, and the loss of money expended in reaching the Univer- sity and providing textbooks, etc. The plaintiff and defendants were not on equal terms. The defendants possessed, and in effect threat- ened to exercise, the power of excluding the plaintiff unless the illegal demand of their treasurer met with compliance. Woodruff's Cases — 32 498 DURESS. Under these circumstances, can it be said the payment was vokin- tary? Was it not under moral duress ? Was not the plaintiff under as much compulsion as if the defendants had been armed with a warrant for the arrest of plaintiff or the seizure of his goods? If the fear of seizure of goods, as in 62 Mo., supra, would make the payment of the extorsive excess, if made under objection, compul- sive and involuntary, it would seem that a payment made to prevent the incalculable injury already indicated must be regarded in the same light. According to some of the authorities within and with- out this state, from which we have quoted, the plaintiff's action can- not be maintained ; but according to the most recent rulings of the supreme court just referred to, it would appear that it can. After the proposition contained in the catalogue of 1892 and 1893 had been accepted by plaintiff, and the rights of the plaintiff' had thereby become fixed, it was not within the power of the defend- ants to alter or abridge those rights by withdrawing the proposition and publishing that contained in the catalogue of 1893 ^"^ 1894. And whether plaintiff had notice of that fact before he applied for admission to the second year's course or not, it seems to us, can make no difference. The proposition contained in the catalogue of 1892 and 1893 was that of the state, and, when accepted, good faith and fair dealing required that it should be carried out on the part of the state to the letter. An enlightened and progressive state can ill afford to trifle with the rights of the citizen in the slightest de- gree. Tlie court erred in rejecting the theory contained in the plaintiff's instructions and in adopting that contained in those of the defendants. The judgment must be reversed and cause remanded, with direc- tions to the circuit court to enter judgment for the plaintiff. All concur. 2. COMMON CARRIERS AND PUBLIC SERVICE CORPORATIONS. KENNETH & GIBSON v. SOUTH CAROLINA R. R. IS Rich. L. (S. C.) 284.— 1868. On motion to set aside order of nonsuit. Motion dismissed. Inglis, a. J. — The plaintiffs, Kenneth & Gibson, are merchants of Columbia, engaged, inter alia, in buying cotton there and selling the same, by their agents, in Charleston, or sending it through that port for sale abroad. During the period of about fifteen months, extending from ist July, 1865, to ist October, 1866, they forwarded by defendant's road, in various parcels, from time to time, to differ- ent consignees, in all, nineteen hundred and thirty-seven bales of cotton. The defendant's charges for transportation were, in every instance, paid by the consignee in Charleston, after the delivery of NON-PERFORMANCE OF PUBLIC DUTY. 499 the cotton and without objection. The rates of charges varied from two dollars to five dollars per bale, at different dates during the whole period, and the aggregate sum paid was about eight thousand five hundred dollars ($8,500). The plaintiffs allege that the rates of charges for transportation, which they have thus paid, exceed those which the defendant is, by law, permitted to exact, by a large sum, perhaps some four thousand dollars or more in the aggregate, and in this action of assumpsit for money had and received by the defendant for the use of the plaintiffs they seek to recover back this excess. * * * * In the present case the objectionable charges were not exacted un- til after the service in each instance had been fully rendered, and the plaintiff was, for the particular transaction, out of the power of the defendant. An easy mode of insuring the protection designed by the statute was, after tendering the amount that might be lawfully demanded, and refusing more, to stand an action if the company had chosen to bring one. The defendant's act of demanding and taking more than the maximum of charges prescribed by the statute is illegal only in this, that the company therein exceeded their rightful power and required that which they had no authority by law to exact. And the case is brought back within the operation of the general doctrine. If the defendant, by withholding from any one his property or right, wring from his reluctant and protesting will money to which the company has no lawful right, it cannot, ex aequo et bono, be retained, but may be recovered back in this form of action. But if one, with full knowledge of all material facts volun- tarily pays that which could not be lawfully demanded of him, he has thrown away his shield, and must abide the consequences ; he cannot recover the money. He has waived the protection which the law offered him. His free and intelligent assent has made that right as between them, which would have else been wrong. Volenti n on -fit injuria. * * * * POTOMAC COAL CO. v. CUMBERLAND AND PENN. R. R. 38 Md. 226. — 1873. This was an action of assumpsit by the appellant against the ap- pellee, to recover freights, alleged to have been exacted by the latter from the former, for the transportation of coal on its railroad, in excess of the rates, charged other parties. The case was tried be- fore a jury, upon documentary evidence and an agreed statement of facts, and resulted in a verdict for the appellee under an instruc- tion from the Court, that upon the agreed statement of facts, the plaintiff (appellant) was not entitled to recover. Grason, J. — This is an action of indebitatus assumpsit for money had and received to the plaintiff's use, and is brought to recover the 500 DURESS. sum of forty-two thousand, three hundred and seventy-eight dollars and twenty-one cents, that sum being the difference between the sum charged . and received from the plaintiff, for freights on its coal transported over the defendant's road, from July i, 1864, to March 10, 1 87 1, and the amount the plaintiff would have had to pay had it been charged the lowest rate at which the defendant transported coal for any other person or company during the same time. The case was tried upon an agreed statement of facts, which is set out in the record, and at the trial the plaintiff offered six prayers, all of which were rejected, and the court granted an instruction that upon the agreed state of facts, the plaintiff was not entitled to recover, and the judgment being in favor of defendant the plaintiff appealed. One of the grounds relied upon by appellee's counsel for sustain- ing the rulings of the court below is, that the payments of the freights charged by the appellee were voluntarily made by the appel- lant, and therefore cannot be now recovered, even conceding that they were illegally charged. This question has been clearly and definitely settled in this State by the cases of Mayor and City Council of Balti- more V. Lefferman, 4 Gill 431 ; John B. Morris v. The Mayor and City Council of Baltimore, 5 Gill 247, and Lester v. The Mayor and City Council of Baltimore, 29 Md. 418. In the first of these cases Lefferman had received a notice from the city authorities to build a stone wall upon his property, binding upon Jones' Falls, and that, if he failed to build it by the time speci- fied in the notice, they would build it and charge the cost to him. Lefferman accordingly built the wall and then brought suit to re- cover from the city the money he had expended in its erection, on the ground that the Act of 1821, chap. 252, under authority of which the Mayor and City Council had acted, was unconstitutional and void. The case was very fully argued and the court, in its opinion, says: "It is now established by an unbroken series of adjudications in the English and American courts that where money is voluntarily and fairly paid with a full knowledge of the facts and circumstances under which it is demanded, it cannot be recovered back in a court of law upon the ground that the payment was made under a misap- prehension of the legal rights and obligations of the party." And on page 436 of the same case, the court further say : "We consider, therefore, the doctrine as established, that a payment is not to be regarded as compulsory, unless made to emancipate the person or property from an actual and existing duress, imposed upon it by the party to whom the money is paid." In the case of Morris v. The Mayor &c. of Baltimore, it appeared that Mr. Morris paid taxes on his bank stock at a time to entitle him to a deduction of a certain percentage on the amount paid under an ordinance of the city, and that afterwards he brought suit to recover the taxes so paid, upon the ground that they had been illegally exacted. Judge Martin, in delivering the opinion of the Court of Appeals, says, "After a careful review and examination of the authorities, the court an- nounced in the case of the Mayor and City Council against Leffer- 1/ NON-PERFORMANCE OF PUP.LIC DUTY. 50I man, what they regarded as the true doctrine upon the subject of voluntary and compulsory payments, as far as it was applicable to the case before them ; and we certainly have not been able to per- ceive any reason for departing from the propositions there enunci- ated. On the contrary, we desire to be understood as reaffirming the principles declared in the Mayor and City Council and Leffer- man, and as that case cannot be distinguished from the one before us, we should have affirmed the judgment of the court below, even if we had considered the tax as unconstitutional and void." In the case of Lester v. The Mayor &c. of Baltimore [29 Md. 418], Lester paid his taxes after his property had been advertised for sale by the collector of the taxes, yet this court said, "No principle is bet- ter settled than that where a person, with full knowledge of the facts, voluntarily pays a demand unjustly made upon him, though attempt- ed or threatened to be enforced by proceedings, as appears to have been the case in this instance, it will not be considered as paid by compulsion, and the party, thus paying, is not entitled to recover, though he may have protested against the unfounded claim at the "^.ime of payment made." In the case now under consideration, it is not claimed by the ap- pellant's counsel, that the money sought to be recovered, was paid under a mistake of the facts, or under circumstances of duress, fraud or extortion. On the contrary, it appears from the agreed statement of facts that the appellee was carrying coal for the appel- lant for nearly seven years, during the whole of which time the latter was voluntarily paying the freights demanded. The case is therefore clearly within the principle decided by this court in the cases referred to, and as that principle is conclusive against the right of the appellant to recover, it is unnecessary, to decide the other points presented by the record. We concur in the rulings of the Circuit Court, and its judgment must be affirmed. Judgment affirmed. % MONONGAHELA NAVIGATION CO. v. WOOD et al. 194 Pa. St. 47.— 1899. (y Brown, J. — The appellants insist that they ought to recover back excessive tolls collected from them by the appellee, and their right to do so depends upon the facts developed on the trial. It seems that for a number of years the Monongahela Navigation Company, under its corporate power to charge and receive "such rates of toll and charges as shall be just and reasonable," had adopted a schedule for coal and slack, the rate for the latter being one-half of that charged for the former. Some years ago the shippers — among them the appellants — began to ship the coal as it came from the mine, forming one mass and known as "run of mine coal," which had pre- 502 DURESS. viously been separated into coal and slack. Upon such shipments the Monongahela Navigation Company charged the full coal rate, and the shippers, alleging and having shown on the trial that two-fifths of the run of mine coal was slack, insisted that they ought to be charged for it one-half of the rate fixed for coal, or for the whole shipment, but four-fifths of the coal rate. A number of cases were tried together, — five in which the Monongahela Navigation Com- pany was plaintiff, seeking to recover unpaid tolls, and two in which the shippers, as plaintiffs, sought to recover back excessive charges paid. The specifications of error involve but the single question of the right of the shippers to recover back excessive tolls collected from them, and we have reviewed all the testimony taken on the joint trial in considering and determining whether any error was committed by the learned trial judge in his instructions to the jury, which alone are assigned as error. These instructions were that the shippers could not recover back the tolls alleged to have been illegally paid, either in a suit brought by them or by way of set-off in proceedings against them. The jury found that the tolls charged were unreasonable, and, so far as they had not been paid, proper allowance was made to the shippers in each case. Ought they to recover back what they had paid? This depends upon the conditions under which the tolls or charges w^ere paid. The appel- lants in every instance claimed the tolls as a matter of right. It is true that complaint was made from time to time that the charges were excessive and discriminating, and that other rates ought to be fixed. Disputes were continuous over the tolls exacted, and de- mands were made for modifications, but in every instance the com- pany insisted upon its right to demand and receive v/hat was paid, and no notice was ever given at the time of payment that the rates charged were illegal, and that they were involuntarily paid. In Peebles v. City of Pittsburgh, loi Pa. St. 304, our Brother Green held that : "Where there is compulsion, actual, present, potential in inducing payment by force of process, available for instant seiz- ure of person or property, and the demand is really illegal, then the party, by giving notice of the illegality and of his involuntary payment, can recover back the money so paid in an action brought for that purpose." This, in express terms, was reaffirmed in Harvey v. Bank, 119 Pa. St. 212, 13 Atl. 202. If the shippers had insisted that illegal tolls were being exacted from them, as the jury subse- quently found, and that they paid the same involuntarily, under pro- test, for the purj)ose of having their coal pass through the locks, they could have recovered any excess paid. In protesting, some notice ought to have been given, formal or informal, that the amount paid would be reclaimed. We have failed to discover that in any case, either when the tolls were paid or at any other time, was notice served upon the company that the shipper would demand repayment of the excessive amount paid. As we have not been persuaded that there is any error in the instructions complained of, but, on the other NON-PERFORMANCE OF PUBLIC DUTY. 503 hand, after a careful review of all the testimony, feel that what was said to the jury was proper, all the assignments of error are over- ruled, and the judgment is affirmed. Beck, J., in HEISERMAN et al. v. BURLINGTON, C, R. & N. RAILWAY. 63 Iowa 732, 736.— 1884. III. It will be observed that this action is not brought to recover the penalties for overcharges by the railroad companies, provided by chapter 68, Acts of the Fifteenth General Assembly, in force when the acts complained of by plaintiff were done. The plaintiffs seek to recover the sums paid by them in excess of reasonable charges, and nothing more. The liability of defendant for money collected for the transportation of property, in excess of reasonable charges, existed at common law. The enactment of a statute impos- ing penalties for excessive charges, recoverable by the party injured, Dr providing that for exacting and collecting them the agent of the railroad company shall be guilty of a misdemeanor, does not take away the right existing at common law to recover money paid in excess of reasonable charges. See City of Dubuque v. 111. Cen. Ry. Co., 39 Iowa 56; City of Burlington v. B. & M. Ry. Co., 41 Id, 134; Crittenden v. Wilson, 5 Cow. 165 ; Gooch v. Stephenson, 13 Me. 371 ; Candee v. Howard, 37 N. Y. 653. The injured party may waive the tort created by statute, and sue upon the implied contract raised by law, whereby the carrier is obliged to repay the consignee or consignor of the property all sums exacted in excess of reasonable compensation. Nor need the plaintiff, in a case brought to enforce such an obligation, show ob- jection or protest prior to the payment made in excess of a reasona- ble compensation. These rules are founded upon the consideration that railroad companies are public carriers, and those who employ them are in their power, and must bow to the rod of authority which they hold over consignors and consignees of property transported by them. If the consignor refuses to pay or contract to pay the charges fixed by the railroad company, his goods will not be car- ried ; or, if the consignee refuses to make the payment demanded, the goods will not be delivered. In both cases great loss and even destruction of profitable business will result. If railroad companies should be held free from liability for excessive charges, the whole business of the country would be subject to unjust exactions, result- ing in oppression to citizens and destruction to useful and profitable business. The law does not require objection or protest to the pay- ment of unjust charges, for the reason that they would be vain, being addressed to those who occupy the commanding position of 504 DURESS, power to enforce obedience to their requirements. For another reason they are not required : Those who do business with rail- roads never come in contact with the officers who possess authority to fix or abate rates of charges; indeed, they usually hardly know their names or where to find them. Their places of business are usually in cities, distant from points where much of the property is received for transportation. If the consignee should be required to make objection or protest to these officers, delays would follow, resulting in loss, and, in the case of the shipment of some kinds of perishable property, in its decay. These considerations take the case from the operation of the familiar rule which forbids recovery on account of payments voluntarily made without objection or protest. This rule does not apply to cases of compulsory payments, and does not require objection and protest when they would be unavailing and vain. The doctrines we have expressed are supported by the following authorities : Chicago & Alton Ry. Co. v. Coal Co., 79 111. 121 ; Mobile & M. Ry. Co. v. Steiner et al., 61 Ala. 559 ; Parker v. Great Western Ry. Co., 7 Man. & Gr. 253 ; Harmony v. Bing- ham, 12 N. Y. 99; Chandler v. Sanger et al., 114 Mass. 364; Ste- phan v. Daniels et al., t.'j Ohio 527 ; Robinson v. Ezzell, 72 N. C. 231; Carew v. Rutherford et al., 106 Mass. i ; Lafayette & I. Ry. Co. V. Pattison, 41 Ind. 312; Philanthropic Building Ass. v, Mc- Knight, 35 Pa. St. 470; Wood v. Lake, 13 Wis. 84; Wheaton v. Hibbard, 20 Johns. 290; Thomas v. Shoemaker, 6 Watts & S. 179; Palmer v. Lord, 6 Johns. Ch. 95 ; State Bank v. Ensminger, 7 Blackf. 105. IV. The action, as we have shown, is not brought to recover the penalty provided by statute, which is barred by the statute of limitations in two years. Herriman v. B., C. R. & N. Ry. Co., 57 Iowa 187. Being an action to recover upon an implied contract, it is not barred until the expiration of five years. ^ MOBILE AND MONTGOMERY RAILWAY v. STEINER, McGEHEE & CO. 61 Ala. 559. — 1878. The appellees, Steiner, McGehee & Co., brought this action against the appellant. The Mobile and Montgomery Railway Co., on the 14th day of February, 1876, to recover certain penalties which the complaint alleged the railway company had incurred, at various times, between the 21st day of April, 1875, ^"^^ the first day of De- cember of that year, by violating the provisions of the second sec- tion of "an act regulating the charges for transportation of freight ' Accord, Cook & Whcclcr v. Chicago, R. I. & P. Ry., 81 Io\v;a S5i (1890). NON-PERFORMANCE OF PUBLIC DUTY. 505 upon railroads within this State," approved April 19, 1873. Some of the counts also sought to recover the amount of overcharges ille- gally exacted on freights, between the ist day of December, 1875, and the 4th day of February, 1876, Stone, J. — * * * * We have shown above that any demand and payment of charges for transi)ortation of local freight, above fifty per cent, increase on the rate of the same description of freight over the whole line of the railway is excessive and illegal. It is in positive disregard and violation of the mandate of the law. It is con- tended for appellant, first, that inasmuch as the statute has declared the rate of tolls, and has given a penalty for its violation, this rem- edy is exclusive, and none other can be resorted to. Second, that the payments were voluntarily made, and therefore cannot be recovered back. We do not think there is anything in either of these objec- tions. In regard to the first, any violation of a statute, or disregard of a statutory duty, by which another suffers pecuniary loss, gives to the injured party a right of action for the damages sustained. Satterfield, ExV, of Grey, v. Mobile Trade Co., 55 Ala. 387. And where the wrong consists in the unauthorized demand of money, and its payment under such unauthorized demand, this is money had and received by the defendant for the use and benefit of the payor, unless the case falls within the principle of money voluntarily paid ; and a count for money had and received is sufficient for its recovery. The second objection. Railroads have so expedited and cheapened travel and transportation ; have so driven from their domain all com- peting modes of transportation, that the public is left no discretion but to employ them, or sufl^er irreparable injury in this age of steam and electricity. They have their established rates of charges, and these the shipper must pay, or forego their facilities and benefits. To object or protest would be an idle waste of words. The law looks to the substance of things, and does not require useless forms or ceremonies. The corporation and the shipper are in no sense on equal terms, and money thus paid to obtain a necessary service, is not voluntarily paid, as the law interprets that phrase. In the case of the Chicago and Alton Railroad Co. v. the C, V. & W. Coal Co., 79 111. 121, the court, in reply to the objection that the money was voluntarily paid, said : 'Tt can hardly be said these enhanced charges were voluntarily paid by appellees. It was a case of life or death with them, as they had no other means of conveying their coals to the markets offered by the Illinois Central, and were bound to accede to any terms appellants might impose. They were under a sort of moral duress, by submitting to which appellants have re- ceived money from them which in equity and good conscience they ought not to retain." The case of Parker v. Gr. Wes. R. R. Co., 7 Man. 81 Gr. 253, was a suit by a shipper to recover back excessive charges paid the railroad. It was objected that the payment was voluntary. The court, C. J. Tindal. said : "We are of opinion that the payments were not voluntary. They were made in order to in- DURESS. duce the company to do that which they were bound to do without them ; and for the refusal to do which an action on the case might have been maintained." The case was assumpsit for money had and received, and the court ruled that the action was well brought. To the same effect are the following authorities, 2 Greenl. Ev., § 121 ; Colwell V. Peden, 3 Watts 327 ; Harmony v. Bingham, 2 Ker. 99 ; Bos. & S. Glass Co. v. City of Boston, 4 Mete. 181 ; Chandler v. San- ger, 144 Mass. 364 ; Stephen v. Daniels, 2^ Ohio St. 527 ; Tuttle v. Everett, 51 Miss. 27; Howe v. State, 53 Miss. 57; Robinson v. Ez- zell, ']2 N. C. 231 ; First National Bank v. Watkins, 21 Mich. 483; Atwell V. Zeluff, 26 Mich. 118; McKee v. Campbell, 27 Mich. 497; Carew v. Rutherford, 106 Mass. i ; L. & I. Railroad Co. v. Pattison, 47 Ind. 311. The case of Potomac Coal Co. v. C. & P. Railroad Co., 38 Md. 226, is not in harmony with the above, but we decline to follow it. * * * * ^ \ PINGREE V. MUTUAL GAS CO. A i 107 Mich. 156. — 1895. McGrath, C. J. — Plaintiff paid to defendant during the years 1887 to 1892, inclusive, for gas consumed upon his premises, an aggregate amount of $181.34 in excess of the rates prescribed by the ordinance under which the company operated. The payments were made upon monthly bills rendered on the first of each month, "H for the gas consumed during the previous month. The testimony is not reported, but, instead, are concessions ; and it is conceded that, a ,jx^ ^ at the time of the payment of the bills, plaintiff did not know what.j'* the average charge was in the cities named in the ordinance. Plain- tiff recovered. Defendant insists (i) that the ordinance does not confer a right of action in favor of a private consumer, and (2) that the payments must be regarded as having been voluntary. The ordinance provides that "said corporation shall in no instance, nor under any circumstances whatever, charge either public or pri- vate consumers higher rates for the supply of light than an average of the rates charged" and paid by such consumers in five cities, nam- ing them. This provision was enacted for the protection and bene- fit of the consumers. It limited the rate which defendant could law- fully charge, and a charge in excess thereof was illegal, and its col- lection an illegal exaction. The right to recover money illegally exacted does not depend upon the statute. Weet v. Trustees of Vil- lage of Brockport, 16 N. Y. 161, note ; City of Brooklyn v. Rail- road Co., 47 N. Y. 485 ; Robinson v. Chamberlain, 34 N. Y. 389 ; McMahon v. Railroad Co., 11 Hun 350; McGregor v. Railway Co., 35 N. J. Law 89 ; Grey's Ex'r v. Mobile Trade Co., 55 Ala. 387. As to the second point, it appears that the bills were paid in ignor- NON-PERFORMANCE OF PUBLIC DUTY. 507 ance of the fact that the rates charged were in excess of the average rate in the cities named in the ordinance. It would be extremely technical to give any other construction to the concession made in the record. It is we'll settled that a voluntary payment cannot be re- covered back, but a voluntary payment is one made with a full knowl- edge of all the circumstances upon which it is demanded, and with- out artifice, fraud, or deception on the part of the payee, or duress of the person, or goods of the person making the payment. It is equally true that money paid under a mistake of a material fact may be recovered. Ignorance of the existence of the ordinance is not made the basis of the recovery here, but ignorance of the fact that the rates charged and paid were in excess of those in the cities named. The cases relating to the recovery of excessive passenger or freight rates are analogous in principle to the present case. The right of a party from whom has been exacted payment of rates of carriage in excess of those fixed by charter or statute, to recover the overcharge, is no longer open to serious question, i Wood, R. R. p. 679, § 206 ; 8 Am. & Eng. Enc. Law 934 ; Parker v. Railway Co. 7 Man. & G. 253; Railroad Co. v. Lockwood, 17 Wall. 379; Trans- portation Co. V. Sweetzer, 25 W. Va. 434; Peters v. Railroad Co., 42 Ohio St. 275 ; Railroad Co. v. Steiner, 61 Ala. 559 ; Heiserman V. Railway Co., 63 Iowa 732, 18 N. W. 903. Arnold v. Railroad Co., 50 Ga. 304, cited by defendant's counsel, holds that if a payment be made through mere ignorance of the law, or paid when the facts are all known, and there is no misplaced confidence and no artifice or deception, an action will not lie to recover it back. In Potomac Coal Co. V. Cumberland & P. R. Co., 38 Md. 226, the action was for excess of freight paid by plaintiff from July i, 1864, to March 10, 1871. The statute prohibited discrimination. It was held that the money had been paid voluntarily, under no mistake of fact, and, there being no circumstances of duress, fraud, or extortion, the plaiti- tiff was not entitled to recover. In Killmer v. Railroad Co., 100 N. Y. 395, 3 N. E. 293, there was no statute fixing the rate or render- ing the charges unlawful. Held, that the common-law duty imposed upon common carriers to carry goods upon being paid a reasonable compensation does not preclude special contracts between railroad corporations and shippers regulating the freight charges ; and, where freight has been^carried for a long course of years at the schedule price, the shipper making no objection as to the reasonableness of the charge, he must be deemed to have assented to the charge as rea- sonable, and to have voluntarily waived any objection thereto: at least, the receipt of the freight by the company at the tariff rate has no element of extortion, and an action is not maintainable to re- cover back any portion thereof, although evidence is given author- izing a finding that the charge was more than a reasonable sum for the transportation. The court in that case distinguished it from the cases arising under charter clauses or statutes prohibiting discrimi- nation or fixing rates, and say : "In those cases there was a viola- tion of a specific statutory duty, and in all of them the payment was 508 DURESS. made either under protest or in ignorance of a fact which could only be known in general by the corporation, and which was con- cealed from the shipper. What is a reasonable sum for transporta- tion of goods in a given case is often a complex question, into which enter many elements and considerations, and is incapable of exact solution. * * * 'pj^g company is, doubtless, better informed than the shipper as to what would be a compensatory or reasonable charge, but many of the facts which enter into the formation of a judgment on the question are accessible to the shipper." A distinction may well be made between cases depending upon the common-law duty to carry goods at a reasonable compensation, and those where, by the statute, the rate is fixed by comparison, or discrimination is prohibited. In the latter class of cases the facts are pecuHarly within the knowledge of the company fixing the rate, and the presumption indulged by the party making the payment would naturally be that the statute was being complied with. The case of Advertiser Co. v. Detroit, 43 Mich. 116, 5 N. W. 72, arose under a printing contract, and was put upon the ground that, in the absence of fraud, a municipal body which is given the power to al- low claims, when it has officially passed upon a claim, must be con- clusively presumed to have had at the time full knowledge of all the facts pertaining thereto, which a proper investigation would then have disclosed. No such presumption applies to dealings between individuals. The payment in the present case was made in ignor- ance of a material fact. Of course, no objection or protest was made. An objection would imply knowledge of the fact. Payments made by reason of a mistake or ignorance of a material fact are re- garded as involuntarily made. Ignorance of a fact may be equiva- lent to a mistake of fact. Hurd v. Hall, 12 Wis. 112. In Fuller v. Railroad Co., 31 Iowa 187, the court did not decide the question whether a person could recover the overcharge if he knew at the time of payment that it was in excess of the rates fixed, but held that, if he was ignorant of the fact at the time, he could recover. See, also, Swift Co. v. U. S., iii U. S. 22, 4 Sup, Ct. 244; U. S, v. Barlow, 132 U. S. 271, 10 Sup. Ct. yj \ Moses v. Macferlan, 2 Bur- row 1005 ; Beckwith v. Frisbie, 32 Vt. 559 ; Devine v. Edwards, loi 111. 138; Renard v. Fiedler, 3 Duer 318. But it is urged that plaintiff was negligent in not ascertaining the fact. But mistake of fact usually arises from lack of investigation. The fact in the present case was not one with which the defendant had nothing to do. Its duty was to know the fact. It presented the bills containing the excessive charges. As is said in Walker v. Conant, 65 Mich. 194, 31 N. W. 786, the rule is general that money paid under a mistake of material facts may be recovered back, al- though there was negligence on the part of the person making the payment. The judgment is affirmed. Grant, J., did not sit. The other justices concurred. USURIOUS INTEREST. 509 iv. Usurious Interest. PHILANTHROPIC BUILDING ASSOCIATION v. MC- KNIGHT. 35 Pa. St. 470.— 1860. This was an action of assumpsit by William McKnight against the Philanthropic Savings, Loan and Building Association, to re- cover back a sum of money paid to the defendants on an usurious contract. On the 23d of June, 1854, the plaintiff, who was the holder of five shares of the stock in the Philanthropic Savings, Loan and Building Association, was the successful bidder for a loan of $1,000 at a premium of 28 per cent. He accordingly received from the de- fendants the sum of $720, executed to them a bond and mortgage in the sum of $1,800, and transferred his five shares of stock as col- lateral security. On the 9th of August, 1858, the plaintiff notified the defendants of his desire to pay off his loan and discharge the mortgage. A settlement was accordingly had between the parties, in which the mortgage was estimated at $900, and the defendants agreed to take the plaintiff's stock at the sum he had paid in on ac- count of it ; the balance, amounting to $574.07, the plaintiff paid in cash, and satisfaction was entered on his mortgage. This suit was subsequently brought to recover back the difference between the sum of $720 with legal interest, and the amount actually paid to the defendants. Strong, J. — That the payment of usurious interest is not a volun- tary payment in any such sense as to entitle the receiver to retain the sum paid above legal interest is too well settled to admit of doubt. The money is paid under the constraint of a formal though illegal contract. That contract itself was obtained by oppression, by tak- ing advantage of the necessities of the borrower, and, of consequence, so was the usurious interest paid under it. The early disposition of the English courts was to deny the right of a party paying such interest to recover back any portion of the money paid, for the rea- sons that both parties to such a transaction were deemed to be "in pari delicto," and the excess of interest was regarded as paid vol- untarily, so that the maxim "volenti non iit injuria" would apply : i Salk. 22.^ The authority of this decision, however, was soon ques- tioned. Lord Mansfield declared that the case had been denied a thousand times : Cowper 199. At a later date a distinction was taken between transactions under statutes enacted on grounds of general policy, where each party violating the law is held to be in equal fault, and transactions under the usury laws, enacted to pro- tect weak and needy men from being defrauded and oppressed. To the latter the law does afford relief. It regards the lender on usury * Accord, Spalding v. Bank of Muskingum, 12 Oh. 544, 547 (1841). 5IO DURESS, as an oppressor, and the borrower as the injured and oppressed: Browning v. Morris, Cowp. 790; Briggs v. Thompson, 20 Johns, 294; Thomas v. Shoemaker, 6 Watts & Serg. 183. And in none of the cases do we discover that any other evidence of duress or op- pression has been held to be necessary than such as is involved in the act itself of taking the money under an usurious contract. The principle of the statutes of usury seems to be that the lender alone is the wrongdoer, and that the borrower is his victim.^ In this case the jury w-as instructed that the plaintiff could re- cover whatever he had paid to the defendants (on account of prin- cipal, instalments, interest, fines, or otherwise) over and beyond the sum of $720 originally lent, and six per cent, interest thereon, and this even though the plaintiff, before his mortgage became due and could be demanded, proposed to the defendants to pay it and with- draw his stock, and although a settlement was had accordingly, and the mortgage was satisfied. By the term withdrawal of the stock it is to be understood not that stock was returned to the plaintiff, for none ever was, but that he should cease to be a stockholder. In effect, the transaction was an extinguishment of the stock. The parties agreed to treat with each other simply as debtor and creditor. Now, how is it possible that the fact that the settlement was made before the mortgage became due and payable can change the nature of the transaction ? It still remains that the security which had been exacted was for a greater amount than the sum actually lent. The settlement and payment, therefore, were under the constraint of an usurious contract, and consequently, the "taking" the money was itself usurious, whether before or after the day of payment fixed in the mortgage. Nor can the character of the "taking" be changed by the fact that the defendants accepted a smaller amount of usurious interest than they would have received had they exacted all that the mortgage called for. Then, what is there in the withdrawal of the stock, in other words, its extinction, more than an application of the amount paid upon it toward the satisfaction of the debt? Certainly the defendants cannot say, after having taken an assignment of the stock as collateral security for the payment of the plaintiff's bond and mortgage, that its value was less than the amount of money paid to them upon it. When, therefore, he relinquished to them all his legal and equitable ownership, when he gave to them the benefit of all the payments he had made upon it. it is not easy to see wdiy he is not to be credited with the amount of those payments toward the discharge of his debt. The stock may have been worth more than that amount. It could not have been worth less. The charge to the jury in this respect was, therefore, unexceptionable, and it was in entire harmony with what was said in Kupfert v. The Guttenberg Building Association, and Hughes's Appeal, 6 Casey 465 and 471. 'Accord, State Bank v. EiismiiiRcr, 7 Rlackf. (Ind.) 105 (1844), and Brown V. Mcintosh, 39 N. J. L. 22 (1876), the latter case containing a detailed review of the English cases. USURIOUS INTEREST. 5 II We think, also, the court was right in refusing to charge the jury that there was evidence from wliich they might infer that the ar- rangement made and consummated between the parties was a sale of the stock to the defendants for the balance of the mortgage loan, after deducting all direct payments for principal and interest. We are unable to find any evidence wdiich would warrant such an in- ference. A withdrawal of the shares, not a sale, was the thing pro- posed and assented to. Nothing more was intended, nothing more was done. Judgment affirmed.^ GROSS V. COFFEY. Ill Ala. 468. — 1895. McClellan, J. — * * * * The question of chiefest importance in this case arises on the rulings of the trial court on charges request- ed, and is whether usury paid can be recovered back in an action of assumpsit ; that is, in the absence of a promise to repay or refund it. At common law such recovery w-as allowed, and in many of the states the action is sustained. The ruling, however, at common law and in those states, except when their statutes expressly or impliedly au- thorize this action, goes upon the theory that a contract to pay usury is illegal and void, and not voidable merely ; and the main difference between the statutes in the states referred to and our own lies in the fact that they either in terms declare, or have been construed and held to declare, such contracts absolutely void, while the statutes of Alabama do not so declare, but only provide that an usurious contract cannot, when the objection is properly taken to it, be enforced in re- spect of the usury or interest, but may be as to the principal, and have uniformly been held to render such contracts to that extent voidable at the election of the payor, but not in and of themselves il- legal and void. The common-law doctrine, and the doctrine ad- ministered in those states which allow such recovery, is very ably and clearly stated by the supreme court of New Jersey through Reed, J., in Brown v. Mcintosh, 39 N. J. Law 22. The contrary view — that which denies such right of recovery — is maintained by the su- preme court of Massachusetts, among others, and is expressly put upon the ground that the statutes of that state do not render a con- tract whereby usurious interest is allowed illegal and void ; and upon this consideration the court differentiates its ow^n conclusion from the contrary one reached by the New Hampshire and other * Contra, Dickerson v. Raleigh Building Asso., 89 N. C. 37, 39 (1883). where the court says: "The courts of justice will not aid the defendant association, on the one hand, in the collection of its unlawful claims upon its members ; nor will they, on the other, aid its corporators in their efforts to recover moneys they may have paid under engagements inoperative in law. Ex dolo malo non oritur actio. Mills v. B. & L. A., 75 N. C. 292; Latham v. B. & L. A., 7y N. C. 145 ; Commissioners v. Setzer, 70 N. C. 426." 512 DURESS. courts, and referred to in argument, saying : "The consideration that now, by law, the contract is not void, distinguishes this case from those cited, and takes away the ground upon which they rested. The ground upon which it was formerly held that an ac- tion for money had and received would lie was that it was illegal and oppressive to take more than 6 per cent, interest, and therefore it could not conscientiously be retained from the person who had paid it. This was the ground upon which the case of Willie v. Green, 2 N. H. 333, was decided ; for, although the statute of New Hamp- shire in force at that time was like our present law, in providing that three times the interest might be forfeited and deducted when such a contract was in suit, and gave a suit to recover back, not the whole, but a part, of the usurious interest, yet, unlike ours, it expressly pro- hibited the taking of more than 6 per cent., and thereby made it il- legal. But as, by our statute, the contract is not illegal, the party who has suffered by paying usurious interest is confined to the stat- ute remedies." Crosby v. Bennett, 7 Mete. (Mass.) 17. And upon like reasoning the same conclusion is reached in a number of other states whose statutes do not declare or render a contract involving usury illegal and void, but only provide defenses thereto in respect of the usury and interest, or forfeitures and the like. Van Vleet v. Sledge, 45 Fed. 743 ; McBroom v. Investment Co., 153 U. S. 318, 14 Sup. Ct. 852; Graham v. Cooper, 17 Ohio 605; Williamson v. Cole, 26 Ohio St. 207 ; Ouinn v. Boynton, 40 Iowa 304 ; Smith v. Coopers, 9 Iowa 376 ; Philips v. Gephart, 53 Iowa 396, 5 N. W. 683 ; Bank v. Sherwood, 10 Wis. 230 ; Ransom v. Hays, 39 Mo. 445 ; Had- den V. Innes, 24 111. 381 ; Tompkins v. Hill, 28 111. 519; Lake v. Brown, 116 111. 83, 4 N. E. 773; Bank v. Lutterloh, 81 N. C. 142; Woolfolk V. Bird, 22 Minn. 341 ; Cornell v. Smith, 27 Minn. 132, 6 N. W. 460; Security Co. v. Aughe, 12 Neb. 504, 11 N. W. 753; Blain v. Willson (Neb.), 49 N. W. 224. Alabama belongs to this latter category of states. Usurious con- tracts with us are not void. In any event, they are perfectly valid and binding so far as the principal is concerned, and are also good, and may even be enforced in our courts, as to the interest and usury, unless the payor elects to interpose the defense as to the latter items which the statute furnishes him. Code, §§ 1750, 1754'. Masterson V. Grubbs, 70 Ala. 406; Burns v. Campbell, 71 Ala. 271 ; Bradford v. Daniel, 65 Ala. 133. And it is not claimed that the legislature has in any manner authorized an action for the recovery of usury paid. So that, if the question were an open one in this court, we should not hesitate to declare that usury voluntarily paid, as it was in the case at bar, if paid at all, cannot be recovered back in an action of assumpsit. The promise to pay it is not illegal and void, but voidable only, at the election of the promisor. Not availing himself of the statutory defense, it cannot be said that his act in paying or the promisee's act in receiving the usury is illegal. But the ques- tion is not an open one in Alabama. It was, in substance, decided, against the right of recovery back, in the celebrated case of Jones v. USURIOUS INTEREST. 513 Watkins, i Stew, 8i, and expressly so ruled in the case of Noble V. Moses Bros., 74 Ala. 604, 621 ; and subsequent decisions in this latter case did not overrule the first opinion as to this point. The plaintiff must therefore recover, if at all, on the alleged promise of the defendant to repay and refund whatever of usury was included in the payment made by him to the defendant, and the recovery must, of course, be measured by the terms of that promise. * * * *i Spencer, Ch. J., in WHEATON v. HIBBARD. 20 Johns. (N. Y.) 290. — 1822. The statute to prevent usury (i N. R, L. 64), after regulating the rate of interest, authorizes the party paying usurious interest to sue for and recover the excess above 7 per cent., within one year then next, with costs of suit, in an action of debt, founded on the act ; and it prescribes a succinct form of declaring. It then provides that if the person paying usury shall not, within the time aforesaid, really and bona fide commence his suit for the money so paid, or suf- fers it to be delayed or discontinued, then it shall be lawful for any other person, within one year after such neglect, to sue for and re- cover the same, in manner aforesaid, one moiety whereof is given to such person, and the other moiety to the use of the poor of the town in which the ofifense is committed. This provision is peculiar to our statute. By the 12 Anne, ch. 16, the party receiving more than the legal rate of interest, forfeited the treble value of the moneys or other things lent. It is contended that the person who pays above the legal rate of interest is con- fined to the statute remedy, and that he must not only sue in an ac- tion of debt, but that the suit must be within one year, or he is forever precluded. Now the principle is, that where a party has a remedy at common law for a wrong, and a statute be passed, giv- ing a further remedy, without a negative of the common-law remedy, ^ The Missouri statute provides that usurious interest cannot, if this de- fense is set up, be recovered from the debtor ; but "the statute does not con- template the recovery back of unlawful interest once paid on a usurious con- tract." See Peters v. Lowenstein, 44 JNIo. App. 406, 409 (1891). In Massachusetts the statute "provides that it shall be lawful 'to contract for payment and receipt of any rate of interest, provided, however, that no greater rate of interest than six per centum per annum shall be recovered in any ac- tion, except when the agreement to pay such greater rate of interest is m writing.' The third section repeals §§ 3-5 of the Gen. Sts. c. 53. Under this statute, so long as an oral agreement to pay a greater rate of interest than six per cent, remains executory, it cannot be enforced. But it is lawful for parties to pay and to receive a greater rate, and if a greater rate is voluntarily paid, the excess over six per cent, cannot be recovered back." — Marvin v. Mandell, 125 Mass. 562, 564 CT878). "Woodruff's Cases — 33 514 DURESS. expressed or implied, he may, notwithstanding the statute, have his remedy by action at common law. i Com. Dig. Action on Statute, C. There are no words in the statute, either expressly or impliedly, negativing the common-law remedy. The injured party cannot have both remedies, and if he neglect to pursue the statute remedy for more than a year, his right of action at common law would be sus- pended during the second year, for, peradventure, a third person may prosecute. National Bank Act. — In Barnet v. National Bank, 98 U. S. 555 (1878), in an action upon a bill of exchange, defendant sought to apply as payment upon the bill, usurious interest paid. The court said (p. 557) : "The national currency act of Congress of June 3, 1864 (13 Stat. 99, § 30), after prescribing the rate of interest to be taken by the banks created under it declares : 'And the knowingly taking, receiving, reserving, or charging a rate of interest greater than aforesaid shall be held and adjudged to be a forfeiture of the entire interest which the note, bill, or other evidence of debt carries with it, or which has been agreed to be paid thereon ; and in case a greater rate of interest has been paid, the person or persons paying the same, or their legal representatives, may recover back, in any action of debt, twice the amount of inter- est thus paid, from the association taking or receiving the same ; provided, that such action is commenced within two years from the time the usurious transaction occurred.' * * * * The remedy given by the statute for the wrong is a penal suit. To that the party aggrieved or his legal representative must resort. He can have re- dress in no other mode or form of procedure. The statute which gives the right prescribes the redress, and both provisions are alike obligatory upon the parties. While the plaintifif in such cases, upon making out the facts, has a clear right to recover, the defendant has a right to insist that the prosecution shall be by suit brought specially and exclusively for that purpose, — where the sole issue is the guilt or innocence of the accused, without the presence of any extraneous facts which might confuse the case, and mislead the jury to the prejudice of either party." REAL ESTATE TRUST CO. v. KEECH. 69 N. Y. 248.— 1877. This action was brought to foreclose a mortgage given to secure a bond for $19,000. The defense was usury. After the bond be- came due, it was agreed between plaintiff and defendant that in con- sifleration of the sum of $t,ooo paid by defendant, the time of pay- ment should be extended for six months. The sum so paid was to be over and above lawful interest. DURESS OF PERSON. Jij Andrews, J. — The bond and mortgage were valid in their incep- tion, and the usurious agreement for the extension of the time of payment after the debt became due, did not afifect their vahdity. The agreement for forbearance was void, but the original debt and the securities given for it remained in full force. Ijlydenburg on Usury 97 ; Swartwout v. Payne, 19 J. R. 294 ; Merrills v. Law, 9 Cow. 65 ; Rice v. Welling, 5 Wend. 595 ; Farmers' and Mechanics' Bank v. Joslyn, 37 N. Y. 353. The sum paid on the usurious agreement for forbearance will, in equity, be applied as a payment on the original debt, and the de- fendant was entitled to have the one thousand dollars paid by him on the unlawful agreement credited on the bond and mortgage. Crane v. Hubbel, 7 Paige 413 ; Judd v. Seaver, 8 id. 548. * * *i V. Duress of Person. MORSE V. WOODWORTH. 15s Mass. 233.— 1892. Action of contract to recover the amount of three promissory notes given by defendant to plaintiff, and delivered up to defend- ant by plaintiff and mutual releases executed under threats of prose- cution and arrest on a criminal charge of embezzling defendant's money. The court charged the jury in substance that to constitute duress by threats of imprisonment the threats must be such as actually overcame the will of the plaintiff, and that in testing the question ^ In Pixley v. Ingram, 53 Hun 93 (1889), an action was brought at law upon a promissory note ; the defense was usury, and it was held that it was not competent for the court to reduce the amount of the plaintiff's claim to the extent of the usurious payments that had been made, inasmuch as they were not set up in the answer, in the form of a counterclaim. In Davis v. Converse, 35 Vt. 503 (1863), the court says (p. 507) : ''It now seems to be settled by repeated decisions, that where usury is included in a note or other security, and when paid is endorsed upon the note, it is to be considered as a payment upon the note itself, and no action c«n be maintained to recover back the usury paid, so long as there remains due any part of the principal and lawful interest, but that where the security is only for the prin- cipal and legal interest, and the unlawful interest is either put into a separate obligation, or rests in a verbal agreement, so that when paid it is not en- dorsed upon the note, but is paid as usury eo nomine, it is otherwise, and a right of action accrues immediately to sue and recover it back, though the lawful debt is still unpaid. Grow v. Albee. 19 Vt. 540; Nelson v. Cooley, 20 Vt. 201 ; Day v. Cummings, 19 Vt. 496 ; Nichols v. Bellows, 22 Vt. 581 ; Ward V. Whitney, 32 Vt. 89." In Cummings v. Knight, 65 N. H. 202 C1889), the payor of usurious interest was not allowed to have it applied upon the principal after his right to recover such interest had been barred bv the Statute of Limitations. 5l6 DURESS. the jury might consider whether they were such as would overcome the will of a man of ordinary firmness ; and refused to charge, at the request of defendant, that if the defendant believed plaintiff had wrongfully taken money belonging to defendant, and no civil or criminal proceeding had been begun, then mere threats of prosecu- tion or arrest would not constitute duress, that mere threats of criminal prosecution or arrest, when no warrant has been issued or proceedings commenced, do not constitute duress. The court re- ferred to the ambiguity in the word "mere," and reiterated its former charge. Defendant excepted. Verdict for plaintiff. Knowlton, j, * * * * The only remaining exceptions re- late to the requests of the defendant and the rulings of the court in regard to duress. The plaintiff contended that he gave up the notes and signed the release under duress by threats of imprisonment. The question of law involved is whether one who believes and has reason to believe that another has committed a crime, and who, by threats of prosecution and imprisonment for the crime, overcomes the will of the other, and induces him to execute a contract which he would not have made voluntarily, can enforce the contract if the other attempts to avoid it on the ground of duress. Duress at the common law is of two kinds, duress by imprison- ment and duress by threats. Some of the definitions of duress per minas are not broad enough to include constraint by threats of im- prisonment. But it is well settled that threats of imlawful imprison- ment may be made the means of duress, as well as threats of griev- ous bodily harm. The rule as to duress per minas has now a broader application than formerly. It is founded on the principle that a con- tract rests on the free and voluntary action of the minds of the parties meeting in an agreement which is to be binding upon them. If an influence is exerted on one of them of such a kind as to over- come his will and compel a formal assent to an undertaking when he does not really agree to it, and so to make that appear to be his act which is not his but another's, imposed on him through fear, which deprives him of self-control, there is no contract unless the other deals with him in good faith, in ignorance of the improper in- fluence, and in the belief that he is acting voluntarily. To set aside a contract for duress it must be shown, first, that the will of one of the parties was overcome, and that he was thus subjected to the power of another, and that the means used to induce him to act were of such a kind as would overcome the mind and will of an ordinary person. It has often been held that threats of civil suits and of ordinary proceedings against property are not enough, because ordinary persons do not cease to act vol- untarily on account of such threats. But threats of imprisonment may be so violent and forceful as to have that effect. It must also be shown that the other party to the contract is not, through ignorance of the duress or for any other reason, in a position which entitles him to take advantage of a contract made under constraint without voluntary assent to it. If he knows that means DURESS OF PERSON. 517 have been used to overcome the will of him with whom he is dealing, so that he is to obtain a formal agreement which is not a real agreement, it is against equity and good conscience for him to become a party to the contract, and it is unlawful for him to attempt to gain a benefit from such an influence improperly exerted. A contract obtained by duress of unlawful imprisonment is void- able. And if the imprisonment is under legal process in regular form, it is nevertheless unlawful as against one who procured it improperly for the purpose of obtaining the execution of a contract ; and a contract obtained by means of it is voidable for duress. So it has been said that imprisonment under a legal process issued for a just cause is duress that will avoid a contract if such imprison- ment is unlawfully used to obtain the contract. Richardson v. Dun- can, 3 N. H. 508. See also Foshay v. Ferguson, 5 Hill (N. Y.) 154; United States v. Huckabee, 16 Wall. 414, 431 ; Miller v. Miller, 68 Penn. St. 486; Walbridge v. Arnold, 21 Conn. 424; Wood v. Graves, 144 Mass. 365, and cases cited. It has sometimes been held that threats of imprisonment, to con- stitute duress, must be of unlawful imprisonment. But the ques- tion is, whether the threat is of imprisonment which will be unlaw- ful in reference to the conduct of the threatener wdio is seeking to obtain a contract by his threat. Imprisonment that is suffered through the execution of a threat which was made for the purpose of forcing a guilty person to enter into a contract may be lawful as against the authorities and the public, but unlawful as against the threatener, when considered in reference to his effort to use for his private benefit processes provided for the protection of the public. and the punishment of crime. One who has overcome the mind and will of another for his own advantage, under such circumstances, is guilty of a perversion and abuse of laws which were made for another purpose, and he is in no position to claim the advantage of a formal contract obtained in that way, on the ground that the rights of the parties are to be determined by their language and their overt acts, without reference to the influences which moved them. In such a case, there is no reason why one should be bound by a contract obtained by force, which in reality is not his, but another's. We are aware that there are cases which tend to support the con- tention of the defendant. Harmon v. Harmon, 61 Maine 227 ; Bo- dine V. Morgan, 10 Stew. 426, 428 ; Landa v. Obert, 45 Texas 539 ; Knapp V. Hyde, 60 Barb. 80. But we are of opinion that the view of the subject heretofore taken by this court, which we have fol- lowed in this opinion, rests on sound principles, and is in conformity with most of the recent decisions in such cases, both in England and America. Hackett v. King, 6 Allen 58 ; Taylor v. Jaques, 106 Mass. 291; Harris v. Carmody, 131 Mass. 51; Bryant v. Peck & Whipple Co., 154 Mass. 460; Williams v. Bayley, L. R. i H. L. 200; s. c. 4 Giff. 638, 663, note ; Eadie v. Slimmon, 26 N. Y. 9 ; Adams v. Irving National Bank, 116 N. Y. 606; Foley v. Greene, 14 R. I. V 5l8 DURESS. 6i8; Sharon v. Gager, 46 Conn. 189; Bane v. Detrick, 52 111. 19; Fay V. Oatley, 6 Wis. 42. We do not intimate that a note given in consideration of money embezzled from the payee can be avoided on the ground of duress, merely because the fear of arrest and imprisonment, if he failed to pay, was one of the inducements to the embezzler to make the note. But if the fact that he is liable to arrest and imprisonment is used as a threat to overcome his will and compel a settlement which he would not have made voluntarily, the case is different. The question in every such case is, whether his liability to imprison- ment was used against him, by way of a threat, to force a settle- ment. If so, the use was improper and unlawful, and if the threats were such as would naturally overcome the mind and will of an ordinary man, and if they overcame his, he may avoid the settle- ment. The rulings and refusals to rule were correct. Exceptions overruled. SILSBEE V. WEBBER. 171 Mass. 378. — 1898. Present: Field, C. J., Allen, Holmes, Knowlton, Morton, Lathrop and Barker, JJ. Holmes, J. — This is an action to recover money alleged to have been got from the plaintiff by duress. In the court below a verdict was directed for the defendant, and the case was reported. The plaintiff's son had been in the defendant's employ, had been accused by him of stealing the defendant's money, had signed a confession, whether freely or under duress is not material, and had agreed to give security for $1,500. There was a meeting between plaintiff and defendant, in the course of which, as the plaintiff testified, the defendant said he should have to tell the young man's father, the plaintiff's husband. At that time, according to her, her husband had trouble in his head, was melancholy, very irritable, and unable to sleep, so that she feared that if he were told the knowledge would make him insane. The plaintiff further testified that she previously had talked with the defendant about her husband's con- dition, and that she begged him not to tell her husband, and told him that he knew what her husband's condition was, but that he twice threatened to do it in the course of his inquiries as to what property she had, and that to prevent his doing so she the next day went by agreement to the office of the defendant's lawyer, and executed an assignment of her share in her father's estate. Her son was present, and, as he says, protested that this was extortion and blood money. It is under this assignment that the money sued for was collected. In the opinion of a majority of the court, if the evidence above stated was believed, we cannot say that the jury DURESS OF PERSON. 519 would not have been warranted in finding that the defendant ob- tained, and knew that he was obtaining, the assignment from the plaintiff solely by inspiring the plaintiff with fear of what he threat- ened to do ; that the ground for her fear was, and was known to be, her expectation of serious effects upon her husband's health if the defendant did as he threatened ; and that the fear was reasonable, and a sufficiently powerful motive naturally to overcome self-interest, and therefore the plaintiff' had a right to avoid her act. Harris v. Carmody, 131 Mass. 51, 53, 54; Morse v. Woodworth, 155 Mass. 233> 256. It is true that it has been said that the duress must be such as would overcome a person of ordinary courage. We need not con- sider whether, if the plaintiff reasonably entertained her alleged belief, the well-grounded apprehension of a husband's insanity is something which a wife ought to endure rather than part with any money, since we are of opinion that the dictum referred to, if taken literally, is an attempt to apply an external standard of conduct in the wrong place. If a party obtains a contract by creating a motive from which the other party ought to be free, and which in fact is, and is known to be, sufficient to produce the result, it does not matter that the motive would not have prevailed with a differently constituted person, whether the motive be a fraudulently created belief or an unlawfully created fear. Even in torts, the especial sphere of external standards, if it is shown that in fact the defend- ant by reason of superior insight contemplated a result which a man of ordinary prudence would not have foreseen, he is answer- able for it ; and, in dealing with contributory negligence, the per- sonal limitations of the plaintiff, as a child, a blind man, or a for- eigner unused to our ways, always are taken into account. Late American writers repudiate the notion of a general external measure for duress, and we agree with them. Clark, Contracts, 357 ; Bishop, Contracts, (ed. 1887) § 719. See James v. Roberts, 18 Oh. 548, 562; Eadie v. Slimmon, 26 N. Y. 9, 12. The strongest objection to holding the defendant's alleged action illegal duress is, that if he had done what he threatened, it would not have been an actionable wrong. In general, duress going to mo- tives, consists in the threat of illegal acts. Ordinarily, what you may do without liability, you may threaten to do without liability. See Vegelahn v. Guntner, 167 Mass. 92, 107; Allen v. Flood [1898], A. C. I, 129, 165. But this is not a question of liability for threats as a cause of action, and we may leave undecided the question whether, apart from special justification, deliberately and with fore- sight of the consequences to tell a man what you believe will drive him mad is actionable if it has the expected effect. Spade v. Lynn & Boston Railroad, 168 Mass. 285, 290; White v. Sander. 168 Mass. 296. If it should be held not to be, contrary to the intimations in the cases cited, it would be only on the ground that a different rule was unsafe in the practical administration of justice. If the law were an ideally perfect instrument, it would give damages for such 520 DURESS. a case as readily as for a battery. When it comes to the collateral question of obtaining a contract by threats, it does not follow that, because you cannot be made to answer for the act, you may use the threat. In the case of the threat there are no difficulties of proof, and the relation of cause and effect is as easily shown as when the threat is of an assault. If a contract is extorted by brutal and wicked means, and a means which owes its immunity, if it have immunity, solely to the law's distrust of its own powers of investi- gation, in our opinion the contract may be avoided by the party to whom the undue influence has been applied. Some of the cases go further, and allow to be avoided contracts obtained by the threat of unquestionably lawful acts. Morse v. Woodworth, 155 Mass. 233, 251 ; Adams v. Irving National Bank, 116 N. Y. 606; Williams v. Bayley, L. R. i H. L. 200, 210. In the case at bar there are strong grounds for arguing that the plaintiff was not led to make the assignment by the duress alleged. They are to be found in the fact that the plaintiff sought the de- fendant ; in her testimony that, when she made the assignment, she wanted the defendant to have full security for all her son owed him ; and in the plaintiff's later conduct ; — but we are considering whether there was a case of duress for the jury. The assignment was on October 10, 1894. Before March 12, 1895, the plaintiff had joined with her sisters in employing a lawyer to secure her share in her father's estate, intending it to be paid over to the defendant. On March 12, 1895, to the same end, she signed a petition for distribution, setting forth the assignment, and afterwards took some further steps and never made any claim that the assignment was not valid until December 19, 1895, before which time it had come to the knowledge of her husband. Apart from the weight which these facts may give to the argument that the plaintiff did not act under duress, they found an independent one, that if she did act under duress she has ratified her act. The as- signment was formally valid. The only objection to it, if any, was the motive for it. Fairbanks v. Snow, 145 Mass. 153, 154. There- fore it might be ratified by the plaintiff when she was free. But the acts relied on were done in connection with a member of the bar, who had been the defendant's lawyer before he undertook to act for the plaintiff, and who plainly appeared to be acting for the plaintiff only in the defendant's interest. We cannot say that the jury might not find that the later acts of the plaintiff, if not done under the active influence of her supposed original fear, at least were done before the plaintiff had gained an independent foothold, or realized her independence of her rights. We are of opinion that the case should have been left to the jury. Adams v. Irving Na- tional Bank, it6 N. Y. 606, 614, 615. Verdict set aside, and case to stand for trial. Knowlton, J. (dissenting). — * * * * j ^an see nothing in the evidence that tends to show that the defendant was guilty of any wrong towards the plaintiff. What he proposed could do no DURESS OF PERSON. 52 1 direct harm to the person or property of the plaintiff or of her hus- band. At most, there was merely a possibility or a probability of suffering and harm from reflection upon facts for whose existence the defendant was not responsible, and which the husband would be likely to learn at some time from others if the defendant did not tell him. But this probability, viewed from the defendant's knowl- edge and information, was no greater than would be expected in the case of any man who was irritable, melancholy, and unable to sleep from trouble in his head, yet whose ailments were not so severe as to prevent him from managing a somewhat extensive and important business. Reading the testimony without favor or prejudice, I do not see how any imputation against the defendant of an improper purpose in saying to the })laintiff that he should have to tell her husband can be founded on anything more than conjecture. The presumptions are in favor of honesty and fair dealing, and the testimony is to be interpreted accordingly. Moreover, there is nothing to show a belief on the part of the defendant that the statement that he should tell her husband would overcome the plaintiff's will. Upon his understanding of the facts such a suggestion would not be expected to overcome the will of any person of ordinary firmness, and there is no evidence that she was supposed by him to be, or that she was in fact, less firm than other women. Whether the rule so often stated in the books, that to avoid a contract on the ground of duress by threats, a threat must be such as would overcome the will of a person of ordinary firmness, be of universal application or not, it undoubtedly furnishes a cor- rect guide in cases in which there is nothing to show that the party who seeks to avoid the contract was not of ordinary courage and firmness. Upon an extended examination of the authorities, I have found no case in which a contract has been set aside on the ground of duress on such evidence as appears in this case. I think the ruling of the Superior Court was correct. The Chief Justice and Mr. Justice Lathrop concur in this dissent. Marshall, J., in GALUSHA v. SHERMAN. 105 Wis. 263, 2^2, 274, 280. — 1900. Anciently, duress in law by putting in fear could exist only where there was such a threat of danger to the object of it as was deemed sufficient to deprive a constant or courageous man of his free will, and the circumstances requisite to that condition were distinctly fixed by law ; that is to say, the resisting power which every person was bound to exercise for his own protection was measured, not by the standard of the individual affected, but by the 522 DURESS. standard of a man of courage ; and those things which could over- come a person, assuming that he was a prudent and constant man, were not left to be determined as facts in a particular case, but were a part of the law itself. Co. Litt. 253. Said Sir William Black- stone (volume I, p. 130) : "Whatever is done by a man to save either life or member, is looked upon as done upon the highest necessity and compulsion. Therefore, if a man through fear of death or mayhem is prevailed upon to execute a deed or do any other legal act, these, though accompanied by all the other requisite solemnities, may be afterwards avoided, if forced upon him by a well-grounded apprehension of losing his life, or even his limbs, in case of his non-compliance." "The constraint a man is under in these circum- stances is called in law duress." "A fear of battery or being beaten, though never so well grounded, is no duress, neither is the fear of having one's house burned, or one's goods taken away and de- stroyed, because in these cases, should the threat be performed, a man may have satisfaction by recovering equivalent damages. But no suitable atonement can be made for the loss of life or limb." Duress of imprisonment existed, by the old rule, only where there was actual, illegal restraint of liberty. The doctrine was, "If a man be imprisoned by order of law, the plaintiff may take a feoffment of him, or a bond for his satisfaction, and for the deliverance of the defendant, notwithstanding that imprisonment ; for this is not by duress of imprisonment, because he was in prison by course of law, for it is not accounted in law duress of imprisonment, but where either the imprisonment, or the duress that is offered in prison, or at large, is tortious and unlawful." 2 Bac. Abr. 771. Thus it will be seen that, in the early days of the common law, duress, strictly so called, was matter of law. It was pleadable as a defense or as material to a cause of action, by alleging the existence of specific circumstances legally sufficient to constitute duress, and was estab- lished prima facie by proving the truth of such allegations. The effect of the facts so established was determinable as an inference of law, not of fact. Oppression of one person by another, causing such person to surrender something of value or some advantage to such other, not amounting to duress within the rigorous rules of law, regardless of whether the oppression actually deprived the oppressed party of the exercise of his free will, was remediless, except by an appeal to a court of equity, where a remedy was obtain- able on the ground of unlawful compulsion. Id. yy2. * * * * Early in the development of the law, the legal standard of resist- ance that a person was bound to exercise for his own protection was changed from that of a constant or courageous man to that of a person of ordinary firmness. That will be found by reference to some of the earlier editions of Chitty on Contracts. See i Chitty, Cont. (nth ed.) 272; 2 Greenl. Ev. 301. But the ancient theory that duress was a matter of law to be determined prima facie by the existence or non-existence of some circumstance deemed in law sufficient to deprive the alleged wronged person of freedom of will DURESS OF PERSOX. 523 power, was adhered to generally, the standard of resisting power, however, being changed so that circumstances less dangerous to per- sonal liberty or safety than actual deprivation of liberty or imminent danger of loss of life or limb came to be considered sufficient in law to overcome such power. The oppressive acts, though, were still re- ferred to as duress, instead of the actual efifect of such acts upon the will power of the alleged wronged person. It is now stated, oftencr than otherwise, in judicial opinions, that in determining whether there was or was not duress in a given case, the evidence must be considered, having regard to the assumption that the alleged op- pressed person was a person of ordinary courage. * * * * The true doctrine of duress, at the present day, both in thif^ country and in England, is that a contract obtained by so oppressing a person by threats regarding his personal safety or liberty, or that of his property, or of a member of his family, as to deprive him of the free exercise of his will and prevent the meeting of minds necessary to a valid contract, may be avoided on the ground of duress, wdiether the oppression causing the incompetence to contract be produced by what was deemed duress formerly, and relievable at law as such, or wrongful compulsion remediable by an appeal to a court of equity. The law no longer allows a person to enjoy, without disturbance, the fruits of his iniquity, because his victim was not a person of ordinary courage, and no longer gauges the acts that shall be held legally sufficient to produce duress by any arbitrary standard, but holds him who, by putting another in fear, shall have produced in him a state of mental incompetency to contract, and then takes advantage of such condition, no matter by what means such fear be caused, liable at the option of such other to make resti- tution to him of everything of value thereby taken from him.^ ^Accord, Cribbs v. Sowle. 87 ]\Iich. 340 (1891). But see Detroit Nat. Bank v. Blodgett, 115 Mich. 160 (1897), where, upon an application for a rehearing, the court says (p. 169) : "Before the filing of the opinion, the record and briefs were carefully examined by the whole court, and, from such examination, we were all of the opinion that the defense sought to be made of undue influence by the elder Blodgett upon his two sons, Charles and Ralph, was not sustained by the proofs. As it was there said: 'Duress or undue influence must be such as would overcome the will of a person of ordinary firmness.' No such influence was shown to exist ; on the contrary, it clearly appeared from the testimony of Charles that he executed the mortgage to keep peace in the family, and, from the testimony of Ralph, that he executed it under the di- rection and advice of his attorney. We can but reiterate that the defendants wholly failed to establish any such claim as set up." 524 DURESS. HAYNES V. RUDD. 83 N. Y. 251.-1880. Appeal from judgment of General Term of the Supreme Court, in the fourth judicial department, entered upon an order made June 21, 1879, affirming a judgment in favor of plaintiff, entered upon a verdict. (Reported below, 17 Hun 477.) The testimony in this cause was to the following effect : The plaintiff's son had been in the employ of the defendant as clerk, and it was claimed that he had feloniously taken and carried away money from his employer. A criminal prosecution was threatened, and to prevent it plaintiff gave his note for $250 to his wife, who endorsed it in such a manner as to charge her separate estate therewith, and de- livered it to the defendant, who transferred it, before it was due, to a purchaser in good faith, to whom the plaintiff was obliged to pay it. This action was brought to recover back the moneys paid. The questions presented arose upon the charge of the court, which is stated in the opinion. FoLGER, Ch, J. — The judgment in this case should be reversed. The trial court instructed the jury that if they found that the note was given on the illegal consideration of the compounding an alleged crime, it was void ; that it had no legal force or effect, and the plaintiff was entitled to recover the amount of the note with interest. The trial court refused to instruct the jury that if there was no fraud, duress or undue influence on the part of the defendant, and that the note was given simply to compound a felony, then the plaintiff was not entitled to recover. We think this was error. If there was simply a compounding of felony, both plaintiff and de- fendant, on an equality, agreeing that the plaintiff should give his written promise to the defendant, and that, therefore, the defendant should give his oral promise to conceal the felony, and abstain from prosecuting it, and withhold the evidence of it, then they were in pari delicto, and the law will leave them where it finds them. (Fivaz V. Nicholls, 2 C. B. 50T.) To give the plaintiff any claim to recover, he must show that he was in such plight from the force or threats of the defendant as that he was in duress, and gave the note without being willing to, to escape from the predicament in which that force or those threats put him. We will not now say, that one who aids in doing an act that is by the law made a criminal offense, may, in any circumstances, have an action to recover any- thing paid by him in furtherance thereof ; but we do say, that if he does it voluntarily, by which we mean without force or threats compelling his will, he may not maintain an action. The instruction and refusal of the trial court amounted to just the reverse of this and was erroneous. The learned General Term seems to have overlooked the request to charge and refusal. The judgment should be reversed and a new DURESS OF PERSON. 525 trial had, with costs to abide the event. All concur. Judgment reversed.^ PUCKETT V. ROQUEMORE. 55 Ga. 235.— 1875. Bleckley, Judge.- — i. When a person is indicted for stealing money, he may make restitution. If he be guilty, he is under both a civil and moral obligation to do so. He can be sued for it, and compelled to refund. If he be innocent, he may, nevertheless, waive the question of guilt or innocence, and make voluntary payment. Trial and acquittal afterwards will not entitle him to recover it back ; if he meant to stand upon that issue, he ought to have done so at first, and refused to pay. In the present case there was no duress or fraud ; the party seems not to have been in custody, but free ; and it appears that the proposition to settle came from himself. Upon the supposition that he paid without any unlawful agreement, there is no ground on which he can reclaim the money, although he has since been acquitted of the charge. Perhaps his acquittal may ^ When, after a new trial, the case came again to the Court of Appeals, 102 N. Y. 372 (1886), the court, by Miller, J., stated the rule as follows (p. 376) : "While fraud, duress and undue influence emplo3'ed in procuring a contract for the payment of money may vitiate and destroy the obligation created, and render it of no effect, and the party who has been compelled to pay money on account thereof may maintain an action to recover the same, such a right does not exist, and cannot be enforced where the consideration of the con- tract, thus made, arises entirely upon or is in any way affected by the com- pounding of a felony. When this element enters into the contract it becomes tainted with a corrupt consideration and cannot be enforced. * * * jf ^hg consideration of the note was in any way affected by the compounding of a felony, or it entered into the same, or such a motive actuated the plaintiff in any respect, then the contract was illegal and should not be upheld. In such a case the contract was vicious and corrupt, and in violation of law as much as if compounding a felony had been the entire consideration. The element of illegality constituted a part of the contract, thus vitiating the whole, and it could not be rejected because duress, undue influence or threats were also blended with it." In Adams v. Irving Nat. Bank, 116 N. Y. 606 (1889), the court says (p. 614) : "If the money was paid by the plaintiff, through fear, produced by Mr. Castre's representations, that if the claim was not settled, her husband would be arrested and imprisoned, the payment was not a voluntary one. and the defendant obtained no title to the money received. This question was settled in plaintiff's favor by the verdict of the jury. The point made by the appel- lant that the transaction was a compounding of a felony does not appear to be raised by any appropriate exception in the case. It was not suggested on the trial, either in the motion to dismiss or in the request to charge. There was no instruction asked or given to the jury on the subject. The question is, therefore, not before this court." " The facts are not officially reported except as they are embraced in the opinion. — Ed. 526 COMPULSION OF LAW. be due to the fact that he extracted from the prosecution r.!l its vigor, by soothing the prosecutor with this repayment, and lulHng him into inaction. 2. If the money was paid on an illegal agreement that the prose- cution should be settled or discontinued, or even that the prosecutor should use his influence to have it suppressed, the party is equally without remedy. In contemplation of law such a contract is vicious and corrupt, and both parties are at fault, in pari delicto. The law leaves them where it finds them — in the bed which they have made for themselves they must lie. Judgment affirmed. c. Compulsion of Law. i. Recovery of Money Paid After Action Begun. I. BEFORE JUDGMENT. MOORE V. VESTRY OF FULHAM. [1895] I Q- B. 399 (Court of Appeal). On September 19, 1893, the defendants issued a summons, under the Metropolis Management Acts, against the plaintiif, returnable at the West London Police Court on October 3, to enforce payment of a sum of £35 13s. 9d., the proportionate part of the expenses of making up a road in their district called Silvio Street, found due from the plaintifif as one of the owners of the land abutting on the road. On October 2 the plaintiff, in the mistaken belief that his property abutted upon the road, sent a check to the defendants for the amount. On the summons being called on for hearing it was, at the request of the defendants, adjourned till October 24, and the defendants informed the plaintiff of this fact. On October 19, the plaintiff's solicitor wrote to the defendants demanding a return of the money, on the ground that the plaintiff's property did not abut upon the road, and that the plaintiff was consequently not liable, and informing them that, if the money were not returned, he should attend the adjourned hearing of the summons. The defendants replied that, inasmuch as the plaintiff had paid the money, they would be pleased to withdraw the summons without the plaintiff's attendance. Neither the plaintiff nor his solicitor attended, and, by leave of the magistrate, the summons was withdrawn. On Novem- ber 17 the plaintiff's solicitor again wrote to the defendants for the return of the money. On January 30, 1894, the plaintiff" issued the writ in this action for £35 13s. 90!., for money had and received by the rlcfcndants to the use of the plaintiff, and for money paid under a mistake of fact. MONEY PAID BEFORE JUDGMENT. 527 The learned jiidg-e held that the plaintiff was precluded from bringing the action by the fact that, after he had notice of the mis- take, he allowed the summons to be withdravvn. The plaintiff appealed. Lord Halsbury. — I am of opinion that this appeal fails. The prin- ciple of law has not been quite accurately stated by counsel for the appellant, because the principle of law is not that money paid under a judgment, but that money paid under pressure of legal process cannot be recovered. The principle is based ui)on this, that when a person has had an opportunity of defending an action if he chose, but has thought proper to pay the money claimed by the action, the law will not allow him to try in a second action what he might have set up in the defense to the original action. In Milnes v. Duncan, 6 B. & C. 671, Holroyd^ J., states quite accurately v^rhat I think is the principle. He says : "If the money had been paid after proceedings had actually commenced, I should have been of opinion that inasmuch as there was no fraud in the defendant it could not be recovered back." And in Hamlet v. Richardson, 9 Bing. 644, Tindal, C. J., delivering the judgment of the court says: "We think that the rule of law is accurately laid down by Holroyd, J., and that, as the money was paid in this case after the suing out (of) process to recover it, the defendants in the former action know- ing the cause of action for which the writ was sued out before they paid the money, and there being no fraud on the part of the plaintiff in that action, it appears to us that no action is maintainable to recover it back." That is the broad principle, and it is manifest that the effort to confine it to a case where judgment has been delivered is inconsistent with what is laid down in all the cases, because I think in every one of them, so far as I remember, the money was paid be- fore the process had arrived at judgment. In the case upon which such reliance has been placed [Caird v. Moss, 33 Ch. D. 22, 36], my brother Lopes, in dealing with the case then before him, not unnaturally referred to the fact of the judgment still standing, and for this reason, because the money in that case was paid under a judgment founded on the construction of an agreement. Then an action w-as brought to rectify that agreement on the ground that such a construction was contrary to the intention of all the parties. My brother Lopes, without going into the merits of the case, practi- cally says this : "Why, this judgment stands now ; you cannot re- open that question. You had full opportunity of commencing these proceedings while the former action was pending, and ought to have done so, and we cannot now interfere with that judgment. That judgment still stands." It is quite true that, read without connec- tion with the matter that was then being decided, that looks as if my brother Lopes was putting a qualification upon the general rule of law, but, when the facts are looked at, it is clear that he was doing nothing of the sort. He was referring to the fact that the money was paid in that particular case under a judgment, and that the judgment was still standing, and no effort had been made to upset y 528 COMPULSION OF LAW. it. Under those circumstances, it was a matter of course that the money could not be recovered back. I am opinion that the judg- ment of my brother Day was quite right, and that the appeal ought to be dismissed. LiNDLEY, L. J. — I am also entirely of the same opinion. I think that the case is absolutely covered, not by one authority, but by a string of authorities, of which Hamlet v. Richardson, 9 Bing. 644, is as good a type as any. The money there was paid after a writ to recover it had been issued and served, and after an appearance had been entered. But what does that mean ? It means this : that the defendant says in substance to his opponent, "I do not intend to fight you. I will pay rather than fight." If he chooses to take that course he cannot back out of it, whether he discovers that he has made a mistake or not. That is the ratio decidendi in that case and in several others. Of course, money paid under a judgment may be recovered if that judgment is set aside. The Court of Ap- peal in setting aside a final judgment always orders the money paid under it to be refunded. That is what my brother Lopes had in his mind in Caird v. Moss, 33 Ch. D. 22, 36. Of course the plaintiff cannot recover back here. Appeal dismissed.^ ^ [There was also a concurring opinion by Smith, L. J.] A A -i ^ CHANDLER v. SANGER and another. \ 114 Mass. 364. — 1874. Contract for money had and received. At the trial in the Su- perior Court, before Rockwell, J., the plaintiff, in opening his case, stated that he expected to prove that the plaintiff was a dealer in ice, and furnished ice each week day to parties in Boston, under contracts to fvirnish a certain amount daily, upon all week days^ that his custom was to have his carts loaded by twelve o'clock on Sunday night, in order to start early Monday morning; that any failure on the part of the plaintiff to furnish his customers with ice on Monday would be a great injury to him ; that Monday morning, July 12, 1869, he had standing in his sheds at Brighton, adjoining his icehouse, five heavy two-horse teams loaded with ice, ready to start for Boston before light ; that the defendant Sanger held his promissory note and had proved it against his estate in insolvency ; that in the insolvency proceeding he had obtained his discharge ; that the defendants knew these facts ; that the defendant Sanger and the other defendant, who was an attorney-at-law, brought an \Scc Movvatt V. WriRht, i Wend. (N. Y.) 355 (1828), for a general discus- sion of this question in its relation to other cases of recovery of involuntary payments. MONEY PAID BEFORE JUDGMENT. 529 action on this promissory note, under circumstances which would satisfy the jury that the action was commenced and carried on by them fraudulently, with the purpose of extorting money from the plaintiff by duress, under color of legal process ; that in pursuance of this purpose, they went about two o'clock on Monday morning with a writ in the hands of an officer and made an attachment of the carts, horses, and harnesses ; that the attorney-at-law, who had been with the officer in making the attachment, went to the plain- tiff's house and informed him of the attachment, and told him that none of the property so attached could go to Boston unless the claim should first be settled by the payment of $300 ; that the plaintiff told the attorney that he did not owe anything, and said he would dissolve the attachment by giving a bond ; that the attorney then told him that it would take three days to dissolve it, and that for that time the property would be held under it, and that his discharge in insolv-. ency did not cut off the claim ; that the plaintiff believed thesv statements, and being ignorant of the method of dissolving attacli-. ments and being in fear of great loss in his business, to relieve tLu property from attachment he paid the $300 to the attorney under protest, stating that he should claim and enforce his rights, and re- cover back the money. The presiding judge being of the opinion that these facts, if proved, would not sustain the action, so ruled ; whereupon, by con- sent of the parties, he reported the case to this court for their de- cision. It was agreed that if the court should be of opinion that these facts, if proved, were sufficient to sustain the action, then it was to stand for trial; otherwise judgment was to be entered for the defendants. Gray, J. — This is not an action of tort, to recover damages for malicious prosecution, or abuse of legal process, but an action of contract, in the nature of assumpsit, for money had and received by the defendants, which they have no legal or equitable right to retain as against the plaintiff'. Although the process sued out for the defendant was in due form, yet if, as was offered to be proved at the trial, he fraudulently, and knowing that he had no just claim against the plaintiff, arrested his body or seized his goods thereon, for the purpose of extorting money from him, then, according lO all the authorities, the payment of money by the plaintiff, in order to release himself or his goods from such fraudulent and wrongful detention, was not voluntary, but by compulsion ; and the money so paid may be recovered back, without proof of such a termination of the former suit as would be necessary to maintain an action for malicious prosecution. Watkins v. Baird, 6 Mass. 506 ; Shaw, C. J., in Preston v. Boston, 12 Pick. 7, 14; Benson v. Monroe, 7 Cush. 125, 131; Carew v. Rutherford, io6 Mass. i, ii, et seq. ; Richardson v. Duncan, 3 N. H. 508; Sartwell v. Horton, 28 Vt. 370; Gibson, C. J., in Colwell v. Peden, 3 Watts 327, 328; Cadaval v. Collins, 4 A. "Woodruff's Cases — 34 7 530 COMPULSION OF LAW. & E. 858; Parke, B., in Oates v. Hudson, 6 Ex. 346, 348, and in Parker v. Bristol and Exeter Railway Co., 6 Ex. 702, 705. / New trial ordered. / V: -, TURNER V. BARBER. ^J i6 N. J. L. 496. — 1901. Garrison, J. — This is an action brought in the Salem pleas upon an appeal to recover money paid by Turner to Barber's proctor in admiralty. The ground of the plaintiff's action v/as that the money so paid had been obtained from him by duress of his goods. The duress referred to was the seizure and detention of a scow belonging to Turner by the deputy United States marshal under a monition of libel issued in a suit in admiralty brought by Barber against the scow for wharfage. To effect the release of the scow, Turner, without contesting the claim, paid it under protest to the proctor of the libelant, and then sued Barber on it in the court for the trial of small causes, and recovered a judgment against him. Upon an appeal by Barber to the common pleas, a similar judgment was re- covered by Turner. Thereupon Barber removed the judgment of the pleas to this court by a writ of certiorari. The facts found by the court of common pleas appear in the return made by the judge of that court in response to a rule. The judgment of the common pleas must be reversed. The plain- tiff did not make out a case of extortion. The payment by the plain- tiff of the claim for wharfage with full knowledge of the facts was a voluntary one, even if he did not owe it. The proposition maintained by the case annotated upon this sub- ject in Smith's Leading Cases is that money paid under regular legal process in a judicial proceeding, without contest, and with a full knowledge of the facts, is, in the absence of fraud, not recoverable. 2 Smith, Lead. Cas. (8th Am. Ed.) 436. There is nothing in the facts of the present case to take it out of this rule, or to invoke the rule with respect to the duress of goods. The court decided that the plaintiff did not owe the wharfage, but did [not] find fraud in the libelant, or that he knew or ought to have known that the scow was not liable for the wharfage, or even that he knew of the pending sale of the scow, and timed his process as a means of extortion. The essential factors of a duress of goods by the use of process were lacking. The libelant had not received pay for the scow's use of the wharf, and had a legal right to test its liability in a competent tribunal of his own selection. Moreover, a complete answer to the claim of duress is contained in the finding of the trial court that the "plaintiff was of ample pecuniary ability to give sufficient bond to enable him to procure the release of the said boat from the custody of the said United States marshal." MONEY PAID AFTER JUDGMENT. '53I This fact destroys the force of the plaintiff's contention that the immediate dehvery by him of his boat to complete a contract of sale compelled him to pay the claim against it. Under the circumstances his payment of the claim was a matter of convenience merely. The course pursued by the plaintiff enabled him to release his boat with- out litigating- the validity of the claim against it in a tribunal where the libelant had acquired a right to have the matter decided. To permit the matter to be afterwards litigated in a forum of the plain- tiff's choosing is contrary to sound policy. His payment of the ad- miralty claim must be deemed to have been made voluntarily, and without fraud or force. The judgment of the pleas must be reversed and set aside, and a judgment of non-suit entered. 2. AFTER JUDGMENT. MOSES V. MACFERLAN. 2 Burr. (K. B.) 1005. — 1760. Lord Mansfield delivered the resolution of the court in this case, which stood for their opinion: "Whether the plaintiff could recover against the defendant in the present form of action (an action upon the case for money had and received to the plaintiff';-* use), or whether he should be obliged to bring a special action upon the contract and agreement between them." It was an action upon the case, brought in this court by the now plaintiff, Moses, against the now defendant, Macferlan (heretofore plaintiff in the Court of Conscience, against the same Moses now plaintiff here), for money had and received to the use of Moses, the now plaintiff in this court. The case, as it came out upon evidence and without dispute at nisi prius before Lord Mansfield at Guildhall, was as follows : — It was clearly proved, that the now plaintiff, Moses, had indorsed to the now defendant, Macferlan, four several promissory notes made to Moses himself by one Chapman Jacob, for 30s. each, for value received, bearing date 7th November, 1758; and that this was done in order to enable the now defendant, Macferlan, to recover the money in his own name, against Chapman Jacob. But previous to the now plaintiff's indorsing these notes, Macferlan assured him "that such his indorsement should be of no prejudice to him;" and there was an agreement signed by Macferlan, whereby he (amongst other things) expressly agreed "that Moses should not be liable to the payment of the money, or any part of it ; and that he should not be prejudiced, or be put to any costs, or any way suffer, by reason of such his indorsement." Notwithstanding which express condi- tion and agreement, and contrary thereto, the present defendant, 532 COMPULSION OF LAW. Macferlan, summoned the present plaintiff, Moses, into the Court of Conscience, upon each of these four notes, as the indorser thereof respectively, by four separate summonses. Whereupon Moses (by one Smith, who attended the Court of Conscience at their second court, as solicitor for him and on his behalf) tendered the said in- demnity to the Court of Conscience, upon the first of the said four causes ; and offered to give evidence of it and of the said agreement, by way of defense for Moses in that court. But the Court of Con- science rejected this defense, and refused to receive any evidence m proof of this agreement of indemnity, thinking that they had no power to judge of it ; and gave judgment against Moses, upon the mere foot of his indorsement (which he himself did not at all dis- pute), without hearing his witnesses about the agreement "that he should not be liable ;" for the commissioners held this agreement to be no sufficient bar to the suit in their court ; and consequently decreed for the plaintiff in that court, upon the undisputed indorsement made by Moses. This decree was actually pronounced in only one of the four causes there depending; but Moses's agent (finding the opinion of the commissioners to be as above mentioned) paid the money into that court upon all the four notes ; and it was taken out of court by the now defendant, Macferlan (the then plaintiff in that court), by order of the commissioners. All this matter appearing upon evidence before Lord Mansfield at nisi priiis at Guildhall, there was no doubt but that, upon the merits, the plaintiff was entitled to the money ; and accordingly a verdict was there found for Moses, the plaintiff in this court, for 61. (the whole sum paid into the Court of Conscience), but subject to the opinion of the court upon this question, "Whether the money could be recovered in the present form of action, or whether it must be recovered by an action brought upon the special agreement only." The court having heard the counsel on both sides, took time to advise. Lord Mansfield now delivered their unanimous opinion, in favor of the present action. There was no doubt at the trial, but that upon the merits the plain- tiff was entitled to the money ; and the jury accordingly found a verdict for the 6/., subject to the opinion of the court upon this question, "Whether the money might be recovered by this form of action," or "must be by an action upon the special agreement only." Many other objections, besides that which arose at the trial, have since been made to the propriety of this action in the present case. The 1st objection is, "That an action of debt would not lie here; and no assumpsit will lie where an action of debt may not be brought ;" some sayings at nisi priiis, reported by note-takers who did not understand the force of what was said, are quoted in support of that proposition. But there is no foundation for it. It is much more plausible to say, "That where debt lies an action upon the case ought not to be brought." And that was the point MONEY PAID AFTER JUDGMENT. 533 relied upon in Slade's case, 4 Co. 92; but the rule then settled and followed ever since is, "That an action of assumpsit will lie in many cases where debt lies, and in many where it does not lie." A main inducement, originally, for encouraging actions of as- sumpsit was, "to take away the wager of law ;" and that might give rise to loose expressions, as if the action was confined to cases only where that reason held. 2d Objection. "That no assumpsit lies except upon an express or implied contract ; but here it is impossible to presume any contract to refund money which the defendant recovered by an adverse suit." Answer. If the defendant be under an obligation, from the ties of natural justice, to refund, the law implies a debt, and gives this action, founded in the equity of the plaintiff's case, as it were upon a contract ("quasi ex contractu,") as the Roman law expresses it. This species of assumpsit ("for money had and received to the plaintiff's use") lies in numberless instances for money the defend- ant has received from a third person ; which he claims title to, in opposition to the plaintiff's right ; and which he had by law authority to receive from such third person. 3d Objection. Where money has been recovered by the judgment of a court having competent jurisdiction, the matter can never be brought over again by a new action. Answer. It is most clear "that the merits of a judgment can never be over-haled by an original suit, either at law or in equity." Till the judgment is set aside or reversed, it is conclusive, as to the sub- ject-matter of it, to all intents and purposes. But the ground of this action is consistent with the judgment of the Court of Conscience ; it admits the commissioners did right. They decreed upon the indorsement of the notes by the plaintiff, which indorsement is not now disputed. The ground upon which this action proceeds was no defense against that sentence. It is enough for us, that the commissioners adjudged "they had no cognizance of such collateral matter." We cannot correct an er- ror in their proceedings ; and ought to suppose what is done by a final jurisdiction, to be right. But we think "the commissioners did right, in refusing to go into such collateral matter." Otherwise, by way of defense against a promissory note for 30^^.^ they might go into agreements and transactions of a great value ; and if they de- creed payment of the note, their judgment might indirectly conclude the balance of a large account. The ground of this action is not "that the judgment was wrong," but "that (for a reason which the now plaintiff could not avail him- self of against that judgment) the defendant ought not in justice to keep the money." And at Guildhall I declared very particularly, "that the merits of a question determined by the commissioners, where they had jurisdiction, never could be brought over again in any shape whatsoever." Money may be recovered by a right and legal judgment; and yet 534 COMPULSION OF LAW. the iniquity of keeping that money may be manifest, upon grounds which could not be used by way of defense against the judgment. Suppose an indorsee of a promissory note, having received pay- ment frOm the drawer (or maker) of it, sues and recovers the same money from the indorser, who knew nothing of such payment. Suppose a man recovers upon a policy for a ship presumed to be lost, which afterwards comes home ; or upon the life of a man pre- sumed to be dead, who afterwards appears ; or upon a representa- tion of a risk deemed to be fair, which comes out afterwards to be grossly fraudulent. But there is no occasion to go further; for the admission "that, unquestionably, an action might be brought upon the agreement," Is a decisive answer to any objection from the judgment. For it is the same thing, as to the force and validity of the judgment, and it is just equally affected by the action, whether the plaintiff brings it upon the equity of his case arising out of the agreement, that the defendant may refund the money he received ; or, upon the agree- ment itself, that, besides refunding the money, he may pay the costs and expenses the plaintiff was put to. This brings the whole to the question saved at nisi prius, viz. : "Whether the plaintiff may elect to sue by this form of action, for the money only ; or must be turned round, to bring an action upon the agreement." ' One great benefit which arises to suitors from the nature of this action is, that the plaintiff needs not state the special circumstances from which he concludes "that, ex ccquo et bono, the money received by the defendant ought to be deemed as belonging to him ;" he may declare generally "that the money was received to his use," and make out his case at the trial. This is equally beneficial to the defendant. It is the most favor- able way in which he can be sued : he can be liable no further than the money he has received ; and against that may go into every equi- table defense upon the general issue : he may claim every equitable allowance ; he may prove a release without pleading it ; in short, he may defend himself by everything which shows that the plaintiff, ex ceqno et bono, is not entitled to the whole of his demand, or to any part of it. If the plaintiff elects to proceed in this favorable way, it is a bar to his bringing another action upon the agreement ; though he might recover more upon the agreement than he can by this form of action. And therefore, if the question was open to be argued upon princi- ples at large, there seems to be no reason or utility in confining the plaintiff to an action upon the special agreement only. But the point has been long settled, and there have been many precedents ; I will mention to you one only, which was very solemnly considered. It was the case of Dutch v. Warren, M. 7 G. i C. B. An action upon the case for money had and received to the plaintiff'.^ use. The case was as follows : Upon the i8th of August, 1720, on pay- MONEY PAID AFTER JUDGMENT. 535 ment of 262!. los. by the plaintiff to the defendant, the defendant agreed to transfer him five shares in the Welsh copper mines, at the opening of the books ; and for security of his so doing gave him this note: "i8th of August, 1720. I do hereby acknowledge to have re- ceived of Phihp Dutch 262/. los. as a consideration for the purchase of five shares ; which I do hereby promise to transfer to the said PhiHp Dutch as soon as the books are open, being five shares in the Welsh copper mines. Witness my hand, Robert Warren." The books were opened on the 22d of the said month of August, when Dutch requested Warren to transfer to him the said five shares ; which he refused to do, and told the plaintiff "he might take his rem- edy." Whereupon the plaintiff brought this action for the consider- ation-money paid by him. And an objection was taken at the trial, "that this action upon the case, for money had and received to the plaintiff's use, would not lie ; but that the action should have been brought for the non-performance of the contract." This objection was overruled by the Chief Justice, who notwithstanding left it to the consideration of the jury, whether they would not make the price of the said stock as it was upon the 22d of August, when it should have been delivered, the measure of the damages ; which they did, and gave the plaintiff but 175/. damages. And a case being made for the opinion of the Court of Common Pleas, the action was resolved to be well brought ; and that the re- covery was right, being not for the whole money paid, but for the damages in not transferring the stock at the time ; which was a loss to the plaintiff', and an advantage to the defendant, who was a re- ceiver of the difference-money, to the plaintiff's use. The court said, that the extending those actions depends on the notion of fraud. If one man takes another's money to do a thing, and refuses to do it, it is a fraud ; and it is at the election of the party injured, either to affirm the agreement, by bringing an action for the non-performance of it, or to disaffirm the agreement ab initio, by reason of the fraud, and bring an action for money had and received to his use. The damages recovered in that case show the liberality with which this kind of action is considered ; for though the defendant received from the plaintiff 262/., icy., yet the difference-money only, of 175/., was retained by him against conscience ; and therefore the plaintiff. ex ceqiio et bono, ought to recover no more ; agreeable to the rule of the Roman law : "Quod condictio indehiti non datiir tdtra, qtiani locupletior f actus est qui acccpit." If the five shares had been of much more value, yet the plaintiff could only have recovered the 262/. \os. by this form of action. The notion of fraud holds much more strongly in the present case than in that, for here it is express. The indorsement which enabled the defendant to recover was got by fraud and falsehood for one purpose, and abused to another. This kind of equitable action to recover back money which ought not in justice to be kept, is very beneficial, and therefore much en- 536 COMPULSION OF LAW. couraged. It lies only for money which, ex cequo et bono, the de- fendant ought to refund : it does not lie for money paid by the plaintiff, which is claimed of him as payable in point of honor and honesty, although it could not have been recovered from him by any course of law, — as in payment of a debt barred by the statute of limi- tations, or contracted during his infancy, or to the extent of princi- pal and legal interest upon a usurious contract, or for money fairly lost at play ; because in all these cases the defendant may retain it with a safe conscience, though by positive law he was barred from recov- ering. But it lies for money paid by mistake, or upon a considera- tion which happens to fail, or for money got through imposition (express or implied), or extortion, or oppression, or an undue ad- vantage taken of the plaintiff's situation, contrary to laws made for the protection of persons under those circumstances. In one word, the gist of this kind of action is, that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money. Therefore we are all of us of opinion, that the plaintiff might elect to waive any demand upon the foot of the indemnity, for the costs he had been put to ; and bring this action to recover the 61. which the defendant got and kept from him iniquitously. Rule. That the postea be delivered to the plaintiff.^ WALKER V. AMES. 2 Cow. (N. Y.) 428.— 1823. On certiorari to a Justice's Court. The action was case in the court below, by Ames against Walker ; "For that the defendant did fraudulently obtain a judgment, or a certain part thereof, against the present plaintiff, to his damage $25." The defendant pleaded the former suit in bar, which was overruled by the Justice. The fraud complained of was, that Walker, in the suit against Ames, recovered on a book account, and also on a note given by Ames to Walker, on settlement of the same account for the balance thereof. Verdict and judgment for the plaintiff. Curia. — The judgment must be reversed. This was overhauling the first judgment, and attempting to recover back a portion of it, on the ground that it was not due, and had been unconscientiously recovered. The allegation of fraud does not alter the nature of the case. It is substantially an action to recover back money improp- erly awarded by a former judgment; and is precisely the case of Harriot v. Hampton (7 T. R. 269). In that case, the defendant had ' See the criticism of this case in Carter v. First Ecclcs. Soc, reported herein at p. 538. MONEY PAID AFTER JUDGMENT. '537 recovered against the plaintiff for goods sold. The plaintiff had paid him for these goods and taken his receipt ; but not being able to find the receipt, at the time of the trial, judgment went against him and he paid the money again. Afterwards, finding the receipt, he brought his action to recover it back. Lord Kenyon says : "If this action could be maintained, I know not what cause of action could ever be at rest. After a recovery by process of law, there must be an end of litigation ; otherwise there would be no security for any person." The case of Cobb v. Curtiss (8 John. 470) is clearly dis- tinguishable. There, the action was founded on an agreement to discontinue the first suit ; and the court go upon the ground, that this agreement could not have been set up as a defense to the sec- ond. There was nothing to prevent Ames' showing upon the first trial, that the note included the account. If he was not prepared with his proof, it was his misfortune. There would, indeed, be no end to litigation, nor any security to any person, if actions like this could be sustained. Judgment reversed.^ ^In Fuller v. Shattuck, 13 Gray (Mass.) 70 (1859), the court says (p. 71) : "In any form of action and under any statement of the plaintiff's case, the objections to the maintenance of this claim are equally decisive. It in effect assumes that if a partial payment is made on account of a debt, upon which the creditor afterwards brings a suit and recovers judgment, the debtor can recover back the sum which he paid, by proving that it was not credited to him in computing the amount of the judgment. It is well settled, both upon principle and authority, that no such proof is open to him. The time for it has gone by. He has had his day in court. It was the very thing he might and should have proved in the suit in which the judgment was re- covered. To allow him to bring an action, and support it by such proof, would be to allow him to try over again one of the issues decided by the judgment; which the law does not allow. If a part of the debt had been paid before the judgment was recovered, then the whole was not due. But the judgment is the -olemn adjudication of the court, between these parties, that the whole was due. Each party had full opportunity to be heard, and there must be some end of litigation." But see Snow v. Prescott, 12 N. H. 535 (1842). Here the plaintiff sold and delivered a plough and anvil to the defendant, the price of which the defendant agreed to endorse upon a note which he held against the plaintiff. He did not make the endorsement as he had agreed to, and subsequently recovered judgment against the plaintiff for the whole consideration of the note, in a suit thereon by default, and enforced its payment by an execution, and it was held that the plaintiff might recover the price of the articles, in an action for goods sold and delivered, and the case of Tilton v. Gordon, I N. H. Rep. 2>2i, contra, was overruled. It was held that the plaintiff may recover without re-examining the merits of the judgment, as his right of action depends, not upon the rendition of the judgment, but upon the sale and delivery of the articles, and upon the defendant's failure to make the indorsement. The court says (p. 542) : "The plaintiff in this case is entitled to recover. He sold and delivered the plough and anvil to the defendant, who agreed to indorse their price upon the note. This agreement he failed to perform, and the plaintiff may consider this failure as a rescission of the agreement. The defendant, then, has received property of the plaintiff for which he has not paid. He cannot avail himself of his omission to make the indorsement as a defense to this suit, and the plaintiff may now recover the price of the property, in this action." ^1 53^ COMPULSION OF LAW. CARTER V. FIRST ECCLESIASTICAL SOCIETY OF CANTERBURY. 3 Conn. 455. — 1820. Peters, J. — It appears by the motion, that on the 21st day of Jan- uary, 181 1, the defendants agreed, by vote, to sell the pews in their meeting-house, prescribing the form of conveyance to be given, and the security to be taken, and appropriated the avails, so soon as five thousand dollars should be raised, if raised before the ist day of September then next, as a perpetual, permanent and invariable fund, for the maintenance of the gospel, and an orthodox minister ; that the requisite sum was seasonably raised, by a sale of the pews, whereof the plaintiff became a purchaser of one, and therefor gave his note, dated March 29, 181 1, for one hundred and fifty dollars, payable to the treasurer, on the ist day of April, 1812, with interest annually ; which interest, amounting to thirty-six dollars, was regu- larly paid, by the plaintiff, until the first day of February, 1816, when the note was sued, judgment obtained and execution taken out, and satisfied on the real estate of the plaintiff; that in October, 1812, an orthodox minister was settled in the society, and the interest of the fund duly applied to his support, until January 15, 1818, when the defendants voted to change the mode of supporting the minister, and give up the notes received for pews sold, on the purchasers paying the interest accrued, and releasing the pews to the society. Upon these facts, the plaintiff, by the two first counts in his dec- laration, claimed to recover the amount of the execution, obtained against him by the defendants, and the sheriff's fees thereon ; and by the third count, the amount of interest paid on his note. But the court directed the jury to find for the defendants. To entitle the plaintiff to a verdict, the case of Moses v. Macfer- lan, 2 Burr. 1005, must be revived. But the authority of that case has been too often shaken to have any weight at the present day : O'Harre v. Hall, 4 Dall. 340. Though the principles relating to indebitatus assumpsit, so luminously illustrated in Moses v. Mac- ferlan, have been universally recognized, their application to that case has been generally reprobated by the bench as well as the bar. In that case, money obtained from the plaintiff, pursuant to a judg- ment of a court then in force, was recovered back, on proof of facts dehors the record, whereby it appeared, that the defendant, ex aequo et bono ought not to retain it. This has been considered as an over- haling or impeaching of a judgment, indirectly. But Lord Mans- field himself, in that very case, informs us, "that the merits of a judgment cannot be over-haled by an original suit, either at law or in equity. Till the judgment is set aside, or reversed, it is conclusive as to the subject matter of it, to all intents and purposes." P. 1009. How, then, could it be against conscience for Macferlan to retain this money, thus awarded him, by a court of justice, merely because MONEY PAID AFTER JUDGMENT. 539 he had violated his agreement, for which he was Hable in damages, but not to refund the money he had recovered. Well might he have said "Non in haec focdera veni." In Marriott v. Hampton, 7 Term Rep. 269, where the plaintiff, having paid a debt, and taken and lost a receipt, was sued, and obliged to pay it again, but afterward finding the receipt, he brought assumpsit for the money ; Lord Kenyon was of opinion, that after a recovery by process of law, there must be an end of litigation ; that money paid under such process, could not be recovered back, how unconscientiously soever retained. The case of Phillips et al. v. Hunter et al., in err., 2 H. Bla. 402, has been supposed to establish a contrary doctrine. But that case was decided on the principles of the bankrupt laws, regardless of Moses V. Macferlan. Lord Ch. J. Eyre thought that no other de- cided case covmtenanced such an action, and combated it forcibly and conclusively, "Shall the same judgment," said that learned judge, "create a duty for the recoverer, upon which he may have debt, and a duty against him, upon which an action for money had and received, will lie? This goes beyond my comprehension. I be- lieve that judgment did not satisfy Westminster Hall at the time. I never could subscribe to it ; it seemed to me to unsettle founda- tions." P. 416. Though this was the opinion of one judge only, it has since been quoted with approbation, by Ch. J. Kent, on deliver- ing the opinion of the court in Smith v. Lewis, 3 Johns. Rep. 157, and following hand passibiis aequis the example of Lord Ellen- borough, in Imly v. Ellefsen, 2 East 453, and of the supreme court of New York, in Smith v. Spinola, 2 Johns. Rep. 198, I have no hesitation in saying that it is the better opinion, and is to be adopted as law.^ But this is not the only objection to the plaintiff's recovery. The defendants have received no money as the avails of their judgment: they have only acquired a title to real estate, of which the plaintiff may divest them, on a proper application to the proper court. This is a novel attempt to convert land acquired by execution into money had and received ; and it may be added, as a conclusive answer to the plaintiff's claim, that he retains the pew for which the note was given ; the consideration of which has not failed, and, therefore, could not be recovered back, even if it had been in money. With respect to the money claimed in the third count, it was vol- * Accord, Kirklan & Hickson v. Brown's Adm'rs, 4 Humph. (Tenn.) 174 (1843), the court saying: "In the great case of Moses v. INIacferlan, 2 Burr. IOCS, the ex cequo ct bono principle' of the action of assumpsit, announced by Lord Mansfield, as well as the facts and circumstances of that case, might seem to give some ground for the maintenance of a suit like this. But of that case, as well as of some others determined by Lord M.\nsfield, it may be said, ntaferiam superavit opus. The great principles marked out and developed by his original and powerful intellect remain to guide us; but their framework, the facts and circumstances to which they were appended, not always appropriate, have in some instances given way and ceased to sustain them." 540 COMPULSION OF LAW. untarily paid by the plaintiff, on his own note, then justly due, and has been appropriated and applied, by the defendants, to the use for which it was intended by the plaintiff. I would not advise a new trial. The other judges were of the same opinion, except Hosmer, Ch. J., who, not having heard the case argued, gave no opinion. HIPP V. CRENSHAW. 64 Iowa 404. — 1884. Reed, J. — At the December term, 1883, an opinion was filed in this case affirming the judgment of the circuit court. Appellant thereupon filed a petition for a rehearing, which was sustained, and the cause was reargued by counsel. Since the final submission of the cause, plaintiff has filed a motion to dismiss the appeal, on the ground that defendant has fully performed the judgment from which the appeal was taken. It is shown in support of this motion, that since the opinion was filed defendant has paid to the clerk of the circuit court a sum of money which both he and the clerk sup- posed was the full amount of the judgment and costs, but which was, in fact, a few dollars less than such amount, and that plaintiff's attorney has received the amount and entered satisfaction of the judgment. Defendant has filed his affidavit in resistance of the mo- tion, in which he swears that his financial circumstances were such that he was compelled to procure a loan of money, and that, to en- able him to procure such loan, he was compelled to give a mortgage on certain real estate to secure the same, and, as the judgment was a lien on said real estate, he was also compelled to remove such lien before the parties from whom he had arranged to procure the loan would consent to accept the mortgage as security therefor. His claim is that the payment of the money to the clerk was not voluntary. But we think it very clear that this position is not ten- able. A payment under such circumstances is not a payment under duress. All that can be claimed is that defendant found it to his advantage to discharge the lien of the judgment, and paid the money for that purpose, and to enable him to procure the loan. We think the motion to dismiss the appeal must be sustained. But, as some members of the court are not satisfied with the conclusion reached by the former opinion, it will be withheld from publication. Dismissed. MONEY PAID AFTER JUDGMENT. 54I CLARK & CLARK v. PINNEY. 6 Cow. (N. Y.) 297.— 1826. Assumpsit for money had and received. On the trial, the plaintiff's counsel offered in evidence the record of a judgment in the Onondaga Common Pleas of the term of February, 1822, in favor of the defendant against the plaintiffs, for $193.11 ; a ft. fa. indorsed satisfied by the sheriff, June 21, 1822, except sheriff's fees ; that the execution was paid by a note of Walker & Clark, by which they promised the defendant to pay him $181.27 on the 1st day of February, 1823, with interest, provided the judg- ment in the Common Pleas should not be reversed before that day. That this was received as and toward payment of the judgment by Pinney and his attorney. The counsel also offered the record of a judgment for $216.73 ^^ ^^^^ Onondaga Common Pleas on this note, recovered at May term, 1823, and an execution returnable at the next August term, which had been paid before the return day, and was returned by the sheriff satisfied. They also offered an exempli- fication of a judgment record in the supreme court in favor of the present plaintiffs against the present defendant, whereby it appeared that the judgment first above mentioned had been reversed on a writ of error, at the October term, 1824. All these facts were admitted by the defendant's counsel, on whose motion the judge nonsuited the plaintiffs, with leave to move to set aside the nonsuit, and for a new trial. Curia, per Savage, C. J. — The important question in this case is, whether indebitatus assumpsit lor money had and received lies to recover money paid on an execution upon a judgment which was afterward reversed. The general proposition is, that this action lies in all cases where the defendant has in his hands money which, ex aequo et bono, be- longs to the plaintiff. When money is collected upon an erroneous judgment which, subsequent to the payment of the money, is re- versed, the legal conclusion is irresistible, that the money belongs to the person from whom it was collected. Of course he is entitled to have it returned to him. The only question is, whether this be the proper remedy. The cases referred to by counsel do not fully decide the point : nor have I found any case where this very point has been decided except Green v. Stone, i Har. & John. 405. It was raised in Isom V. Johns, 2 Munf. 272. There the defendant had been plaintiff in a former action ; recovered judgment, and issued execution, upon which the defendant's property was sold by the sheriff. On the argument, most of the English cases which are now cited were re- ferred to. The court decided against the plaintiff on the ground that the money did not appear to have come to the defendant's use ; 542 COMPULSION OF LAW. not denying the doctrine, however, that, if the defendant had re- ceived the money, the plaintiff might recover it in this action. In Green v. Stone this very point was decided in favor of the plaintiffs. The principle in question is supposed to have been acted on in Feltham v. Terry, Lofft 207, which was an action for money had and received by the church wardens against the overseers of the poor, for money levied by the latter, on a conviction of one of the former, which was subsequently quashed. The court held the plain- tiff might sue for the money collected by a sale of the property ; or, by bringing trespass, he might have recovered the value of the property. This conviction, I apprehend, must have been irregu- lar ; otherwise the court would not have said trespass might have been brought. Trespass surely would not lie for collecting the amount of a judgment which was merely erroneous. In that case, therefore, the court must have acted on the principle that the money was collected by a void authority. The authorities are clear and abundant that, in such a case, indebitatus assumpsit lies, i Bac. Abr. 261 ; Newdigate v. Davy, i Ld. Raym. 742. In the case of Alead v. Death & Pollard, i Ld. Raym. 742, it was decided that money paid upon an order of the Quarter Sessions could not be recovered back, though the order had been quashed on certiorari. And Tracy, Baron, before whom the cause was tried, compared it to the case where money is paid upon a judgment which is afterward reversed for error, in which case indebitatus as- sumpsit will not lie. No reason is given why this action will not lie ; nor is any case referred to in support of the dictum. It is shown, however, that in the English courts the proper remedy, upon the reversal of a judgment, is a scire facias quarc rcstitutionem non, upon which the party recovers all that he has lost by reason of the judgment. Com. Dig. (3 B. 20) Cro. Car. 699. And if it appear on the record that the money is paid, restitution will be awarded without a scire facias, 2 Salk. 588. Cases have been cited in which it is said that this action does not lie to recover money collected under legal process afterward va- cated, which is true as applied to those cases ; but the principle is not applicable in this case. Upon the whole, my view of the question is this : the general prin- ciple is, undoubtedly, in favor of sustaining the action. Isom v. Johns, decided by the court of appeals of Virginia, is a plain recog- nition of the principle as governing this very case ; and Green v. Stone is an authority in point. These are opposed only by a nisi prius decision, at a time when the action for money had and received had not come into general use. I am inclined to sustain the action. The inclination of courts is to extend the action for money had and received. It is not denied that the plaintiff is entitled to some remedy for the money, though it was taken from him by process erroneous merely. Then, why turn him round from this simple ac- MONEY PAID AFTER JUDGMENT. 543 tion to the antiquated remedy by scire facias? I do not think the purposes of justice require it. It is also contended that the facts in this case do not amount to a payment of money to the defendant. A note was received by the sheriff as payment of the execution, by the direction of the plaintiff and his attorney. And the execution was returned satisfied. Nay, more; a judgment has been obtained; and the money actually paid upon that note. To what would the plaintiffs be restored on a sci. fa.? To the money paid by the note, as money. Restitution could be of nothing else. The difficulty in Isom v. Johns was that the sheriff could not be held the plaintiff's agent. The facts show him to be so in this case. In my opinion there should be a new trial. New trial granted.^ DUNCAN V. WARE'S EXECUTORS. 5 S. & P. (Ala.) 119.— 1833. John Duncan, for the use of another, declared against Ware, Cowles and Robertson, executors of the last will and testament of Robert Ware, in assumpsit. Judgment for defendants. In 1826, Robert Ware, the testator, recovered a judgment in the circuit court of Montgomery county, against Lawrence, Rapelye & Co., of New York, by process of foreign attachment, for the sum of $2,032.29; at the same time, the said Robert Ware obtained judg- ment against John Duncan, the plaintiff", as a garnishee in said at- tachment, for the sum of $377 — which was rendered upon the an- swer of Duncan, under oath, acknowledging his indebtedness to the defendants in the attachment, in that amount ; that said Duncan paid to the said Ware, testator, the said amount under execution. That afterward, and since the payment by Duncan, the judgment ren- dered in the attachment cause, against Lawrence, Rapelye & Co. was reversed. It was admitted, Lawrence, Rapelye & Co. owed to the said testator the amount of the said judgment, so rendered in his favor ; and that the said sum of $377 had not been paid by Dun- can, in any other manner than as aforesaid. Under this state of * Accord, see Scholey v. Mumford, ante p. 474, note. In Mann and another v. ^tna Insurance Co., 38 Wis. 114 (1875), "plaintiffs covenanted with A., S. & Co., for value, to discharge all indebtedness and liabilities of the latter firm, indemnify it against an action by the present defendant against it, then pending in. New York, and pay any judgment which should be rendered against it therein. On a judgment rendered against A., S. & Co., in that action, this defendant recovered a judgment in Wisconsin against that firm, which was paid by the plaintiffs, but afterwards vacated on their motion, for the reason that the New York judgment had been reversed. Held, that such payment by plaintiffs was not a voluntary one, but one to which they were bound by their covenant; and they may recover from this defendant the amount so paid." (Syllabus.) 544 COMPULSION OF LAW. facts, the present action was brought to recover the amount paid by the garnishee, as aforesaid. Taylor, J. — * * * :ic Assumpsit is an equitable action — ad- mitting every defense, with but few exceptions, to which the de- fendant is entitled, in equity and good conscience. As between the defendants and Lawrence, Rapelye & Co., in equity and good con- science, the defendants certainly are not bound to refund the money. By a judgment which was irregular, and for that reason reversed, the amount of a debt, justly due, was recovered and paid to the de- cedent. In this situation, he was not authorized to renev/ his suit ; his debt was paid, and if Lawrence, Rapelye & Co. were permitted to recover against him, would it not place him in a worse situation than if the money had not been collected ? He must wait until they recover from him before he sues them ; or, without suit, he must re- fund to them, money, to which he is justly entitled, and which they owe him, that he may be authorized to institute a suit against them, and recover the same money back again. This cannot be tolerated. If an irregular judgment has been obtained, and the money recov- ered for a debt justly due, proof that the debt was due affords a good defense in an action of assumpsit brought to recover the money back, i Harris & Johns. 405. But the plaintiff paid as garnishee : does this place the defendants in a worse situation? Does the reversal of the judgment render the garnishee liable to the defendant in the attachment? If the re- versal had taken place upon the merits, showing that no debt was due from the defendants to the attachment, it is doubtful whether a payment made by the garnishee before that reversal would au- thorize him to maintain an action. His payment under the judg- ment would probably be considered a discharge of the debt to his creditor ; and, if that creditor did not owe the plaintiff in the at- tachment, he should resort to him, and the garnishee would probably be discharged. A debt due from a garnishee, we are inclined to think, should be considered, in all respects, as property of the de- fendant, especially after that debt has been paid, under the process of the court. But where the debt is confessedly due from the de- fendant in attachment to the plaintiff, we have no doubt, a payment by the garnishee, of the judgment recovered against him as such, fully discharges him from his creditor ; and, therefore, that, in this case, Lawrence, Rapelye & Co. have no claim against the plaintiff. The judgment must be affirmed.^ * Accord, Teascdale v. Stoller, 133 Mo. 645 (1896), an action to recover money paid on a jiulKnu-nt afterwards reversed, the court saying (p. 652) : "The justice of the defendants' original claim is not only shown by the con- ceded facts of this case, but the justice of the judgment set aside was estab- lished in the judgment of this court upon appeal therefrom. The defendants lost the benefit thereof merely by "a slip" in their own procedure, and ought not to be compelled to refund the money which they rightfully received, and which, in equity and good conscience, they may retain." In Dupuy v. Roebuck, 7 Ala. 484 (1845), the court says (p. 486): "The Y MONEY PAID AFTER JUDGMENT. 545 /\ CAROLINE GOULD v. McFALL. 118 Pa. St. 455-— i^ S' On November 14, 1880, Robert McFall recovered a judgment against William L. Gould and Caroline Gould, his wife, for gro- ceries and provisions furnished. Mrs. Gould took an appeal to the court of common pleas. On October 26, 1883, the cause being called for trial, the defendants did not appear, and judgment was entered against them for $25.26, with interest from July 3, 1880. Afterward executions were issued, a levy made upon real estate of Mrs. Gould, and a sherifif's sale advertised for the first Monday of April, 1885. On the Thursday before the sale was to be had Mrs. Gould, with an attorney, met the plaintiff's attorney at sheriff's of- fice and paid the debt, interest and costs, directing the writ to be re- turned, money made. In the meantime, on January 31, 1885, the attorney of record for the defendants had taken a writ of error to the judgment entered in the court of common pleas, which judgment, on January 4, 1886, was reversed and set aside by this court so far as it affected Mrs. Gould: reported: Gould v. McFall, iii Pa. 66. Subsequently, on petition, a rule was granted upon the plaintiff to show cause why a v/rit of restitution should not issue, returnable to January 23, 1886. An answer having been filed, testimony was taken before an ex- aminer, from which it appeared that the debt, interest and costs upon the writ of execution had been paid by Mrs. Gould, as before stated ; that the purpose in view was to save her house and lot from a sale by the sheriff, and enable her to make title for the same to one Scott, to whom she had contracted to convey it. Her convey- ance to Scott was made in a week or two after the payment. There action of assumpsit for money had and received, has been sometimes assimi- lated to a bill in equity, and the true test of the plaintiff's right to recover, said to depend upon the fact, whether the defendant can, in equity and good conscience, retain the money sought to be recovered. Although the law is thus generally stated, the adjudged cases show what is meant by an equitable right to retain money paid upon a judgment, which was afterwards reversed. It must grow out of, or be connected with, the case in which the judgment was vacated. Thus the party who has received the money, may show that he is entitled to recover for the cause alleged, though he mistook the appro- priate remedy, or irregularities intervened which made it erroneous. But it is not permissible to justify the retention, by showing that the party has another cause of action, in which he will be entitled to recover as much as he received and retains. Such a defense could not be entertained, con- sistently with principle, unless it embraced a demand that was a proper subject of set-off. If it was a breach of covenant for quiet enjoyment, or other unliquidated demand, distinct from the case in which the money was paid, it could not be interposed as a liar to the action. In such case, to make his demand available, the defendant must become the actor in a suit, and have the damages he has sustained, ascertained by a judgment." Woodruff's Cases — 35 546 COMPULSION OF LAW. was testimony adduced on the part of the respondent to the rule that when the payment on the writ was made, Mrs. Gould engaged to stop proceedings on the writ of error ; this, however, was denied on the part of the petitioner. Mr. Justice Paxson. — This was a rule to show cause why a writ of restitution should not issue. * * * * The payment was voluntary. The money was paid by Mrs. Gould's attorney to the attorney of the plaintiff in the writ. It is true there was an execution out and a levy upon her real estate. A sale upon this execution, however, would not have passed the title. It had issued upon a judgment which this court, per Gordon, J., has declared void. In Colwell v. Peden, supra (3 Watts 327), where the subject was carefully considered on principle and author- ity, it was ruled that an action cannot be maintained to recover back money paid under an impending distress not attended with oppres- sion or an abuse of the remedy, but made in good faith for rent erroneously supposed to be in arrear. And the general principle appears to be that money voluntarily paid upon a claim of right can- not be recovered back, however unfounded such claim may after- ward turn out to be. We are not now considering the line of cases where the process of law has been abused for the purpose of extor- tion, but where it was used bona Ude to enforce what was supposed to be a right. The suit in this case was to recover for certain gro- ceries sold by McFall, the plaintiff, to Mrs. Gould, a married woman, for the support of herself and family. They were neces- saries, and, if actually sold as alleged, the plaintiff would have had a right to recover, had he made the necessary proof. He took a judgment by default, and this court decided that such proof had not been made and reversed the judgment. We see, however, no equity which should move us to award restitution. We see no hardship in the case, and if there were, we prefer to hold to well established principles. This was a voluntary payment and restitution must be refused. Rule discharged. ii. Recovery of Taxes Paid. PEYSER V. MAYOR, etc., OF NEW YORK. 70 N. Y. 497. — 1877. This action was brought to recover back moneys alleged to have been paid upon an alleged assessment. The complaint alleged, in substance, that in March, 1869, defendant imposed and put on rec- ord what appeared to be, and what defendant alleged and claimed was an assessment on a lot owned by plaintiff, in the city of New York, for a local improvement ; that said assessment thereby be- RECOVERY OF TAXES PAID. 547 came and was a lien and encumbrance on said lot, and plaintiff was compelled to and did pay the amount of said assessment, he sup- posing that said apparent assessment was legal and valid ; that in October, 1869, the Supreme Court, on motion, set aside the assess- ment, and adjudged the same to be void, and that the comptroller of the city refused to pay back on demand the sum so paid. The an- swer admitted that the assessment was duly imposed and paid, and alleged that such payment was voluntarily made. Upon the trial, the petition upon which the application was made to vacate the as- sessment, and the order vacating, were given in evidence. This al- leged, as the ground of illegality, that there was included in the amount for which the assessment was made the cost of works not authorized by the ordinance under which the assessment was laid. The order recited that it satisfactorily appeared tliat such irregu- larity took place. It also appeared that in July, 1869, plaintiff re- ceived official notice of the confirmation of the assessment and a demand of payment on or before July 27th ; that he thereupon paid the same, under protest. FoLGER, J. — The reversal of the assessment and the setting it aside as illegal and void, is conclusive that the money obtained upon it by the defendant was got from the plaintiff' without primary right. In such case the general rule is, that the money ex aequo ct bono belongs to the plaintiff, and is held by the defendant for his use. The law raises an obligation on the part of him who has received the benefit of it to make restitution. It is upon this principle, that an action is maintainable to recover back money collected in satis- faction of an erroneous judgment which has been reversed after payment made. Bank of U. S. v. Bank of Washington, 6 Peters 8; Sturges v. Allis, 10 Wend. 355; Clark v. Pinney, 6 Cow. 297. But in actions to recover back money paid in such case another principle comes in, and must be observed. That is, that the pay- ment must be involuntary, which is tantamount to saying that it must be compulsory from coercion either in fact or by law. The reason of this principle is, that a person shall not be permitted, with the knowledge that the demand made upon him is illegal and unfounded, to make payment without resistance, where resistance is lawful and possible, and afterward to choose his own time to bring an action for restoration, when, perchance, his adversary has lost the evidence to sustain his side. I have spoken of coercion in fact and coercion by law. By the first I mean that duress of person or goods, where present liberty of person or immediate possession of goods is so needful and desirable, as that an action or proceeding at law to recover them will not at all answer the pressing purpose. Duress of person is exemplified in Forshay v. Ferguson (5 Hill 154) ; Eadie v. Slimmon (26 N. Y. 9). The cases of Maxwell v. Newbold (18 How. (U. S.) 511), and Harmony v. Binofham (12 N. Y. 99) , illustrate what is duress of goods. It may be well to sav, that there can be no pretense in this case of a coercion in fact. There was no taking or threat of taking goods. The oral protest was of 548 COMPULSION OF LAW. no import, save to show that there was not an assent to the pro- ceedings. Flower v. Lance, 59 N. Y. 603, 610. Coercion by law is where a court, having jurisdiction of the person and of the sub- ject matter, has rendered a judgment which is collectible in due course. There the party cast in judgment may not resist the exe- cution of it. His only remedy is to obtain a reversal, if he may, for error in it. As he cannot resist the execution of it, when execution is attempted he may as well pay the amount at one time as another and save the expense of delay. It may be well to say that if the judgment is not afterward reversed, but is invalid for any collateral reason, or the process issued upon it is illegal, payment with knowl- edge of the fact would perhaps be voluntary, which seems a sound distinction taken by Emott, J,, in Lott v, Swezey, (29 Barb. 87- 92). To such case of coercion by law, as is above given, are to be added those quasi adjudications of inferior tribunals, such as as- sessors of taxes or assessments ; where their proceedings are regular on their face, and on presentation make out a right to have and de- mand the amount levied, and to collect it in due course of law by sale of goods or municipal lease of real estate. Unless void on their face, they have the force of a judgment ; the party is legally bound to pay, and has no lawful mode of resisting. The only remedy is a reversal of the adjudications. Until reversed they give the col- lector of the tax the right to take and sell goods, and the assessment remains a prima facie valid lien upon real estate. Bank of Com- monwealth V. The Mayor, 43 N. Y. 184-8. There is no clashing here with the case of The N. Y. & H. R. R. Co. V. Marsh (12 N. Y. 308). In that case there was wanting an- other element which is assumed to exist in the cases above supposed. There had been no reversal of the assessment of tax in that case. There had been no alteration of the rights and positions of the parties, and the action was brought upon the same state of facts as existed when the payment was made. Besides, in that case, the collector did not assert a right to seize property then and there. There was no taking, nor imminent danger thereof. He was out of his baili- wick, which fact was as well known to the plaintiff as to him, and at the time payment was made, as when action as commenced. Nor is it the same as Fleetwood v. City of New York (2 Sandf. 475). There it was apparent upon the face of the proceedings that there was no foundation for them, no ordinance having been adopted for laying the assessment. The owner of the land assessed could al- ways have relied upon this as a defense to an action to dispossess him. The lessee of the city would have needed to show and would have failed to show an ordinance for the assessment. The assessments were not a cloud upon his title, warranting an action to remove an ap- parent lien. Marsh v. City of Brooklyn, 59 N. Y. 280 ; Washburn v. Burnham, 63 id. 132. To warrant an action to recover back money paid by coercion of law upon a judgment, or tax levied, or assessment laid, it must appear that the judgment of proceedings were prima facie regular, so as not, themselves, to furnish evidence of their own RECOVERY OF TAXES PAID. 549 invalidity ; and it must also appear that the rig-hts and positions of the parties have been changed since the payment was made, as by a re- versal for error or a setting- aside for irregularity or illegality. By the setting aside of the assessment, in the case in hand, the last of the requirements is made out. We must look into the case to see if the first is. The complaint alleges that the defendants imposed and put upon record what appeared to be, and what defendants claimed was an assessment on the plaintiff's land, and that the same became, and was an apparent lien and incumbrance thereon. The answer ad- mits that the assessment was duly imposed pursuant to law. The pe- tition for the vacating of the assessment, which was given in evidence, alleges as the ground of illegality that there was included in the amount the cost of works not authorized by the ordinance, in pur- suance of which the assessment w^as laid. The order of the court setting- aside the assessment recites that it satisfactorily appears that such irregularity took place. This is sufficient to show that the illegality of the assessment consisted in something aliunde the rec- ord which would be produced by a municipal lessee to establish his right to possession of the lot assessed. It was in a fact of which the plaintiff would have needed to make proof on his part to rebut the prima facie case made against him. It thus appears that the plaintiff fulfilled the other requirement of a payment involuntarily made. It follows that the complaint was erroneously dismissed at the trial, and the judgment should be reversed. All concur. Judgment reversed.^ ^ In Redmond et al. v. Mayor, etc., 125 N. Y. 632 (1891), the court says (p. 636) : "So, where an assessment is paid which, upon its face, carries tlie notice of its illegality and consequent invalidity, and no duress is resorted to for its collection by the authorities, its payment by the property ov/ner would be voluntary in the eye of the law and its restoration denied. Fleetwood v. City of New York, 2 Sandf. 475 ; Peyser v. Mayor, 70 N. Y. 496 ; Phelps v. Mayor, 112 Id. 216. But the principle upon which such payments are deemed voluntary extends to cases Avhere, without the impress of illegality upon their face, assessments are paid with knowledge, actual or constructive, of the facts which make them invalid claims of the municipality. That should be quite obvious ; for the principle underlying the right to compel a restoration of the moneys paid is that the debtor was ignorant of the exist- ence of the facts which would have precluded his creditor from maintaining his demand at law, or enforcing his lien against his defense. The court should deny a claim for the repayment of moneys in such cases, unless it appears in proof that the parties charged with their payment were ignorant of the facts constituting the illegality of the assessments, and paid them, when demanded, and under circumstances exhibiting such good faith in the matter as to make it appear that they acted under a moral coercion, or else it should be evident that the payment was involuntary and compelled by some duress." i 550 COMPULSION OF LAW. such reassessment amounting to the sum of ?333-73- This suit was brought to recover the difference between the sum paid and the amount thus reassessed. A verdict was taken for the plaintiff, and this motion was to set it aside. Beasley, Chief Justice. — The principal objection to a recovery in this case is, that the plaintiff, having voluntarily paid the tax as- sessed upon his property, cannot maintain a suit for reimbursement. The general doctrine thus invoked is indisputable. There are a multitude of cases to the purpose, that when money is demanded as a legal right, and it is paid without compulsion, and with a full comprehension of the facts, the money so paid cannot be reclaimed by a suit at law. The reason of this rule is, that the party paying had an opportiuiity to dispute the claim, and that having waived it at his own volition, it is impolitic to permit him to overhaul the transaction by an aggressive action. The doctrine is intended to be repressive of litigation, and is promotive of the policy expressed in the maxim, ''Interest repnblicae lit sit finis litinm." The principle is forcibly stated by ]\Ir. Justice Gibbs in the well-known case of Brisbane v. Dacres, 5 Taunton 152. His language is : "We must take this payment to have been under demand of right, and I think that where a man demands money of another, as a matter of right, and that other, with a full knowledge of the facts upon which the demand is founded, has paid the sum, he never can recover back the sum he has so voluntarily paid." Many decisions of like import can be found by referring to the notes in illustration of the judgment in the case of Marriot v. Hampton, 2 Smith's Lead. Cas. 400. Nor are adjudications v/anting which have enforced this rule, in its full rigor, in cases of payments of taxes which had been ir- regularly or illegally assessed. Chief Justice Shaw, in the case of Lincoln v. Worcester, 8 Cush. 55, declares that these are the three following requisites to a right to reclaim the money paid by force of illegal taxation : First, the authority to levy the tax must be wholly wanting ; second, the money sued for must have been re- ceived by the corporation for its own use ; third, the payment must have been made upon compulsion, and not voluntarily. Judge Dil- lon, in his Treatise on Municipal Corporations, says that unless these conditions are all present, payment under protest will not give a right of recovery. (Vol. 2, p. 857.) This learned author cites in his notes, in corroboration of his views, a lengthened line of concurring decisions. But the doctrine thus established is not applicable to the present case. The plaintiff does not claim a right of action simply on the ground that he has paid an illegal tax. If such were his attitude the adjudications cited would defeat a recovery. But the suit does not rest on that basis. In this instance the authority to levy the tax was not wholly wanting, and the payment, in the legal sense, was vol- untary ; and under cither of these conditions the law refuses to raise an imi)lied promise to refund the money paid. Had this suit been brought upon the payment of the tax, and before any change in the RECOVERY OF TAXES PAID. ^ ii^_ situation had occurred, the case would have been the orduiary one presented in the reports and ruled by the decisions. But that is not so ; there is a new element here, and that is, the tax which was paid has been set aside. The consequence is the payment has nothing, either in theory or in fact, to rest upon. The party is debarred from his action after a voluntary payment, because, of his own motion, he abandons his defense to the claim ; this the present plaintiff did not do ; on the contrary, he pushed his defense to a successful result. The payment of the tax in this instance has not added, in the least degree, to the litigation, and public policy, therefore, does not require a frustration of this procedure. The assessment being va- cated by direct judicial action, the law raises an assumption to re- fund the money which can no longer be honestly retained. An as- sessment in this respect is analogous to a judgment, and when a judgment is reversed the defendant is restored, as nearly as practi- cable, to his original condition, and for this purpose a writ of resti- tution goes. In the case of Close v. Stuart, 4 Wend. 98, it is said : "The right of the plaintiff to the costs in error, and to a return of the money becomes perfect by the reversal of the judgment," and it was consistently held that the money so due would form the sub- ject of a set-off. In this court, upon reversals of judgments, restitu- tion has been repeatedly ordered without regard to the fact whether such judgments have been voluntarily paid or not. Randolph v. Bayles, Penn. 52 ; Anonymous, lb. 900 ; McChesney v. Rogers, 3 Halst. 335 ; Scott v. Conover, 5 Halst. 61. The principle of this course of law is, that after the judgment is annulled the money paid upon it is due to the defendant ex aequo ct bono, and that there is no paramount inconvenience in allowing its reclamation. Certainly a tax assessment cannot be put upon higher ground ; upon its vaca- tion the money paid cannot, in good conscience, be retained by the public. In the present instance the defendant has not a particle of right to the money in question ; it is due to the plaintiff according to the principles of common honesty, and it is, therefore, not to be regretted that the attempt to w-ithhold it by the sumniuni jus has failed. The other questions raised upon the argument have been ex- amined, but they do not appear to me to be of any weight. The rule should be discharged. I LAMBORN V. COUNTY COMMISSIONERS. 97 U. S. 181.— 1877. r V Ir^ Mr. Justice Bradley. — Lamborn, the plaintiff in error in this case, is the trustee and representative of the National Land Com- pany. This company had contracted with the Kansas Pacific Rail- way Company for the purchase of a large quantity of the lands in 554 COMPULSION OF LAW. Kansas, to which the latter company was entitled under the con- gressional grant made to it, under the name of the Leavenworth, Pawnee and Western Railroad Company, and the Union Pacific Railroad Company, Eastern Division, by the acts of July i, 1862, and July 2, 1864. The contract required the land company to pay all such taxes and assessments as might be lawfully imposed on the lands. And it provided that the railway company should, at the re- quest of the land company, convey by deed of general warranty any of the lands purchased, whenever the purchase-money and interest and the necessary stamps should be furnished by the latter. The land company, after acquiring this contract, had contracted to sell large portions of the lands to third parties, taking from them agree- ments to pay all taxes and assessments that might be imposed upon the lands sold to them respectively. The lands in Dickinson county were assessed by the defendants for taxes for the years 1870, 1871 and 1872, successively, when, as yet, they were not taxable, no pat- ent having been issued therefor, and the costs of surveying, select- ing, and conveying the same not having been paid. These taxes, therefore, as decided by us in the case of Railway Company v. Pres- cott, 16 Wall. 603, were not legal. Nevertheless, the Supreme Court of Kansas, in that case, had held such taxes legal ; and the taxes for the year 1870, now in question not having been paid, the treasurer of Dickinson county proceeded to advertise and sell the lands there- for in May, 187 1, and, no person bidding the requisite amount, the lands were bid in for the county. The assessments for 1871 and 1872 were made against the lands whilst they were in this position. By the laws of Kansas, if lands sold for taxes are bid in for the county, the county treasurer is authorized to issue a tax certificate to any person who shall pay into the county treasury an amount equal to the cost of redemption at the time of payment. Gen. Stats. of Kansas, c. 107, § 91. And if any lands sold for taxes are not redeemed within three years from the day of sale, the clerk of the county may execute a deed to the purchaser, his heirs or assigns, on the presentation to him of the certificate of sale. Sec. 112. It is further provided, that if the county treasurer shall discover, before the sale of any lands for taxes, that on account of any irregular as- sessment, or from any other error, such lands ought not to be sold, he shall not offer such lands for sale ; and if, after any certificate shall have been granted upon such sale, the county clerk shall dis- cover that, for any error or irregularity, such land ought not to be conveyed, he shall not convey the same ; and the county treasurer shall, on the return of the tax certificate, refund the amount paid therefor on such sale, and all subsequent taxes and charges paid thereon by the purchaser or his assigns, out of the county treasury, with interest on the whole amount at the rate of 10 per cent, per annum. Sec. 120. In 1872 the plaintiff in error paid into the county treasury the sums due for taxes, interest, etc., on the said lands in Dickinson county, which had been sold for taxes as aforesaid, and received RECOVERY OF TAXES PAID. 555 tax certificates therefor, without making any protest, not being aware at that time, as he alleges, that the lands were exempt from taxation, but supposing that the taxes were legal and valid. On the second day of January, 1874, after the decision of this court in Railway Company v. Prescott, 16 Wall. 603, he offered to return the tax certificates to the county treasurer, and demanded a return of the money paid by him into the county treasury, with interest, which was refused by the treasurer ; and thereupon this suit, against the board of county commissioners of that county, was brought to recover the same. * * * * In the present case there is no dispute that all the facts and cir- cumstances of the case bearing on the question of the legality of tlie tax were fully known to the plaintiff. He professedly relied on the law, as declared by the Supreme Court of Kansas, and supposed that the tax was legal and valid. The only other ground left, therefore, on which a right to recover back the money paid can be at all based, is, that the payment was not voluntary, but by compulsion or duress. It is contended that the plaintiff was obliged to pay the taxes in order to remove the cloud from the title which had been raised by the tax sale, and to prevent a deed from being given to some third party after the ex- piration of the three years allowed for redemption. It is settled by many authorities that money paid by a person to prevent an /illegal seizure of his person or property by an officer claiming authority to seize the same, or to liberate his person or property from illegal detention by such officer, may be recovered back in an action for money had and received, on the ground that the payment was compulsory, or by duress or extortion. Under this rule, illegal taxes or other public exactions, paid to prevent such seizure or remove such detention, may be recovered back, unless prohibited by some statutory regulation to the contrary. Elliott v. Swartwout, 10 Pet. 137 ; Ripley v. Gelston, 9 Johns. 201 ; Clinton V. Strong, 9 Johns. 369 ; and cases cited in 2 Smith's Lead. Cas. (CAi ed.) 468; Cooley Taxation. 568. But it has been questioned whether a sale or threatened sale of land for an illegal tax is within this rule, there being no seizure of the property, and nothing supervening upon the sale except a cloud on the title. This view has been adopted in Kansas. In Phillips V. Jefferson County, 5 Kan. 412, certain Indian lands, not legally taxable, were, nevertheless, assessed and sold for taxes, and a cer- tificate issued to the purchaser. Phillips, having acquired title to the land, paid the amount of said taxes, at the same time denying their legality, and saying that he paid the money to prevent tax deeds from issuing on the certificates. The court hold that the pay- ment was purely voluntary, and add : "The money was not paid on compulsion or extorted as a condition. A tax deed had been due for nearly two years. Had the plaintiff desired to litigate the ques- tion, he could have done so without paying the money : even had a deed been made out on the tax certificate, it would have been set 556 COMPULSION OF LAW. aside by appropriate proceedings. There was no legal ground for apprehending any danger on the part of the plaintiff. He could have litigated the case as well before as after payment. Neither his person nor property was menaced by legal process. Regarding, then, the payment as purely voluntary, it is as certain as any prin- ciple of law can be that it could not be recovered back." It seems to us that this case is precisely parallel with the one be- fore us. We are unable to perceive any distinction between them. And as it is the law of Kansas which we are called upon to admin- ister, the settled decisions of its supreme court, upon the very mat- ter, are entitled to the highest respect. We are not aware of any decision which tends to shake the authority of Phillips v. Jefferson County. On the contrary, the same views have been subsequently reiterated. In Wabaunsee County v. Walker, 8 Kan. 431, a case precisely like it, with the exception that when the taxes were paid to the county collector to redeem the tax certificates, under a mis- taken view of the law, he charged twice as much interest as he was entitled to, the party paid under protest. Yet it was held that he could not recover back even the illegal interest. The court relied on the previous decision in Phillips v. Jefferson County, and, after examining various other authorities, summed up the matter as fol- lows : "A correct statement of the rule governing such cases as this would probably be as follows : Where a party pays an illegal demand with a full knowledge, of all the facts which render such demand illegal, without an immediate and urgent necessity therefor, or unless to release his person or property from detention, or to prevent an immediate seizure of his person or property, such pay- ment must be deemed to be voluntary and cannot be recovered back. And the fact that the party, at the time of making the payment, files a written protest does not make the payment involuntary." The question was again discussed in the recent case of the Kansas Pacific Railway Co. v. Commissioners of Wyandotte County, 16 Kan. 587 ; and although, in that case, a personal tax paid by the rail- road company under protest was recovered back, such recovery was allowed on the ground that, if the tax was not paid, it would be tlte immediate duty of the county treasurer to issue a warrant to the sheriff to levy upon and sell the personal property of the company therefor. But the principles of the former cases were recognized and affirmed. It has undoubtedly been held in other states (though perhaps not directly adjudged) that a payment of illegal taxes on lands, to avoid or remove a cloud upon the title arising from a tax sale, is a com- pulsory payment. The case of Stephan v. Daniels et al., 27 Ohio St. 527, is of this character ; though in that case the plaintiff relied on the provisions of a local statute ; and besides this, a legal tax was combined with an illegal assessment, and perhaps a sale would have conferred a valid title upon the purchaser. Where such would be the effect of a tax sale, we cannot doubt that a payment of the tax, made to prevent it, should be regarded as compulsory and not RECOVERY OF TAXES PAID, 557 voluntary. The threatened divestiture of a man's title to land is certainly as stringent a duress as the threatened seizure of his goods ; and if imminent, and he has no other adequate remedy to prevent it, justice requires that he should be permitted to pay the tax, and test its legality by an action to recover back the money. But as, in general, an illegal tax cannot furnish the basis of a legal sale, the case supposed cannot often arise. If the legality of the tax is merely doubtful, and the validity of the sale would depend on its legality, according to the law of Kansas, the party, if he chooses to waive the other remedies given him by law to test the validity of the tax, must take his risk either voluntarily to pay the tax, and thus avoid the question, or to let his land be sold, at the hazard of losing it if the tax should be sustained. Having a knowledge of all the facts, it is held that he must be presumed to know the law ; and, in the absence of any fraud or better knowledge on the part of the officer receiving payment, he cannot recover back money paid under such mistake. * * * * Judgment affirmed. ^ FIRST NATIONAL BANK OF AMERICUS v. MAYOR, etc., OF AMERICUS. 68 Ga. 119.— i88i. Speer, Justice. — The First National Bank brought suit against the defendants, for the sum of $1,639, besides interest, alleging that petitioner was organized as a national bank association, and under the laws of the United States, was empowered to carry on a general banking business in the city of Americus ; that, from the year 1872 to the present, by virtue of the authority aforesaid, peti- tioner has been engaged in the banking business in said city ; that the petitioner is expressly exempted from the payment of any tax upon its business of banking, or upon its capital stock, except such tax as it is required to pay the government of the United States, as provided by section 5214 of the Revised Code of the United States. Further, petitioner alleges that, notwithstanding this ex- emption, the defendant wrongfully, and without any authority of law, has demanded of petitioner the sum of one hundred dollars per annum, as a license tax for carrying on the said business of banking in said city. Petitioner paid the tax under protest, and to avoid a seizure and sale of its property by said mayor and city council. Under this illegal assessment, it has paid the sums of one hundred dollars per annum from the year 1872 to 1877, in- clusive, which was illegally extorted, as aforesaid, for carrying on said business, and which the congress of the United States had expressly licensed. Further, petitioner shows that, in the year 1874, while engaged in said business, under the authority aforesaid, defend- ant assessed a tax of one per cent, upon the capital stock of peti- 558 COMPULSION OF LAW. tioner, making the sum of six hundred and thirty-nine dollars, which was illegal and void, as the same was not subject to taxation by said city. Petitioner protested against the payment of said sum, but to avoid a sale and seizure of its property by said mayor and council did pay the said sum, in the year 1874, and the sum of three hundred dollars for the year 1875. Since the year 1875, it has urged upon said defendants the justice and equity of returning said sums, thus illegally assessed, but they now refuse to pay the same ; wherefore, petitioner brings suit, etc. To this declaration, defendants demurred, which demurrer was sustained by the court, and plaintiff's action dismissed ; wherefore plaintiff excepted, and assigns the same as error. The question in this record, submitted for our consideration is, whether the plaintiff has set forth a good and legal cause of action in his writ, and was there error in dismissing the same on demurrer? To determine this question properly, it will be necessary to inquire under what allegations and proofs can a complaining party recover of the authorities an illegal tax that has been levied, and collected of the party complaining — that is, what must be alleged in the writ and what must be proved on trial, for it is well established as a rule of pleading that everything must be alleged and proved that is essential to a recovery under the rules of law applicable to the cause on trial. 1. It is a well recognized rule, that a tax, voluntarily paid, even though illegally assessed by the taxing power, where there is no misplaced confidence, and no artifice, or deception, or fraudulent practice by the other party, cannot be recovered back. 50 Ga., 304- 2. So, where there is no ignorance, or mistake of facts, if money is paid to a corporation levying under a claim of right, under an ignorance or mistake of law, the same is not recoverable. Under none of these grounds does the plaintiff here seek to recover. There is no charge of ignorance of fact, or of misplaced confidence, artifice, or deception, or fraudulent practice alleged against the defendants in levying and collecting this tax, and by reason of which it was paid by the plaintiff. There is only one ground alleged, or set forth, in plaintiff's writ, and this is made to apply to all of the taxes alleged to be illegally paid, and which are sought to be recovered. The petitioner alleges that "it pro- tested against the payment of said sums, but, to avoid the sale and seizure of its property by said mayor and council, did pay the said sums," etc. Duress or coercion is here shadowed forth as the impelling or moving power of this payment now sought to be recovered. But do the facts or causes alleged constitute either coercion or duress? It is well settled that money paid under protest merelv does not make the payment a compulsory one. 13 Gray (Mass.), 476. Mr. Dil- lon, in his work on Corporations, lays down clearly and intelli- gently the rule. He says : "The coercion or duress which will RECOVERY OF TAXES PAID. 559 render a payment involuntary, must in general consist of some actual or threatened exercise of power ])Ossessed, or believed to be possessed, by the party exacting or receiving the payment over the person or property of another, from which the latter has no other means of immediate relief than by making the payment." 2 Dillon, sec. 943 (3d edition) ; Radick v. Hudson, 95 U. S. 210; 4 Gill 425; 18 Cal. 256 ; I Ohio St. 268. Tested by this rule, are there any allega- tions of facts in this writ that show ''there was some actual or threatened exercise of power, by the party exacting or receiving the payment, over the person or property of plaintiff, from which he had no other immediate means of relief?" We see none. The writ must be construed most strongly against the pleader. The presumption is, he put his cause on record as favorably to himself as the truth of the case would warrant, and all he sets up by way of compulsion to justify or excuse the payment was, he did so, "under protest, and to avoid a sale and seizure of his property." Three elements are essential, and must concur, to sustain an action to recover back money on the ground of the illegality of the tax. First. The authority to levy the tax must be wholly zvanting. Second. The money sued for must have been actually received by the defendant corporation. Third. The payment of the plaintiff must have been made upon compulsion, to prevent the iuinicdiate seizure of his goods or the arrest of his person, and not voluntarily made. Unless these conditions concur, paying under protest will not give a right to recovery. Dillon on Mun. Corporations, sec. 940. There being no statutory right regulating this action in our state, we are remitted to the common-law rule of force, and this is well and succinctly stated by the supreme court of the United States in two recent cases where actions were brought to recover back illegal taxes. Lamborn v. Dickinson & Co., 97 U, S. 181 (1877) ; Union Pacific R. R. V. Dodge County, 98 U. S. 541 (1878). In these recent cases the court lays down the following rule : "Where a party pays an illegal demand, with full knowledge of all the facts which render such demand illegal, without an immediate and urgent necessity therefor, or unless to release (not to avoid) his person or property from detention, or to prevent an immediate seizure of his person or property, such payment must be deemed voluntary, and cannot be recovered back. And the fact that the party, at the time of making the payment, files a written protest, does not make the payment involuntary." 2 Dillon 947. This rule was also fully recog- nized in a decision of this court in a recent case, at Sept. Term, 1880, not yet published,^ of the Mayor of Savannah v. Feeley, which was a much stronger case than the one at bar. Tested by this rule of lia- bility, and we think it the correct one, the case, as set forth in the plaintiff's declaration, falls far short of its requirements. But it is insisted that a more liberal ruling by this court, in favor of a '66Ga. 31. 560 COMPULSION OF LAW. recovery in such a case, was made in 48 Ga. 309. In that case the court laid down the rule, generally, that a tax levied without authority of law may be recovered, but the case did not decide that a voluntary payment could be recovered under such circumstances, nor that a recovery could be had unless the payment was compulsory. Public policy does not favor the institution of such suits. The complainant had his legal right to resist illegal ta.xes when levied, and when he acquiesces and knowingly pays an illegal assessment, and the sums raised are disbursed for the public good, of which he is one of the recipients, courts will not regard with favor a com- plaint that might have been prevented by the exercise of that dili- gence that the law favors. He must bring himself within the strict rule the law has fixed, that entitles him to recover ; otherwise he must abide the consequences of his own default and negligence. Let the judgment of the court below be affirmed. BOROUGH OF ALLENTOWN v. SAEGER. 20 Pa. St. 421. — 1853. This suit was brought before a justice of the peace by Jacob Saeger v. The Burgess and Town Council of the Borough of Allen- town, to recover back the amount of taxes illegally assessed, which had been paid by Saeger, the plaintiff, to the tax collector. The illegal tax was one laid for borough purposes upon moneys at interest. In the case of Bridges v. The Borough of Allentown, it had been decided that under the charter of the borough, moneys at interest were not taxable for borough purposes. LowRiE, J. — Part of the taxes charged against Saeger was legal and part illegal, and he paid the whole on demand, and now seeks to recover back the part that was illegally assessed. It cannot be allowed. The case is very different from that of payment to an individual by mistake. It was submission to legitimate authority which was prima facie right in its exercise. The taxing officers performed their duty as well as they knew how, and the tax was submitted to by one who was interested in the purposes for which it was raised, though it might have been resisted in legal form. This was an assent to pay more in support of the government of the town than the town had a right to demand, and the law does not imply the duty of refunding. If it had been paid under protest, that is, with notice that he would claim it back, this would repel the implication of an assent, and give rise to the right of reclama- tion. In another aspect it is unlike a payment to an individual. It is a contribution to a common fund, in the benefits of which he, as a citizen or property holder, participates. It is intended for imme- )^ RECOVERY OF TAXES PAID. 56I diate expenditure for the common good, and it would be unjust to require its repayment, after it had been thus, in whole or in part, properly expended, which would often be the case if suit could be brought for its recovery without notice having been given at the time of payment ; and there would be no bar against its insidious spring but the statute of limitations. On these principles the de- fendant below is entitled to the judgment. Judgment reversed and judgment for the defendant below. UNION INSURANCE CO. v. CITY OF ALLEGHENY. loi Pa. St. 250. — 1882. Mr. Justice Mercur. — This suit was to recover money paid by the plaintiff under the following circumstances. One Logan owned certain lands in the City of Allegheny, and in August, 1874, exe- cuted a mortgage thereon to the plaintiff in the sum of $4,000. The latter obtained a judgment, issued execution, sold the property at sheriff's sale, bid it in for $50, and obtained a deed therefore in July, 1877. Municipal taxes had been assessed on the property for the years 1875 and 1876, which could not be collected for want of goods and chattels on which to levy. In March, 1878, claims for these taxes were filed in the prothonotary's office under the Act of 14th July, 1863, which provides for the entry of judgment thereon, and issuing the execution forthwith, and a sale of the real estate. Execution had been issued on one of the judgments thus obtained, the real estate then owned by the plaintiff was levied on, and advertised to be sold. The plaintiff paid the judgment under protest. A year thereafter, the city solicitor demanded of the plaintiff, payment of the other judgment for the taxes of 1876, with threat unless paid he would proceed to enforce payment by sale of its property. Plaintiff thereupon paid this judgment under pro- test. This action is to recover the sums thus paid for the taxes, interest and costs covered by both judgments. It is conceded now that the lien of these taxes was discharged by the sheriff's sale of the property made in 1877. The filing of the claims the year thereafter created no lien on the property. Does the fact that they were paid under protest when they were no lien, to prevent the form ^ of sale being had, give a right to recover the sums so paid? It is well settled as a general rule of law, that money voluntarily paid on a claim of right, where there has been no mistake of fact, cannot be recovered back on the ground that the party supposed he was bound in law to pay it when in truth he was not. Clarke v. Dutcher, 9 Cowen 674. He shall not be permitted to allege his ignorance of the law, and it shall be considered a voluntary pay- WooDRUFp's Cases — 36 562 COMPULSION OF LAW. ment: Id. In Brisbane v. Dacres, 5 Taunt. 144, Mr. Justice Gibbs said, where a man demands money of another as a matter of right, and he pays it with a full knowledge of the facts on which the demand is founded, he can never recover back the sum he has so voluntarily paid. The same principle is ruled in Mowatt v. Wright, I Wend. 355 ; and in Lyon v. Richmond, 2 Johns. Ch. Rep. 51. Mr. Chief Justice Waite, in pronouncing the judgment of the court in Railroad Co. v. Commissioners, 8 Otto 541, which was a suit to recover back taxes which the company had paid, declared it to be a rule of the common law that "where a party pays an illegal demand with a full knowledge of all the facts which render such demand illegal, without immediate and urgent necessity therefor, or unless to release his person or property from detention, or to pre- vent an immediate seizure of his person or property, such payment must be deemed voluntary, and cannot be recovered. And the fact that the party at the time of making the payment files a written pro- test does not make the payment involuntary." He evidently referred to personal property of which the owner might summarily be dis- possessed. In Colwell V. Peden, 3 Watts 327, it was held that assumpsit would not lie against a landlord for money paid by a tenant after a warrant of distress had issued in good faith to recover rent alleged to be in arrear, although in fact no rent was actually due. It was there argued that the payment was not voluntary, that the tenant must either pay or have his furniture sold ; yet the court held that the tenant could not recover by reason of there being no rent due. He might have maintained either trespass or replevin. Espy V. Allinson, 9 Id. 462, was the case of a purchaser of land at a sherifif's sale, who, under the impression that he was liable to pay a bond, secured by mortgage on the property purchased, paid the same, and afterwards discovered that he was not bound to pay it by reason of the mortgage having been previously satisfied of rec- ord, it was held he could not recover the money back, as the holder of the bond had conscientiously received the same. In Boas v. Updegrove, 5 Barr. 516, an execution had issued on a judgment against the former owner of the land to sell it. The terre-tenant, supposing the judgment to be still a lien on the land, after it was advertised for sale, paid the money to the sherifif, who returned the writ "money made by" the terre-tenant. Before the return day of the writ the latter ruled the money into court and proved that the judgment was no lien and that he had paid it under a mistake. It was held to be a voluntary payment wdiich the terre-tenant could not have recovered back, and that the plaintifif in the execution was entitled to the money. It was said to be money which the creditor might conscionably receive and which he might conscionably re- tain. In Taylor v. The Board of Health, 7 Casey 73, it was held that a payment of taxes is not compulsory because made under a threat, express or implied, that the legal remedies for its collec- tion will be resorted to. It is there said, "We state the case as one RECOVERY OF TAXES PAID. 563 of a voluntary payment of taxes because there is no pretense that the defendant's officers did any more than demand the tax under the supposed authority of the law ; and this is no more compulsion than when an individual demands a supposed right." Again, in Real Estate Savings Institution v. Linder, 24 P. F. Smith, 371, it was held that one who voluntarily pays money with knowledge or means of knowledge of the facts, and without fraud on him, cannot recover it back because he paid it in ignorance of the law. In Dillon on Municipal Cor., sec. 751, the requisites to maintain an action ex coiitraciu against a municipal corporation to recover back money paid to it for taxes are said to be three : i. The authority to levy the tax must be wholly wanting or the tax itself wholly unauthorized, so that the tax is absolutely void. 2. The money sued for must have been actually received by the defendant corporation for its own use. 3. The payment by the plaintiff must have been made upon compulsion to prevent the immediate seizure of his goods or arrest of the person, and not voluntarily. "Unless these conditions concur, payment under protest will not give a right of recovery." No authority is found which holds that money paid to prevent the sale of lands under a threat to sell the same on a judgment which is not a lien thereon, can be recovered back by reason thereof. Then, to refer to the facts of this case, we find no allegation that the taxes were illegally laid. No averment of irregularity in making the assessment or in laying the taxes. The city had un- doubted jurisdiction and power, and all the forms of the law were complied with. The only alleged wrong consists in the attempt to collect the taxes by proceedings against the land after it had ceased to be liable for the payment thereof. At the time the taxes were paid each party was fully informed of all the facts bearing on the case. The plaintiff knew them then as well as now. They were all of record, and most of them in the direct line of its title. It knew when the mortgage was executed. It knew the time when it pur- chased the property at sheriff's sale. The claims filed showed on their face that they were for taxes laid after the execution of the mortgage, and for years prior to the sheriff's sale. The only ques- tion about which the parties could possibly differ was one of law. That was, whether under the well known and undisputed facts the lien of the taxes was divested. The city proposed to test it in a regular legal form. They had been duly laid ; they had never been paid to the city ; the property did not sell for enough to pay them, if it had claimed and obtained the whole fund produced by the sale. They remained unsatisfied against Logan. There was noth- ing inequitable or unconscionable in the city's acceptance of the taxes and in retaining them. It is said the plaintiff had not had its day in court. True, it had not. The taxes were not laid against it, nor its property. The company did not propose to attack the validity of the assessment. In several of the cases cited the party had had no day in court. 564 COMPULSION OF LAW. No hearing or opportunity of being heard ; yet he might have had it before making payment, by appropriate action. Faihng to avail himself of it, he waived his rights. So here by application to the equitable powers of the court or by a bill in equity execution might have been stayed, and the claim removed from the record. No immediate and urgent necessity existed for the payment of the taxes to protect the property of the plaintiffs. Its goods were not about to be seized. The execution could not take from it the pos- session of the land ; nor could a sale, if made, have had such effect. It follows that all the facts in the case are clearly insufficient to enable the plaintiff to maintain this action, and the learned judge was correct in so holding. Judgment affirmed. Sharswood, C. J., and Gordon and Trunkey, JJ., dissented. GOULD V. BOARD OF COMMISSIONERS OF HENNEPIN COUNTY. 76 Minn. 379. — 1899. Upon the application for re-argument, p. 381. Per Curiam. — * * * The chief ground upon which a re- argument is asked is that the court did not give due weight to the fact that, according to the complaint, the plaintiff paid the tax in ignorance of the fact that any part of it was illegal. It should be kept in mind that the rules which apply to actions to recover back money paid by one person to another do not apply, to their full extent, to actions to recover back from a county, town, or other municipality money in payment of taxes illegally or irregularly assessed or levied. There are certain considerations of public pol- icy which must necessarily be taken into consideration. If a party could recover back from the public whenever there was some illegal or irregular action on the part of public officers in the assessment or levy of the tax, merely because he was ignorant of such illegality or irregularity at the time he paid the tax, the public finances would be thrown into chaos, and frequently municipalities would be re- duced to utter bankruptcy. Municipalities do not guaranty the tax- payers correct action on part of their officers. Irregular action does not necessarily injure the parties concerned, and, when it does, the remedies given by review, appeal, or by way of defense to proceed- ings to enforce the tax are supposed to afford full redress. Cooley, Tax'n, 566. In this case the ])roperty was subject to taxation. The illegality or irregularity complained of consisted exclusively of the action of the state board of equalization in raising the assessed value of one class of real estate in the town without making the same increase on another class. This illegality or irregularity ap- peared from the public records. Plaintiff' had the means of discover- RECOVERY OF TAXES PAID. 565 ing this, and he was just as much bound to inform himself of the fact as were the pubHc authorities. Every man is supposed to know the law. If plaintilT was ignorant of the facts of which he now com- plains when he paid the tax, it was because he failed to avail himself of the means of information which were open to him. His tax hav- ing been paid without investigation, and without duress of either per- son or property, the payment must be deemed voluntary. We have not the time now to go extensively into the subject when taxes paid may be recovered back from a public municipality, but it may be sug- gested that in many states there are statutes which extend the right much beyond what it would otherwise be. Many of their statutes, and the decisions under them, are to be found in 25 Am. & Eng. Enc. Law, 465 et seq. And, even where there are no statutes governing the subject, the decisions of the courts are not always in harmony. But, upon the particular facts of this case, we think that a recovery could not be had, under the rulings of any well-considered case in any court. Application denied. Sheldon, J., in FALLS v. CITY OF CAIRO. 58 III. 403. — 1871. Admitting these assessments to have been illegal, unconstitu- tional and void, because the making of the assessments was confined to the particular property fronting upon the street, which might be specially benefited, and was not extended to all property which might be so benefited, after having paid them, under the circum- stances of this case, is the appellant entitled to recover the money back, on the ground of the payment having been a compulsory, and not a voluntary one? The precept which was in the hands of the officer at the time these assessments w^ere paid, did not authorize him to levy upon the goods and chattels of the appellant, but directed him merely to make sale of the lots to satisfy the assessments. In Bradford v. The City of Chicago, 25 111. 411, it was held that the payment of an assessment made to a collector of taxes, while having in his hands a warrant to levy and collect the amount of the assessment of the goods and chattels of the owner, might be considered compulsory, and made under such circumstances as would authorize the party paying the money to recover back the same if the assessment was illegally made. But it was decided in Stover V. Mitchell, 45 111. 213,^ that a levy of an execution upon * The court in this case says (p. 217) : "We can discover no duress or com- pulsion where an execution against A is levied on the land of B. The latter is not disturbed in his person, or the possession or enjoyment of his property. If confident of his title he need give himself no trouble. If the superiority of his title to the lien of the judgment is questionable, or depends on matters 566 COMPULSION OF LAW. one's land, did not make a case of such duress or compulsion, that a payment made to prevent the sale of the land under the execu- tion could be recovered back as a compulsory payment. It was held to be a voluntary payment, and not one made under duress ; and it is there said : "It is insisted, that the levy of the execution on Stover's land was the exercise of such compulsion as to interfere with Stover's freedom of action. No case is cited going to this extent, and we venture to say none can be found. In order fc render such a payment compulsory, such a pressure must be brought to bear upon the person paying, as to interfere in some way with the free enjoyment of his rights of person or property," citing Bradford v. The City of Chicago, supra, and Elston v. The City of Chicago, 40 111. 514. There was here no interference with the plaintiff's free enjoy- ment of his property, and there would not have been, by making sale of it under the precept. Such sale would not have disturbed his possession of the property ; he would then have had two years to redeem from the sale, and if, at the end of that time, the pur- chaser had obtained his tax deed, and brought his action of eject- ment for the recovery of the possession, the illegality of the assess- ments could have been shown in defense, and the recovery of pos- session defeated. Or, had the plaintiff desired to remove any cloud which might be brought upon his title by such a sale, he could have had his remedy for that purpose. It is very unlike the case of the payment of money made to avoid the seizure of goods, or to gain possession of them, where there may 'be a pressing necessity for their immediate use, and being of a movable and perishable character, any legal remedy might be inadequate for full protection. The reasons upon which it is held, that when a party is compelled, by duress of his person or goods, to pay money for which he is not liable, the payment is not voluntary, but compulsory, and that he may rescue himself from such duress by payment of the money, and afterwards, on proof of the fact, recover it back, do not apply in the case of real estate threatened with such action, as in the present case. And we think the payment of these assessments was not made under such circumstances of constraint and compulsion as to except it from the operation of the legal principle, that if a party, with full knowledge of all the facts of the case, voluntarily pays money in satisfaction or discharge of a demand unjustly made on him, he cannot afterwards recover back the money. in pais, resting in parol proof, and he fears a sale may create a cloud upon his title, he can stay the sale by injunction. Tf, instead of this, he prefers to buy his peace, he cannot subsequently say he acted under compulsion, and call on the courts to give him back his money." y RECOVERY OF TAXES PAID. 567 FLEETWOOD v. CITY OF NEW YORK. 2 Sandf. 475 (Superior Ct. of New York City). — 1849. Assumpsit, brought to recover the sum of $2,527.22, paid by Fleetwood, the plaintiff, to the defendants, February 2^, 1845, to redeem several lots of ground belonging to him, from a sale thereof, made by the defendants on the 13th of June, 1843, under an alleged assessment for Ulling the lots. Sandford, J. — * * :): * 'pj^g important question remains, can the plaintiffs recover back the money paid? The payments were not made under any mistake of fact. The plaintiffs declared and insisted that the assessments and the sales were void ; and the referee has adjudged that they were void. There was no mistake of law even ; for the plaintiffs knew perfectly well that a sale under a void assessment conferred no title upon the purchaser. It is contended, however, that the payments were involuntary, and were made by compulsion. That the sales constituted a cloud upon the title, which cloud circumstances compelled the plaintiffs to remove ; and it is intimated by the points made in Mr. Post's case,^ that his payment was made through coercion, oppression, imposition, fraud, or by taking undue advantage of his situation, or by wrongfully exacting it, colore officii. I. In regard to the cloud upon the title. The muniments of title, upon an assessment sale, consist of several proceedings, all of which are indispensable to its validity, and if one be wanting, no title is shown. Of these links in the chain, the plaintiff insists that three at least never existed, viz. : the original ordinance directing the filling, the assessment of the expense, and the advertisement for redemption. Each of these proceedings forms an essential part of the record of the assessment title, and in their absence, such title is void upon its face. See the observations of the Chancellor, in Wiggin v. The Mayor, etc., of New York (9 Paige 16), and Van Doren v. The Same Defendants (Id. 388). A conveyance or judg- ment, void upon its face, does not constitute a cloud upon the title ; and the assertion of a title under such a conveyance, or of a lien by virtue of such a judgment, does not afford a ground for equitable interference ; much less does it constitute legal compulsion. There are cases of duress of personal property in which payments for its relief are deemed involuntary, and the money may be recovered back. Most of these have arisen upon seizures of goods under revenue or excise laws, and by public officers acting imder process or warrant of law. The principle has been extended, occasionally, to cases where bailees, or others, who came into the possession of goods lawfully, have exacted more than was due. before they would relinquish such possession. It is founded upon the movable and ^ Argued and decided with this case. — Ed. 1 568 COMPULSION OF LAW, perishable character of the property, and the uncertainty of a per- sonal remedy against the wrongdoer. The reasons for the rule are wholly inapplicable to real estate, and we are not aware of any instance in which it has been applied to that species of property. On this subject of payments compelled by duress of property, we refer to Chase v. Dwinall (7 Greenl. 134) ; Ellicott v. Swartwout (10 Peters 137) ; and Clinton v. Strong (9 John. 370). It cannot be said, therefore, that the payments in question were made through compulsion, coercion or oppression. There is no pretense that there was any imposition or fraud in the case. There was no advantage taken of the situation of the parties, nor was the money in any sense exacted from them. The corporation, whose agent, the street commissioner, received the money, was not only passive in respect to the payment, but so far as the case discloses, had no interest in the matter. The money, if the lots were re- deemed, belonged to the purchasers ; and no part of it was to be re- tained by the corporation, and it was to the latter totally indifferent whether the redemption should be made or omitted. The simple truth of the affair is this. The corporate authori- ties had sold these lots for assessments which they and the pur- chasers alleged to be valid in fact and in law. The original owners were entitled to redeem, on paying the bids with interest to the purchasers, through the street commissioner. Those owners averred and insisted that the assessments were absolutely void, both in fact and in law, and that the sales and conveyances were equally void. Thus the parties were at issue, each claiming a right, and the plaintiffs fully apprised of the grounds of the opposing claim. It became desirable for the one plaintiff to sell his lots, and for the other to mortgage his, and the assessment claims presented an ob- stacle to the accomplishment of their wishes. The plaintiffs, rather than forego the opportunity of mortgaging and selling, chose to pay the assessments claimed ; instead of abiding the result of a litigation testing their validity. In our view, this clearly constituted a voluntary payment, which according to a well settled and valuable principle of law, cannot be recalled. Silliman v. Wing, 7 Hill 159; Supervisors of Onon- daga V. Briggs, 2 Denio 26, 39 ; Brisbane v. Dacres, 5 Taunt. 143 ; Robinson v. City of Charleston, 2 Richardson 317. And see Ege V. Koontz, 3 Barr's Penn. R. 109. * * * * \ WHITNEY V. CITY OF PORT HURON. ^, y"^^ 88 Mich. 268.— 1891. MoR.SE, J. — The plaintiff sues to recover taxes paid by her under protest on a special assessment levied for the paving of Pine Grove Avenue, in the city of Port Huron. She had judgment in the court RECOVERY OF TAXES PAID. 569 below, the verdict of the jury being directed by the circuit judge in her favor. * * * * It is also claimed that her payment of the tax was voluntary. The tax was paid April 2, 1886, and across the face of the receipt was written as follows : "Paid under protest, to ])rotect prop- erty from being sold, and on account of taxes being illegal." The city treasurer had advertised the plaintiff's property for sale, and she had the right to presume that he would proceed with the sale. The fact that the sale would have conveyed no title to the puchaser on account of the illegality of the tax, or that she could have re- moved the cloud upon her title caused by such sale by legal proceed- ings had no bearing upon her right to pay the tax under pro- test, and thereby sto]) the sale. Nor was it any the less an involun- tary payment under the law. If, because a tax is illegal, and a sale of property under it would be void, a payment to prevent the seizure or sale of one's property cannot be considered an involuntary pay- ment, then our statute providing for the payment of taxes under protest would be of no force or use. If the citizen's property is threatened with seizure under a tax warrant, or his real estate is advertised for sale to collect delinquent taxes, he is, equally in both cases entitled to free his property by a payment of the tax under protest, and such payment will not be considered voluntary. It was held in Detroit v. Martin, 34 Mich. 170, that one who has full knowledge of all facts, being conclusively presumed to know the law, is presumed to know that an assessment, laid under a statute which is unconstitutional and void, cannot be made the basis of a sale that could constitute any cloud upon his title, and therefore to know that he could not be injured by it ; and that a payment of a tax under protest, in such a case, where no seizure of goods or of the person had been made or threatened, and where the officer had no authority to compel pay- ment otherwise than by a sale of land, which could injure no one, would not be other than a voluntary payment, as a protest would not change the character of the payment. It was held also that a sale of the land under such circumstances would not create a cloud upon the owner's title. This may be good law when applied to proceedings under an unconstitutional enactment, which is no law, and is held to confer no rights upon any one, as all must be pre- sumed to know that it is unconstitutional and void ; but it cannot be applied to cases where the statute under which the proceedings to levy the tax are taken, is constitutional, and where the illegality of the tax is claimed from irregularities or defects in the statutory proceedings. If it were so, it would require of the landowner a greater knowledge of the law than attorneys, or even courts, possess. For instance, in the present case, able attorneys for the defendant are claiming that the tax paid by the plaintiff was a legal one, and that all the proceedings in assessing it were lawful ; yet at the same time they argue that, if it should be determined by this court to be illegal for any reason, then the plaintiff's payment must be con- 5/0 COMPULSION OF LAW. sidered a voluntary one, and she cannot recover what she has paid, because she and every one else are presumed to know that the tax is void, and that a sale under it could convey no title, and therefore cast no cloud over her title. But the fact remains, as every one knows, that a tax-deed or any other purported convey- ance of land does cloud the title, and that it can never be sold or exchanged as readily, and seldom for as great a price, as when unincumbered, although it may be patent to the courts that such deed or conveyance is void and of no consequence, as far as the holding of the title is concerned ; and, in my opinion, the owner of the land has the right, in law and equity, to treat every such tax-deed or other conveyance as a cloud upon his title, and to take such steps to get rid of it, or to prevent its issue or record, as the law author- izes, when the title is actually clouded, as defined by some of the authorities. A cloud upon a title is but an apparent defect in it. If the title, sole and absolute in fee, is really in the person moving against the cloud, the density of the cloud can make no difference in the right to have it removed. Anything of this kind that has a tendency, even in a slight degree, to cast doubt upon the owner's title, and to stand in the way of a full and free exercise of his ownership, is, in my judgment, a cloud upon his title which the law should recognize and remove. The third objection is that the protest of plaintiff was not suffi- ciently specific. Across the face of the receipt for the taxes paid by the plaintiff was the following: "Paid under protest, to protect property from being sold, and on account of taxes being illegal." In support of this objection we are cited to Louden v. East Saginaw, 41 Mich. 26, 2 N. W. Rep. 182 ; Lumber Co, v. Crystal Falls Tp., 60 Mich. 514, 27 N. W. Rep. 666; Iron Co. v. Crystal Falls Tp., 60 Mich. 79, 26 N. W. Rep. 840. The two last cases do not apply, as the protest was made under a special statute. In Louden v. East Saginaw the objection to the tax did not go to the jurisdiction of the city to enter upon the work, but to irregularities in the assess- ment of the tax, and it was held that the plaintiff should have point- ed out more specifically his reason for his objections to the tax, and why he asked that the assessment against him should be refunded. It was said : "The case stands on a very different footing from one relating to an entirely illegal assessment. The only illegality here was in a notice which may or may not have been seen by the parties." Louden v. East Saginaw. 41 Mich, at page 22, 2 N. W. Rep. 182. In the present case the claim is that the whole proceedings were void, and without jurisdiction. A case involving the legality of the proceedings to pave Pine Grove Avenue had been decided in this court before the council were asked to refund this money, and that body then well knew that the whole proceeding had been declared void for want of jurisdiction, for the reason that the resolution pro- viding for the grading and paving of the street had not been approved by the mayor as provided by the charter of Port Huron. RECOVERY OF TAXES PAID. 57I Twiss V. City of Port Huron, 63 Mich. 528-532 30 N. W. Rep. The judgment is affirmed with costs. The other justices con- curred. Gordon, J., in MONTGOMERY v. COWLITZ COUNTY. 14 Wash. St. 230. — 1896. There is much conflict in the authorities as to whether, under the circumstances of a given case, a payment is to be regarded as vokm- tary or compulsory, especially where the payment is made to prevent a threatened sale or interference with real estate. Without attempt- ing any analysis of the many cases bearing upon that question, we are satisfied to adopt the rule announced in Detroit v. Martin, 34 Mich. 170: "How would such sale have affected plaintiff's right or title thereto? Would such sale have constituted a cloud upon his title? Assuming that it would, in order to prevent this, he could have paid the amount under protest, and afterwards have maintained an action to recover it back. If a sale, under the facts stated, would not have constituted a cloud upon his title, then it may be at least doubtful whether the plaintiff has any remedy." And we may add that there is much authority to be found in sup- port of this view. Bruecher v. Village of Port Chester, 31 Hun 551 (affirmed in loi N. Y, 240, 4 N. E. 272) ; Mills' Guardian v. City of Hopkinsville, (Ky.) ii S. W. 776; Whitney v. City of Port Huron, 88 Mich. 268, 50 N. W. 316; Bucknall v. Story, 46 Cal. 589; State V. Nelson, 41 Minn. 25, 42 N. W. 548 ; Seeley v. Town of Westport, 47 Conn. 294; Guy v. Washburn, 23 Cal. iii ; Stephan v. Daniels, 27 Ohio St. 527 ; Valentine v. City of St. Paul, 34 Minn. 446. 26 N. W. 457. This brings us to the question of whether the sale which was here threatened would, if consummated, have created any cloud upon appellant's title. Upon the part of the respondent it is contended that the lands were not subject to taxation, and that the assessment and all subsequent proceedings were absolutely void, and that by a sale, as was contemplated, no cloud would have been created upon appel- lant's title. "A cloud upon one's title is something which consti- tutes an apparent incumbrance upon it, or an apparent defect in it ; something that shows prima facie some right of a third party, either to the whole, or some interest in it. An illegal tax may or may not constitute such a cloud. If the alleged tax has no semblance of legality ; if, upon the face of the proceedings, it is wholly unwar- ranted by law, or for any reason totally void, so that any person in- specting the record, and comparing it with the law, is at once apprised of the illegality, — the tax it would then seem, could neither con- stitute an incumbrance nor an apparent defect of title, and there- 572 COMPULSION OF LAW. fore, in law, could constitute no cloud. * * * When, however, the illegality or fatal defect does not appear on the face of the rec- ord, but must be shown by evidence aliunde, so that the record would make out a prima facie right in one who should become pur- chaser, and the evidence to rebut this case may possibly be lost, or be unavailable, from death of witnesses or other cause, or when the deed given on a sale of the lands for the tax would, by statute, be presumptive evidence of a good title in the purchaser, so that the purchaser might rely upon that for a recovery of the lands until the illegalities were shown, the courts of equity regard the case as coming within their ordinary jurisdiction, and have extended relief on the ground that a cloud on the title existed, or was imminent." Cooley, Tax'n (ist ed.), pp. 542, 543. Section 2937 of the Code of 1881, in force at the time of the payment in question, in reference to tax deeds provided, "Such tax deed, duly acknowledged or proven, is (except as against actual fraud) conclusive evidence of the regu- larity of all other proceedings, from the assessment by the assessor, inclusive, up to the execution of the deed." In this case, the taxes paid to the sheriff were not invalid because of any illegality appar- ent upon the tax or assessment rolls, but becauce of the fact that technically the legal title was still in the United States, — withheld solely because of the failure to deposit the cost of making the sur- vey. Hence, as a matter of law, it could not have been ascertained from an examination of the record whether the taxes were valid or otherwise. Their validity depended upon whether a deposit of the cost of survey had in fact been made. Had the sale which was threatened actually occurred, and a tax deed issued, that instrument, upon its face, and so far as the public records disclosed, would have been valid, and appellant would have been obliged to resort to an action to remove the cloud caused by an instrument apparently valid, in order to show the facts which rendered it invalid. Under such circumstances, and to prevent the cloud upon his title which the threatened sale would have created, we think it was competent for him to pay the taxes to the sheriff under protest, as was done, and that payment under such circumstances does not constitute a volun- tary payment. LINDSEY V. ALLEN, Town Treasurer, et al. 19 R. I. 721. — 1897. Per Curiam. — This is an action to recover money paid for a tax, under a void levy on the plaintiff's estate. The agreed statement of facts shows that the tax was assessed against Robert E. Wilcox, who was, at the time of the assessment, the owner of the real estate on which it was assessed. Subsequently the plaintiff became the purchaser of the real estate. After the expiration of more than two RECOVERV OF TAXES PAID. 573 years from the assessment, when, under the provisions of the stat- ute, the tax had ceased to be a Hen on the real estate, the collector levied his warrant upon it for the collection of the tax. Thereupon the plaintiff paid the tax, and now sues to recover the amount paid. It is well settled that a payment under stress of legal process is compulsory, and if unlawfully exacted may be recovered. 2 Desty on Taxation. 795, and cases cited. Tn Dunnell v. Newell, 15 R. I. 233, this court held that the mere holding by a collector of a war- rant to collect a tax by levy or distress was not of itself, and before any step was taken or threat of enforcement by levy or distress, sufficient to make a payment compulsory. The present case differs from that in this — that a step had been taken against the plaintiff's property by a levy thereon. The only remedy which the plaintiff had, therefore, was either to pay the tax or take the chance of de- feating the sale of his property upon the ground that the levy was void. In our opinion, therefore, the payment amounted to a com- pulsory payment, and hence the plaintiff on this ground is entitled to recover from the collector, in whose hands the money still re- mains. * * * * Shaw, C. J., in PRESTON v. CITY OF BOSTON. 12 Pick. (Mass.) 7.-1831. The only remaining question is, whether this money was paid voluntarily or under duress. A party who has paid voluntarily under a claim of right shall not afterwards recover back the money, although he protested at the time against his liability. The reason of this is obvious. The party making the demand may know the means of proving it, which he may afterwards lose ; and because another course would put it in the power of the other party to choose his own time and opportunity for commencing a suit. Brisbane v. Dacres, 5 Taunt. 143. But it is otherwise when a party is com- pelled by duress of his person or goods to pay money for which he is not liable ; it is not voluntary but compulsory, and he may rescue himself from such duress by payment of the money, and afterwards, on proof of the fact, recover it back. Astley v. Reynolds, 2 Str. 916. What shall constitute such duress is often made a question. Threat of a distress for rent is not such duress, because the party may replevy the goods distrained and try the question of liability at law. Knibbs v. Hall, i Esp. 84. Threat of legal process is not such duress, for the party may plead, and make proof, and show that he is not liable. Brown v. M'Kinally, i Esp. 279. But the warrant to a collector, under our statute for the assessment and collection of taxes, is in the nature of an execution, running against the person and property of the party, upon which he has no day in court, no ^ 574 COMPULSION OF LAW. opportunity to plead and offer proof, and have a judicial decision of the question of his liability. Where, therefore, a party not liable to taxation is called on peremptorily to pay upon such a warrant, and he can save himself and his property in no other way than by paying the illegal demand, he may give notice that he so pays it by duress and not voluntarily, and by showing that he is not liable re- cover it back as money had and received. Amesbury W. & C. Manuf. Co. v. Amesbury, 17 Mass. 461. It appears by the facts agreed that upon the first notice of the tax, the plaintiff applied to the treasurer and collector, setting forth his specific ground of objection, namely, that he was not an inhabitant and not liable to the tax on personal property. The plaintiff was informed by the collector that he had no discretion on the subject, and unless he obtained an abatement a warrant of distress would issue against him. He then applied to the city government, stated the grounds of his objection, and remonstrated against the tax ; but they decided that the tax must be paid, of which the col- lector was duly informed. The law under which the treasurer and collector acted obliged him to issue a warrant, under which the per- son and property of the plaintiff would have been liable to be taken, and that officer had notified him that such warrant would be issued. Under these circumstances the money was paid, and we think it can- not be considered as a voluntary payment, but a payment made under such circumstances of constraint and compulsion, and with such notice on his part that it was so paid, that on showing he was not liable he may recover it back in this action from the defendants into whose treasury it has gone. Defendants defaulted. ATWELL V. ZELUFF. 26 Mich. 118. — 1872. Campbell, J. — Atwell sued Zeluff, who was supervisor of the town of Ridgway, Lenawee county, in an action of trespass, the cause of action being the issue by Zeluff of tax rolls for the collection of ditch taxes against Atwell, one of which he paid on demand of the collector, and the other was enforced by selling his personal property. The warrant issued to the collector was the one required by law for the regular annual taxes, to be enforced, in case of non- payment, by sale of chattels. The ditch tax was extended on the general tax roll. In regard to the payment made without levy on his goods, it was objected that the payment being without protest, was voluntary. This question was somewhat discussed, but not actually decided, in the case of First National Rank of Sturgis v. Watkins, 21 Mich. R. 483. Where an officer demands a sum of monev under a RECOVERY OF TAXES PAID. 575 warrant directinj:;- him to enforce it, the party of whom he demands it may fairly assume that if he seeks to act under the jjroccss at all, he will make it effectual. The demand itself is equivalent to a serv- ice of the writ on the person. Any payment is to be regarded as involuntary which is made under a claim involving the use of force as an alternative, as the party of whom it is demanded cannot be compelled or expected to await actual force, and cannot be held to expect that an officer will desist after once making demand. The exhibition of a warrant directing forcible proceedings, and the re- ceipt of money thereon, will be in such case equivalent to actual compulsion. There has been some confusion among the authorities as to the ne- cessity or effect of a protest in svich cases, but the question has not often arisen upon the service of legal process. In some cases it has been intimated that it might be necessary, in order to recover back a payment from the person to whom it was actually paid, after he had paid over the money under his agency. But where the person demanding and receiving the money, does so under color of process, as a legal officer, we think the payment must be deemed involuntary, because the party paying has no legal means, by appeal or otherwise, of preventing the seizure of his property. If he has such means of redress, which would be effectual to stay the process, there is reason for making the distinction which may, perhaps, be sustained. The supreme court of Massachusetts, in Boston & Sandwich Glass Co. v. City of Boston, 4 Met. 181, citing a former case in 17 Mass. 461, re- fer to the absolute character of the warrant as excusing the necessity of a protest. But we think the rule of damages there adopted as to the difference of liability where there is and where there is not a protest, is also based on good sense. Where the money is not paid under protest, it is there held that no interest should be allowed until de- mand or action brought, so as to put the party sued in actual fault for not making satisfaction as soon as the wrong is pressed upon his notice. A payment without protest may prevent him from making inquiry and examining into the law, and while legal ignorance will not excuse an illegal demand, it may very properly qualify the extent of damages for a merely technical wrong. * * * * Judgment must be reversed, and a new judgment must be entered for plaintiff, on the finding, for the amount of the illegal exactions, with interest from suit brought, and with costs of all the courts. There are such practical hardships in permitting persons to be held liable to action, where no distinct protest is made, pointing out rea- sons why a collector should withhold action under his warrant, that it is a proper subject for legislative consideration, whether some pro- vision should not be made to regulate the matter. The officers can seldom be expected to understand the niceties of the law, and it is not desirable that persons should be deterred from holding the necessary local offices by fear of consequences for which they are not morally responsible. The other Justices concurred. 576 COMPULSION OF LAW. Lyon, J., in PARCHER v. MARATHON COUNTY. 52 Wis. 388.— 1881. We think it must be held, on principle and authority, that the payment of a demand under compulsion of legal process, such pay- ment being accompanied by a protest that the demand is illegal and that the payer intends to take measures to recover back the money paid, is not a voluntary payment. And further, to constitute com- pulsion of legal process it is not essential that the officer has seized, or is immediately about to seize, the property of the payer by virtue of his process. It is sufficient if the officer demands payment by vir- tue thereof, and manifests an intention to enforce collection by seiz- ure and sale of the payer's property at any time. On the general question v^e are considering, numerous authorities are cited in Cooley on Taxation, in the notes on pages 568-571. The case of Powell V. Sup'rs of St. Croix Co., 46 Wis. 210, is an illustration of what constitutes a voluntary payment. It follows, from the views above expressed, that when the learned circuit judge instructed the jury that unless, when the tax was paid, the sheriff had the present intention and purpose to seize the plaintiff's goods then and there, the plaintiffs could not recover, and that an intention to seize at a future day was not sufficient, he laid down a limitation of the liabil- ity of the defendant which the law does not sanction. For this error the judgment must be reversed, and the cause re- manded for a new trial. RUMFORD CHEMICAL WORKS v. RAY, Town Treasurer. 19 R. I. 456. — 1896. Matteson, C. J. — * * * * The facts appear as follows : On October 19, 1894, the assessors, having completed the assessment, dated, signed, and deposited it in the town clerk's office. The town clerk thereupon made a copy of it, and delivered the copy to the town treasurer. The town treasurer on October 27, 1894, issued and affixed to the copy a warrant, under his hand, directed to George F. Hunter, the collector of taxes of the town, commanding him to proceed to collect the several sums of money expressed in the copy, of the persons and estates liable therefor, on or before the ist day of June, 1895, with interest at the rate of 6 per cent, per annum from and after November 30, 1894, in case the same were not paid on or before November 30, 1894. Among the sums expressed in the copy of the assessment was the tax illegally assessed against the plaintiff. The collector, on the same day that the warrant was issued to him, to-wit, October 27, 1894, gave notice to the taxpayers RECOVERY OF TAXES PAID. 577 of the levy and assessment of the tax, and requested them to pay the sums assessed on or before November 30, 1894; that interest at the rate specified would be charged on all taxes not paid within the time limited in the warrant ; and that, in com.pliance with the vote of the town, all taxes not paid on or before June i, 1895, would be collected according to law. On November 28, 1894, the plaintiff paid the tax assessed against it, accompanying the payment by a written protest in the following form : "To the Town Treasurer and Collector of Taxes of the Town of East Providence : The under- signed, the Rumford Chemical Works, herewith pays the tax assessed on its personal property, amounting to the sum of eight thousand four hundred dollars ($8,400), under protest ; claiming that the same was improperly, wrongfully, and illegally assessed against it, and reserving the right to bring suit against the town of East Providence to recover the same, with interest thereon. Rumford Chemical Works, by N. D. Arnold, Treas. East Providence, November 28, 1894." The defendant contends that the plaintiff is not entitled to recover, because the payment is to be deemed a voluntary payment, since it was made with a full knowledge of the facts which render it illegal, and without any immediate or urgent necessity, — no proceeding hav- ing been taken by the collector for the collection of the tax, and notice having been given by him that he would take no such proceed- ings until after June i, 1895 ; that the fact that the payment was ac- companied by a protest did not render it any the less a voluntary pay- ment. There is considerable diversity of opinion on the subject of the recovery of moneys paid for taxes illegally assessed. The cases turn on the question whether, in the particular circumstances of the case, the payment was to be regarded as voluntary or involuntary ; some courts holding that unless a payment be made under an imme- diate or urgent necessity, i. e., to avoid an actual or threatened seizure or sale of one's goods, the payment is voluntary, and cannot be recovered, even if made under protest. Others hold that when a warrant is in the hands of a collector, which authorizes him to levy upon and sell the property of the delinquent taxpayer, — such war- rant being in the nature of an execution, and there being no means for testing the validity of the tax, — a person illegally taxed may pay the tax under protest, and that the payment so made is not a voluntary payment, in such sense as to prevent its recovery. This was the view adopted by us after due consideration, in Manufacturing Co. v. Newell, 15 R. I. 233, 238, 2 Atl. 766. In addition to cases cited in that opinion on this point, reference may also be had to Allen V. Burlington, 45 Vt. 202, 213, 214; Atwell v. Zeluff, 26 Mich. 118; North Carolina R. Co. v. Commissioners of Alamance, yj N. C. 4; Galveston Gaslight Co. v. Galveston Co., 54 Tex. 287, 292, 293; Bright V. Halloman, 7 Lea 309, 312. The origin of the doc- Woodruff's Cases — 37 5/8 COMPULSION OF LAW. trine of "immediate and urgent" necessity seems to have been the dictum of Lord Kenyon in Fulham v. Down, 6 Esp. 26, "that where a voluntary payment was made of an illegal demand, the party know- ing the demand to be illegal, without an immediate and urgent necessity (or, as expressed by Mr. Bearcroft, unless to redeem or preserve your person or goods), it is not the subject of an action for money had and received." The phrase "immediate and urgent necessity," as stated in Baker v. City of Cincinnati, ii Ohio St. 534, 538, is certainly indefinite. It seems to us to have been pressed to an unwarrantable length by the cases which hold that nothing less than an actual or threatened seizure of goods will render a payment invol- untary, and that a payment under protest, unless made in case of an actual or threatened seizure, is to be treated as a voluntary pay- ment. The parenthetical illustration thrown in by Lord Kenyon, in explanation of the phrase, as its equivalent, is, "unless to redeem or preserve your person or goods." Payment to avoid the levy of a warrant already issued and in the hands of the collector, and just as sure to be levied, if the money is not paid, as night to follow day, is just as much a payment to preserve one's goods as though the levy had actually been threatened or made. A voluntary payment implies that the man who makes it intends to waive any right which he may have to resist it. When he gives notice by his protest that he does not waive his right, but intends to insist upon it, such impli-. cation is negatived. Chief Justice Tindal, in Valpey v. Manning, i Man. G. & S. 594, 603, after quoting the dictum of Lord Kenyon, adds : "I am not aware that there is any difficulty or impropriety in laying it down that where money is voluntarily paid, with full knowl- edge of all the circumstances,///^ party intending to give up his right, he cannot afterwards bring an action for money had and received ; but that it is otherwise where, at the time of paying the money, the party gives notice that he intends to resist the claim, and that he yields to it merely for the purpose of relieving himself from the inconvenience of having his goods sold." We see no reason to de- part from the decision in Manufacturing Co. v. Newell. The rule there adopted seems to us sensible and just. It is easy of applica- tion, and productive of as little inconvenience and hardship to the parties as is practicable. By the protest, the collector, and through him the town authorities, are notified that the tax is not paid in the ordinary course of business, that its legality is disputed, and that suit is to be instituted to test its validity. The town receives the money, which may be needed for its immediate necessities. Both the town and the taxpayer are saved the expense of unnecessary pro- ceedings. The controversy is determined by the court, and the money retained or refunded according to the decision of the court. The defendant also makes the point that the protest is not suffi- cient because it docs not specify the alleged illegality, and supports it by reference to a criticism in passing by the court upon a similar protest in Railroad Co. v. Commissioners, 98 U. ?. 541. We see WAIVER OF TORT. 579 no reason for requiring a specification in the protest of the alleged illegality. All the facts connected with the assessment are certainly as fully known to the assessors as to the taxpayer, and they are in as good a position as he is to know whether the tax is legal or illegal Mason v. Johnson, 51 Cal. 612. Judgment for the plaintiff for its claim and costs. ^ 3. WAIVER OF TORT. a. In General. CROW V. BOYD'S ADMINISTRATORS. 17 Ala. 51. — 1849. Assumpsit. Dargan, C. J. — The facts of this case, so far as they are material to the question raised by the bill of exceptions, are these : The plain- tiff recovered in an action of detinue against one R, C. Boyd, a slave, and also damages for his detention. The slave was delivered up to the plaintiff in satisfaction of his value, as assessed by the jury, but the damages for the detention have not been paid, and the estate of R. C. Boyd, against whom the recovery was had, is insolvent. After the institution of the suit in detinue, the slave performed service for the defendant's intestate, in whose possession he remained for about two years ; but it does not distinctly appear under what cir- cumstances the slave went into his possession, but it is manifest that it was not by virtue of any contract with the plaintiff, nor with his assent. The question arising out of the facts is, whether assumpsit will lie in favor of the plaintiff against the defendants to recover the value of the services or labor of the slave during the time he was in the possession of their intestate. It is contended that inasmuch as the defendants' intestate was liable to an action of trover or detinue because he had the possession of the slave, employing him as his own property, that the plaintiff may waive the tort and sue in assumpsit for the value of his labor. The action of assumpsit can be maintained only upon a contract, expressed or implied by law, and it will not lie to recover damages for torts or trespasses. It is ^ Statutory Remedies. — For a discussion of remedies provided bj'^ statute for illegal taxation and the recovery of money paid thereon, see Lauman v. County of Des Moines, 29 la. 310 (1870) ; Lincoln v. City of Worcester, 8 Cush. (Mass.) 55 (1851); Matter of Adams, 154 N. Y. 619 (1898); Matter of McCne, 162 N. Y. 235 (1900). Recovery from a Purchaser at a Tax Sale.^Ih Anderson v. Cameron, 122 la. 183 (1904), it is held that a purchaser at a sale for a void tax, without notice of the invalidity, may retain, as against the owner, money paid by the latter to the city for redemption, and, by the city, paid to the purchaser. 580 WAIVER OF TORT. true that if one convert the goods of another to his own use, and afterwards sell them and receive the money, an action for money had and received will lie against him at the suit of the owner. Up- church v. Norsworthy, 15 Ala. 705. But the extent of this rule of waiving torts and bringing assumpsit is confined to this : If the wrongdoer has sold the goods and received the money, the owner may elect to affirm the sale and to claim the price at which they were sold. His title to the goods entitles him to the price received for them, and thus the wrongdoer is considered as having received the money for the use of the owner. But if there has been a mere conversion of the goods, without any sale of them, assumpsit will not lie to recover their value. Jones v. Hoar, 5 Pick. 285 ; Wellit v. Wellit,3 Watts 277 ; Pritchard v. Ford, i J. J. Marshall 543 ; Sanders V. Hamilton, 3 Dana 552. I admit that cases may be found which hold that the owner may waive the tort and recover the value of the goods in an action of assumpsit, although the wrong-doer may not have sold them. But when we reflect that the action of assumpsit will lie only upon a promise express or implied, and not to recover damages for torts or trespasses, we do not see upon what principle these decisions can be sustained. We must hold (if we sanction them) the broad principle that trover and assumpsit are concurrent remedies in all cases for the tortious conversion of the goods of an- other. This would be opposed to the first principles of pleading. The defendant is liable in an action of trover for the value of the services of the slave, but as it does not appear that he actually received any money for his labor (which might entitle the plaintiff to maintain assumpsit for money had and received) he can not be made liable in this form of action. Let the judgment be affirmed.^ *In Jones v. Hoar, 5 Pick. (Mass.) 285 (1827), the court says (p. 290): "The whole extent of the doctrine, as gathered from the books, seems to be, that one whose goods have been taken from him or detained unlawfully, whereby he has a right to an action of trespass or trover, may, if the wrong- doer sell the goods and receive the money, waive the tort, affirm the sale, and have an action for money had and received for the proceeds. See Gilmore v. Wilbur, 12 Pick. 124; i Chitty on PI. (6th Amer. ed.), 113, 114. No case can be shown where assumpsit as for goods sold lay in such case, except it be against the executor of the wrongdoer, the tort being extinguished l)y the death, and no other remedy but assumpsit against the executor remain- ing. Such was the case of Hambly v. Trott [Cowp. 371]." In Finlay v. Bryson, 84 Mo. 664 (1884), the court says (p. 670) : "It is argued by the plaintiff, that since it appears that the defendant, in his con- version of the property, sold it and received the proceeds of the sale in money, the plaintiff is at liberty to waive the tort and sue him in assumpsit for money had and received. This right of election is very generally con- ceded to the plaintiff 1)y the authorities, where his sole purpose is to main- tain an assumpsit. So far as the defendant is concerned this right rests upon a fiction imposed at the i)laintiff's pleasure upon the actual facts of misconduct of the defendant, which discloses no elements of a promise, con- tract or agreement. But when the gravamen of the transaction sounds in tort, the plaintiff will not be indulged in this fiction, if the effect of it is to give jurisdiction over the subject matter to a court which otherwise would not possess it. Sandeen v. R. R., 79 Mo. 278; or to bring the case within 1 IN GENERAL. 'S^lJ KIDNEY V. PERSONS. 41 Vt. 386.-1868. ^ - ->- C^ -— 1 ' Prout, J. — This is an action of assumpsit, the declaration contain- ing only the common counts. The question is whether the defendant is Hable on the facts, as upon an imphed promise to pay for the watch in controversy. The exceptions contain a meager statement of the case, disclosing merely that the plaintiff pawned or "pledged the watch to secure the payment of a debt he was owing ; that the de- fendant obtained the possession of it in right of the pawnee or pledgee, and sold it before he had a right for a harness, receiving no money in fact for either. Upon these facts, on the defendant's objec- tion, the county court held that the plaintiff could not recover. Under this ruling the plaintiff became nonsuit with liberty to except. Although the watch may not have been wrongfully taken by the defendant, he acquiring the possession in right of the creditor having a lien upon it, yet he wrongfully misappropriated or converted it by selling it, as if he was the absolute owner, for a harness. From the condition of the title and nature of the lien upon the watch, the de- fendant could acquire only the right and interest of the creditor or pawnee, who, as the case finds, had no right to sell it at the time it was sold, and thus defeat the plaintiff's right to a return of the spe- cific article on payment of the claim for which it was pledged. It was held subject to this right as well as for purposes of security, and the relation of the parties in respect to the pledge was that of bailor and bailee in some sense. The pledgee or bailee having no right to sell the watch, as the case finds he did, the general owner may maintain trover, and in that action recover according to the value of his in- terest in the article, as the sale was wrongful and tortious. Sedg- wick on Damages, 482; Jarvis v. Rogers, 15 Mass. 388; Stearns v. Marsh, 4 Denio 227 ; Morrill v. Moulton, 40 Vt. 242. This is apparent from the facts as well as the nature of the legal remedy adapted to the injury, and which is open to the plaintiff. He puts his case upon this ground. The defendant claims that he acted upon a supposed right (which does not appear, and which, if it did, cannot affect the question) to treat the watch as his own property, and that he was not a tortfeasor. The case then comes to the ques- tion suggested by Bennett, J., in Stearns v. Dillingham, 22 Vt. 624, whether the plaintiff "can of his own mere motion waive the tort and sue in assumpsit" for the watch. Upon this question we do not ques- tion the general rule, that the owner of property wrongfully con- verted into money, may waive the tort and seek his remedy in as- sumpsit. This is settled in numerous cases. The principle rests upon the ground of a subsequent implied assent of the parties "to treat the the terms of the statute, which otherwise would not include it. Miss. Cent. R. R. V. Fort, 44 Miss. 423." 582 WAIVER OF TORT. matter as resting in contract, which has relation to the time the goods or property was taken and wrongfully converted, and in legal effect amounts to a sale at the request of the defendant." Stearns v. Dilling- ham, supra. But there must be a conversion, of the property into money or its equivalent. What then is money had and received or its equivalent in a legal sense? A solution of this question deter- mines the case, and it is determined mainly by adjudicated cases. The earliest case reported in this state that has come to our notice relating to that subject is Burnap v. Partridge, 3 Vt. 144. That was an action of assumpsit, and stood for determination upon the counts for money had and received. Williams, late C. J., gave the opinion, and in the course of it he remarks : "To support an action for money had and received, it must in all cases be made to appear that the de- fendant has actually received money to the use of the plaintiff, or that he has received that which he considered as equivalent thereto and accounted for it as such." Again, "the receipt of the money may sometimes be presumed. Thus when other property has been re- ceived which is salable, if it is not otherwise accounted for, the re- ceipt of the money for the value of it may be presumed. * * * It is only declaring what may be evidence of this receipt." It is ob- vious from this language that the judge in stating the qualification of the general rule he has laid down, and which he takes occasion to say "does not militate against the principle, that money must actually have been received," refers to a matter of fact and not of law as the test. In the case put of the receipt of money or its equivalent, to charge the party on the latter ground, it must appear that he received that which was considered as equivalent to money and accounted for it as such. What is remarked by the same learned judge in Flower Brook Manufacturing Co. v. Buck, 18 Vt. 238, is entirely consistent with this view. The controversy in that case, which was an action on book, was in relation to some cloth manufactured by the plaintiff from wool furnished by the defendant, and for him, but which the plaintiff had not delivered. The judge says "the creditor was correct in his view of the case. The cloth was demanded and was not deliv- ered ; it has not been offered to the defendant, and there is no evi- dence that the plaintiff had it on hand, set apart and designated for him. The auditor therefore might with propriety consider that the plaintiffs had appropriated the ai'ails of the cloth to their own use, either by sale or otherwise, and held them accountable" for the value or avails of the same, and upon this ground of inference of fact the court make the plaintiffs accountable. The question was again be- fore the court in Scott v. Lance, 21 Vt, 507, which was also an action on book. The items in dispute in that case were several charges for manure. The defendant had given the plaintiff permission to draw away six loads and no more, but more were drawn away without consent or permission, as the case finds, under a pretended claim of right to it by the plaintiff as his own property. The auditor found the plaintiff's claim to it unfounded, and the question was whether the defendant could be allowed in that action for the manure thus IN GENERAL. 583 taken by the plaintiff. Upon the question the comments of Poland, ]., who gave the opinion, are to the purpose. He says the plaintiff's act seems to have been a direct tort, "for which the defendant's ap- propriate legal remedy would have been an action of trespass or trover." In that case it was urged, as in this, that it was permissible for the defendant to waive the tort and recover on an implied prom- ise, but he says ; "We do not understand this doctrine of waiving torts and suing in assumpsit ever to have been carried to this extent in this state. The farthest it has gone, has been, to allow the owner of property, which has been tortiously taken and converted into mon- ey, to maintain assumpsit for money had and received, against the wrongdoer ; and this is founded mainly, as we think, upon the equita- ble ground which is said to be the foundation of that action, "that the defendant has money in his hands, which in equity belongs to the plaintiff. To carry the doctrine to the extent claimed would abolish all distinction between actions ex delicto and ex contractu, and we do not see any necessity for so wide a departure from what we deem to be the settled law on the subject." This case is followed by Stearns v. Dillingham, supra, in which Bennett, J., says the law is too well settled to admit of discussion, and states the general rule in nearly the same terms, and so does Redfield, C. J., in Phelps et al. v. Conant et al., 30 Vt, 277, and Aldis, J., in Elwell v. Martin and Trustee, 32 Vt. 217. The question was again before the court, as in- volved in the action on book in Drury v. Douglass, 35 Vt. 474. The struggle in that case related to some money delivered the de- fendant by the plaintiff' to carry to another but which he did not. Alois, J., who gave the opinion, says the neglect or refusal to carry was a tort pure and simple. To hold that he could recover it on book "would be going quite beyond precedents (and they have gone quite as far in this direction as it is wise and safe to go) and would break down the distinction between forms of actions, between torts and contracts ; a distinction existing in the relation of things, as well as in the artificial rules of pleading." This reasoning applies with equal pertinency and force in the present case, as there is no more reason why the distinction alluded to should be disregarded in the action of general assumpsit than in the action on book, the ground of re- covery in both being ex contractu. See, also, Gilmore et al. v. Wilbur et al., 12 Pick. 120. The doubt in relation to the question arises from the indefinite language used in expressing the rule found in the cases. As ex- pressed, it is, that money or its equivalent must have been received by the defendant in order to maintain the action. But another class of cases often before the court indicate the sense and application of this language. When a party has received a promissorv note or ne- gotiable paper for property wrongfully taken and converted, or when property has been received in satisfaction of a money demand, in a legal sense it is equivalent to money : as ilkistrated in cases arising in favor of sureties against their principals, or as between co-sureties to compel a contribution. And when property has been disposed of 584 WAIVER OF TORT. at a fixed price, or was purchased for the purpose of selhng again, and a sufficient time has elapsed to accompHsh that purpose and it is not otherwise accounted for, it might perhaps be treated as equiva- lent to money, Shepard v. Palmer, 6 Conn. 94; 2 Greenleaf Ev., § 118. But these cases stand upon ground peculiar to their special facts, and are rather exceptional than otherwise. The present case does not fall within the principle of that class of cases, but standing upon its naked facts, unaided by any pretense or inference that the defendant has received money for the watch, or that its sale for the harness was considered by the parties as resting in contract or con- sent, the judgment of the county court should be affirmed.^ WARE V. PERCIVAL et al. 61 Me. 391.— 1873. Appleton, C. J. — This is an action of trespass for unlawfully tak- ing and carrying away certain shares of the capital stock of the Maine Central Railroad Company, the property of the plaintiff. The defendants are assessors of the town of Waterville. The plaintifif was assessed by them as one of its inhabitants. Not being one, the assessors had no jurisdiction. A warrant was issued in due form of law to the collector of said town, who" seized and sold the stock in controversy, and paid over the proceeds of such sale to its treasurer. The property of the plaintiff having been seized and sold to pay an illegal assessment, the assessors having no jurisdiction, the plaintiff had two remedies, either of which he might pursue. He might sue the assessors in tort, or, waiving the tort, he might bring assumpsit against the town for the proceeds of the property sold. The damages are determined upon different principles, as the remedies pursued are in tort or assumpsit. Electing one of two forms of action, the party elects that his damages shall be determined by the rules which govern in assessing damages in the remedy adopted. The plaintiff, having his election as to the remedy to be pursued, brought his action of assumpsit, pursued it to judgment, and has received full satisfaction of the execution issued upon such * In Miller v. Miller, 7 Pick. (Mass.) 133 (1828), which was assumpsit for money had and received, brought against a co-tenant who had sold growing trees and received real estate in part payment, the court said (p. 136) : "In re- gard to the objection that the price of some of the wood was received in real estate, we think, as the sale was made for money, the defendant was answer- able for the price when he discharged the purchaser, whether he received cash or anything else. He may be considered as the purchaser of the real estate with the money for which he sold the wood. The plaintiff consents to the rale for money, but not that real estate shall be substituted. Suppose, after selling the wood for money to be paid at a fnttu'e day, the defendant had sot off a debt which he owed the purchaser, for the price; he would virtually have received the money. So he has by taking the real estate." IN GENERAL. 585 judgment. In that suit, the tort being waived, he recovered judg- ment only for the j)roceeds of the stock sold and interest thereon. Having thus affirmed the sale by claiming the proceeds and re- ceiving the same, he now in this action demands damages for the tort heretofore waived. But the plaintiff having elected his remedy and received the satisfaction which the law gives in such case can- not revive his cause of action. A claim arising from one entire and continuous tortious act cannot be divided into distinct demands and made the subject of separate actions. A plaintiff cannot divide his cause of action, recover compensation in assumpsit by waiving the tort, and then, having received such compensation, resort to the tort which has been waived, and in that again recover compensation as though the tort had not been waived. He cannot waive all wrong doing and recover compensation upon that basis, and then, treating the tort once waived as a subsisting grievance, recover damages which are to be assessed upon different principles. Neither can he recover part compensation in assumpsit, thus waiving his tort, and then resorting to it as an existing wrong recover the residuum of damages in another form of action. He cannot split his cause of ac- tion into fractional parts and recover for such fractions in dift'erent suits and upon different grounds of action. In Inglee v. Bosw'orth, 5 Pick. 502, a suit was brought against the assessors for an assess- ment which was unauthorized and illegal. In delivering the opinion of the court, Morton, J., says, "Although the money collected by this illegal distress and paid into the parish treasury might have been recovered by an action for money had and received against the par- ish (Amesbury W. & C. Manuf. Co. v. Amesbury, 17 Mass. 461 ; Sumner v. First Parish in Dorchester, 4 Pick. 361), yet in that form of action the remedy might not have been commensurate with the injury and the defendant was not bound to resort to that mode of redress." But if he does resort to that mode of redress he must be bound by the damages which are there obtainable. These, as has been seen, are limited to the proceeds of the property sold illegally. Dow v. Sudbury, 5 Met. 73 ; Shaw v. Becket, 7 Cush. 443. Having sought and obtained the redress which the form of action first chosen gave him, he cannot be permitted again to renew litiga- tion for a grievance once waived and without the waiver of which he was not entitled to recover. Judgment for the defendants. i" WHIPPLE V. STEPHENS. / / \ 57 Atl. Rep. 375 (R. I.).— 1904. Stiness, C. J. — A controlling question arises in this case, which we will first consider. The plaintiff sues in trover for goods leased to one Graham, who had turned them over to the defendant. Before beginning this action the plaintiff sued this defendant in assumpsit, 586 WAIVER OF TORT. which action was dismissed for failure of plaintiff to file a bill of particulars. The question is whether this was such an election of remedy as to amount to a waiver of the tort, and so to preclude the plaintiff from maintaining this action. It is a well-settled rule that, where a party has two causes of action inconsistent with each other, an election to proceed upon either is a waiver of the other. For ex- ample, if one has the right to affirm or to repudiate a transaction, he cannot, after taking one of these positions, be heard to maintain the opposite. As applied to this case, the argument is that the plaintiff had the right to waive the tort and to sue in assumpsit for the value of the goods ; that, having done this, he cannot now sue in trover. The test for the application of this rule is whether the plaintiff had the two forms of remedy. If he did not, there was no chance for an election. A party cannot choose a remedy which he does not have. Thus an action brought in a court without jurisdiction, or before cause of action accrued, or by mistaken remedy, has been held not to constitute a waiver. 7 Ency. PI. & Pr. 365, 366, and cases cited. We come, then, to the question whether the plaintiff had two remedies — one in trover for a conversion, and one in assumpsit on a waiver of the tort. When property has been converted into money, or money's worth, there is no question that either trover or assump- sit will lie. There is a diiference of opinion as to whether assumpsit will lie when it has not been converted into money. The larger number of states hold that it will not lie, and other states — nearly as many — hold that it will lie simply on the conversion, without regard to money received for it. See cases cited in 7 Ency. PI. & Pr. 369, 370, and 4 Cyc. Law & Pro. 332, 334, notes 68, 69. The question was long ago settled in this state in Wilder v. Aldrich, 2 R. I. 518, where Brayton, J., said: "The refusal to deliver would be evidence of a conversion which might enable a party to recover in trover ; but to recover in assumpsit it is necessary to prove that the goods have been sold and the money received therefor." So, in Lavalle v. Societe, 17 R. I. 680, 24 Atl. 467, 16 L. R. A. 392, it was held that tort may be waived and assumpsit maintained where the tort is such that it may be treated by the injured party as having created a contract upon which he may recover ; citing Cooley on Torts, *95, where the author says : "By all the authorities it is con- ceded that, where the act is a naked trespass, an action of assumpsit cannot be maintained, because the elements of assumpsit are want- ing." The goods sued for in this case were shown to have been de- stroyed by fire after demand, and while they were in the defendant's possession ; and under similar circumstances in Schweizer v. Weiber, 6 Rich. Law 159, it was held that the plaintifif could not waive the tort and sue in form ex contractu. It is evident that the plaintiff could not sue the defendant in assumpsit, and doubtless on that ac- count he sufifered his action to be dismissed. However this may have been, there was no election of remedy, because he had none in assumpsit. The remaining questions in the case are whether the defendant UNJUST EXRICIIMEXT. 587 had the goods, whether the plaintiff made a demand for them, and whether the plaintiff had the right to apply payments made to him by the lessee to other accounts. These were all questions of fact, upon which there was sufficient testimony to support the verdict. i. Unjust Enriclnnenf. PATTERSON and another v. PRIOR. 18 Ind. 440. — 1862. WoRDEN. J. — Suit by Prior against the appellants, for work and labor. Judgment for the plaintiff. ''' * '•' The cause was submitted to the court for trial on the following agreed statement of facts, which was all the evidence given in the cause, viz. : "It is agreed in this case, that the plaintiff', said James Prior, was imprisoned in the state prison, in the custody of said Miller, as warden thereof, under and by virtue of a judgment of the Court of Common Pleas of Vanderburgh county, a certified copy of which judgment is filed with defendant's answer. That during his con- finement he did work and labor as a criminal ; said work and labor were of the value of two hundred and twenty-five dollars ; said Pat- terson, during all the time of said Prior's confinement in said state prison, was the lessee thereof, and said work and labor were done by the order of said Miller, and said Patterson received all the bene- fit of said labor as such lessee. The time of said Prior's confinement commenced on the 12th of September, 1853, and he was discharged therefrom, and ordered to be returned to the sheriff of Vanderburgh county upon a writ of habeas corpus, by him sued out on the first day of January, 1855." The question as to the sufficiency of the evidence to sustain the finding was properly presented on a motion for a new trial. The appellants assign errors separately. At the time the appellee was convicted and sent to the peniten- tiary, the Court of Common Pleas had no jurisdiction in that behalf ; hence, the conviction and judgment were nullities, and furnish the appellants no protection for the tort committed in confining him in the penitentiary. Patterson v. Crawford, 12 Ind. 241. The appel- lants must be presumed to have known the law, and that they had no legal right to imprison the appellee, or cause him to labor. That they may have been responsible to him in some form cannot be doubted. They undoubtedly committed a tort, and the question here is, whether the tort can be waived, and an action maintained on an implied assumpsit? We will first examine this question so far as it relates to Patter- son. He, it seems, was the lessee of the penitentiary, and received 588 WAIVER OF TORT. all the benefit of the appellant's labor. He must be presumed to have assented to the performance of the labor, and being benefited thereby, the law implies a promise to pay what it is reasonably worth. It was held in Patterson v. Crawford, supra, that where labor is performed for the benefit of a party without an express con- tract, if he knows it, and tacitly assents to it, he will be liable on an implied contract to pay a reasonable compensation therefor. In our opinion, so far as Patterson is concerned, the tort may be waived, and an action be maintained on the implied assumpsit. The case, however, is entirely different as to Miller, the warden of the peniten- tiary. He received no benefit of the plaintiff's labor, and not having been benefited, there is, as to him, no consideration tO' support an im- plied assumpsit to pay. The case of Webster et al. v. Drinkwater, 5 Greenl. R. 275, is much in point, where it was held, that "the party committing a tort cannot be charged as upon an implied contract, the tort being waived, unless some benefit has actually accrued to him." Per Curiam. — The judgment against Miller is reversed, and against Patterson it is affirmed. Costs to be apportioned between Patterson, and Prior, the appellee. I -.LIMITED INVESTMENT ASSOC, v. GLENDALE INVEST- ^ MENT ASSOC, et al. 99 Wis. 54. — 1898. Action against the Glendale Investment Association, J. E. Grif- fin and others, to recover the consideration paid for certain lands sold by defendants to plaintiff. From a judgment for plaintiff, the association and Griffin separately appeal. Judgment against Grif- fin reversed. Bardeen, J. — * * * In this case, the facts as found by the jury, and which are fully supported by the evidence, are substantially that the Glendale Investment Association was the owner of a certain tract of land, which it authorized Clayton to sell for $2,700 per acre, and upon which it was to pay a commission of $200 per acre. Clay- ton, with full knowledge of the company, associated himself with Griffin and Pollock in the capacity of promoters, for the purpose of organizing a corporation to purchase this land. The plaintiff corporation was formed, Clayton and Griffin were elected directors and officers, and the land was purchased at $2,700 per acre ; Griffin and Clayton carefully withholding any information from most of the subscribers for stock that they were to receive a rebate of $200 per acre for their mutual benefit. The defendant Glendale Invest- ment Association, knowing of the organization and purpose of the corporation, and of the relation Clayton sustained to it, helped on UNJUST ENRICHMENT. 589 the deal, but, in order to clear its skirts, makes its contract to Clayton, and advises the assignment of it to the corporation. It then receives the money of the corporation, and forthwith returns to Clayton some $4,000 in alleged commissions. That this was a fraud upon plaintiff seems too clear for argument. As soon as these facts came to the surface, plaintiff tendered back what it received, and demanded its money. Upon the refusal to pay, plain- tiff made its election to recover back the consideration paid. It might have chosen other remedies, as are pointed out in the Franey Case (96 Wis. 222) ; but, having elected to stand upon a rescission of the contract it is bound thereby. An inspection of the complaint and the proceedings upon the trial lead at once to the conclusion that this action is based upon implied assumpsit, and is really an action for money had and received. Such being the case, it becomes important to inquire whether the recovery against the defendant Griffin can be main- tained. The rule is quite elementary that, to enable a person to maintain an action for money had and received, it is necessary for him to establish that the persons sought to be charged have received money belonging to him or to which he is entitled. That is the fundamental fact upon which the right of action depends. Trust Co. v. Gleason, 'j'j N. Y. 400. The purpose of such an action is not to recover damages, but to make the party disgorge ; and the recovery must necessarily be limited by the party's enrichment from the alleged transaction. Evidence of crooked dealing or fraudu- lent practices is only important in determining the plaintiff's right to secure the fund. While it may be admitted that all the defend- ants were joint tortfeasors, to the extent that they would be jointly liable for all damages the plaintiff has sustained by reason of their fraud, yet, when it is sought to render them liable on quasi-con- tract, a different rule prevails. The basis of recovery in the latter case being a loss on one side and a consequent enrichment on the other, liability can only exist in so far as these elements concvir. There is no implied promise to pay damages. The promise that the law implies is that the guilty party will restore that which he has received, and which the other has shown himself entitled to. To the extent, therefore, which it is shown that the one party has suffered loss and the other gained profit, can the recovery in this form be sustained. The law does not imply a promise to pay for something the party has not received, while in the case of the tort it casts upon him an obligation to pay all damage done, regardless of a promise. Applying these observations to the facts before us, we find that every dollar of the money sought to be recovered in this action was paid to the defendant Glendale Investment Asso- ciation by the plaintiff. Not one cent was paid to Griffin, or came to his pocket, except as it came through the Glendale Company to Clayton, and then to him. The amount received by Griffin w^as but a small fraction of the money paid by plaintiff to the Glendale Company. Plaintiff", suing as for a rescission of its contract, and 590 WAIVER OF TORT. upon the implied promise to restore that which has been taken from it, is bound to look to the one to whom it paid the money. Cases may and do occur where the money sought to be recovered was re- ceived by one for the benefit of others, and where all interested in the fund would be jointly liable. But this is not such a case. The money paid by plaintiff to the Glendale Company was not paid for or on behalf of Griffin. It was paid on the contract, and as part of the purchase money of the land conveyed. There was no contract between plaintiff and Griffin to rescind, and hence no implied obli- gation can arise between them. The entry of judgment against Griffin for the full amount paid on the contract by plaintiff was man- ifestly wrong, and must be reversed. As bearing upon the ques- tions hereinbefore discussed, we cite Barndt v. Frederick, 78 Wis. I, 47 N. W. 6; Keener, Quasi-Cont. 200-202; Alger, Law Promot. O 00 ^ "T^ ^ The judgment of the superior court of Milwaukee county, as to the defendant Griffin, is reversed ; and, as to the defendant Glendale Investment Association, the judgment is affirmed.^ ii. Diminution of Plaintiif's Estate. (\ SCHILLINGER et al. v. UNITED STATES. 155 U. S. 163—1894. ^ "^ ^ This action was brought in the United States Court of Claims for infringement of Schillinger's patent for the construction of pave- ments. The United States had given a contract to one Cook for constructing a pavement, who did the work. In actions against the United States the jurisdiction of the Court of Claims is limited by statute to those on "contracts, express or implied." Judgment in the Court of Claims was against the plaintiffs and they appealed to the United States Supreme Court. Brewer, J. — [After holding that the action was in tort and not within the jurisdiction of the Court of Claims, and that the words "contract, express or implied," as used in the statute, do not include the quasi-contract that may be created by the waiver of the tort, proceeded to the following additional objection to plaintiff's re- covery.] But there is still another aspect in which this case may be consid- ered. The patent of Schillinger runs to the mode of constructing concrete pavements. The mere form of a pavement with free joints — that is, in separate blocks — is not, since the filing of his disclaimer, 'Accord. Brunflrcd v. Rice, 49 Oh. 640 (1892). Sec also, Reynolds v. PadgcU, post, p. C24. DIMINUTION OF TLAINTIFF S ESTATE. 59I within the scope of this j)atent. It may be tliat the process or mode by which Cook, the contractor, constructed the j)avement in the cap- itol grounds was that described in and covered by the SchiUinger patent. He may, therefore, have been an infringer by using that process or mode in the construction of the pavement, and hable to the claimants for the damages they have sustained in consequence thereof. It may be conceded also that the government, as having at least consented to the use by Cook of such process or method in the construction of the pavement, is also liable for damages as a joint tortfeasor. But what property of the claimants has the gov- ernment appropriated ? It has and uses the pavement as completed in the capitol grounds, but there is no pretense of a patent on the pavement as a completed structure. When a contractor, in the exe- cution of his contract, uses any patented tool, machine, or process, and the government accepts the work done under such contract, can it be said to have appropriated and be in possession of any property of the patentee in such a sense that the patentee may waive the tort, and sue as on an implied promise? The contractor may have prof- ited by the use of the tool, machine, or process, but the work, as completed and enjoyed by the government, is the same as though done by a dififerent and unpatented process, tool, or machine. Take, for illustration, a patented hammer or trowel. If a contractor in driving nails or laying bricks use such patented tools, does any pat- ent right pass into the building, and become a part of it, so that he who takes the building can be said to be in the possession and en- joyment of such patent right ? Even if it be conceded that Cook, in the doing of this work, used tar paper, or its equivalent, to separate the blocks of concrete, and thus finally completed a concrete pave- ment in detached blocks or sections, was such completed pavement any diiTerent from what it would have been if the separation be- tween the blocks had been accomplished in some other way, and is the government now in possession or enjoyment of anything em- braced within the patent? Do the facts, as stated in the petition or as found by the court, show anything more than a wrong done, and can this be adjudged other than a case "sounding in tort"? We think not, and therefore the judgment of the court of claims is affirmed.^ 'In Phillips V. Homfray, L. R. 24 Ch. D. 439 (1883), the claim was one for compensation "for the secret and tortious use made by the deceased R. Fothergill and others during his lifetime, of the underground ways and passages under the plaintiff's farm for the purpose of conveying the coal and ironstone of R. Fothergill and his co-trespassers." Bowen, L. J., said the difficulties of extending the principle of waiver of tort "to the present case appear to us insuperable. The deceased, R. Fothergill, by carrying his coal and ironstone in secret over the plaintiffs' roads took nothing from the plaintiffs. The circumstances under which he used the road appear to us to negative the idea that he meant to pay for it. Nor have the assets of the deceased defendant been necessarily swollen by what he has done. He saz'cd his estate expense, but he did not bring into it any additional property or value belonging to another person." 592 WAIVER OF TORT. ^- McSORLEY V. FAULKNER et al. T*. V ^ i8 N. Y. SuppL. 460 (Common Pleas, General Term). — 1892, Daly, C. J. — Upon the former appeal in this action it was held by the general term of this court that the plaintiff was not entitled to recover upon the facts then shown, viz. : That the plaintiff sold to defendants the business conducted by him at 1151 Ninth avenue; that in the premises at the time of the sale was a telephone, which had been previously placed there by the Metropolitan Telephone & Telegraph Company under a contract with the plaintiff, by which he was to pay monthly for its use for a stated period, not then ex- pired ; that after defendants went into possession the telephone re- mained in the premises and was used for the whole period (but by whom did not appear), and that plaintiff paid the company for such use $50, and then brought this action to recover that sum from defendants, as upon their implied request to pay for the use of the instrument. It was held by the general term that as the plaintiff made the original contract with the company, and the defendants were not privy to it, and were not under any liability to pay the com- pany, in the absence of proof that the telephone was left in the prem- ises at defendant's request, or that its use was necessary to, or was connected with, the business, or that there was any agreement be- tween the parties in relation thereto, or that the defendants ever used the instrument, the plaintiff was not entitled to recover from them what he had to pay the company ; and the judgment in plain- tiff's favor was reversed, and a new trial was ordered. McSorley V. Faulkner, (Com. PI. N. Y.) 14 N. Y. Supp. 789. Upon the sec- ond trial, it was shown that the defendants, from the time they took possession of the premises, used the telephone constantly for the whole period covered by the plaintiff's contract with the company. At the close of the plaintiff's case, the defendants moved to dismiss the complaint, and the plaintiff moved to conform the pleadings to the proof of a cause of action upon an implied contract for using the telephone as belonging to the plaintiff. The plaintiff's motion was granted, and, after the proofs on both sides were in, the justice rendered judgment in plaintiff's favor for $50 and costs. The ruling of the previous general term has settled the law of the case, that the plaintiff has not shown himself entitled to recover upon the ground originally claimed in the complaint, viz., an implied request to him by defendants to pay the company for their use of the instru- ment ; for there was wanting the basis of such implication, i. e., a primary liability of the defendants to the company, and a compul- sion of law upon the plaintiff, growing out of the acts of the defend- ants (and not out of his own independent contract), to make the payment sued for. The company may have had the option to hold the defendants for the use of the telephone, and the services ren- dered in operating it for their benefit, upon an implied promise to DIMINUTION OF PLAINTIFF S ESTATE. 593 pay for such services, but this would have been an option to termi- nate the contract with the plaintiff, and would have discharged him for the two contracts could not subsist together ; and any payment by plaintiff thereafter in behalf of defendants would have been vol- untary, and not recoverable against them. First Nat. Bank of Ball- ston Spa V. Board of Sup'rs, io6 N. Y. 488-494, 13 N. E. Rep. 439. But the contract was not terminated by the company, and the plain- tiff remained the licensee of the instrument and entitled to its use, and to the services of the company in transmitting communications through their office during the whole period of his contract. The use by defendants of the instrument and of these services was a use of the plaintift''s property, and it w^ould seem just and reasonable to imply a promise on their part to pay the plaintiff for such use. They are chargeable with notice when they found the instrument upon the premises which plaintiff transferred to them, and when they began and continued to use it, that such use was not gratutitous, but involved an obligation of the licensee of the company to pay, and that they were enjoying the rights for which he was paying or was liable to pay. A duty to make him compensation arose from the circumstances, and a contract to do so will be implied. "In this sense, contract is co-ordinate and commensurate with duty ; and it is a familiar principle of the law, which has a wide though far from a universal application, that whatsoever it is certain that a man ought to do, that the law supposes him to have promised to do. 'Im- plied contracts,' says Blackstone (2 Bl. Comm. p. 443), 'are such as reason and practice dictate, and which, therefore, the law pre- sumes that every man undertakes to perform.' These contracts form the warp and woof of actual life." i Pars. Cont. 4. The ab- sence of the essentials of ordinary contract relation will not affect the liability. "There is a class of cases where the law prescribes the rights and liabilities of parties who have not in reality entered into any contract at all with one another, but between whom cir- cumstances have arisen which make it just that one should have a right, and the other should be subject to a liability, similar to the rights and liabilities in certain cases of express contracts. * * * Implied or constructive contracts of this nature are similar to the constructive trusts of courts of equity, and in fact are not contracts at all. Add. Cont. 22. And a somewhat similar distinction is rec- ognized in the civil law, where it is said : 'In contracts, it is the con- sent of the contracting parties which produces the obligation ; in q2iasi contracts, there is not any consent. The law alone or natural equity produces the obligation by rendering obligatory the fact from which it results. Therefore, these facts are called quasi contracts, because, without being contracts, they produce obligations in the same manner as actual contracts.' i Poth. Obi. 113, * * * So obligations are created in consequence of frauds or negligence, and in either case the law compels reparation and permits the tort to be Woodruff's Cases — 38 594 WAIVER OF TORT. waived, but there is no contract." People v. Spcir, 'jy N. Y. 144- 150. The defendants, by using the telephone constantly in their busi- ness, must have intended one of two things : to pay the person en- titled to the use of the instrument as licensee the fair value of such use, which they engrossed in their business, or to defraud him. In neither case can an implied contract to pay be justly or lawfully de- nied. It is not essential to the rights of the plaintiff to recover that he should have assented to the use of the instrument by defendants, or even have known of it. Rider v. Rubber Co., 28 N. Y. 379. In that case the plaintiff' left with the defendants certain property, in the expectation that they would purchase it. The managing agent of the company found it on the premises, and, having use for it in the business of the company, took the responsibility of using it. It was held that, notv/ithstanding the fact that plaintiff did not give nor intend to give the use of the same to the defendant, the law im- plied an agreement by defendant to pay plaintiff the value of the use while the same v/as used in its business. A number of cases are cited by appellants, but none conflict with the view here taken of defendants' liability. There is no analogy between this claim and the claim for the use and occupation of real property, where the conventional relation of landlord and tenant must be shown (Collyer v. Collyer, 113 N. Y, 442, 21 N. E. Rep. 114; Crosby V. Home & Danz Co., 45 Minn. 249, 47 N. W. Rep. 717; Reed v. Lammel (Minn.), 42 N. W. Rep, 202; In re Curtis' Will (Sup.), 16 N. Y. Supp. 180; McCrory v. Anderson (Ind. Sup.), 2 N. E. Rep. 213 ; Tanner v. Rummel, 24 Wkly. Dig. 149) ; or for the use of a patented device, which is an infringement upon a right and not the taking of property (Forehand v. U. S., 23 Ct. CI. 477) ; or for work voluntarily performed (Ulmer v. Farnsworth, 80 Me. 500, 15 Atl. Rep. 65) or payments voluntarily made (City of Albany v. Mc- Namara, 117 N. Y. 168, 22 N. E. Rep. 931) ; or a claim based upon estoppel (Bowers v. Smith (Sup.), 8 N. Y. Supp. 226) ; or an action at law by a subcontractor against the owner, for the value of mate- rials furnished to the contractor, and used by the owner, which was, in effect, the nature of the claim made in Hogan v. City of Brooklyn, 52 N. Y. 282 ; or an action by a lessor against a lessee for an extra use of Croton water measured by a water-meter, where the covenant on the part of the lessee was to pay only the regular annual charge for Croton water (Moffat v. Henderson, 50 N. Y. Super. Ct. 211). It is, however, contended that the claim here made is analogous to that discountenanced in Loyd v. Fox, i E. D. Smith loi, where plaintiff, having been tenant of certain premises in the city of New York, under a hiring for a year, paid the charge for the use of the Croton water for that year, and having given up possession, after four months' occupancy, and the premises having been relet by the Ianfllr)rd for the residue of the year, claimed payment of the new tenant for the use of the Croton water for the unexpired period of eight months. But the plaintiff had no property in the water, nor in DIMINUTION OF PLAINTIFF'S ESTATE. 595 the pipes upon the premises, and wlien he abandoned possession necessarily rcHnquislied all his right ; and defendant could not be held upon any implied promise to pay plaintiff for what plaintiff could not use or enjoy himself. But in this case plaintiff had the right to remove the telephone instrument and connect it whereso- ever he removed to, and defendants, in enjoying the benefit of it while it remained ui)on the premises, were using the exclusive and undoubted property of the j^laintiff. Objection is made that there was no sufficient proof of the value of the use of the telephone during the period — four months — sued for. The plaintiff testified that it was worth $12.50 per month. It appears that his knowledge of the value was founded upon what he paid himself and knew that others paid. It is not easy to see what other or better evidence of value could be produced. Appellants do not suggest any. Persons hiring and using telephones in their busi- ness are competent to testify to the value of such use. The judgment should be affirmed, with costs. All concur. BROWN v. BROWN. 40 Hun, 418 (N. Y. Supreme Ct.).— 1886. Action to recover the amount obtained by the defendant under the circumstances stated in the opinion. Landon, J. — This case was decided in favor of the defendant by the application of the well-settled rule, that where two rival claim- ants demand payment, each in his own right, of the debt which the debtor owes to one of them only, if the debtor pays the wrong claim- ant, the debt due to the rightful creditor is not hereby affected, and he acqviires no title to recover the money of the party who wrong- fully claimed and received it. Patrick v. Metcalf, 37 N. Y. 332 ; Butterworth v. Gould, 41 N. Y. 450. But this rule rests upon the basis that the wrongful claimant obtains the money upon his own independent claim ; that in using his own he does not prejudice his competitors ; that he does not exercise any right or title of which he has wrongfully divested his competitor ; that he is not assuming any agency for him ; that he is not in privity with him. Carver v. Creque, 48 N. Y. 385 ; Peckham v. Van Wagenen, 83 N. Y. 40; Hathaway v. Town of Cincinnatus, 62 N. Y. 434 ; Bradley v. Root, 5 Paige 632. Here the defendant had made an absolute gift of the bank-book, and of the title to demand and receive the money represented by it, to the plaintiff. When the defendant, [afterward] by force and against the will of the plaintiff, took the bank-book from her, he knew that he had no title to it or the money represented by it. What- ever claim he might assert to the money he well knew rested upon his fraud, if not upon his crime. But he thus obtained the physical 596 WAIVER OF TORT. power and apparent authority to represent the plaintiff in the pre- sentation of the book to the bank, and by the act of presenting the book he did represent that whatever title or authority she had in the matter was exercisable by him, and he thus obtained the money. He can take no advantage from his own wrong, and since he could not, in the absence of any title from the plaintiff, lawfully, as against her, obtain the money except as her agent, he may not, with the proceeds in his pocket, deny that he obtained them in the only man- ner in which he could lawfully obtain them. It is probable the plaintiff could have maintained an action against the bank, since the bank had notice of her rights. But it was open to the plaintiff to elect to adopt the acts of the defendant or repudi- ate them. He shall not be heard to plead his own turpitude, and is therefore estopped to deny that he did not assume to act as the agent of the plaintiff. She may waive the tort, adopt his acts, and compel him to restore their fruits. It comes to the same result if we regard the defendant as trustee ex maleiicio. He knew that by his gift the book and the money it represented, and the rights it conferred, were the plaintiff's. He took the book by force, exercised her rights, and obtained the money. It was his duty to do nothing with her property and her rights for his own advantage, and he is, at her election, her trustee ex maleUcio of the proceeds of his acts of usurpation. He held the proceeds of the book by same title that he held the book, and as he had no title to the book he had none to its proceeds, and must ac- count to the true owner. Comstock v. Hier, y^, N. Y. 269. The judgment should be reversed, new trial granted, referee dis- charged, costs to abide event. BocKES, J., concurred. Learned, P. J. — I concur in this result on the ground that the defendant, by taking away plaintiff's property by force, committed a tort (trespass or trover) for which he became liable. He remains liable still ; and the amount collected by him, being the amount of the indebtedness expressed in the book, is the measure of the dam- ages to which she is entitled. Judgment reversed, new trial granted, costs to abide event. Ref- eree discharged. ill. Joint Tortfeasors. TERRY ET AL. V. HUNGER. 121 N. Y. 161 — 1890. Peckiiam, J. — The plaintiffs commenced an action heretofore against two other persons, named, respectively, Kipp and Munger, on account of the same transaction for which this action was brought against the above-named sole defendant. The character of the com- JOINT TORTFEASORS. 597 plaint in that action was before this court, and the case is reported in 88 N. Y. 629 [Goodwin v. Griffis]. The defendants in that case were charged with detaching and carrying away from the mill the machinery in question in that case, and also in this, and using it for themselves. It was there held, upon a perusal of the complaint, that the action was of a nature ex contractu, and not ex delicto, for the wrong done plaintiffs by the conversion of their property. As the defendants therein had not, after their conversion of it, themselves sold or otherwise disposed of the property which they acquired from the plaintiffs, the fiction of the receipt by defendants of money for the sale of the property, which ex ccquo et bono they ought to pay back to plaintiffs, and which they therefore impliedly promised to pay back, could not be indulged in, and the position of the par- ties would have been at one time the subject of some doubt, whether there was any foundation for the doctrine of an implied promise in such case, or any possibility of the waiver of the tort committed by the defendants in the conversion of the property. In some of the states it has been denied, and such denial placed upon the ground that the property remained in the hands of the wrong-doer, and therefore, no money having been received by him in fact, an implied promise to pay over money had and received by defendant to the plaintiff's use did not and could not arise. Such was the case of Jones V. Hoar, 5 Pick. 285. But the great weight of authority in this country is in favor of the right to waive the tort, even in such case. If the wrong-doer has not sold the property, but still retains it, the plaintiff has the right to waive the tort, and proceed upon an implied contract of sale to the wrong-doer himself, and in such event he is not charged as for money had and received by him to the use of the plaintiff. The contract implied is one to pay the value of the property as if it had been sold to the wrong-doer by the owner. If the transaction is thus held by the plaintiff as a sale, of course the title to the property passes to the wrong-doer, when the plaintiff elects to so treat it. See Pom. Rem. (2d ed.), §§ 567-569; Putnam v. Wise, I Hill 234, 240, and note by Mr. Hill ; Berly v. Taylor, 5 Hill 577, 584 ; Norden v. Jones, 33 Wis. 600, 605 ; Cummings v. Vorce, 3 Hill 283 ; Spoor v. Newell, Id. 307 ; Abbott v. Blossom, 66 Barb. 353. We think this rule should be regarded as settled in this state. The reasons for the contrary holding are as well stated as they can be in the case above cited from Massachusetts (5 Pick.), and some of the cases looking in that direction in this state are cited in the opinion of Talcott, J., in the case reported in 66 Barb., supra. We think the better rule is to permit the plaintiff to elect, and to recover for goods sold, even though the tortfeasor has not himself disposed of the goods. There is no doubt that the complaint in the former case, reported in 88 N. Y., proceeded upon the theory of a sale of the property to the defendants in that action, and it was so construed bv this court, and w^e have no inclination to review the correctness of that decision. We have, then, the fact that the defendants in that action were sued 598 WAIVER OF TORT. by the plaintiffs herein, upon an implied contract to pay the value of the property taken by them, as upon a sale thereof by plaintiffs to them. The plaintiffs having treated the title to the property as having passed to the defendants in that suit by such sale, can the plaintiffs now maintain an action against another person, who was not a party to that action, to recover damages from him for his al- leged conversion of the same property, which conversion is founded upon his participation in the same acts which phintiffs in the old suit have already treated as constituting a sale of the property ? We think not. The judgment roll in the former action was received in evidence upon the trial of this case, against the objection of the plaintiffs, and notwithstanding the fact that the defendant herein was not a party to such action. It appears that all the facts sur- rounding the transaction as to the taking of the property were known to the plaintiffs at the time when they commenced their ac- tion on the implied contract of sale. The plaintiff's objected to the introduction of the judgment roll as incompetent and immaterial, and that there was no such defense set up in the answer. The plaintiffs claim that the admission of such judgment violated the well-known general rule that a judgment is not binding upon any but parties and privies. We think the decision does not trench upon the rule in question. If the judgment had been introduced for the purpose of proving any fact adjudicated thereby, any fact in liti- gation therein, or which properly might have been so litigated, the rule would doubtless apply, and no such fact would or could be proved in favor of the defendant herein as against the plaintiffs by such judgment, because the defendant was not a party or privy to it. It was not by way of estoppel, however, that the judgment was admissible. It was admissible for the sole purpose of showing that the plaintiffs had elected to treat the taking of this property as a sale, and this was shown by a perusal of the complaint therein. Any de- cisive act of the plaintiffs, with knowledge of all the facts, would determine their election in such a case as this. Sanger v. Wood, 3 Johns. Ch. 416, 421. The proof that an action of that nature had been in fact commenced would have been just as conclusive upon the plaintiffs upon the question of election (proof of knowledge of all the facts at that time being given) as would th.e judgment have been. It was not necessary that a judgment should follow upon the action thus commenced. In those cases, where the commencement of an action has not been regarded as an election of remedies, the fact has appeared that the plaintiff at the time of its commencement was not aware of the facts which would have enabled him to elect, or, at least, it did not appear that he was acquainted with the facts when he commenced his action. Such is the case in Foundry Co. v. Her- see, T03 N. Y. 25, 9 N. K. Rep. 487. Here the plaintiffs knew all the facts when they sued the other defendants. The case of Conrow v. Little, 115 N. Y. 387, 393, 22 N. E. Rep. 346, is to the effect that the commencement of the action, where all the facts are known, is conclusive evidence of an election. Judge JOINT TORTFEASORS. 599 Danfortii in that case, in speaking of plaintiff's election to affirm or avoid the contract therein spoken of, said the plaintiffs could af- firm or rescind it. "They could not do both, and there must be a time when their election should be considered final. We think that time was when they commenced an action for the sum due under the contract." It was also held that the discontinuance of that action was immaterial. It was the fact that the plaintiffs once elected their remedy and acted affirmatively upon such election that determined the issue. After that the option no longer existed, and it was of no consequence, therefore, whether the plaintiffs did or did not make their choice effective. When it becomes necessary to choose between inconsistent rights and remedies, the election will be final, and can- not be reconsidered, even where no injury has been done by the choice, or would result from setting it aside. 2 Herm. Estop., p. 1 172, § 1045. The plaintiffs having, by their former action, in effect sold this very property, it must follow that at the time of the com- mencement of this one they had no cause of action for a conver- sion in existence against the defendant herein. The transfer of the title did not depend upon the plaintiffs recovering satisfaction in such action for the purchase price. It was their election to treat the transaction as a sale which accomplished that result, and that election was proved by the complaint already referred to. But it is urged that this election of the plaintiffs is not binding upon them in favor of the defendant herein, because it was only against the de- fendants in the other action that they made their election. It is said there is no case to be found where an election has been treated as binding in favor of a stranger to the transaction, and that the defend- ant herein is such stranger so far as the plaintiffs' transaction with the defendants in the other action is concerned. I do not think this claim can be maintained. In the fi.rst place, what is the nature of the plaintiffs' act in electing to consider the transaction as a sale? It is a decision or determination upon their part to, in effect, ratify and proclaim the lawfulness of the act of taking the property, and it is an assertion on the plaintiffs' part that in so doing the plaintiffs' interest in the property was purchased, and that thereby their whole title was transferred, and they ceased to own any part of the prop- erty, and that those who took it impliedly promised the plaintiffs to pay them the value of their interest in such property. This being so, why does not such transfer of litle bind the plaintiffs as to the whole world ? Surely, the title which plaintiffs once had in the prop- erty cannot at the same time rest with them and pass to those who took it. If the title really once passed, that would be a fact actually existing, which anybody ought to have the right to prove if it be- came material in protecting his own rights, unless there were some equitable considerations in such case which should prevent it. I cannot see that any exist here. With full knowledge of all the facts the plaintiffs deliberately elected to treat the transaction in which this defendant's share was 600 WAIVER OF TORT. well known, as a sale of the property, and now they propose to re- cover from this defendant damages for the conversion by him of the very same property which they have already said they sold, by vir- tue of the very transaction which they now claim amounted to a con- version of the property by this defendant. Why should the defend- ant not be permitted to set up such sale as a complete defense to this action? The plaintiffs have done nothing by reason of de- fendant's acts which should estop him from setting up this defense. Their situation has not since been altered for the worse by any- thing the defendant has done. If not, then the fact that the plain- tiffs sold the property by virtue of the transaction which they now seek to treat as a conversion of it by this defendant, must and ought to operate as a perfect bar to the maintenance of this action. And this is not in the least upon the principle of equitable estoppel. It is upon the principle that the plaintiffs, by their own free choice, de- cided to sell the property, and, having done so, it necessarily follows that they have no cause of action against defendant for an alleged conversion of the same property by the same acts which they had already treated as amounting to a sale. In Conrow v. Little, 115 N. Y. 387, 22 N. E. Rep. 346, already cited, the plaintiffs' election to affirm the contract between them and Branscom, evidenced by their commencement of the attachment suit, was held conclusive upon them, and the defendants were permitted to take advantage of such election, although they were not parties or privies to the plaintiffs' suit against Branscom. The defendants were enabled to take advantage of it because such election showed that the plaintiffs had affirmed their contract with Branscom, and the plaintiffs' suit against defendant Little could only be maintained upon the assumption that such contract had been rescinded. If the other suit had gone to judgment, would not such judgment have been admissible for the purpose of showing the naked fact of the election of plaintiffs to affirm the contract? I have no doubt of it. In Fowler v. Bank, 113 N. Y. 450, 21 N. E. Rep. 172, we held that the action could not be maintained, because the plaintiff, by suing the party to whom the bank had already wrongfully paid the money, elected to regard such payment as rightfully made, and a cause of action against the bank to recover against it the amount of its former indebtedness to the plaintiff was held to have been forever aban- doned because of such election. In that case, in order to prove the fact of election, the defendant proved the commencement of the former action by the plaintiff, and it was proved, as we assumiC, by the production of the judgment roll in such former action. It was admissible for the same purpose for which the judgment was ad- missible in this case, viz.. to prove the fact of the plaintiff's election to pursue a totally inconsistent remedy. The defendant was not pre- cluded from availing itself of such defense, although it was neither a party nor privy to the judgment which proved the fact of such election. In Bank v. Beale, 34 N. Y. 473, the plaintiff put in evi- dence a judgment roll in which it was neither a party nor privy, to JOINT TORTFEASORS. 6oi show that Sweet had made an election therein which bound him, and consequently the defendant Beale. This court held the judg- ment conclusively proved the election. These views are fatal to the maintenance of this present action for a conversion against the defendant. If the i)laintiffs herein had commenced their action against this defendant, based upon an im- plied promise by him to pay the value of the property as upon a sale thereof to him in connection with the defendants in the other suit, a totally different question would have arisen, upon which we ex- press no opinion. The plaintiffs in such action might urge that it ought to be sustained upon the ground that the defendant herein was one of the wrong-doers in the transaction resulting in the taking of this property, and that the tort therein committed by him and the defendants in the other suit was a joint and several one, for which they were jointly and severally liable ; and when the tort was waived by the plaintiffs, and an implied contract was based upon such waiver, the contract implied was of the same nature as the tort which was waived, and was a joint and several contract. Being a joint and several contract, an action against the other defendants upon their several contract, and a recovery of judgment without satisfac- tion, would constitute no defense to an action against this defendant, based upon his several and implied contract to pay the value of the property. There may be some authority for this course of reason- ing. City Nat. Bank v. National Park Bank, 32 Hun 105. We neither affirm nor deny its soundness, and only refer to it in order to repel any possible implication that in this decision we have held that no such action could be maintained. But, even if such an action would lie, we cannot turn the present one for a conversion of the property into one to recover the value thereof as upon a sale to defendant. People v. Dennison, 84 N. Y. 272 ; Romeyn v. Sickles, 108 N, Y. 650, 15 N. E. Rep. 698. As to the other ground of ob- jection taken by the plaintiffs, we think the evidence was admis- sible, for the reasons stated by the learned judge at general term. Upon the whole case we are satisfied that no error was committed prejudicial to the plaintiffs, and the judgment should be affirmed, with costs. All concur ; Ruger, C. J., and Andrews, J., in result.^ 'Contra, Huffman v. Hughlett & Pyatt, 11 Lea (Tenn.) 549 (1883), the court saying (p. 554) : "If the action be in contract, it is not strictly a waiver of the tort, for the tort is the very foundation of the action, but, as Nicholson, C. J., has more accurately expressed it, a waiver of the 'damages for the con- version,' and a suing for the value of the property. Kirkman v. Philips, 7 Heis. 222, 224. It is simply an election between remedies for an act done, leaving the rights of the injured party against the wrongdoers unimpaired until he has obtained legal satisfaction. It it were otherwise, the suing of any one of a series of tortfeasors, even the last, on the implied promise, where there was clearly no contract, would give him a good title and release all the others. No authority has been produced sustaining such a conclusion, and we are not inclined to make one." 602 WAIVER OF TORT. FLOYD V. BROWNE, Administrator. I Rawle (Pa.) 121. — 1829. Action of assumpsit for money had and received, brought by the plaintiff in error, John Floyd, against the defendant in error, Aquilla A. Browne, administrator de bonis non cum testamento annexo of Thomas Truxton, deceased, who, in his lifetime was high sheriff of the city and county of Philadelphia. The following were the circumstances upon which the plaintiff's claim was founded : To March term, 1819, of the district court, Caleb Cridland issued a Heri facias against a certain George Green. The sheriff levied upon goods belonging to the plaintiff (Floyd), and sold them for the gross sum of $1,235.94. In making the levy Ben- jamin Cridland, Robert Black, Peter Care, Jr., Stephen E. Fotterall and George F. Alberti, assisted the said Caleb Cridland. Floyd brought an action of trespass z'i et armis, against Benjamin Cridland, and the others who assisted him in the levy, and obtained a verdict and judgment for $2,000 against Caleb and Benjamin Cridland, and signed judgment by default against Robert Black, Peter Care, Jr., Stephen E. Fotterall and George F. Alberti, the other defendants. Execution was issued against all these defendants, and the money made out of the goods and chattels of Fotterall. Fotterall removed th record by writ of error to the supreme court ; where, on the 2d of April, 1821, the judgment was reversed as to all the defendants except Caleb and Benjamin Cridland, and the execution as to all. (See 6 Serg. & Rawle 412.) On the 19th of May, 1821, Floyd brought this action against the sheriff to recover the proceeds of the sale of his goods wrongfully taken in execution. The defendant pleaded non assumpsit and payment, and a special plea of former re- covery, which set forth the proceedings in the district and supreme court, above stated, in the suit brought by Floyd against Caleb Crid- land and others. To this plea the plaintiff demurred, and the court below gave judgment for the defendant on the demurrer. The plaintiff thereupon took out a writ of error. Gibson, C. J. — A plaintiff is not compelled to elect between ac- tions that are consistent with each other. Separate actions against a number who are severally liable for the same thing, or against the same defendant on distinct securities for the same debt or duty are consistent, being concurrent remedies. Trespass is, in its nature, joint and several ; and in separate actions against joint trespassers, being consistent with each other, nothing but actual satisfaction by one will discharge the rest. So far the law is clear. Here, then, the plaintiff had impleaded six jointly, and obtained judgment, but with- out actual satisfaction against two, and he now brings indebitatus assumpsit against a seventh for the price obtained for the goods which were the subject of the trespass. The point of defense mainly JOINT TORTFEASORS. 603 relied on is that the plaintiff's property in the goods was divested by the former recovery ; and, consequently, that he cannot maintain an action founded exclusively on property in the goods or the price of them. It is not easy to see how this is to be answered. It will not do to say that the jM'cscnt, though differing in form, is in substance an action to recover satisfaction for a trespass, and consequently that the form is immaterial. There is, in fact, a substantial difference. The cause of action in trespass and in assumpsit is as distinct in sub- stance as the actions are different in form. Trespass lies only for an injury to the possession ; and damages are recoverable for the taking, which is the gist of the action, separately from the value of the goods, the asportation being a circumstance merely of aggrava- tion. Assumpsit lies for money received as the price of the goods, to the plaintiff's use, the detention of which is the gist of the action, the trespass being waived, and not entering at all into the estimate of the damages, it being well settled that nothing is recoverable be- yond what was actually received. If there were no difference as to substance, and the form of the remedy were immaterial, a plaintiff might have several actions of assumpsit against those who had joint- ly sold his goods, on the ground of their having been obtained by a trespass, although the promise which the law implies from a joint receipt of the price is also joint. He certainly might just as well proceed severally in assumpsit against all, as in trespass against some, and in assumpsit against the rest. But there is this further substantial difference that the action in the one case is founded on a contract which survives, and in the other, on a tort, which, at the common law, does not. In fact, the attempt here is to make an ad- ministrator liable. A plaintiff must proceed consistently. He can- not waive a part of the injury to give form to his action and resume it to give substance. In waiving the trespass he dispenses with what- ever could give character to the injury as such, and treats as a sub- stantive and distinct cause of action what would, in an action of tres- pass proper, be merely a circumstance of aggravation. In an action of assumpsit, therefore, he cannot claim the benefit of any of the in- cidents or attributes which appertain to an action of trespass. The consequence is, that the plaintiff here having recovered in trespass, cannot again recover in an action which is not a concurrent remedy ; a recovery in trespass producing the same bar that is produced by a recovery in trover, against a recovery in assumpsit of the price of the same goods. Judgment affirmed. 604 WAIVER OF TORT. iv. Injured Tenants in Common. TANKERSLEY v. CHILDERS et al. 23 Ala. 781.-1853. Phelan, J. — The action was assumpsit by three of the Qiilders to recover of the defendant their portion of the proceeds of the cot- ton which was sold by him as constable under an execution against David Childers, who, together with one Smyth and the plaintiffs, was a tenant in common of the cotton which he sold. The right of the plaintiffs to waive the tort, the conversion, and sue in assumpsit is not denied. But it is insisted by plaintiff, in error, that in this form of action all the parties in interest must join in action, and that they cannot sue if any number less than all join as plaintiffs. This question of the right of any one tenant in common to waive a tort and sue separately in assumpsit was considered in the case of Smyth V. Tankersley, 20 Ala. 212, when we held that such right existed. The general doctrine on this subject of non-joinder of plaintiffs, or the right to sue separately where the tort is waived, and parties sue in assumpsit, has since received a careful examination anew in the case of Smith's Ex'rs v. Wiley, 22 Ala. 396. The court in that case arrive at the conclusion, as the result of sound reason and the best authorities, that when a conversion has been committed against sev- eral, all the parties in interest waiving the tort may join, if they like, in an action of assumpsit; but, that they are under no legal compul- sion to do so, for that any number less than all, or any separate one, may bring assumpsit for his or their share of the interest without joining the rest. * * * *^ b. Particular Applications. i. Fraud. CROWN CYCLE CO. v. BROWN. 39 Ore. 285. — 1901. WoLVERTON, J. — The amended complaint herein, omitting formal allegations, runs as follows : "That on or about the ist day of March, 1896, the plaintiff, at the special instance and request of the defend- ant, sold and delivered to defendant certain goods, wares, and mer- ' But sec Gilmorc ct al. v. Wilbur ct al., 12 Pick. (Mass.) 120 (1831), the court saying (p. 124) : "Tenants in common not only may, but must join in an action for any entire injury done to the common ])roperty. And this principle is equally applicable to an action for the tort, and to an action of assumpsit when the tort is waived." FRAUD. C05 chandise, of the reasonable value of $12,234," The answer denies that the plaintiff sold or delivered to the defendant any goods, wares, or merchandise whatever, except under a special contract of purchase and sale between them, which provided for the payment of a stipu- lated price at a time certain, which had not elapsed at the com- mencement of the action. It is further alleged that the goods, wares, and merchandise mentioned in the complaint consist of three lots of bicycles, which were purchased by the defendant from the plain- tiff under a special contract as to price, terms, and time of payment ; and that, in pursuance of the terms of the contract, the defendant executed and delivered to the plaintiff, as and for the whole of the purchase price of said bicycles, certain bills of exchange, which were received and accepted by plaintiff, and are still held and retained by it. The plaintiff replied that the goods were procured and said contract was induced through the fraudulent and deceitful repre- sentations of the defendant as to the condition of his credit ; that the said bills of exchange were taken and accepted under those con- ditions, and are wholly worthless. There was a demurrer interposed to the reply, and a motion to strike out the affirmative averment, which were both overruled. The verdict and judgment being in fa- vor of the plaintiff, the defendant appeals. * * * * The most important question attending this controversy is whether the plaintiff can waive the tort and sue in assumpsit for goods sold on a quantum valcbat. Upon this question the authorities are in hopeless conflict, and we will make no attempt to reconcile or dis- tinguish them. The action is for the reasonable value of the bicycles, not for an agreed price, so that there is no attempt to sue upon the contract, which it is alleged was fraudulently obtained, or to adopt any of its terms as controlling in any particular or binding upon the parties to the action. Fraud having vitiated the contract, and ren- dered it voidable, at the election of the plaintiff', it had proceeded by an action in no wise adapted to its enforcement, and thereby it would seem to logically follow that it has proceeded in its disaffirmance. At any rate, the action which it has employed is wholly inconsistent with the existence of the specific contract, so that it cannot be said that by suing in assumpsit it has affirmed any contract that it may have had with the defendant, except the one which may be implied from the acts of the parties. In a leading case upon the subject (Roth V. Palmer, 27 Barb. 652, 656), Hogeboom, J., discussing the effect of the waiver of the tort, says : "Does it restore the express contract Mdiich has been repudiated for the fraud, or does it leave the parties in the same condition, as if no express contract had been made, to such relations as result, by implication of law, from the delivery of the goods by the plaintiffs and their possession by the de- fendant? On this subject the decisions are conflicting, but I think the weight of authority, as well as the true and logical effect of the various acts of the parties, is to leave the parties to stand upon the rights and obligations resulting from a delivery and the possession of the goods." The proposition is supported by Wilson v. Force, 6 6o6 WAIVER OF TORT. Johns. *iio, Pierce v. Drake, 15 Johns. 475, and other New York authorities, as well as by Dietz's Assignee v. Sutcliffe, 80 Ky. 650, — a case in all particulars like the one at bar. To the same purpose, see Pom, Code Rem, (3d ed.), § 571 ; Bliss, Code PI. (3d ed.), § 15. Whether the vendor may waive the tort until his artful vendee has disposed of the goods and converted them into money is another phase of the question, touching which the authorities are not agreed. There are many of great weight holding that he can. Galvin v. Mill- ing Co., 14 Mont, 50S, 2)7 P^c. 366; Lehmann v. Schmidt, 87 Cal. 15, 25 Pac. 161 ; Roberts v. Evans, 43 Cal. 380; Norden v. Jones, 33 Wis. 600 ; Assurance Co. v. Towle, 65 Wis. 247, 26 N. W. 104 ; Downs V. Finnegan, 58 Minn. 112, 59 N. W. 981 ; Gordan v. Bruner, 49 Mo. 570 ; McCombs v. Church & Co., 9 Lea 81 ; Terry v. Munger, 121 N. Y. 161, 24 N. E. 2'j2\ and Challiss v. Wylie, 35 Kan. 506, 11 Pac. 438, We are inclined to adopt the doctrine of the foregoing authorities as establishing the better rule, namely, that a vendor who has been induced by fraud to part with his goods to a purchaser on a time consideration may, before the same becomes due, sue in as- sumpsit for their reasonable value, and this before the vendee has converted the same into money. We may say that we are impelled somewhat to this conclusion by a cause of some analogy heretofore decided by this court. We refer to Gove v. Milling Co., 19 Or. 363, 24 Pac. 521, wherein it was held that "when one performs services for another on a special contract, and for any reason, except a vol- untary abandonment, fails to fully comply with his contract, and the services and material have been of value to him for whom they were rendered and furnished, he may recover for such material and services their reasonable value, after deducting therefrom any dam- ages the party for whom such materials were furnished and services were rendered has sustained by reason of such failure." The quota- tion is from the headnote. There was no attempt on the part of the plaintifif, prior to the in- stitution of the action, to formally rescind the contract, nor was there any ofTer to return or to surrender the acceptances received in consideration of the sale, but the plaintiff proffered to return them in its reply and at the trial. As against the right of recovery by this method, it is urged that no action accrued to the plaintiff for the reasonable value of the goods until the specific contract was rescind- ed, and there was an offer to return the acceptances, and that the present action was prematurely brought, to say the least. There is ample authority, however, for proceeding by the method adopted. Ryan v. Brant, 42 111. 78 ; Nichols v. Michael, 23 N. Y. 264 ; Wig- and V. Sichel, 33 How. Prac. 174; Claflin v. Taussig, 7 Hun 223. The authorities seem to be uniform that, where the action is for the recovery of specific ])roperty, the tender of return of such accept- ances should be made as a condition precedent to the bringing of the action, as the vendee must be placed in sialw quo before the vendor is entitled to take it from him. consequently he has no right of action until the tender is made ; but there is a distinction recognized, by FR<\UD. (607J these same authorities, that where the party proceeds in trespass, or on a quantum valcbat, the rule does not apply. Doane v. Lock- wood, 115 111. 490, 4 N. E. 500. These considerations affirm the judgment of the court below ; and it is so ordered.^ KELLOGG & CO. v. TURPIE. 93 Iix. 265.-1879. Assumpsit. Mr. Justice Sheldon. — * * * * The declaration clearly enough presents a case of fraud, entitling the plaintiffs to rescind the contract of sale made on a credit, and the question which is presented is whether, upon making such rescission of the contract, the plain- tiffs may bring this action of assumpsit to recover what the goods were reasonably worth, or are restricted to an action in tort, of trover or replevin. Where such a fraudulent contract is rescinded by the vendor, as , it may be, the contract is treated as a nullity, and the defendant \ considered not as a purchaser of the goods, but as a person who had \ tortiously got possession of them, and the form of action in such case is in trover or replevin for the tort. But this action of assump- sit proceeds upon the ground of a contract made between the par- ties and existing at the time of action brought, and that the goods were rightly obtained by purchase. Now\ the only contract appear- ing by the declaration between the parties is an express contract for the sale of the goods upon credit. The time of credit had not expired when the suit was commenced, and it was prematurely brought on the contract which was actually made. Where there is an express contract the law will not imply one. It is not admissible to say there was a different implied contract where there was an express one. Nor can the contract be rescinded in part, and affirmed. as to the residue. The plaintiffs, if they treat the transaction as a contract at all, must take the contract altogether, and be bound by its speci- fied terms. By bringing this action, plaintiffs affirm the contract made between them and the defendant. This we believe to be the doctrine upon the subject as resting upon principle and established by the weight of authority. In such cases, says Chitty, in his work on Contracts, vol. i, pp. 569-70, "The vendor must either affirm or disaffirm the contract as a whole, And therefore, where goods are fraudulently procured to be sold on credit, the vendor cannot sue for the price before the credit has expired, but he must sue in tort for the value of the goods, for by declaring for the price he affirms the contract ; and where there is an express contract the law will * For a case of waiver of fraud, see also. Limited Invest. Assoc, v. Glen- dale Assoc, ante, p. 588. 6o8 WAIVER OF TORT. not imply any other." To the same effect is Story on Sales, sec. 446, that "Where goods have been obtained through the fraud or misrepresentation of the vendee, the vendor may either affirm the sale or rescind it and reclaim the goods. If he elect to rescind he must, as we have seen, do so within a reasonable time, and must take care to do nothing affirmatory of the contract, or his right to rescind will be lost. And in such case he should sue in trover or replevin for the goods, treating the whole contract as utterly nullified by the fraud, and he should be careful not to bring assumpsit, since, as the foundation of this action is the promise of the vendee, the contract is thereby directly affirmed, and his rights will depend upon the contract solely," In full support of the text of these writers and the views we have expressed, are Read v. Hutchinson, 3 Camp. 351 ; Ferguson v. Carrington, 9 B. & Cr. 59, 17 E. C. L. 330; Strutt v. Smith, I C, M. & R. 311; Selway v. Fogg, 5 M. & W. 83. In Allen V. Ford, 19 Pick. 217, the same doctrine is declared, where the court say : "If the plaintiff rescinds the contract, as he would have a right to do, the defendant failing to perform the condition ot sale, his proper remedy for a conversion of the property is an action of trover. And he cannot waive the tort and recover the value of the goods in an action of assumpsit. In such a form of action the contract is admitted to exist at the time of the action brought, and where there is an express contract the law will not imply one." To like effect are Delton v. Hull, 47 Md. 1 12 ; Whit- lock V. Heard, 3 Rich. 88. The decisions in New York seem to be in favor of the mainte- nance of such an action as the present. In Roth v. Palmer, 27 Barb. 652, the court, speaking upon the subject of the election which the vendor has, in the case of a fraudulent purchase of goods, to sue in assumpsit rather than tort, say : "Originally, and particularly in the English courts and in Massachusetts, a distinction was attempted to be established as to the cases in which the plaintiff should be allowed his election, and to confine it to cases where the fraudulent purchaser had parted with the goods and received money on his sale of the same, which the courts allowed the plaintiff to treat as money had and received to the plaintiff's use. (Bennett v. Francis, 2 Bos. & Pul. 550, 555 ; Jones v. Hoar, 5 Pick. 285.) But the cases in our own courts recognize no such distinction. They seem to allow it to be done in all cases where the plaintiff would have been allowed to pursue his remedy in tort, and the decisions in this court have been too numerous and too uniform to allow us now to set up any distinction or limitation, even if it were desirable on principle." But there is no course of decisions in this State which requires of us any departure from principle and the prevailing authority upon this subject. This court has recognized the distinction above, which the New York courts would seem not to do, and has held that where goods have been obtained tortiously, in order that assumpsit can be maintained it is essential that the wrongdoer should have sold the goods, or in some way converted them into money or money's FRAUD. 609 worth. Creel v. Kirkham, 47 III. 344; Johnston v. Salisbury, 61 id. 316. In Wigand v. Sichcl, 3 Keyes, N. Y. Court of Appeals Rep. 120, the court, although sustaining the action of assumpsit in a case like the present, do so upon a different ground from that in Roth V. Palmer. "It is not accurate," say the court, in the former case, "to say that the plaintiffs sought to avoid the contract of sale. It is the credit only that is sought to be avoided. It was a sale of goods which the plaintiffs, by their action, affirmed. It was, however, a sale where the credit was obtained by fraud, and in law amounted to a sale for cash. In stating it in their complaint, therefore, to be a sale, and for cash, the plaintiffs but stated the con- tract according to its legal effect. They did not seek to avoid the contract of sale. They endeavored, merely by proof of the act of fraud, to reduce the transaction to a cash sale." We have held that where a party rescinds a contract on the ground of fraud, such rescission must be total ; a portion of the contract cannot be affirmed and a portion repudiated. Bowen v. Schuler, 41 111. 193 ; Ryan v. Brant, 42 id. 78 ; King v. Mason, 42 id. 223. We adopt with ap- proval the following language of Pillsbury, J., who delivered the opinion of the Appellate Court in the case at bar, in comment on this case of Wigand v. Sichel : "The goods were procured by a contract, though fraudulent, one of the constituent parts of which was that time should be given for the payment thereof. With ref- erence to this credit the amount to be paid for the goods was deter- mined, and we are unable to see how the credit was obtained by fraud distinct from the other terms of sale, or how the credit can be avoided, or the sale be affirmed, with a different time of payment fixed without the consent of the purchaser. If in such case the credit is the only part of the contract resting upon the fraud, and that can be severed from the other terms of sale, then it nec- essarily follows that the credit is the only portion of the contract that can be repudiated, leaving the contract of sale in full force in other respects, or as the New York court expresses it, 'it becomes a sale for cash.' If, then, the legal effect of the contract after such disaffirmance is a sale for cash, the vendee is in no sense a wrong- doer, and the defrauded vendor cannot thus treat him and reinvest himself with the title to the goods, which, we believe, is not con- sidered good law anywhere." We regard the New York decisions upon the subject as variant from the current of authority, and we are not satisfied with the principles upon which they are rested. The difficulty in the way of this suit is not avoided by saying, as appellants' counsel does, that the action is not brought for the agreed price of the goods, but for the price the goods were reasonably worth, and therefore the special contract which was made is not affirmed, because not sued upon, but that the suit is upon an implied contract to pay what the goods were reasonably worth. The rule as stated in some of the authorities cited is, that where there is an express Woodruff's Cases — 39 (6lO.' WAIVER OF TORT. contract the law will not imply one. As said by Parke, B.. in Strntt V. Smith, supra, "It is clear that the plaintiffs cannot avail them- selves of the defendant's fraud so as to rescind the contract and substitute a new contract of sale on different terms. * * * They might, possibly, on the evidence, have maintained trover, on the ground that the fraud vitiated the contract, but if they treat the transaction as a contract at all, they must take the contract alto- gether, and be bound by the specified terms." The earlier case of De Symons v. Minchwich, i Esp. 430, cited as in favor of this action, is overruled by the later English decisions. Other cases cited by appellants' counsel are where goods obtained uoder a fraudulent contract had been disposed of, and it was held that assumpsit would lie for the money received; or where money had been received upon such a contract, and upon its rescission assumpsit for money had and received M^as held sustainable ; or where some security, as a bill or note, payable at a future day, had been taken in payment for goods which had been sold, and the secur- ity turned out to be worthless, and an action was held to lie immedi- ately for the price of the goods sold, on the ground that there had been no payment made for them. There is a plain distinction between all such cases and the one now before us. The judgment of the Appellate Court will be affirmed. Judgment affirmed.^ ii. Money Procured Wrongfully and Passed to an Innocent Holder. STEPHENS v. BOARD OF EDUCATION OF BROOKLYN. 79 N. Y. 183.— 1879. Andrews, J. — There is no dispute as to the material facts. On and prior to the i8th of December, 1871, one Gill was a member of the board of education of the city of Brooklyn, and, as attorney * Accord, Bedier v. Fuller, ic6 Mich. 342 (1895), the court saying (p. 348) : "We think the case is ruled by Galloway v. Holmes, i Doug. (Mich.) 330, and Emerson v. Spring Co., 100 Mich. 127, 58 N. W. 659. One who has been induced by the fraudulent representations of another to enter into a contract may affirm or disaffirm it. If he disaffirm, and assert the fraud, he cannot, in the same action, turn it into an action of assumpsit, and recover as for an implied promise. As was said in Emerson v. Spring Co., supra: 'It is sug- gested that, as a fraud was perpetrated upon the creditor, he would have the right to waive the tort and sue in assumpsit ; but we are aware of no case which authorizes a party to first turn a contract into a tort, and then shift it back into the form of a new contract, other than the original one.' The cases above cited are so squarely in point that we deem further discussion of the question unnecessary. The judgment below must be affirmed." In t8o7 nn act was passed permitting fraud to be waived and assumpsit to be brought. Mich. Comp. Laws, § 10,421. See Anderson Co. v. Pungs, 95 N. W. 985 (1903). RIGHTS OF INNOCENT HOLDER. 6ll for said board, received $3,600.84, the money of the board, which he wrongfully converted and appropriated to his ovv^n use. Soon after the date mentioned, he procured from the plaintiff, on a mortgage forged by him on the property of a third person, $4,129.34 in a check of the plaintiff, which, on the 21st of December, 1871, he de]:)OS- ited in a bank, to his credit, and on the same day drew his ovv-n check on the bank in which the deposit was made, to the order of the board of education for the amount of the money fraudulently ap- propriated by him and delivered the same to the board, and the board thereupon credited the check to Gill in discharge of his debt. The check was paid in due course, and the money received thereon was used by the board in its business. The plaintiff, about two months thereafter, ascertained that the mortgage received from Gill was a forgery, and then demanded from the defendant the money received from Gill. The defendant had no notice, when it received the check from Gill, of the fraud by which he obtained the money of tiie plaintiff, nor had it any information as to the source from which the money to his credit in the bank was derived. The first informa- tion which the defendant had of the facts in respect thereto was at the time of the demand made by the plaintiff, before referred to. The question is presented whether, under these circumstances, the plaintiff can maintain an action to recover the money received "By the defendant from Gill and applied in payment of the debt owing by him to the defendant. We are of opinion that the action W'ill not ( lie. The money having been obtained by Gill from the plaintiff by ! fraud and felony the former acquired no title thereto, and the plain- | tiff could recover it from Gill if found in his possession, or he could / follow it into the hands of any person who received it from Gill/ without consideration, or with notice of the fraud by which he ob-* tained it. The money, when deposited by Gill in the bank, was still the money of the plaintiff. The bank w^as a mere depository, and while it so remained the plaintiff could have compelled the bank to restore the money to him as the rightftJl owner. Tradesman's Bk. V. Merritt, i Paige 302; Mechanics' Bank v. Levy, 3 id. 606; Pen- nell v. Deffell, 4 De Gex, M. & G. 372. But the bank, having paid it out on the check of Gill without notice of any defect in his title, was thereafter protected against any claim of the plaintiff therefor. The plaintiff, however, passing by the bank to whose possession the money first came from Gill, claims to recover of the defendant on the ground that the defendant, having received it from Gill in pay- ment of an antecedent debt, cannot be permitted to retain it as against the plaintiff. No authority has been cited which sustains this position. The rule has been settled by a long line of cases, that money obtained by fraud or felony cannot be followed by the j true owner into the hands of one who has received it bona iide and I for a valuable consideration in the due course of business. This, ' said Lord Holt in i Salk. T26, is "by reason of the course of trade w'hich creates a property in the assignee or bearer" — and In ^Miller V. Race (4 Burr. 452), Lord Mansfield said: "The true reason 6l2 WAIVER OF TORT. is upon account of the currency of it; it cannot be recovered after it has passed into currency." No suspicion is cast upon the buna ades of the defendant. It received the money in the ordinary course of business, and for a good and vahd consideration. The defendant had no connection with the fraud of Gill. He did not act or assume to act as the defendant's agent in the transaction with the plaintiff. The money was not obtained through or by means of his relation to the defendant. The position and rights of the parties are pre- cisely the same as if Gill had not been a member of the board when the payment was made, or as if the debt which he paid had not originated in any violation of trust. It is said that the case is to be governed by the doctrine established in this State that an ante- cedent debt is not such a consideration as will cut off the equities of third parties in respect of negotiable securities obtained by fraud. But no case has been referred to where this doctrine has been applied to money received in good faith in payment of a debt. It is abso- lutely necessary for practical business transactions that the payee of money in due course of business shall not be put upon inquiry at his peril as to the title of the payor. Money has no ear-mark. The purchaser of a chattel or a chose in action may, by inquiry, in most cases, ascertain the right of the person from whom he takes the title. But it is generally impracticable to trace the source from which the possessor of money has derived it. It would introduce great con- fusion into commercial dealings if the creditor who receives money in payment of a debt is subject to the risk of accounting therefore to a third person who may be able to show that the debtor obtained it from him by felony or fraud. The law wisely, from considera- tions of public policy and convenience, and to give security and cer- tainty to business transactions, adjudges that the possession of money vests the title in the holder as to third persons dealing with him and receiving it in due course of business and in good faith upon a valid consideration. If the consideration is good as between the parties, it is good as to all the world. "Money," said Lord Mans- field, in Miller v. Race, before cited, "shall never be followed into the hands of a person who bona fide took it in the course of cur- rency and in the way of his business." The question involved in this case was considered by Johnson, J., in Justh v. Bank of Com- monwealth (56 N. Y. 478), and he says : "In the absence of trust or agency, I take the rule to be that it is only to the extent of the interest remaining in the party committing the fraud that money can be followed as against an innocent party having a lawful title founded upon consideration; and that if it has been paid in the ordinary course of business, either upon a new consideration or for an existing debt, the right of the party to follow the money is gone." The case ]:)erhaps did not call for a decision upon the point whether an existing debt was a sufficient consideration to uphold a title to money fraudulently obtained by a debtor, and by him paid to his creditor, as against the defrauded party ; but we think it correctly declares the rule of law upon the subject. The case of Caussidiere RIGHTS OF INNOCENT HOLDER, 613 V. Beers (2 Keyes 198) is entirely consistent with the rule here de- clared. The defendant in that case had no right to the money either against the agent from whom he obtained it or the principal to whom it belonged. The judgment should be reversed and a new trial ordered. All concur. Judgment reversed.^ STATE NATIONAL BANK v. PAYNE., ^px.« • 56 III. App. 147. — 1894. Mr. Justice Pleasants. — This suit was commenced by appellee [Payne] before a justice of the peace and, on appeal to the circuit court, verdict and judgment were in his favor. The evidence clearly tends to show that in April, 1893, W. B. Diggs, who then owed one Cooke $100, executed to appellee a chat- tel mortgage upon certain live stock and grain, including twenty-five acres of growing wheat, to secure a note to him for $800 due one day after date, with interest at six per cent, per annum. In the following fall, when it was being threshed, he turned it over to appellee, who was on the ground and arranged to pay the threshers, to apply on the mortgage debt. As his agent, and by his direction, Diggs sold it to the elevator company in Springfield, receiving therefor its two checks on the bank, payable to himself, for $154. When he pre- sented them for payment, Mr. Jones, the father-in-law of Cooke, who claimed the $100 that the latter had loaned to Diggs, and who was an officer of the bank, demanded, after the checks were pre- sented, that he should pay that debt out of the money for which they were drawn. Diggs then told him he could not do so, because that money belonged to appellee, but would pay it soon out of the proceeds of other sales, and left the bank. Within an hour he again appeared at the counter, where Jones told Pierik, who was then acting as paying teller, that Diggs agreed he (Jones) should have credit for $100, and to pay him (Diggs) the balance. Pierik asked Diggs if that was right, and receiving no reply, paid him $54 and some cents, which he took and went out. Some time thereafter appellee went to the bank and demanded this $100, which was refused, and thereupon he brought this suit to recover it. The defense is that the bank is not liable because there was no privity between it and appellee. This action is for money had and ^Accord, Southwick v. Bank of Memphis, 84 N. Y. 420 (1881) ; Newhall v. Wyatt, 139 N. Y. 452 (1893); Alabama Bank v. Rivers, 116 Ala. i (1896); Merchants' Insurance Co. v. Abbott, 131 Mass. 397 (1881). See also, Walker v. Conant, ante, p. 280; and Fay v. Slaughter, ante, p. 392, note. See Brundred v. Rice, 49 Oh. 640 (1892), for an attempt to create and interpose a corporation as the guilty recipient, in order to protect the actual, guilty individual recipients. 6l4 WAIVER OF TORT. received by appellant for use of appellee, which is of an equitable character and lies wherever the defendant has money which, ex ceqiio et. bono, belongs to plaintiff. In this case, though the legal title to the money was in Diggs, if the bank, through its officer, Jones, who received it, had notice that it was impressed with a trust in the hands of the party from whom he received it, we understand that the cestui que trust may recover it in this action at law as Vv^ell as in equity. Whether it be so because in such a case no proof of privity between the parties is required, as held in Drovers' National Bank v. O'Hara, i8 111. App. 182, or because the law always and conclusively implies it, as seems to be held in Havana Press Drill Co. V. Ashurst, 148 111., pp. 137 ct seq. (140), the consequence is the same. It is claimed that the case of Hall v. Capen, 27 111. 386 (and Capen V. Hall, 29 111. 512), is on all fours with the one at bar, and directly against the ruling in it. We see no analogy in fact or principle be- tween them. There the defendants had no notice nor any ground for a suspicion that the money in question which he received belonged to the plaintiff, or was not the money of the party from whom he received it. The Supreme Court said it was his and not the plain- tile's. Here the defendant, when it received it, had full and dis- tinct notice that it was the plaintiff's and not Diggs'. The difference could not be wider or more radical. We think the case of O'Hara, supra, affirmed in 119 111. 646, is decisive of this, and required the ruling of the court below on the instructions asked, which only is here assigned for error. Judgment affirmed. HINDMARCH v. HOFFMAN. 127 Pa. St. 284. — 1889. Sterrett, J. — This case having been submitted for trial without a jury, according to the provisions of the act of April 22, 1874, P. L. 109, the learned president of the common pleas found the facts sub- stantially as follows : On the morning of October 10, 1885, Richard Savanack stole from plaintiff, in Buffalo, N. Y., a large sum of mon- ey, $400 of which he afterwards, on same day, deposited with defend- ant, to be returned to him or upon his order. When defendant re- ceived the money he was ignorant of the fact that it had been stolen from plaintiff by Savanack ; but, while it was still in his pos- session and under his control, he was notified of that fact by plain- tiff's attorney, and that plaintiff claimed it as his property. Not- withstanding the notice he afterwards paid the money, "upon the order of Savanack, to Messrs. Brundage. Weaver & Bell, of Buffalo, receiving from them a bond to indemnify him against any liability to any other person for the money." Afterwards, upon defendant's refusal to pay the amount to plaintiff, this action of assumpsit was RIGHTS OF IXXOCENT HOLDER. 615 brouglit to recover the same. It docs not appear to have been even questioned, in the court below, that, upon the cstabHshed facts, plain- tiff had a good cause of action; but the learned judge was of opinion that he could not recover in the present form of action, and he accordingly entered judgment for defendant. His conclusions of law were duly excepted to, and they now constitute the specifica- tions of error before us. As found by the learned judge, the money sued for as money had and received by defendant to the use of plain- tiff never belonged to Savanack, nor could he have legally recovered any part of it. On the contrary, it was plaintiff's money, stolen from him by Savanack, and by the latter left with defendant. While it was thus in his custody and under his control, he was fully informed of the theft, and also that plaintiff, as owner of the money, claimed it. Under these circumstances, it was clearly his duty to hold it for plaintiff, and, upon satisfactory proof of ownership, to pay it over to him. From the existence of that duty the law^ raised an implied promise by defendant to do so ; but, in disregard of his duty in the premises, he paid it over, on the order of the thief, to parties who had no right whatever to receive it. Justice demands that he should now be compelled to pay the amount to the rightful owner ; and there is no good reason why it should not be recovered in the present form of action. In Clark v. Shee, Cowp. 197, it was held that case, for money had and received, will lie by the true owner of money against a third person into whose hands it came mala fide, provided its identity can be traced or ascertained. Referring to the form of action in that case. Lord Mansfield characterized it as "a liberal action in the nature of a bill in equity, and, if under the circumstances of the case, it appears that the defendant cannot in conscience retain what is the subject-matter of it, the plaintiff may well support this action." In 2 Greenl. Ev. (13th ed.), §§ 102, 120, the principle is thus stated: "Where the defendant is proven to have in his hands the money of the plaintiff, which, ex ccquo et bono, he ought to refund, the law conclusively presumes that he has promised so to do, and the jury are bound to find accordingly, and after verdict, the promise is presumed to have been actually proved." "So, if money of the plaintiff has in any other manner come to the defendant's hands, for which he would be chargeable in tort, the plaintiff may waive the tort and bring assumpsit upon the common counts." Assumpsit was also sustained in Mason v. Waite, 17 Mass. 558, upon the follow- ing facts : Bank-notes, done up in a package, were delivered by the owner to a carrier, who. without authority, paid them to a third party for a loss at a faro-table. In an opinion sustaining a judg- ment in favor of the owner of the notes against the party to whom they were thus paid, the chief justice, after remarking that trover would have been the better action but for the difficulty of identi- fying bank-notes, said : "We do not see, however, why the action for money had and received will not lie. The notes were paid and received as money, and as to any want of privity or any implied J WAIVER OF TORT. promise the law seems to be that where one has received money of . another, and has not a right conscientiously to retain it, the law ; implies. a promise that he will pay it over." The defendant in the case at bar did not better his position by improperly handing over the money in question to those who had no right whatever to receive it, after he knew it had been stolen, and that plaintiff was its true owner. The undisputed facts connected with his possession of the money immediately before he parted with it are quite sufficient to raise such an implied promise as will support assumpsit. We are, therefore, of opinion that the court erred in not entering judgment in favor of plaintiff for the amount claimed, viz., $400, with interest from May 24, 1886, the time suit was commenced before the city recorder. Judgment reversed, and judgment is now entered in favor of the plaintiff and against the defendant for $400, with interest from May 24, 1886, and costs. ^ BANK OF CHARLESTON v. BANK OF THE STATE. 13 Rich. L. (S. C.) 291.— 1866. The Bank of Charleston sued the Bank of the State of South Carolina, in assumpsit, for money had and received. Johnson and Couturier were tellers in the Bank of Charleston ; Miller was a teller in the Bank of the State of South Carolina. Each had charge of the matter of daily settlements with certain banks in the city. Coutu- rier dealt, in that particular, with the Bank of the State, represented in such daily mutual settlements by Miller, its teller. Banks in Charleston habitually received and paid checks drawn on each other for accommodation of their customers ; and it was the duty of the teller assigned to the business to call, every day upon the close of banking hovirs, upon the corresponding teller of another bank, checks on which had been paid, to settle for them. Balance of the day's business being ascertained, and each bank having pass-books (so called) in the hands of its teller, the teller of the bank found to be debtor, entered the balance ascertained in the pass-book of the bank found to be creditor, which operated as an acknowledge- ment of so much deposited by the creditor in the debtor bank. It was in this way that one teller, when so disposed, was able, by a fictitious credit in the pass-book, to afford another, "short" of money, the means of squaring his accounts with his own bank. Such mu- Mn Zink v. Wells Faryo & Co., 72 111. App. 605 (1897), a thief had trans- ferred to Zink, stolen money, in consideration of services to be performed. Wells, Fargo & Co., from whom the money had been stolen, brought an action of assumpsit against Zink. The court said (p. 611) : "A thief cannot by wriKen order assign stolen money in consideration of services to be per- formed in the future and thereby give to the assignee a title that will prevail over that of the true owner." RIGHTS OF INNOCENT HOLDER. 617 tual accommodation between the three tellers already mentioned, had been granted by each to the other ; Miller affirming that it had been frequent for a space of two years or more, and that he had often accommodated each of the other two tellers in such way. On the 2(1 of September, 1857, Miller obtained from Couturier, in the pass- book of the Bank of the State, an entry of credit for an aggregate sum of $18,881.77; (aggregate credits alone were entered in the pass-books.) Of that aggregate, $12,000 was a fictitious sum. So far as the officers of either bank knew, or could reasonably suspect, the transaction was founded in truth, and was in the ordinary course of business. This fictitious credit of $12,000 was afterwards reduced to $5,500. As to the transaction with Johnson. On the 2d of September, Miller applied to him for $15,000 in money, during banking hours, and obtained it, giving his check, as teller, for that sum in favor of Johnson, "bearer" being struck out. Miller testified that it was a loan to him in reciprocation of like favor often yielded by him to Johnson ; that Johnson well knew it to be so ; that he was trusting him, and not the Bank of the State ; that this sum in bank-bills w'ent into the mass of other funds he had as teller ; was used in the cur- rent business — that is, paid out to checks or otherwise disposed of, as other money intrusted to him and to be accounted for by him. Miller said, as to both Johnson and Couturier, "They knew I needed the money, and lent it to me. I lost money, and borrowed this to make up my cash, else I should have been found a defaulter. I had aided them in the same way and for the same purpose." Miller had no authority to sign checks for the Bank of the State, or borrow money for it in any form. Between the 2d and 19th of September, 1857 (on which last day Miller's connection with the bank ceased), there had passed through his hands, as funds of the bank, perhaps as much as $750,000. Between those periods there had been various settlements with Aliller as teller ; and on the 20th September his cash was counted, and in good assets (money, checks, coupons, etc.), the sum of $69,252.46 was found, which settled his account with the Bank of the State, with which his connection as teller ceased the day before. Neither bank seems to have known the state of affairs heretofore described until after Miller left the Bank of the State. Miller had made an attempt on his own life, and this led a few days after to some movement in the Bank of Charleston, of wdiich Mr. Lowndes was then acting president. Johnson's and Couturier's cash was covmted, and then were found the two checks of Miller heretofore referred to, the one for $15,000 and the other for $5,500; the first in favor of Johnson, and the other of Couturier. They were presented to the Bank of the State, two or three days after Miller had left it, payment demanded and refused, and this action followed. Verdict for the defendant. Plaintiff appealed. Wardlaw, J. — The two demands brought under consideration in this case are essentially different, and must be treated separately. 6l8 WAIVER OF TORT. I. As to the $15,000. This was lent by Johnson to Miller, and by Miller passed to his bank, the defendant. In the loan and attend- ing circumstances, neither of the banks, parties to this suit was engaged by agent or otherwise. Johnson had no authority from the plaintiff to lend ; Miller no authority from the defendant to borrow. Each of these tellers acted for himself only ; both knew that they were dealing with the money of others, and doing so dis- honestly, in breach of their official duty. The case is, in effect, that the two, having conspired to aid each other in execution of their fraudulent purpose, Johnson purloined the money from the Bank of Charleston, and Miller stealthily introduced it into his till in the Bank of the State of South Carolina. The money belonged to the Bank of Charleston when Miller opened his till to introduce it. Has the right of that bank to recover it been taken away? If so, how and when? The plaintiff's right to recover other money of equal value from Miller is yet perfect. If, instead of money, the property abstracted from the plaintiff had been an ordinary chattel, the plaintiff's right to recover, against a purchaser from Miller, the chattel or its value, would still subsist ; for he, having no title, could have transferred none. But certain negotiable paper, and money (including bank- bills, which are in most respects regarded as money) constitute an important exception to the general rule respecting acquisitions from persons who have no title. For the interests of commerce and safety of the every-day transactions of life, the free circulation of the me- diums of exchange is so far encouraged by law that the title of money passes with it to every one who honestly becomes possessed of it as his own. When a thief has parted with it the inquiry, in a contest between the former owner and the now possessor, is : Did the money pass in currency to the latter (or to some other person through whom he claims) boiia fide, for valuable consideration, in the due course of business? If it did, no recovery can be had by the former owner either in an action looking to the very pieces of coin or very bills that were stolen, or in an action claiming equivalent damages. Miller v. Race, i Burr. 452. In the case before us. Miller received the sum of $15,000, Septem- ber 2, and immediately placed it in the till, which, as teller of the defendant bank, he used, mingling it with other money of his bank, which, as teller, he had received from the cashier or from customers. He, as teller, paid, from the whole mass in his hands, $84,000 next day, and in the course of the two subsequent weeks more than $700,- 000 passed through his hands. In the meantime various settlements, two or more, were made between him and the cashier, and Septem- ber 20, the day after he left the bank, his cash being counted was found correct. Difl the money pass in currency to the defendant ; that is, was it transferred as cash from Miller to the defendant bank? Miller, after the money reached his till, treated it in all respects as the bank's money. Like the money intrusted to him by the cashier. RIGHTS OF INXOCEXT HOLDER. 619 it was used to meet demands presented at the counter of the bank, and thus to go into general circulation. The evidence makes it cer- tain that much of it was paid out by him ; the ]:)robability is that, at the time of his departure, very few of the bills which were abstracted from the Bank of Charleston remained in the Bank of the State of South Carolina ; if any did, they were in no way distinguishable from other money of the latter bank. Is the bona fides of the defendant bank in the transaction subject to just suspicion ? On this head nothing has been imputed besides the constructive notice to the bank, which has been supposed to arise from the knowledge of the fraud possessed by its officer, Miller. But this knowledge was not acquired or used by Miller in the course of his agency as teller. It was involved in his own misconduct, and served only his own unworthy purpose. It would be as just to estop the plaintiff by the guilty knowledge of Johnson as to affect the defendant by the secrets shut up in Miller's breast. Did the defendant bank give valuable consideration for the money ? Miller, as teller, was short of cash ; he obtained this money, and with it and other means made square his account. After the bank got this money, it had no more than it ought to have had ; without this, it would have had so much less than its due. The consideration then was the same which applies wherever money is received in part payment of the balance of an account for advances made. With regard to the account between them, the bank and its teller had adverse interests, and stood towards each other as individuals deal- ing at arm's length. The case of Swift v. Tyson, 15 Pet. 22, makes it now clear that a credit, entered in an account of preceding indebt- edness, is a valuable consideration for the receipt of money. If a teller be called a bailee, he is a bailee of money to be disbursed and accounted for, and for a balance unaccounted for must be a debtor. Was the money received by the defendant bank from its teller in due course of business ? That the bank should have a teller, that an account should be kept of moneys advanced to him and moneys disbursed by him, that he should be called to frequent settlements, that the balance of cash in his hands should be subjected to actual counting, and that he should be held debtor for any deficiency, are all incidents in the due course of business, and all occurred in this case. It is, however, said that the teller was in default, that his defalcation was unknown to the bank, and, therefore, that the $15,000 was not received by the bank in payment. In regard to the course of business, and not to the base means by which the teller supplied his deficiencies, it was more regular that his cash should correspond with the balance in account against him, than that it should fall short ; that he should appear to his employers to be accurate and faithful than that his errors and embezzlements should be manifest. The question is as to the bank's right to retain the money which he furtively substi- tuted for a likesum intrusted to him "by the bank, which in some way he had dissipated. How could the bank know of the substitu- 620 WAIVER OF TORT. tion ? What safety could there be in money transactions, if the right sum in the right place, honestly believed to be the bank's own, and dealt with as its own, should be held to have been irregularly received because the motives and conduct of its teller from whom it came were skillfully concealed?^ By whatever name we may call the transfer of this money to the defendant bank, made by the teller in reduction of the balance against him — a payment, a restitution, or a concealment — there was nothing in the transaction between him and the bank out of the ordinary course of business. The more artful his conduct, the less the grounds of suspicion against him, the more plain is the fair dealing of the bank. This case is distinguished from the Massachusetts case of The Atlantic Bank v. The Merchants' Bank, lo Gray's Rep. 532, in this, that there the identical bills remained in the teller's till, v/hen they were demanded by the bank from which they had been fraudulently obtained. The circumstance is, however, not material, for if the bills had been transferred bona iide from the teller to his bank, it mattered not whether afterwards they were kept identically as they were received, or were passed from the bank into general circulation. There is, however, another ground for distinction, which is material. There, in the opinion of the court, supported by the majority of the judges, it was held that the bills had not passed from the teller to the bank, for his intention was, after exhibiting them to be counted, to return them to the bank from which they were brought ; and they remained, before and after the counting, under his control, capable of direct identification. Here there can be no doubt that Miller intended to pass the bills to the bank of which he was teller, and actually did so, however hopeful he may have been that, at some future day he would have been able to contrive the return of a like sum to his confederate in the Bank of Charleston. The conclusion of this court is, that in respect to the $15,000 the verdict is right. 2. As to the $5,500. This sum got to the defendant bank through Couturier's false acknowledgment of a deposit in the plaintiff bank to the credit of the defendant bank. This acknowledgement was procured by Miller and given by Couturier, in the course of a settlement of checks which it was the business of these tellers to make every day between their two banks. There was not in the fraudulent transaction a usurpation of authority on the part of either teller, but a most shameful abuse of it. Their contrivance in known violation of their duty, being within the scope of the agency in which they were employed, was valid as to third persons, but void and worthy of punishment as between each of them and his principal whom he cheated. By means of it, money passed between the banks, not through the hands of an intermediate wrongdoer, but directly from ' Accord, Nassau Bank v. National Bank of Ne\vl)nrgh, 159 N. Y. 456 (1899). RIGHTS OF INNOCENT HOLDER, 62 1 one party to the other. The case, stripped of the embarrassment which surrounds artificial persons that can act only through agents, becomes that of one banker paying money to another, according to a statement of accounts made by their respective clerks duly author- ized. Error in the statement which arose from mistake would be clearly subject to correction in an action for money had and received ; and shall the mutual fraud of the clerks be more sacred than their honest mistake? This branch of the case does not fall within the principles of policy which decided the other. Here there was no consideration for the receipt of the money by the defendant from the plaintiff. It is true that through the false acknowledgement of Couturier, Miller ob- tained a credit in his account with the defendant bank. That shows that Miller is still debtor to the extent of this credit, but is merely collateral to the payment made by the plaintiff to the defendant. For the payment there was no gain to the plaintiff, and no loss to the defendant, which in any way influenced either of the parties. Suppose Miller had passed in payment to his bank a note direct from the plaintiff" to the defendant, which as teller he had fraudulently procured the plaintiff to give. Between immediate parties the con- sideration of negotiable paper is subject to inquiry, and, in an action by this defendant against this plaintiff on this note, the fraud would have constituted a valid defense. Recovery back of money paid on the note would have encountered difficulties which the plaintiff does not here meet ; for here is an entry in a pass-book, not a negotiable paper, and here is in effect an error in an account, and not the pay- ment of a single distinct demand. Johnson's agency and knowledge in the whole affair avail no more against the plaintiff" than do Miller's against the defendant. A fraud, in which a party's agent has con- curred, cannot be more obligatory upon the party ignorant of it than the party's own mistake would be. If we relieve both of these parties from the effect of notice had by their faithless agents, the case ex- hibits money paid under mutual mistake, induced by the fraud of third persons. To the condition in which matters stood before the mistake they should now be restored. The superior equity of the plaintiff outweighs the possession of the defendant. See Ancher v. Bank of England, Doug. 637 ; Kelly v. Solari, 9 M. & W. 54. The defendant's loss by reason of Johnson's acknowledgment reg- ularly made has been much insisted upon. For damage thereby occasioned, even to the extent of the whole payment made under the acknowledgment, the defendant's right to retain is not denied. But, so far as appears, the whole consequences of the acknowledg- ment which affected the defendant were, that thereby the defend- ant's funds were increased, and Miller was retained as teller half a month longer than he would otherwise have been, during which time his conduct was unexceptionable. Here is not an instance where a loss must fall upon one of two innocent parties, for here a loss had been already sustained by one party, and the question 622 WAIVER OF TORT. concerns the propriety of shuffling that loss upon the other. In ac- curacy, as in probity, a mercantile community may well expect ex- amples from their banks, but a superstitious reverence for bank books and bank entries should not induce forgetfulness of the tri- umph which artful villainy sometimes achieves over all the exer- tions of human sagacity and care. Of the fallibility of banks, both of these parties must have a strong sense in the remembrance that both of them, ably and dili- gently managed, have been deceived by their subordinate officers. The verdict, in respect to the $5,500, being, in the opinion of this court, wrong, a new trial is ordered. DuNKiN, C. J., and Inglis, J., concurred. iii. Trespass to Goods. FANSON V. LINSLEY. 20 Kan. 235. — 1878. Valentine, J. — This action was commenced in a justice's court, and after judgment, was appealed to the district court. The plain- tiff's bill of particulars reads as follows : Clay Center, Clay Co., Kan., Sept. 18, 1876. A. Fanson, Dr. To Chas. E. Linsley : For work and labor performed, repairing and rvinning a steam threshing machine, from Aug. 20, 1876, to Sept. 10, 1876, 18 days' work, at $2 per day $36 00 Cr., cash 5 00 Balance due $3 1 00 The defendant's amended bill of particulars, after tlie title, reads as follows : I. The defendant for a first defense to the plaintiff's bill of par- ticulars herein, says, that he denies each and every allegation there- in contained. II. The defendant further answering says, that the cause of ac- tion of the plaintiff herein arises upon a contract for the employment of the plaintiff by the defendant as an engineer of a steam thresh- ing-machine owned by the defendant, and that after the machine had been run for the period of eleven days during the threshing season of 1876, by the plaintiff as its engineer, the defendant, dis- covering a defect in the machinery of said machine, determined to abandon its use, and in pursuance of such determination the de- fendant laid up and housed said machine ; and that afterward, TRESPASS TO GOODS. 623 while said machine was laid up and housed, he (the plaintiff) took possession of said machine and ran the same for the period of three days, and that the use of said machine was worth the sum of fifteen dollars per day, amounting to the sum of forty-five dollars, for which the defendant asks judgment of the plaintiff. III. The defendant further answering says, that the cause of action herein set forth by the plaintiff arises upon a contract for the employment by the defendant of the plaintiff as an engineer of a steam threshing-machine ; that during the absence of the defendant, the plaintiff, without the knowledge or consent of the defendant, took possession of the said machine, and moved it a great distance from where it was left by the defendant, so that it cost the defend- ant the sum of $12 to get said machine back to the place from where it was taken by the plaintiff. The defendant further says that while the plaintiff was so in possession of said machine, said machine was damaged in the sum of fifteen dollars. The defendant asks judgment against the plaintiff for said sum of twenty-five dollars. The defendant asks judgment against the plaintiff for the sum of seventy-two dollars. * * * Judgment was rendered in fa- vor of the plaintiff and against the defendant. * * * The cause of action set up in the defendant's second defense is really founded upon a tort. But it is also founded upon an implied contract, at the election of the defendant. That is, the defendant may waive the tort, if he chooses, and treat his cause of action as one arising upon an implied contract. The wrong committed by the plaintiff affected his estate. It benefited the estate of the plain- tiff. And it was committed for the purpose of benefiting the estate of the plaintiff. And therefore it will be presumed or implied that the plaintiff agreed to pay for such benefit. We think it is well settled, that wherever one person commits a wrong or tort against the estate of another, with the intention of benefiting his own estate, the law will, at the election of the party injured, imply or presume a contract on the part of the wrongdoer to pay to the party injured the full value of all benefits resulting to such wrongdoer. (Stewart v. Balderston, 10 Kan. 142 ; Tightmeyer v. Mongold, 20 Kan. 90, and cases there cited.) The party injured may in such case elect to sue upon the implied contract for the value of the benefits received by the wrongdoer, or he may sue upon the tort for the damages which he himself has sustained. According to the defendant's bill of particulars in this case, the value of the use of said threshing- machine for the three days which the plaintiff used it, was $45. If this bill of particulars were true, the defendant should have recov- ered that amount ; or rather, after setting off one claim against the other he should have recovered the balance due. We do not think that the cause of action stated in defendant's third defense is a proper subject of either set-off' or counterclaim. It does not appear from such defense that the plaintiff received or 624 WAIVER OF TORT. expected to receive any benefit from his wrongdoing ; and the reHef asked for by the defendant is not for the value of any benefit result- ing to the plaintiff, but is for damages sustained by the defendant. The cause of action therefore does not arise from any contract ex- press or implied (Tightmeyer v. Mongold, supra) and therefore it cannot be pleaded by the defendant as set-off. And said cause of action has no connection with the employment of said plaintiff by the defendant to operate, or in operating, said threshing-machine for the defendant, and hence it cannot be pleaded by the defendant as a counterclaim. The judgment of the court below will be reversed, and cause re- manded for further proceedings in accordance with this opinion.^ REYNOLDS et al. v. PADGETT. 94 Ga. 347.— 1894. Simmons, J. — All the authorities agree that one who takes and sells personal property belonging to another without the consent of the owner is liable for its value in an action upon an implied prom- i. ' to pay for the property. The authorities differ as to whether such an action will lie where the person taking the property does not sell it, but retains it for his own use ; but the weight of author- ity seems to be that the action will lie where the person who takes the property enriches himself or makes a profit from the property, either by selling it, or by retaining it and using it himself, with the intention to convert it permanently. Pom. Code. Rem., §§ 567, 569, and notes. The defendant in this case did neither of these things. He found the wagon in the street, and hitched his horses to it, for the purpose of going upon a fishing excursion for one day ; but, upon starting to go, the tongue of the wagon was broken by one of the horses, and he unhitched the horses, and left it in the street. It was finally carried to his lot, and left there, but there is ^Accord, Janes v. Buzzard, Hemp. 240 (U. S. Superior Ct. for Ark. 1834), the court saying (p. 243) : "It is no doubt true that Buzzard might have brought an action founded upon the tortious act of Janes, and recovered damages for the wrongful taking, as well as the illegal detention of his ser- vants [slaves]. But it was competent for him, and he had the election to waive the tort and to bring an action ex quasi contractu. There is abundant authority to sustain this position. In the case of Stockctt v. Watkins, 2 Gill & Johns. Rep. 320, it was held that where one gets possession of chattels tortiously, and converts them into money, the real owner may waive the tort and sue in assumpsit for the proceeds, and that action has been sustained in some instances where the trespasser has not parted with the chattels. Where they have been returned to the owner, he may still waive the tort, and then recover their value for the time of their detention in assumpsit, i Saund. Pi. & Ev. 133; I Chitty, PI. 94; i Mo. Rep. 643." Contra, Crow v. Boyd's Adm'r, 17 Ala. 51, reported herein at p. 579. TRESPASS TO LAND. 625 no evidence that he ever made any claim to the wagon or any fur- ther use of it, nor was anything- further proven tending to show that he intended to convert it permanently to his own use. On the contrary, the indications are that he was holding it for the use of the owner. We, therefore, think the trial judge was right in hold- ing that an action upon an implied contract would not lie, but that the plaintiff must sue in tort for the damage to his property. Judgment affirmed. iv. Trespass to Land. SMITH V. STEWART. 6 Johns. (N. Y.) 46.— 1810. Action for use and occupation. Per Curiam. — At common law no action of assumpsit for rent would lie, except upon an express promise, made at the time of the demise. (Johnson v. May, 3 Lev. 150, Bull. N. P. 138.) The present action is given by the statute of 11 Geo. II, c. 19, sec. 14, which we have adopted. (Laws, Vol. I, 146.) But this statute, from the terms of it, seem to apply only to the case of a demise, and where there exists the relation of landlord and tenant, founded on some agreement creating that relation. So are the precedents. (2 H. Black. 319.) Here the defendant did not enter under such a re- lation, but under a contract for a deed. He, therefore, entered under a color of title which might have been enforced in equity. He finally refused to perform the contract, and changed himself into a trespasser ; and the better opinion is, notwithstanding the case of Hearn and Tomlin (Peake's N. P. 192), that he never was strictly a tenant, and never entitled to notice to quit, nor liable to distress, or to an action of assumpsit for rent. He is liable in an- other way, to be turned out as a trespasser, and is responsible, in that character, for the mesne profits. The motion to set aside the nonsuit is, therefore, denied. Judgment of nonsuit.^ * Seemingly in accord are Preston v. Hawley, 139 N. Y. 296 (1893), and Lamb v. Lamb, 146 N. Y. 317 (1895). As to assumpsit for use and occupation, see also, Carpenter v. U. S., 17 Wall 489 (1873), reported herein ante, p. 400. The historical reasons which explain the refusal to allow indebiiatus assumpsit for rent are given by Professor Ames in an article on "Assumpsit for Use and Occupation," 2 Harvard Law Review, 377-380. These reasons are stated as follows : "It is instructive to compare a lease for years, reserv- ing a rent, with a sale of goods. In both cases, debt was _ originally the exclusive action for the recovery of the amount due. In neither case was the duty to pay conceived of as arising from a contract in the modern sense of the term. l)ebt for goods sold was a grant. Debt for rent was a reser- Woodruff's Cases — 40 626 WAIVER OF TORT. ACKERAIAN V. LYMAN. 20 Wis. 454. — 1866. Action for the value of the use and occupation of premises al- leged to have been the property of one Holdridge, and afterwards of the plaintiff, and to have been occupied by the defendant "accord- ing to the permission" of said Holdridge and subsequently of the plaintiff, from October i, 1859, to February i, 1863. The plaintiff* had taken an assignment of Holdridge's claim for that portion of the time during which the latter owned the premises. The ansvver, among other things, denies that the defendant occupied the prem- ises "according to the plaintiff's permission," and alleges that he went into possession December 20, i860, as assignee of an unpaid mortgage on the land, and held and occupied under the mortgage until February, 1863, when plaintiff paid him the amount due on the mortgage, and he delivered up the possession to the plaintiff. A verdict and judgment were rendered for the plaintiff; and the defendant appealed. Downer, J. — The appellant claims that the circuit court erred in instiucting the jury, that if they found that the defendant went into possession of the premises, knowing that they belonged to Hold- ridge, and setting up no right to them in himself, or in any other person under whom he claimed, adverse to the rights of Holdridge, and remained in possession thereof with the assent of Holdridge or his duly authorized agent, and without setting up any claim adverse to the right of Holdridge to the premises, then the law would imply a promise on the part of the defendant to pay to Holdridge or his assigns, whatever the use and occupation was rea- sonably worth for the time he so held. It is maintained that there is no evidence to warrant the instruc- vation. About the middle of the sixteenth century, assumpsit was allowed upon an express promise to pay a precedent debt for goods sold ; and in 1602 it was decided by Slade's case that the buyer's words of agreement, which had before operated only as a grant, imported also a promise, so that the seller might, without more, sue in Debt or Assumpsit, at his option. Neither of these steps was taken by the courts in the case of rent. . . . The chief motive for making Assumpsit concurrent with Debt for goods sold was the desire to evade the defendant's wager of law. This motive was wanting in the case of rent, for in debt for rent wager of law was not permitted. Again, although Assumpsit was the only remedy against the executor of a buyer or borrower, (he executor of a lessee was chargeable in debt. These two facts seem amply to explain the refusal of the courts to allow an Indebitaftis Assumpsit for rent." Ry the statute 11 Geo. IT, c. 19, sec. 14, "Indebitatus Assumpsit became concurrent with debt upon all parol demises. . . . But Indebitatus Assumpsit for rent being of statutory origin, the courts could not, without too palpable a usurpation, extend the count to cases not within the act of Parliament. The statute was plainly confined to cases where, by mutual agreement, the occupier of land was to pay either a defined or a reasonable compensation to the owner. Hence the impossibility of charging a trespasser in assumpsit for use and occupation." TRESPASS TO LAND. 627 tion, and that if there was, it is erroneous. It is not very clear from the evidence whether the defendant entered as a trespasser without color of title, or under Johnson, a tenant of Holdridge, and contin- ued in possession by his permission. We are inclined to the opin- ion that there was evidence from which the jury might have found that Holdridge permitted the defendant to occupy the premises, and that he remained in possession under that permission until the mort- gage was assigned to him. But the instruction is to the effect that if he entered as a trespasser without claim of title, and remained in possession with the assent of Holdridge, the law will imply a promise to pay rent. If this be so, then all that is necessary to con- vert a trespasser into a tenant is, for the owner of the premises to say to him, "I assent to your possession," and the trespasser be- comes a tenant without his own consent, or even against his will. A tort cannot thus be converted into a contract. At common law, no action of assnuipsit for rent would lie, except upon an express promise made at the time of the demise. Johnson v. May, 3 Lev. 150; Smith V. Stewart, 6 Johns. 46. The action for use and occupa- tion in this state rests on section 17, ch. 91, R. S., which is in sub- stance the same as sec. 14, ch. 19, 11 Geo. II. That section re- quired that there should be an agreement ; but it is w^ell settled that the agreement may be express or implied. It may be implied from the defendant's entering into possession by the permission of the plaintiff, or from acts showing the assent of the defendant, after a tortious entry, to hold under the permission of the plaintiff. Hen- wood V. Cheesman, 3 Serg. & Rawle, 500 ; Ryan v. Marsh, 2 Nott & McCord, 156; Stockett v. Watkins' Adm'rs, 2 Gill & Johns. 326; Wiggin V. Wiggin, 6 N. H. 298. In Henwood v. Cheesman, the court below charged that if the defendant occupied the land by the consent and permission of the plaintiff, the jury might presume a promise to pay a reasonable rent ; and this instruction was held correct. But it is evident from the whole case (the testimony in which is not fully reported), that the defendant either entered into possession by permission of the plaintiff, or it was a conceded fact that after he was in possession he held under his permission ; for the court, in its opinion, say that "if the defendant came on as a trespasser, the plaintiff cannot re- cover in an action for use and occupation." And to the same effect are Stockett v. Watkins' Adm'rs, and Ryan v. Marsh, and other authorities there cited. In this case, the plaintiff alleges in his complaint that Holdridge permitted the defendant to have, hold and occupy the premises, and "that the defendant, according to that permission, held and occu- pied," etc. The defendant, in his answer, denies the permission of Holdridge, and denies that he, according to the permission, held, occupied and enjoyed the premises. It appears to us the instruc- tion ignored a material part of the issue, to-wit : that formed by the denial of the defendant that he held possession according to the 628 WAIVER OF TORT. permission of the plaintiff, and was therefore erroneous. A tres- passer cannot be converted into a tenant without his consent. * * * By the Court. The judgment of the Circuit Court is reversed, and a venire de novo awarded.^ NATIONAL OIL REFINING CO. v. BUSH. 88 Pa. St. 335.— 1879. Assumpsit b}^ the National Oil Refining Company against Bush, for the use and occupation of certain premises. The plaintiffs in the court below declared in assumpsit, filing two counts for use and occupation of certain premises ; the first count being in indehitatiis assumpsit and the second on a qnantnm valebat. The defense v/as that the form of the action should have been trespass, and not as- sumpsit ; that, after a notice to quit, a landlord cannot sue for use and occupation of premises held over ; and that the notices of Octo- ber, 1874, and January, 1875, forever severed Bush's relation of tenant to the company. The contention of the company, on the other hand, was that, if a landlord permits the tenant to hold over after the time fixed by the notice to quit, in order that he may ne- gotiate with him for a new letting, and does so negotiate with him, the original contract relation subsists, and the tenant is liable thereon. Mr. Justice Gordon. — Undoubtedly the court below was right in submitting to the consideration of the jury the question whether Bush was occupying the premises in controversy at the sufferance of the Refining Company or as a trespasser merely. If, indeed, as was said in the case between these same parties, reported in 5 W. N. C. 143, the defendant was permittted to remain in the possession of the property, and he did so remain until the plaintiff elected by its writ of ejectment, or otherwise, to regard him as a trespasser, up to that time, it might recover from him the worth of the prem- ises, by the action of assumpsit for use and occupation ; but from the time the company made its election to treat him as a tres- passer, it could no longer recover from him on the ground of an implied contract ; for, the landlord, having thus determined the status of the occupant, there is no room left to presume a contract. It is true, indeed, that in the first place, the tenant can- not shelter himself under such a plea, for it is not for him, but the landlord, to say in what light he shall be regarded, whether as tenant or trespasser ; whether the tort shall be waived or not ; but 'Accord, Dixon v. Ahern, 19 Nev. 422 (1887), with a review of American cases. For a full citation of American authorities see "Action for Use and Occupation against a Trespasser," by Eugene McQuillin, in 23 Central Law Journal, 387. TRESPASS TO LAND. 629 when the landlord has once determined this question, the matter is settled, and he must abide by his own decision. It is upon this ground that the case of Goddard v. Hall, 55 Maine, 579, is put. It was there held, that an action for use and occupation could not be maintained against a disseisor, and that a judgment upon a writ of entry negatived the relation of landlord and tenant. Of like force is the case of Featherstonhaugh v. Bradshaw, I Wend. 134, which rules that assumpsit will not lie after proceedings to obtain posses- sion under the statute against a tenant holding over, it appearing by the plaintiff's affidavit, that the holding over was without his assent or permission, hence, his assent could not be implied in the face of his oath to the contrary. And it is therein taken as indis- putable, per Sutherland, J., that the action of assumpsit will_ not lie to recover rent accruing subsequently to the demise laid in a declaration in ejectment. These cases illustrate what we have al- ready said, that the action depends upon the landlord's assent, ex- press or implied, to the tenant's use of the premises, and his election to treat the occupant as a disseisor negatives such assent. When, therefore, the Refining Company, through its agent, fol- lowing up its two previous notices, informs Bush, on the 8th day of January, his holding over having then already commenced, that he was but a trespasser, and that he would be held for damages ac- cordingly, there was something to show that the company did not assent to his occupancy of the premises, and that it had determined to treat him as a disseisor. Hence, we repeat there was som.ething to submit to the jury ; something from which the jury might have found a verdict for the defendant. Nevertheless, whilst this is so — whilst we agree that the question, as to whether Bush was or was not a trespasser, was one calling foi the consideration of a jury, yet we can not but think that the court was wrong in this, that it charged, inter alia, "But in this case you find a notice to quit of October 16, 1874, and that is followed up by two letters, addressing him, and regarding him as a trespasser ; and there is no evidence that after that the plaintiffs assented to his remaining." It does not follow that, notwithstanding the three several notices and the threat to treat him as a trespasser, the com- pany did not, after all, permit him to remain on the premises pend- ing the negotiations for a new lease. That he did hold over, and that the plaintiff did not institute adversary process, immediately after the last notice, are some evidence that he was there holding at sufferance. Then the fact that negotiations for a new lease were pending between the parties, especially if taken in connection with the letter of Mr. Schick, the attorney of Bush, is well nigh conclusive of the fact that he remained in possession of the property by permission, and not as a disseisor. Besides it was error to set the jury upon a hunt after a new con- tract of lease : such contract was not necessary to the maintenance of the action ; it is not necessarily founded upon a specific contract, 630 WAIVER OF TORT. written or oral, but upon the use of the premises. The occupant may be in fact a trespasser, but the owner of the tenement may waive the trespass and recover in assumpsit, and it does not h> with the tortfeasor to defeat him by interposing his own wrong. To tell the jury, therefore, that they must find some new contract between the parties, in order to rebut the presumption arising from tlie notices, was error, for that presumption might well be rebutted by the subsequent acts of those parties. The judgment is reversed, and a venire facias de novo ordered. MAYOR, ALDERMAN AND BURGESSES OF NEW- PORT V. SAUNDERS. 3 B. & Ad. (K. B.) 411.— 1832. Assumpsit for tolls and stallage. At the trial the jury found a verdict for the plaintiffs on the count for stallage, with is. dam- ages ; and were discharged of the issue as to the tolls. Coleridge, Serjt., now moved for a rule to enter a nonsuit, on the ground that in the absence of evidence of any contract in fact, either express or to be implied, assumpsit was not maintainable for stallage. In The Alayor of Northampton v. Ward, 2 Str. 1239, i Wils. 115, it was said by the court, "that trespass was the proper form of action, and that neither debt nor assumpsit would lie" (for stallage) ; "nor could the owner of the soil distrain, because there is not any certain fixed sum or duty, or contract express or implied." Here the evidence showed that there 'w as no contract for stallage. * * * In the case of stallage the owner of the market has no op- tion ; he must permit the public to resort to the market, and cannot refuse to any one the right to occupy his land by a stall for the pur- pose of exposing his wares to sale who will pay him the accus- tomed or reasonable stallage ; the person, therefore, enters lawfully, though without the owner's consent ; and by refusing to pay the s^-^llage when due, he, to use the language of the court in the case cited (2 Str. 1239, i Wils. 115), "misbehaves and becomes a tres- passer ab initio." Lord Tenticrden, C. J. — I do not see any objection to the form of action. Tolls may be recovered in assumpsit, and no proof is given of anything like a contract by the party against whom the claim is made. Evidence is given of the right to receive them, and that is always deemed sufficient. Stallage is not distinguishable from tolls in that respect. The party entitled to stallage may waive the tort. In the Mayor of Northampton v. Ward, 2 Str. 1239, i Wils. 115, the court decided that trespass was maintainable; but what was said as to bringing debt or assumpsit, was extra-judicial. LiTTLEDALE, J. — Assumpsit lies for the use and occupation of TRESPASS TO LAND. 63 1 premises at the suit of the owner. Now stallage is a satisfaction to the owner of the soil for the liherty of placing a stall upon it. If assumpsit be maintainable in the one case, there is no reason it should not in the other. Parke and Pattison, JJ., concurred. Rule refused. PHELPS V. CHURCH OF OUR LADY HELP OF CHRISTIANS. 99 Fed. 683 (40 C. C. A. "72). — 1900. Before Acheson, Dallas, and Gray, Circuit Judges. AcHESON, Circuit Judge. — * * * * jj^ ^j^jg action of as- sumpsit, the receiver of the Metropolitan Marble Company seeks to recover the value of certain stone which, as he alleges and claims to have shown, was wrongfully mined from and taken out of the said quarry during his company's ownership thereof, as lessee, by one John J. Sullivan, who was acting for the defendant, and was a naked trespasser as against the Metropolitan Marble Company ; which stone was brought by the defendant to East Orange, in the state of New Jersey, and was there actually appropriated by the defendant, and used in building its church. Now, if the true state of facts be as above alleged, it seems to us, under the authorities, that the plaintiff can maintain a personal ac- tion in this jurisdiction against the defendant to recover the value of this stone. Hoy v. Smith, 49 Barb. 360 ; Hughes v. United Pipe Lines, 119 N. Y. 423, 23 N. E. 1042; Lehigh Zinc & Iron Co. v. New Jersey Zinc & Iron Co., 55 N. J, Law 350, 357, 26 Atl. 920. And we think that the plaintiff could waive the tort, and sue in as- sumpsit, especially in view of the fact that the defendant had not only actually applied the stone to its own beneficial use, but had so used the stone that it cannot be reclaimed. Terry v. Munger, 121 N. Y. 161, 24 N. E. 272, 8 L. R. A. 216; Dundas v. Muhlenberg's Ex'rs, 35 Pa. St. 351, 353; Halleck v. Mixer, 16 Cal. 574, 578; 2 Greenl. Ev., § 108. The rulings of the court below did not directly contravene any of the legal principles we have discussed ; but upon the conclusion of the plaintiff's case, and without any evidence having been offered by the defendant, the learned judge instructed the jury to find a verdict in favor of the defendant, on the ground that the case in- volved a question of title to the land from which the stone was taken, which question could not be determined in this action. Was the court justified in thus taking the case from the jury? Now, the Court of Errors and Appeals of New Jersey, in Lehigh Zinc & Iron Co. v. New Jersey Zinc & Iron Co., supra, after stating that the owner of land can generally maintain trover against a per- 632 WAIVER OF TORT. son who severs and converts to his own use what is part of the realty, such as ores, etc., added this quahfication : "But there is a considerable line of cases holding that if the de- fendant, at the time of the severance, is in adverse possession of the realty, under a bona fide claim of title, the thing severed becomes his property, so that the owner of the land cannot maintain trover or replevin therefor, but must resort to his remedy for the posses- sion of the land and mesne profits." The earliest case in this line is Mather v. Ministers, 3 Serg. & R. 509, in which the Supreme Court of Pennsylvania ruled that trover for stone and gravel dug from land does not lie, by one who has the right of possession, against the person w^ho has the actual adverse possession of the land and sets up title to it. From the later deci- sion by the same court, in Harlan v. Harlan, 15 Pa. St. 507, 513, 514, it appears that the possession, to defeat such personal action, is not the occupancy of a mere intruder, but actual adverse posses- sion, maintained under a bona iide claim of title. In Halleck v. Mixer, 16 Cal. 574, the rule is thus stated : "The plaintiff, out of possession, cannot sue for property severed from the freehold, when the defendant is in possession of the prem- ises from which the property was severed, holding them adversely, in good faith, and under claim and color of title. In other words, the personal action cannot be made the means of litigation determin- irg the title to real property, as between conflicting claimants ;^ but the rule does not exclude the proof of title on the part of the plain- tiff in other cases ; for it is, as we have already observed, upon such proof that the right to recover rests. It is because the plaintiff owns the premises, or has a right to their possession, that he is entitled to the chattel which is severed ; and that must, of course, in the first instance, be established. A mere intruder or trespasser is in no position to raise the question of title with the owner, so as to defeat the action." Here it appears from the certified exemplification of the record in evidence, that James A. Phelps, as receiver of the Metropolitan Marble Company, instituted before the county judge of Lewis County, N. Y., a summary proceeding against John J. Sullivan and his associates, charging them with unlawful and forcible entry into, and unlawful and forcible detainer of, the aforesaid tract of land, which proceeding, on December 21, 1897, resulted in a judgment dispossessing Sullivan, and restoring possession to Phelps, the re- ceiver of said company. Accordingly, and before this suit was be- gun, possession of the land was restored to this plaintiff who' was in possession when he brought this action, and has retained pos- session. Moreover, upon an attentive examination of the record in this case, we fail to discover any evidence of title in the defendant ^Accord, Downs v. Finnegan, 58 Minn. 112 (1894), the court saying: "The settled principle is that title to land cannot be tried ex dirccto in transitory actions." FALSE IMPRISONMENT. 633 or in Sullivan to the locus in quo. Sullivan appears in the light of a mere trespasser, who had been in the temporary unlawful occu- pancy of the premises. The case, as presented by this record, is not one of conflicting titles to the land. It will be observed that, at the time the court gave peremptory instructions against the plaintiff, the defendant had not put in any evidence whatever. * '^'- * The judgment of the Circuit Court is reversed, and the case is remanded to that court, with direction to grant a new trial.^ V. False Imprisonment. THOMPSON V. BRONK et al. 126 Mich. 455. — 1901. Montgomery, C. J. — The defendant, Bronk, had a contract with the warden of the state prison at Jackson, by the terms of which the warden was to furnish to defendant the labor of 300 convicts, to be employed in manufacturing shirts, at a stated price per day. The defendant, Buffington, is a partner of Bronk, and stands in the same relation to plaintiff. Under the contract, the selection of men was left with the warden, and the contractor was bound to accept such able-bodied men as were supplied him. The plaintiff was committed to this prison by the circuit court for the county of Newaygo, and was detained under a commitment claimed to be void on its face. The plaintiff was by the warden assigned to work on defendant's contract. He continued on this contract for the period of 576 days. Defendants paid the state for plaintiff's labor at the agreed price. Under a rule of the prison, plaintiff was per- mitted to receive pay from the defendants for overtime, and for do- ing good work, amounting, in the aggregate, to $58.49. The plain- tiff, on obtaining his discharge from the custody of the warden, brought this action against defendants to recover for the value of (the services rendered. The declaration contains the labor and quantum meruit counts. The circuit judge, after finding the above facts, entered judgment for defendants, and plaintiff brings error. If the law raises an implication of a promise to pay plaintiff for these services, it cannot be an implication of fact, but a fiction. It is clear that defendants had no thought of accepting services from plaintiff, to be compensated in any other way than under their ex- press contract with the warden. It is said, in some cases, where the defendant is guilty of a wrong, that the law will recognize an implied, ^ See also, O'Conley v. President and Selectmen of Natchez, i S. & M. (Miss.) 31 (1843). where assumpsit was allowed to the plaintiff to recover wharfage received by the city authorities, who trespassed upon the plain- tiff's wharf and landing, and collected tolls and charges belonging to him. 634 WAIVER OF TORT. or, more accurately speaking, a constructive, contract, and enforce it. Hertzog v. Hertzog, 29 Pa. 465. But, where the circumstances repel all implication of a promise in fact, the law will not imply a promise, unless something- has been done on which an implication of a promise can be rested, as in the case of a sale of personal prop- erty by a tortfeasor, who then became liable to an action for money had and received. Watson v. Stever, 25 Mich. 386. These defend- ants contracted with a third party for laborers. Under such con- tract, the third party furnished certain laborers, — among them, the plaintiff. The defendants paid to the third party the contract price for the labor so supplied. No contract relations existed between the parties to this suit. There was no privity between them. They were not consenting bargainors, coming together in contract rela- tions manifested by some intelligible conduct, act, or sign, and the whole transaction was brought about and is accounted for by cir- cumstances repelling every possible implication of contract rela- tions. Two cases are cited in support of plaintiff's contention, which at first reading might appear to give support to his claim, but we think these cases may be distinguished. In Patterson v. Crawford, 12 Ind. 241, a recovery was had, by a convict improperly impris- oned, against the contractor with the prison authorities, for services rendered while unlawfully in prison. In that case the contract was for the services of all convicts, at a gross sum. Thij, of course, meant all convicts lawfully confined. The services of plaintiff were not, therefore, contracted for or paid for by defendant under his con- tract with the state. The defendant therefore had the benefit of the plaintiff's services. In the present case the defendant paid for all services rendered, and this distinguishes the case. We express no opinion as to whether the case of Patterson v. Crawford was rightly decided. The other case is Greer v. Critz, 53 Ark. 247, 13 S. W. 764. In that case the county court undertook to enter into a contract with defendant for plaintiff's services while he worked out a fine imposed by the court. The county judge had no power to make such a contract, and defendant, being a party to the contract, was held bound to know of this lack of authority, and that, as he had the benefit of plaintiff's services, he was obliged to pay for them. In the present case the defendants were not responsible for the plain- tiff's status as a convict. They accepted his services under a per- fectly valid contract with the warden. They have paid for such services, and we think the law will imply no promise to pay for them again. Judgment affirmed. The other justices concurred.^ * Accord, Sloss Iron Co. v. Harvey, 116 Ala. 656 (1897), the court saying: "The appellee (plaintiff below) was a county convict hired, under our convict system, to the appellant (defendant below) to perform hard labor. The statute provides that such convicts shall not be required to work on Sunday, Christmas Day, Fourth of July, or on Thanksgiving Day. Acts 1894-95, p. 858, § 40. . . . The defendant, having the plaintiff in its custody as a convict, for the purpose of subjecting him to hard labor, required him to do this work on the prohibited days. The plaintiff submitted to this require- INTERFERENCE WITH STATUS OR CONTRACT. 635 vi. Interference with Status or Contract. LIGHTLY V. CLOUSTON. I Taunt. 112. — 1808. This was an action of indebitatus assumpsit "for work and labor performed for the defendant at his request, by one Thomas Sinclair, the apprentice of the plaintiff legally bound to him by indenture, for a term of years at the time of the work and labor so performed existing and unexpired, and to the profits and receipts of whose work and labor the plaintiff was, as the master of the said appren- tice, by law entitled." The defendant seduced the apprentice from on board the plaintiff's ship in Jamaica, and employed him as a mar- iner to assist in navigating his own ship from Port Royal home. The cause was tried at the sittings after Trinity term last before Mansfield, Ch. J. The jury found a verdict for the plaintiff, sub- ject to the opinion of the court on the following objection, namely, that the plaintiff ought to have declared in a special action on the case, and that indebitatus assumpsit would not lie. Mansfield, C. J. — It is difficult upon principle to distinguish this case from those that have arisen on bankruptcies and execu- tions, and in which it has been held that trover may be converted into an action for money had and received, to recover the sum pro- duced by the sale of the goods. I should much doubt the case of Smith & Hodson (4 T. R. 217), but that I remember a case so long back as the time of Lord Chief Justice Eyre in the reign of George the Second, in which the same thing was held. I should have thought it better for the law to have kept its course, but it has now been long settled, that in cases of sale, if the plaintiff chooses to sue for the produce of that sale he may do it ; and the practice is ment under the restraint and coercion of imprisonment and the command of his keeper. It was involuntary. There can be no doubt, we think, that the circumstances repelled all inference or implication of a promise to pay for the services. The acts of the defendant in compelling the performance of the labor were tortious. They were trespasses, committed by direct force. The imprisonment at the place and for the purposes of the unlawful exac- tions of labor was, for the time being, unauthorized by law. Quiet submis- sion to the exactions made them none the less trespasses. Cooley, Torts, 169, 170. These being the conditions, an action ex contractu, of course, will not lie." Centra, see Patterson v. Prior, 18 Ind. 440, reported herein at p. 587; and see also, Abbott v. Town of Fremont, 34 N. H. 432 (1S57), where it is held that "if overseers of the poor retain in their charge, as a pauper, an in- sane person, not needing relief, for the sake of a profit to be made for the town out of his labor, and they let out his labor for a year to one who pays the town an agreed sum beyond providing for the insane person's support, such insane person may waive his remedy against the overseers for the personal injury, and recover the money of the town in an action for money had and received." / 636 WAIVER OF TORT. beneficial to the defendant, because a jury may give in damages for the tort a much greater sum than the value of the goods. In the present case the defendant wrongfully acquires the labor of the apprentice ; and the master may bring his action for the seduction. But he may also waive his right to recover damages for the tort, and may say that he is entitled to the labor of his apprentice, that he is consequently entitled to an equivalent for that labor, which has been bestowed in the service of the defendant. It is not competent for the defendant to answer that he obtained that labor, not by contract with the master, but by wrong ; and that therefore he will not pay for it. This case approaches as nearly as possible to the case where goods are sold, and the money has found its way into the pocket of the defendant. Heath, J. — So long back as the time of Charles the Second it was held that the title to an office, under an adverse possession, might be tried in an action for the fees of the office had and re- ceived ; and Holt, Ch. J., held it clear law that if a person goes and receives my rents from my tenants, I may bring my action against him for money had and received. It is for the benefit of the de- fendant that this form of action should be allowed to prevail, for it admits of a set-off, and deductions, which could not be allowed in an action framed on the tort. Rule discharged.^ vii. Usurpation of Office. ROSALIE KREITZ, admx., v. BEHRENSMEYER. 149 III. 496. — 1894. Phillips, J. — At the election in November, A. D. 1886, John B. Kreitz and one Behrensmeyer were candidates for election to the office of county treasurer of Adams county, 111., and, on the canvass of the returns, Kreitz was declared elected by a plurality of four- teen votes ; and, a certificate being made, a commission was issued to him by the governor, as the duly-elected county treasurer of Adams county, whereupon he qualified, and entered upon the dis- charge of the duties of that office, — continuing to occupy the office, and discharge its duties, until his death, in 1890. Appellee, by proper notice and petition, contested the election of Kreitz, which, after extended litigation, finally resulted in appellee being declared duly elected to the office of county treasurer of Adams county, by the judgment of this court, reported as Behrensmeyer v. Kreitz, 'Accord, Ilopf V. U. S. Baking Co., 6 Misc. 158 (N. Y. Supreme Ct.) (1892), where it was held tliat a father, by suing for his minor son's wages, had waived tlie tort of tlie defendant in harboring the son against liis father's wish. USURPATION OF OFFICE. 637 135 111. 591, 26 N. E. 704. Kreitz having died before the filing of this opinion, such proceedings were had in this court that the judg- ment of reversal was entered nunc pro tunc as of the nth day of June, A. D. 1890, which declared Behrensmeyer elected to said of- fice. On the 6th of April, 1892, appellee filed a claim against the estate of John B. Kreitz in the county court of Adams county, seek- ing to recover the sum of $10,000 for fees and salary received by Kreitz for Behrensmeyer's use, and interest thereon. On the pe- tition of appellant, the venue on this claim so filed was changed from the county court to the circuit court of Adams county, where a trial w-as had which resulted in a finding and judgment in favor of appellee, and against appellant, for the sum of $7,333, to be paid in due course of administration, as a claim of the seventh class. Appellant prosecuted an appeal from that judgment to the appel- late court of the third district, where the judgment was affirmed; and she now brings the record to this court by appeal, and urges that appellee has no cause of action, and asks that this case may be considered as one of first impression, regardless of what was said by this court in Mayfield v. Moore, 53 111. 428, — arguing that that case was decided under the constitution of 1848, and that by the provisions of the constitution of 1870 a dififerent rule must prevail, inasmuch as, by the provisions of the latter, the fees of the office belong to the county, from which a salary is paid for the discharge of the duties of the office, while under the former the fees belonged to the officer. It is conceded that no statute exists in this state declaring the rights of a de jure officer to recover from a de facto officer the salary paid such de facto officer, who has discharged the duties of the office under a wrongful or a mistaken purpose. There is no legislation on that subject in this state. The right of recovery, if it exists, depends, therefore, on the principles of the common law. The common law is a system of elementary rules and of general ju- dicial declarations of principles, which are continually expanding with the progress of society, adapting themselves to the gradual changes of trade, commerce, arts, inventions, and the exigencies and usages of the country. Judicial decisions of common-law courts are the most authoritative evidence of what constitutes the com- mon law. By chapter 28, Starr & C. St, 111., the common law of England is declared in force in this state. By reference to the de- cisions of the common-law courts of England, the common law of that country is to be found. An examination of the decisions of the courts of that country shows a uniform declaration of the prin- ciple that a de jure officer has a right of action to recover against an officer de facto by reason of the intrusion of the latter into the office, and his receipt of the emoluments thereof. Among others, the following opinions of English courts may be referred to as sus- taining this right of recovery: Vaux v. Jefferson, 2 Dyer 114; Arris v, Stukely, 2 Mod. 260; Lee v. Drake, 2 Salk. 468: Webb's 638 WAIVER OF TORT. Case, 8 Coke 45. By the adoption of the common law of England the principle announced in these cases was adopted as the law of this state, for the principle is of a general nature, and applicable to our condition. On the basis of a sound public policy, the prin- ciple commends itself, for the reason that one would be less liable to usurp or wrongfully retain a public office, and defeat the will of the people or the appointing power, if no benefit but a loss would re- sult from wrongful retention or usurpation of an office. The question has frequently been before the courts of the different states and of the United States, and the great weight of authority sustains the doc- trine of the common law, as shown by the opinions of the judges in different states ; and which in most of the states are based on the common law, without reference to any statute. The following cases are in point: U. S. v. Addison, 6 Wall. 291 ; Dolan v. Mayor, 68 N. Y. 274; Glascock v. Lyons, 20 Ind. i ; Douglass v. State, 31 Ind. 429 ; Currey v. Wright, 9 Lea 247 ; Kessel v. Zeiser, 102 N. Y. 114, 6 N. E. 574; Nichols v. MacLean, loi N. Y. 526, 5 N. E. 347 ; People v. Miller, 24 Mich. 458 ; Hunter v. Chandler, 45 Mo. 452; People V. Smith, 28 Cal. 21; Petit v. Rousseau, 15 La. Ann. 239. And the only case enunciating a different rule is that of Stuhr V, Curran, 44 N. J. Law 181, where the conclusion was reached by a divided court.^ While it is true that in this state a public ofiice is not a franchise nor an incorporeal hereditament, but a mere public agency created for the benefit of the state, yet the salary or emoluments annexed to a public office are incident to the right to the office, and not to the mere exercise of its duties, or its occupancy ; and whether the compensation of the officer is by fees, or a salary, the rule is the same. People v. Smith, supra; McVeany v. Mayor, 80 N. Y. 185 ; Comstock V. Grand Rapids, 40 Mich, 397. Such being the rule, the constitution of 1870 did not change the law, in this respect, from what it was under the constitution of 1848. [Here follozvs a discussion of the sections of the constitu- tion of i8yo.] The provisions of those sections creating no differ- ent rights, so far as a de jure officer is concerned, the rule an- nounced by this court in Mayfield v. Moore, 53 111. 431, is as ap- plicable under the present constitution as under the constitution of 1848, and in harmony with the rule of the common law of Eng- land, as well as with the great weight of authority in this country, and has been followed by this court in more recent adjudications. Farwell v. Adams, 112 111. 58; Waterman v. Railroad Co., 139 111. 669, 29 N. E. 689. We adhere to the rule as announced in Mayfield V. Moore. *In Stuhr v. Cnrran C1882), the question is exhaustively discussed and the authorities reviewed in the prevailing opinion by Van Svckel, J. (pp. 183-192), and in the dissenting opinion by Beasley, C. J. (pp. 192-206). This decision of the New Jersey Court of Errors and Appeals was by a vote of 7 to 5. USURPATION OF OFFICE. 639 It is further insisted that appellee cannot recover because he was never fully qualified, not being commissioned by the governor, and not filing bonds, as collector, for the years 1888-89-90. As was said in Mayfield v. Moore, supra: "Under the law, so soon as a majority of the votes were cast for appellant at the election held in pursuance to law, he became legally and fully entitled to the office. The title was as complete then as it ever was, and no sub- sequent act lent the least force to the right to the place. The commission was evidence of title, but not the title. The title was conferred by the people ; and the evidence of the right, by the law." The contested election was continued through a long period of litigation, and, by the final adjudication of a court of competent jurisdiction, the appellee's right to the office was determined in his favor. That determination was after the term expired for which he had been elected. His right to recover does not depend upon his possession of a commission. The judgment of the court de- termined his right. Neither is his right to recover affected by the fact that he failed to give bond as collector for the years 1888, 1889, 1890, and failed to qualify. The statute requiring the oath of office and bond to be given by or within a specified time applies only to a person to whom the certificate of election has been given, or who has been declared elected. Where an election has been contested, and the contestant is declared elected, the requirement to qualify within a prescribed time does not apply until the termination of the contest. Farwell v. Adams, supra. The law will not require a use- less act, and by taking the oath of office, and filing bonds, as col- lector, for the several years of 1888-89-90, no purpose could have been subserved, as the contest was not determined until after the full term had expired. Appellee's right of recovery is therefore not affected by these considerations. * * * * We do not desire to enter on a discussion of the question as to whether it is a hardship on Kreitz, or his estate, that he should be held to receive no compensation for his services ; for, however great that hardship may be, the rule of law has been long settled in this state that the de jure officer may recover the fees or salary paid to a de facto officer. The rule is in accord with a sound pub- lic policy. Its tendency is that there would be less danger or fre- quency of usurpation or intrusion into an office. Its tendency is to cause greater caution in, and purify, elections, as one, with such danger attendant on illegal voting, would abstain from encouraging it. Its tendency is to cause a careful investigation into the right to an office, where a notice of contest is served and petition filed. Pub- lic interest is in accord with private right, when it is held that one lawfully elected to an office, and deprived of the office by another, may recover the salary or fees attendant on the office. The rule is not changed by reason of one holding a certificate of election, and entering in good faith, under a mistaken belief of right. However much the good faith of one entering, the right exists somewhere ; and, if the right existed in another, he is an intruder in the office, 640 QUASI-CONTRACT AND EQUITY, and enters at his peril. As was said in Mayfield v. Moore, supra: "After the vote was canvassed by the clerk and justice of the peace, appellant promptly gave appellee notice that he would contest the election, and specifically pointed out the grounds. Being thus ap- prized of the grounds upon which appellant based his claim, the sources of information were open to him to learn the facts, and to have acted upon them. Failing to learn them, or, having done so, not heeding them, he has no reason to complain if he has to respond to the wrong perpetrated on another. He has intruded into ap- pellant's office without right, and has received the profits of the of- fice ; and, like the person entering into the land of another with a defective title, he must answer for the profits." We find no error, and the judgment of the appellate court is affirmed. Affirmed.^ D. Relation of Quasi-Contract to Equity. CASE v. ROBERTS, Holt (N. P.) 500.— 1817. This was an action for money had and received. The plaintifif had paid fifty pounds into the hands of the defendant, for the pur- pose of concluding an action for a breach of promise of marriage, brought by a relation of the plaintiff. The plaintiff's counsel proved the payment of the money for this specific purpose, and then put in a letter of the defendant's, written to the plaintiff, in which he gave an account that he had expended the money in a journey to Bristol, for the purposes of the cause. The plaintiff's counsel then contended that the defendant ought not to have gone to Bristol; that it was not necessary for the action ; and that he was not au- thorized to go there. He likewise falsified in some particulars the defendant's account. Best, Serjeant, and Gaselee, for the defendant, insisted that the present action could not be maintained. If money is advanced, and the purpose for which it is advanced fails, an action lies to recover it back, but this was in substance a trust ; an action of account might lie, or the plaintiff might go into a court of equity, but money had and received could not be maintained. The defendant has furnished an account, and discharged himself by it ; if he has been guilty of a breach of trust the plaintiff must have recourse to another tribu- nal, BuRROUGH, J, — If money is paid into the hands of a trustee for a specific purpose it cannot be recovered in an action for money * Accord, Booker v. Donohoc, 95 Va. 359 (1897). QUASI-CONTRACT AND EQUITY. 64I had and received until that specific purpose is shown to be at an end. The action for money had and received must not be turned into a bill in equity for the purpose of discovery. If the plaintiff show that the specific purpose has been satisfied, that it has ab- sorbed a certain sum only, and left a balance, such balance (the trust being closed) becomes a clear and liquidated sum for which an action will lie at law. Whilst the matter remains in account, and is charged with the specific trust, the action for money had and received will not lie. The cause was afterward settled. ALLEN, Assignee of Prior, a Bankrupt, v. IMPETT and An- other. 8 Taunt. (Ex. Ch.) 263.— 1818. Assumpsit for money had and received. At the trial, before Dallas, J., at the London sittings after the last term, it appeared that the defendants were trustees of the marriage settlement of the bankrupt, and that certain stock thereby settled was held by them, upon trust, to pay the dividends to the bankrupt during his life ; that he had been permitted by the defendants to receive these divi- dends, until the issuing of the commission against him, which hap- pened in December, 1815 ; that in August, 18 16, the defendants ex- ecuted a power of attorney to a third party to receive the dividends, who, accordingly, received two half-year's dividends, due in April and October, 1816, and paid them over to the wife of the bank- rupt, and also received another half-year's dividend, due in April, 1817, which he paid over to one of the defendants. The present ac- tion was brought to recover the total amount of these dividends. Dallas, J., bemg of opinion that the defendants were liable in equity only, and that the action was not maintainable, directed a non-suit. Copley, Serjt., had obtained a rule nisi in the last term to set aside the non-suit, and enter a verdict for the plaintiff for the whole sum sought to be recovered. He cited Moses v. Macferlan, 2 Burr. 1005, s. c. I W. Bl. 219. Blosset, Serjt., now showed cause, and contended that the ac- tion could not be maintained, as the plaintiff had no kgal right to the money, but had merely an equitable interest ; and that, at all events, as the obligation arose from a deed, such deed should have been declared upon. In support of the first objection he cited Co. Litt. 272b; Chudleigh's case, i Rep. 121b; Foorde v. Hoskins, 2 Bulst. 336, and in support of the second, Atty v. Parish, I N. R. 104. Woodruff's Cases — 41 642 QUASI-CONTRACT AND EQUITY. Copley, Serjt., in support of the rule, contended that, as the trustees had given an authority to receive the dividends, under which they were actually received, there was nothing in the objections which had been urged to affect the plaintiff's right to recover. Per Curiam. — This action is brought to recover the amount of dividends of stock to which the bankrupt was entitled, and which his trustees have received since the bankruptcy, and applied to various purposes. With full notice of the bankruptcy, they refuse to pay the money over to the assignees. There cannot be any difficulty in sustaining this action, the whole of the money having been vir- tually received by the trustees. Rule absolute. Gibbs, C. J., was absent. ADAIR V. WINCHESTER et al. 7 G. & J. (Md.) 114.— 1835. Appeal from chancery. The appellees claiming under a deed of trust to them from Murray & Payson, partners in trade, bearing the date of the 30th of December, 1826, exhibited their bill against the appellant, and his partner, John Adair (since deceased) and Murray & Payson, claiming on account of, and payment of the proceeds of sundry promissory notes, which it was alleged, had been de- posited with the Adairs, by the agent of Murray & Payson, to secure the payment of $1,500, loaned by the former to the latter. The bill alleged that Murray & Payson, trading under the firm of A. B. Murray & Co., being pressed for money in June, 1826, delivered to one Reyburn, as their agent, four promissory notes, amounting in the whole to $3,229.04 to get discounted for their use. That failing to get them discounted, the agent with the approba- tion of Murray & Co., placed them by the way of pledge, with the Adairs, to secure the payment of $1,500, which they agreed to and di ' loan upon them. That subsequently in July of the same year the firm of Murray & Co. being found to be insolvent, the partnership was dissolved, and the defendants formally notified, by an agent spe- cially sent for that purpose, that the notes in question were their property, and the surrender of the same demanded upon a tender of the entire principal and interest of the amount advanced upon them ; and that the surrender so demanded was refused. That since then the notes have all been paid. Prayer for an account of the proceeds of the notes ; that the balance found due may be de- creed to be paid to the complainants, and for general relief. The answer of the defendants admitted the deposit of the notes with them by Reyburn, the advance of $1,500 upon them, and their subsequent payment, but they denied all knowledge of ]\Turray & Co. in the transaction, insisting that they dealt with Reyburn as the QUASI-CONTRACT AND EQUITY, 643 owner of the notes, and gave him a receipt for the same as security for the principal and interest of the sum loaned. Tiicy declare their willingness to account to Reyhurn, to whom alone they are respon- sible, and to him only upon the production of their receipt ; and in conclusion they state, that the complainants, if injured, should seek redress in a court of common law, and not in a court of chan- cery, which has no jurisdiction over the subject of their complaint. Bland, Chancellor, decreed an account, and the auditor having stated one accordingly, the same was subsequently ratified, and the amount ordered to be paid to the complainants. From this decree the defendants appealed to the court of appeals. DoRSEY, J. — The first question for our consideration is : Had the chancery court jurisdiction over such a case as is presented by the bill of complaint ? View the case as you will, and it is, in effect, nothmg more than an action for money had and received. That by proceeding in a court of law ample and perfect redress for the wrong complained of could have been obtained, has not been, and cannot be denied. How, then, can the appellee sustain the right of the chancellor to adjudicate in such a case, consistently with the well settled general principle found in all the books on the subject, and announced as text law in Mitf. PL 123, that the courts of equity will not assume jurisdiction where the powers of the ordinary courts are sufficient for the purposes of justice. Is there anything in the facts of this case, either as charged in the bill, or disclosed in the proof, which removes it from the opera- tion of the general rule ? The mere fact of the complainant's stand- ing in the character of an assignee will not sustain the jurisdiction. Although in a court of chancery the assignor is looked upon as the trustee of the assignee, the cestui que trust, equity does not lend its aid to enforce the rights of the assignee of a chose in action, unless its interposition becomes necessary, by reason of the inability of a court of common law, to do him adequate justice ; notwithstanding, in the language of l Mad. Ch. Pr. 545, the assignment, "Is consid- ered in the nature of a declaration of trust," and in 546, that courts of equity "will protect the assignment of a chose in action as much as courts of law will that of a chose in possession." The same author on page 547 states, "that an assignee of a chose in action, as he is entitled to all the remedies of the seller, so he takes it subject to the same equity, as it was liable to in the assignor's hands." He must pursue his remedies in the same tribunals in which the as- signor, had no assignment been made, was bound to seek them. When obstacles growing out of the assignment are so interposed as to hinder, or render extremely difficult, the successful prosecu- tion of his remedies at law, then will a court of equity, upon the appropriate application, step forward and extend to him that equit- able protection which his exigencies demand. But this protective interposition is never afforded, imtil rendered necessary by the oc- casion. Is there any thing in the allegations of the bill, or the tes- timony adduced in their support in respect to the situation or con- 644 QUASI-CONTRACT AND EQUITY. duct of the assignor which renders a resort to a court of equity in- dispensable to prevent a failure of justice? Does it appear that the appellees, whilst seeking redress in a court of law, would have en- countered a shadow of difficulty, to which the assignor himself would not have been subjected? Nothing of the kind is discover- able. Is it charged in the bill, or does the proof warrant the infer- ence that facts essential to the establishment of the plaintiffs claim rest exclusively within the knowledge of the defendants, and that their disclosure can only be extorted by a bill of discovery? The proceedings furnish no such intimation. Can their claim be classed under any of the heads wherein courts of law and equity have a general concurrent jurisdiction? Certainly not. If then the juris- diction of the chancery court in the case at bar can be sustained at all, it must be by reason of its exclusive jurisdiction in most matters of trust and confidence. But this is not such a trust as falls under the exclusive control of a court of equity. It is a quasi trust of which courts of law take judicial cognizance, are competent to ad- minister justice adequate and complete, and over which a court of chancery, under ordinary circumstances had no jurisdiction. This doctrine, when connected with the rule before recited, from Mitford on Pleading, is substantially asserted in Cooper Eq. PI. 27, where in treating of the jurisdiction of a court of equity it is said, "it therefore exercises an exclusive jurisdiction in most matters of trust and confidence, but not in all, for various species of trusts, as de- posits, and all manner of bailments, and especially that implied con- tract, so highly beneficial and useful, of having undertaken to ac- count for money received, to another's use, which is the ground of an action on the case, are cognizable at law. But in cases of trusts, or second uses (as they have been sometimes called) the exclusive jurisdiction of the courts of equity is fully established." Our views upon the subject are supported, too, by 3 Black. Com. 432, where that learned commentator, after speaking of those subjects, over which courts of law and equity have concurrent jurisdiction, and of those in which a court of chancery has the exclusive jurisdic- tion (amongst which latter enumeration he includes what he calls a technical trust), remarks, "but there are other trusts which are cognizable in a court of law, as deposits, and all manner of bail- ments, and especially that implied contract, so highly beneficial and useful, of having undertaken to account for money received to an- other's use, which is the ground of an action on the case, almost as universally remedial as a bill in equity." A similar doctrine has been sanctioned by an enlightened tribunal in a sister state. Ash- ley's Adm'rs and Heirs v. Denton, i Littell 86. Where the court, after stating uses and trusts to be, "a favored part of the jurisdic- tion of the chancellor," further observes, "but notwithstanding this acknowledged authority, it cannot be extended to every case, where one party has trusted another, or, in other words, placed a con- fidence which has been abused. If so, every case of bailment, and every instance of placing chattels by loan or hire would be swal- y QUASI-CONTRACT AXD EQUITY. 645 lowed up by courts of equity. Nay, every case where credit was given for debt or duty would soon be drawn into the same vortex. It ought, then, to be confined to cases of controlHng rights, vested and remaining in trustees, created as such in some proper mode, and not be extended to all cases of abused confidence." In matters of trust, of the kind now before the c::urt, we hold that there is no ordinarily concurrent jurisdiction in courts of law and courts of equity ; and we feel no disposition to carry the powers of a court of chancery further than they have been already legiti- mately extended ; when by so doing, we give to the plaintiff, at his pleasure to deprive the defendant of the privilege of the trial by jury. If authorities are necessary to show that the mere fact of the assignment confers no jurisdiction, they may be found in Carter v. Unit. Ins. Co., i Johns. Ch. R. 463 ; Lenox et al. v. Rob- erts, 2 Wheat. 373. Believing, as we do, that the chancery court has transcended its authority in assuming the jurisdiction it has exercised in this case, and that its decree must therefore be reversed, we forbear to ex- press any opinion upon the other questions which in the arguments of the counsel w'ere submitted to our consideration. Decree reversed, and bill dismissed without costs or prejudice. EDDY V. SMITH. 13 Wend. (N. Y.) 488.— 1835. Error from the mayor's court of the city of Troy. Eddy brought an action of assumpsit against Smith, and claimed to recover upon the following state of facts. Smith held a mortgage upon certain lots in the city of Troy, executed to him by one Shears, bearing date 8th May, 1827, conditioned for the payment of $250, and on the 28th June, 1828, recovered a judgment against Shears, on an- other account, for the sum of $88.04, which was a lien upon the mortgaged premises. Smith foreclosed the mortgage by statute ad- vertisement, and on the 14th July, 1829, sold the mortgaged prem- ises to one Jared Hoyt for the sum of $423, which was $88.04 more than the principal and interest of the mortgage and the costs and charges of the sale. On the day of the sale, but previous thereto, Shears, the mortgagor, for a valuable consideration, sold and con- veyed all his right and interest in the mortgaged premises to Eddy, and the conveyance was duly recorded. Notice of the sale was given to Smith immediately after the sale, and the balance of the purchase money, after satisfying the principal and interest and the charges of the sale, was demanded by Eddy, who was a bona fide purchaser, and did not hold the conveyance as the trustee of Shears, 646 QUASI-CONTRACT AND EQUITY. or of any other person. The recorder non-suited the plaintiff, who sued out a writ of error. Nelson, J. — The deed from Shears to the plaintiff below con- veyed to the plaintiff the premises conveyed by the mortgage, sub- ject to that incumbrance and the lien of the judgment. These dis- charged, his title became perfect, but they must be first satisfied out of the land or otherwise. The defendant might have levied the amount of his judgment, and afterward foreclosed his mortgage, the purchaser under the judgment holding subject to that prior incumbrance. Instead of pursuing that course he enforced the lat- ter lien, and the purchaser took the title clear of the judgment, and now the assignees of the mortgagor supposes himself entitled to the surplus money. The equity of the case is palpable ; the only question is as to the law. The above exposition shows that the action is well brought in the name of the plaintiff. At the time of the sale, and when the money was received by the defendant, all the interest in the land over and above satisfying the mortgage (the judgment out of the case), was invested in him. It was, therefore, his money raised out of his property. The right to the money is not derived from any implied contract contained in the mortgage, which in this state is deemed a mere security for the debt, but upon the fact that he was law- fully possessed of the title and ownership of the premises. The mortgage being but security for the debt, all over it belonged to the owner of the fund out of which it was raised. The case of Coates V. Stewart, 19 Johns. 298, is an authority on this point. There the plaintiff sustained the action on the ground that he was assignee by operation of law, i. e., a purchaser under a judgment execution. Here the plaintiff is an assignee, by the act of the party, by deed. In neither case was it an assignment of the surplus moneys, because none existed till afterward raised out of the estate which had passed by the assignment. The material question in the case is, whether the defense is good at law ? The principles of this action are liberal, beyond that of any other known to the practice of the courts. "It lies." says Mr. J. Blackstone, "when one has received money belonging to another, without any valuable consideration given on the receiver's part ; for the law construes this to be money had and received for the use of the owner only, and implies that the person so receiving prom- ised and undertook to account for it to the true proprietor." And it is applicable in almost every case where a person has received money, which, in equity and good conscience, he ought to refund. The action is equally beneficial to the defendant, because the de- fense to the claim, as well as the claim itself, is governed by the above principles. Lord Mansfield has said, in Moses v. Mac- ferlan, 2 Burr. loio, "It is the most favorable way in which he can be sued ; he can be liable no further than the money he has re- ceived, and against that may go into every equitable defense upon the general issue ; he may claim every equitable allowance, etc. ; in QUASI-CONTRACT AND EQUITY. 647 short, he may defend himself by everything, which shows that the plaintiff ex crquo et bono is not entitled to the whole of his demand, or any part of it." These principles have, ever since their develop- ment, been recognized as sound, both in England and here, and are of daily application. 2 Comyn on Contr. i ; 4 Johns. R. 249 ; i Wen- dell 360. They are, in my judgment, conclusive in favor of the de- fense, and dispense with the trouble and expense of a resort to an- other forum. Judgment affirmed. BETSEY RAMSDELL v. BUTLER. 60 Me. 216. — 1872. Walton, J. — This is an action for money had and received. The money came into the defendant's hands in this way : The plaintiff conveyed a parcel of real estate to one Hiram Joy, with covenants of warranty, and there being some doubt about the title, a creditor of the grantor's husband having levied upon it as his property, it was agreed that the consideration money ($1,000) should be placed in the hands of the defendant, "to remain with him as collateral to said warranty, for a reasonable and satisfactory length of time." The plaintiff contends that the money had re- mained in the defendant's hands a reasonable length of time, and that being reasonable it should be construed to be satisfactory, and that she is now entitled to recover it in an action for money had and received against the defendant. It will be noticed that the defendant is a mere depositary or trus- tee. He has no interest in the money. He holds it for the sole benefit of others. It does not appear that he was authorized to de- termine how long he should keep the money, nor when it should be given up, nor to which party it should be given. Joy, the original grantee, is now dead, but his widow, to whom he devised the estate, is not willing that the money should be given up. She says it has not been judicially determined that the levy upon the property is not valid, and that there is now the same reason for having the money remain in the defendant's hands as there was for placing it there in the first place. What, then, was the defendant to do ? Was it his duty to surrender this deposit simply because the plaintiff' demanded it, when the party for whose security it was placed in his hands forbade his doing so? We think not. As before re- marked, it does not appear that he had any authority to determine to whom the money would eventually belong, or when it should be given up. It was, therefore, no breach of duty on his part to re- fuse to surrender it to the plaintiff. And without a breach of duty no action can be maintained against him. This is a self-evident proposition, and needs no authorities to support it. We have been urged to enter into a consideration of the equities 648 QUASI-CONTRACT AND EQUITY. of the case as between the plaintiff and the widow of Hiram Joy, and to determine whether or not the levy was valid. It is a suffi- cient answer to this proposition that neither the widow, nor the levying creditor, nor those claiming under him are parties to the suit. It is, therefore, impossible for the court to render a judg- ment which shall be conclusive upon their rights ; and any attempt to do so would be a clear violation of the fundamental maxims upon which justice is administered. The validity of the levy can only be determined in a suit to which those claiming title under it are parties. The interest of Hiram Joy's w-idow in the money sought to be recovered in this suit can only be determined in a suit to which she is a party. But suppose the law v/ere otherwise, and we should enter into a consideration of the rights of persons not parties to the suit, and should come to the conclusion that as against them the plaintiff's claim is the best, this would not place the de- fendant in the wrong. He could not know in advance what the decision of the court would be, and ought not to be made to pay the penalty of a lawsuit for not knowing. The plaintiff has mistaken her remedy. Her claim, however just, is one which cannot be enforced in a suit against the defendant alone. He is a mere trustee holding the funds for the security of another, and is not, therefore, the real party adversely interested. The proper remedy in such cases is in equity, where all the parties in interest can be made parties to the record, and a judgment ren- dered that shall do justice to all and be obligatory upon all. If, in a case like this, one of the claimants could sue the trustee, so could the other ; and as neither would be a party to the other's suit, a recovery in one would be no bar to a recovery in the other ; and in this way, the defendant might, by the verdict of different juries, be compelled to pay double the amount he received, with two bills of costs added. The law does not tolerate the possibility of such a result. Plaintiff' non-suit. Appelton, C. J., Kent, Dickerson, Barrows, Danforth and Tapley, JJ., concurred. ROBERTS V. ELY et al, Ex'rs. 113 N. Y. 128.— 1889. The complaint in this action alleged, in substance, that one Geiger, and plaintiff, composing the firm of Geiger & Co., pur- chased, in April, 1871, of David J. Ely, defendants' testator, a quan- tity of teas, then in the custody of the Chicago & China Tea Com- pany ; that it was agreed between the purchasers and that company that it should hold the teas in store and insure the same for their benefit, which it did, together with other teas belonging to Ely ; that the teas so insured were destroyed by fire and the insurance QUASI-CONTRACT AND EQUITY. 649 money for the whole collected and received by Ely in November, 1872, who wrongfully appropriated the whole thereof and paid no portion to Geiger or defendant, and refused to pay over or account for the same ; that Geiger assigned all his interest in the claim to plaintiff. The relief demanded was that the defendants account for and pay over to plaintiff all moneys received by reason of the destruction of the teas belonging to Geiger & Co. Andrews, J. — * * * ''' The case falls within the familiar doctrine that money in the hands of one person to which another is equitably entitled, may be recovered in a common-law action by the equitable owner, upon an implied promise arising from the duty of the person in possession to account for and pay over the same to the person beneficially entitled. The action for money had and received to the use of another is the form in which courts of common law enforce the equitable obligation. The scope of this remedy has been gradually extended to embrace many cases wdiich were originally cognizable only in courts of equity. Whenever one person has in his possession money which he cannot conscien- tiously retain from another, the latter may recover it in this form of action, subject to the restriction that the mode of trial and the relief which can be given in a legal action are adapted to the exigencies of the particular case, and that the transaction is cap- able of adjustment by that procedure without prejudice to the interest of third persons. No privity of contract between the par- ties is required, except that which results from the circumstances. (Mason v. Waite, 17 Mass. 560.) The right on the one side, and the correlative duty on the other, create the necessary privity and justify the implication of a promise by the defendant to do that which justice and equity require. It is immaterial, also, whether the original possession of the money by the defendant was rightful or wrongful. It is sufficient that the duty exists on his part, created by the circumstances, to account for and pay it over to the plaintiff. Nor is this form of action excluded because, in a general sense, there is a relation of trust between the parties arising out of the transaction. There are many cases of trust cognizable only in a court of equity. The cases of express trusts of property are gener- ally of this kind. The duty of the trustee to the cestui que trust, to perform the trust and to account according to its terms and con- ditions, is as a general rule enforcable only in an equitable action. The necessity of taking an account, the frequent complexity of details, the separate and varied interests often affected, and the necessity of moulding the relief to suit the circumstances, render the procedure of courts of equity peculiarly suitable in the admin- istration of formal trusts, and in many cases indispensable to the ascertainment and enforcement of the rights and obligations of the parties. But the fact that money in the hands of one person is impressed with a trust in favor of another, or that the relation between them has a trust character, does not, ipso facto, exclude. 650 QUASI-CONTRACT AND EQUITY. the jurisdiction of courts of law. The general rule that trusts are cognizable in equity and are enforceable only in an equitable action, is subject to many exceptions, "as, for instance, cases of bailments, and that larger class of cases where the action for money had and received for another's use is maintained ex aequo et bono." (Story's Eq. Jur. sec. 60; Comstock, J., Lawrence v. Fox, 20 N. Y. 278.) The present case falls within the exception. Upon the plaintiff's theory of the facts, Geiger & Co. were the equitable owners of a pro rata part of the insurance money received by Ely. That firm and Ely were alone interested in the question, as it is conceded that Ely was entitled to all the money received, subject only to the claim of Geiger & Co. The only accounting required was such as was necessary to ascertain the extent of the interest of Geiger & Co., and that depended upon simple facts as readily ascertainable in a legal as in an equitable action. The case, therefore, pre- sented a cause of action upon a liability implied by law, and it was subject to the limitation of six years prescribed by section 91 of the Code of Procedure, in force when the cause of action arose. The money was paid to Ely in 187 1, and the facts were known to Ceiger & Co. at or soon after that date. The action was com- menced in 1881. Assuming that an equitable action could be brought to enforce the liability claimed, it would still be subject to the limitation of six years. (Matter of Neilley, 95 N. Y. 390.) The plaintiff cannot avoid the application of the statute by treating the actual appropriation of the money by Ely in 1874 as the cause of action. The right of Geiger & Co. to recover was perfect from the time of its actual receipt bv Ely in 1871. (Lillie v. Hoyt, 5 Hill 395-) The judgment should be affirmed.^ All concur. ^ See also the discussion in Chapman v. Forbes, 123 N. Y. 532 (1890), where it was held that although the action at law for money had and received is equitable in its nature, yet it is not within the contemplation of the Code of Civil Procedure, § 452, embodying the equity rule as to bringing in other parties when it is necessary for a complete determination of the controversy. In Wright v. Butler, 6 Wend. 284 (1830), the court says (p. 290) :_ "These actions on the money counts are resorted to as substitutes for bills in chan- cery, and ought to be encouraged whenever the law affords no other remedy, and where a court of equity would compel the defendant to repay to the plaintiff a sum of money which the latter had been compelled to pay for his benefit." QUASI-CONTRACT AND EQUITY. C5I MINCHIN V. MINCHIN. 157 Mass. 265. — 1892. Contract, for money had and received. Verdict for the plain- tiff. Field, C. J. — * * * * The written paper was under seal and was signed by the plaintiff, and it purports to convey the money sued for, absolutely to John Minchin, who was the defendant, and the executrix of whose will defends the suit, he having died. The conveyance contains full covenants like those contained in a war- ranty deed of land, and is "in consideration of five dollars (and love and affection) to me paid by John Minchin," etc. The evi- dence admitted against the defendant's objection consisted of oral evidence tending to prove that the money was delivered to John Minchin, and showing the circumstances under which it was de- livered and the paper signed, and of conversations with John Min- chin, or of statements made by him afterwards, to the effect that the money was held by him as the property of the plaintiff and for his benefit. Under the rulings and instructions of the presiding justice the principal question is whether, in an action at law to recover the money, it is competent to show by oral evidence that the money was conveyed to John Minchin in trust, to keep it and to pay it over to the plaintiff on demand. The action is. in substance, an action for money had and received to the plaintiff's use. It is settled that an express trust in personal property may be created orally, and may be proved by oral testimony. Sturtevant v. Jaques, 14 Allen, 523; Childs v. Jordan, 106 Mass. 321; Thacher v. Churchill, 118 Mass. 108; Davis v. Coburn, 128 Mass. 377; Chace v. Chapin, 130 Mass. 128; Chase v. Perley, 148 Mass. 289. We do not deem it necessary to consider the cases which hold that a formal conveyance like this in an action at law cannot be shown by oral testimony to have been intended as a mortgage or as collateral security, or as anything else than an absolute convey- ance, on the ground that such evidence contradicts the writing. Some of these cases are cited in Reeve v. Dennett, 137 Mass. 315. In general they are actions which concern the legal title. In equity it has been held that an absolute deed of land may be shown to be a mortgage by oral testimony, Campbell v. Dearborn, 109 Mass. 130, and in equity an absolute conveyance of personal property may be shown by oral testimony to have been made in trust for the grantor or for other persons. Davis v. Coburn, and other cases cited. See Hess' appeal, T12 Penn. St. 168; Calder v. Moran, 49 Mich. 14; Edinger v. Heiser, 62 Mich. 598: Mohn v. Alohn, 112 Ind. 285; Thomas v. Merry, 113 Ind. 83; Barry v. Lambert, 98 N. Y. 300; Danser v. Warwick, 6 Stew. 133; Twomey v. Crowley, 137 Mass. 184 ; i Perry on Trusts, sec. 86 ; Pom. Eq. Jur. sec. 1008. 652 QUASI-CONTRACT AND EQUITY. Such a trust usually can be enforced only in equity, but when the trust is to pay over money to the plaintiff on demand, and nothing else remains to be done, an action at law can be maintained. Chase V. Perley, ubi supra. Such an action is of an equitable character, and it proceeds on the ground that the legal title is in the defend- ant, but that in equity and good conscience he should hand over the property to the plaintiff. We see no reason why in such an action brought to enforce such a trust the rules of equity regarding the admission of evidence should not prevail. lii the view of equity the evidence does not contradict the writing, but tends to establish an equitable title consistent with the legal title which was conveyed to the defendant by the writing and by the delivery. In a grant of land with full covenants, but in trust for the grantor, whether the trust is declared in the deed of grant, or in a writing signed by the grantee, the trust is not regarded as inconsistent with the grant or with the covenants, and when the statute of frauds does not require the trust to be created or proved by a written instrument, the oral declaration of such a trust is not in equity regarded as inconsistent with a similar grant of personal property. If any of the evidence admitted related to conversations had before the writing was signed, the objection to its admission does not appear to have been taken on that ground, and, so far as has been pointed out, the conversations may be considered as showing only the circumstances under which the written conveyance was signed. Exceptions overruled.^ *But see Boyce v. Wilson, ante, p. 354. APPENDIX. THE HISTORY OF ASSUMPSIT.* BY JAMES BARR AMES. (Reprinted from the Harvard Law Revieiv, by permission.) I. Express Assumpsit. The mystery of consideration has possessed a peculiar fascina- tion for writers upon the EngHsh Law of Contract. No fewer than three distinct theories of its origin have been put forward within the last eight years. According to one view, "the require- ments of consideration in all parol contracts is simply a modified generalization of quid pro quo to raise a debt by parol."- On the other hand, consideration is described as "a modification of the Roman principle of causa, adopted by equity and transferred thence into the common law."^ A third learned writer derives the action of assumpsit from the action on the case for deceit, the damage to the plaintifif in that action being the forerunner of the "detriment to the promisee," which constitutes the consideration of all parol contracts.'* To the present writer^ it seems impossible to refer consideration to a single source. At the present day it is doubtless just and ex- pedient to resolve every consideration into a detriment to the prom- * This History of Assumpsit was first published in 1888, in vol. 2 of the Harvard Law Review; and, in igoo, was reprinted in England, by permission, in Vol. 25 of the Fifth Scries of the Law Maga::!iie and Rcz'iczc. The present republication is by the courtesy of Professor Ames, and of the editors of the Harvard Law Review. The few notes added by the author before the reprint in the Lazv Magazine and Revieiv are included here. " Holmes, Early English Equity, i L. Q. Rev. 171 ; The Common Law, 285. A similar opinion had been previously advanced by Professor Langdell, Contracts, § 47. ^ Salmond, History of Contract. 3 L- Q- Rev. 166, 178. * Hare, Contracts, Ch. Vn. and Vni. ^ It seems proper to say that the substance of this article was in manu- script before the appearance of Judge Hare's book or Mr. Salmond's essay. 653 654 APPENDIX. isee incurred at the request of the promisor. But this definition of consideration would not have covered the cases of the sixteenth cen- tury. There were then two distinct forms of consideration: (i) detriment; (2) a precedent debt. Of these, detriment was the more ancient, having become estabHshed, in substance, as early as 1504. On the other hand, no case has been found recognizing the validity of a promise to pay a precedent debt before 1542. These two species of consideration, so different in their nature, are, as would be surmised, of distinct origin. The history of detriment is bound up with the history of special assumpsit, whereas the con- sideration based upon a precedent debt must be studied in the de- velopment of indebitatus assumpsit. These two forms of assumpsit will, therefore, be treated separately in the following pages. The earliest cases in which an assumpsit was laid in the declara- tion were cases against a ferryman who undertook to carry the plaintiff's horse over the river, but who overloaded the boat, where- by the horse was drowned ;^ against surgeons who undertook to cure the plaintiff or his animals, but who administered contrary medicines or otherwise unskillfully treated their patient ;- against a smith for laming a horse while shoeing it ;^ against a barber who undertook to shave the beard of the plaintiff with a clean and wholesome razor, but who performed his work negligently and unskillfully, to the great injury of the plaintift"'s face \* against a carpenter who undertook to build well and faithfully, but who built unskillfully.^ In all these cases, it will be observed, the plaintiff" sought to recover damages for a physical injury to his person or property, caused by the active misconduct of the defendant. The statement of the assumpsit of the detendant was for centuries, it is true, deemed essential in the count. But the actions were not originally, and are not to-day, regarded as actions of contract. They have always sounded in tort. Consideration has, accordingly, never played any part in the declaration. In the great majority of the cases and precedents there is no mention of reward or consideration. In Powtuary v. Walton*' (1598), a case against a farrier who under- took to cure the plaintiff's horse, and who treated it so negligently and unskillfully that it died, it is said: "Action on the case lies on this matter without alleging any consideration, for his negligence ' Y. B. 22 Ass. 94, pi. 41. 'Y. B. 43 Ed. III. 6, pi. 11; II R. II. Fitz. Ab. Act. on the case, 37; Y. B. 3 H. VI. ?,6, pi. 33; Y. B. 19 H. VI. 49, pL 5: Y. B. 11 Ed. IV. 6, pi. 10; "Powtuary v. Walton, i Roll. Ab. 10 pi. 5; Slater v. Baker, 2 Wils. 359; Sears v. Prentice, 8 East 348. ' Y. B. 46 Ed. III. 19, pi. 19; Y. B. 12 Ed. IV. 13, pi. 9 (semble). * 14 H. VIT. Rast. Ent. 2, b. 1. ' Y. B. II IT. IV. 33, pi. 60; Y. B. 3 H. VI. 36. pi. 33 : Y. B. 20 H. VI. 34, pl- 4; Y. B. 21 H. VI. 55, pl. 12; iR H. VII. Keilw. 50, pl. 4; 21 H. VIT. Keilw. 77, pl. 25; Y. B. 21 H. VII. 41, pl. 66; Coffgs v. Bernard. 2 Ld. Ray. 909, 920; Elsee V. Galward, 5 T. R. 143. See also Best v. Yates, i Vent. 268. * I Roll. Ab. 10, pl. 5. See also to the same effect, Reg. Br. 105 b. HISTORY OF ASSUMPSIT. 655 is the cause of the action, and not the assninpsit. The gist of the action being tort, and not contract, a servant,* a wife,- or a child," who is injured, may sue a defendant who was employed by the master, the husband, or the father. Wherever the employment was not gratuitous, and the employer was himself the party injured, it would, of course, be a simple matter to frame a good count in con- tract. There is a precedent of assiunpsit against a farrier for lam- ing the plaintiff's horse.* But in practice assimipsit was rarely, if ever, resorted to. What, then, was the significance of the assunipsit which appears in all the cases and precedents, except those against a smith for unskillful shoeing? To answer this question it is necessary to take into account a radical difference between modern and primitive conceptions of legal liability. The original notion of a tort to one's person or property was an injury caused by an act of a stranger, in which the plaintiff did not in any way participate. A battery, an asportation of a chattel, an entry upon land, were the typical torts. If, on the other hand, one saw fit to authorize another to come into contact with his person or property, and damage ensued, there was, without more, no tort. The person injured took the risk of all injurious consequences, unless the other expressly assumed the risk himself, or unless the peculiar nature of one's calling, as in the case of the smith, imposed a customary duty to act with reasonable skill. This conception is well shown by the remarks of the judges in a case against a horse doctor.^ Newton, C. J. : "Perhaps he applied his medicines de son boii gre, and afterwards your horse died ; now, since he did it de son bon gre, you shall not have an action. * * * My horse is ill, and I come to a horse doctor for advice, and he tells me that one of his horses had a similar trouble, and that he applied a certain medicine, and that he will do the same for my horse, and does so, and the horse dies ; shall the plaintiff have an action ? I say. No." Paston, J. : "You have not shown that he is a common surgeon to cure such horses, and so, although he killed your horse by his medicines, you shall have no action against him without an assumpsit/' Newton, C.J. : "If I have a sore on my hand, and he applies a medicine to my heel, by which negligence my hand is maimed, still I shall not have an action unless he undertook to cure me." The court accordingly decided, that a traverse of the assunipsit made a good issue.** It is believed that the view here suggested will explain the fol- lowing passage in Blackstone, which has puzzled many of his read- ers : "If a smith's servant lames a horse while he is shoeing him, ^ Everard v. Hopkins, 2 Bulst. 332. ' Pippin V. Sheppard, 1 1 Price, 400. 'Gladwell v. Steggall, 5 B. N. C. 733. *2 Chitty, PI. (7 ed.) 458. ■* Y. B. 19 H. VI. 49, pl. S. "See to the same effect Y. B. 48 Ed. III. 6, pl. 11; 11 R. II. Fitz. Ab. Act. on Case, 37; Rast. Ent. 463 b. 656 APPENDIX- an action lies against the master, but not against the servant."^ This is, of course, not law to-day, and probably had ceased to be law when written. Blackstone simply repeated the doctrine of the Year Books.- The servant had not expressly assumed to shoe carefully ; he was, therefore, no more liable than the surgeon, the barber, and the carpenter, who had not undertaken, in the cases already men- tioned. This primitive notion of legal liability has, of course, en- tirely disappeared from the law. An assumpsit is no longer an essential allegation in these actions of tort, and there is, therefore, little or no semblance of analogy between these actions and actions of contract. An express assumpsit was originally an essential part of the plain- tiff's case in another class of actions, namely, actions on the case against bailees for negligence in the custody of the things intrusted to them. This form of the action on the case originated later than the actions for active misconduct, which have been already consid- ered, but antedates, by some fifty years, the action of assumpsit. The normal remedy against a bailee was detinue. But there were strong reasons for the introduction of a concurrent remedy by an action on the case. The plaintiff in detinue might be defeated by the defend- ant's wager of law ; if he had paid in advance for the safe custody of his property, he could not recover in detinue his money, but only the value of the property ; detinue could not be brought in the King's Bench by original writ ; and the procedure generally was less satis- factory than that in case. It is not surprising, therefore, that the courts permitted bailors to sue in case. The innovation would seem to have come in as early as 1449.^ The plaintiff counted that he delivered to the defendant nine sacks of wool to keep ; that the de- fendant, for six shillings paid him by the plaintiff, assumed to keep them safely, and that for default of keeping they were taken and carried away. It was objected that detinue, and not case, was the remedy. One of the judges was of that opinion, but in the end the defendant abandoned his objection; and Statham adds this note: * * =^= "ct credo the reason of the action lying is because the defendant had six shillings which he [plaintiff] could not recover in detinue." The bailor's right to sue in case instead of detinue was recognized by implication in 1472,* and was expressly stated a few years later. •'"' The action against a bailee for negligent custody was looked upon like the action against the surgeon or carpenter for active misconduct, as a tort, and not as a contract. The immediate cause of the injury in the case of the bailee was, it is true, a nonfeas- ance, and not, as in the case of the surgeon or carpenter, a mis- ^ I Rl. Com. 431. ' Y. B. II Ed. IV. 6, pi. 10; I Roll. Ab. 94, pi. i ;i Roll. Ab. 95, pi. i. 'Statham Ab. Act. on Case (27 H. VI.). *Y. B. 12 Ed. IV. 13, pl. 10. °Y. P.. 2 H. VII. II, pl. 9; Keilw. 77, pl- 25; Kcilw. 160, pl. 2; Y. B. 27 II. VIII. 25, pi. 3. HISTORY OF ASSUMPSIT. 657 feasance. And yet, if regard be had to the whole transaction, it is seen that there is more than a simple breach of promise by the bailee. He is truly an actor. He takes the goods of the bailor into his custody. This act of taking possession of the goods, his a^- sumpsit to keep them safely, and their subsequent loss by his de- fault, together made up the tort. The action against the bailee sounding in tort, consideration was no more an essential part of the count than it was in actions against a surgeon. Early in the reign of Henry VHL, Moore, Sergeant, said, without con- tradiction, that a bailee, with or without reward, was liable for careless loss of goods either in detinue or case ;^ and it is common learning that a gratuitous bailee was charged for negligence in the celebrated case of Coggs v. Bernard. If there was, in truth, a consideration for the bailee's undertaking, the bailor might, of course, declare in contract, after special assumpsit was an estab- lished form of action. But, in fact, there are few instances of such declarations before the reign of Charles I.- Even since that time, indeed, case has continued to be a frequent, if not the more fre- quent, mode of declaring against a bailee.^ Oddly enough, the earliest attempts to charge bailees in assumpsit were made when the bailment was gratuitous. These attempts, just before and after 1600, were unsuccessful, because the plaintiffs could not make out any consideration.^ The gratuitous bailment was, of course, not a benefit, but a burden to the defendant, and, on the other hand, it was not regarded as a detriment, but an advantage to the plaintiff. But in 1623 it was finally decided, not without a great straining, it must be conceded, of the doctrine of consideration, that a bailee might be charged in assumpsit on a gratuitous bailment.^ The analogy between the action against the bailee and that against the surgeon holds also in regard to the necessity of alleging an express assumpsit of the defendant. Bailees, whose calling w'as of a quasi public nature, were chargeable by the custom of the realm, without any express undertaking. Accordingly, so far as the re- ported cases and precedents disclose, an assumpsit was never laid ^Keilw. 160, pi. 2 (1510). "As late as 1745 it was objected in Alcorn v. Westbrook, i Wils. 115, that assumpsit was not the proper form of action against a pledgee. ^ In Williams v. Lloyd, W. Jones, 179; Anon.. Comb. 371 ; Coggs v. Bernard, 2 Ld. Ray. 909; Shelton v. Osborne, i Barnard, 260; i Selw. N. P. (13 ed.) 348, s. c ; Brown v. Dixon, i T. R. 274, the declarations were framed in tort. *Howlet V. Osborne, Cro. El. 380; Riches v. Briggs, Cro. El. 883, Yelv. 4; Game v. Harvie, Yelv. 50; Pickas v. Guile, Yelv. 128. See. also, Gellye V. Clark. Noy, 126, Cro. Jac. 188, s. c. ; and compare Smith's case, 3 Leon. 88. ''Wheatley v. Low, Palm. 281, Cro. Jac. 668, s. c. Woodruff's Cases— 42 658 APPENDIX. in a count in case against a common carrier,^ or innkeeper,^ foi the loss of goods. They correspond to the smith, who, from the nature of his trade, was bound to shoe skilfully. But, in order to charge other bailees, proof of an express assumpsit was originally indispensable. An assumpsit was accordingly laid as a matter of course, in the early cases and precedents. Frowyk, C. J., says, in 1505, that the bailee shall be charged "per cest parol super se as- sumpsit."^ In Fooley v. Preston,* Anderson, Chief Justice of the Common Bench, mentions, it is true, as a peculiarity of the Queen's Bench, that "it is usual and frequent in B. R. if I deliver to you an obligation to rebail unto me, I shall have an action upon the case without an express promise." And yet, twelve years later, in Mos- ley V. Fossef^ (1598), which was an action on the case for the loss of a gelding delivered to the defendant to be safely kept and redelivered on request, the four judges of the Queen's Bench, al- though equally divided on the question whether the action would lie without a request, which w^ould have been necessary in an action of detinue, "all agreed that without such an assumpsit the action would not lie."^ But with the lapse of time an express undertaking of ^i Roll. Ab. 2, pi. 4; Rich V. Kneelan, Hob. 17; i Roll. Ab. 6, pi. 4; Kenrig v. Eggleston, Al. 93; Nichols v. More, i Sid. 36; Morse v. Slue, i Vent. 190, 238; Levett V. Hobbs, 2 Show. 127; Chamberlain v. Cooke, 2 Vent. 75; Matthews v. Hoskins, i Sid. 244; Upshare v. Aidee, Com. 25; Heme's Pleader, 76 Brownl. Ent. 11; 2 Chitty, pi. (i ed.) 271. = Y. B. 42 Lib. Ass,, pi. 17; Y. B. 2 H. IV. 7. pl- 31; Y. B. 11 H. IV. 45, pi. 18; Cross V. Andrews, Cro. El. 622; Gellye v. Clark, Cro. Jac. 189; Beedle v. Norris, Cro. Jac. 224; Heme's Pleader, 170, 249. ^ Keil. 77, pl. 25. * I Leon. 297. ° Moore, 543, pl. 720; i Roll. Ab. 4, pl. 5, s. c. The criticism in Holmes' "Common Law," 155, n. 1., of the report of this case seems to be without foundation. * See also Evans v. Yeoman (1635), Clayt. p. 33; "Assumpsit. The case upon evidence was, that whereas the plaintifif did deliver a book or charter to the defendant, it was holden that unless there had been an express prom- ise to redeliver this back again, this action will not lie." The writer is tempted to suggest here an explanation of an anomaly in the law of waste. If, by the negligence of a tenant-at-will, a fire breaks out and destroys the house occupied by him as tenant, and another also belonging to his landlord, he must respond in damages to the landlord for the loss of the latter, but not of the former. Lothrop v. Thayer, 138 Mass. 466. This is an illustration of the rule that a tenant-at-will is not liable for neg- ligent or permissive waste. Is it not probable that the tenant-at-will and a bailee were originally regarded in the same light? In other words, neither was bound to guard with care the property entrusted to him in the ab- sence of a special tmdcrtaking to that effect. This primitive conception of liability disappeared in the case of chattels, but persisted in the case of land, as a rule affecting real property would naturally persist. In the Count- ess of Salop v. Crompton, Cro. El. yyy, 784, 5 Rep. 13, s. c, a case against a tenant-at-will, Gawdy, J., admits the liability of a shepherd for the loss of sheep, "because he there took upon him the charge. But here, he takes not any charge upon him, but to occupy and pay his rent." So also in Coggs V. Bernard, 2 Ld. Ray. 909. Powell, J., referring to the case of the Countess of .Salop, says: "An action will not lie against a tenant-at-will generally, if the house be burnt down. But if the action had been founded upon a spe- HISTORY OF ASSUMPSIT. G59 the bailee ceased to be required, as we have already seen it was dispensed with in the case of a surgeon or carpenter. The accept- ance of the goods from the bailor created a duty to take care of them in the same manner that a surgeon who took charge of a patient became bound, without more, in modern times, to treat him with reasonable skill. Symons v. DarknolP (1629) was an action on the case against a lighterman, but not a common lighterman, for the loss of the plain- tiff's goods. "And, although no promise, the court thought the plaintiff should recover." Hyde, C. J., adding: "Delivery makes the contract." The later precedents in case, accordingly, omit the assumpsit. ~ There is much in common between the two classes of actions on the case already discussed and still a third group of actions on the case, namely, actions of deceit against the vendor of a chattel upon a false warranty. This form of action, like the others, is ancient, being older, by more than a century, than special assumpsit. The words super se assumpsit were not used, it is true, in a count upon a warranty, but the notion of undertaking was equally well conveyed by "zi'arran'ticando -t'endidit." Notwithstanding the undertaking, this action also was, in its origin, a pure action of tort. In what is, perhaps, the earliest re- ported case upon a warranty," the defendant objects that the action is in the nature of a covenant, and that the plaintiff shows no specialty but "non allocatur, for it is a writ of trespass." There was regularly no allusion to consideration in the count in case ; if, by chance, alleged, it counted for nothing.* How remote the action was from an action of contract appears plainly from a remark of Choke, J. : "If one sells a thing to me, and another warrants it to be good and sufficient, upon that warranty made by parol, I shall not have an action of deceit ; but if it was by deed, I shall have an action of covenant."^ That is to say, the parol contract of guaranty, so familiar in later times, was then unknown. The same judge, and Brian, C. J., agreed, although Littleton, J., inclined to the opposite view, that if a servant warranted goods which he sold for his master, no action would lie on the warranty. The action sounding in tort, the plaintiff, in order to charge the defend- ant, must show, in addition to his undertaking, some act by b.im. that is, a sale ; but the owner was the seller, and not the friend or servant, in the cases supposed. A contract, again, is, properly, a promise to act or forbear in the future. But the action under cial undertaking, as that, in consideration the lessor would let him live in the house, he promised to deliver up the house to him again in as good repair as it was then, the action would have lain upon that special undertaking. But there the action was laid generally." ^ Palm. 523. See, also. Stanian v. Davics, 2 Ld. Ray. 795. *2 Inst. Cier. 185; 2 Chitty PI. (7 ed.) 506, 507. 'Fitz. Ab. Monst. de Faits, pi. 160 (138,3). *Moor V. Russel. Skin. 10.4.; 2 Show. 284, s. c. "Y. B. II Ed. IV. 6, pi. ID. 66o APPENDIX. discussion must be, as Choke, J., said, in the same case, upon a warranty of a thing present, and not of a thing to come. A vendor who gives a false warranty may be charged to-day, of course, in con- tract ; but the conception of such a warranty, as a contract, is quite modern. Stuart v. Wilkins,^ decided in 1778, is said to have been the first instance of an action of assumpsit upon a vendor's war- ranty. We have seen that an express undertaking of the defendant was originally essential to the actions against surgeons or carpenters and bailees. The parallel between these actions and the action on a warranty holds true on this point also. A case in the Book of Assizes is commonly cited, it is true, to show that from very early times one who sold goods, knowing that he had no title to them, was liable in an action on the case for deceit.^ This may have been the law.^ But, this possible exception apart, a vendor was not answerable to the vendee for any defect of title or quality in the chattels sold, unless he had either given an express warranty, or was under a public duty, from the nature of his calling, to sell articles of a certain quality. A taverner or vintner was bound as such to sell wholesome food and drink.* Their position was analo- gous to that of the smith, common carrier and innkeeper. The necessity of an express warranty of quality in all other cases is illustrated by the familiar case of Chandelor v. Lopus^ (1606-1607). The count alleged that the defendant sold to the plaintiff a stone, affirming it to be a bezoar stone, whereas it was not a bezoar stone. The judgment of the King's Bench, that the count was bad, was affirmed in the Exchequer Chamber, all the justices and barons (except Anderson, C. J.) holding "that the bare affirmation that it was a bezoar stone, without warranting it to be so, is no cause of action ; and although he knew it to be no bezoar stone, it is not material ; for every one in selling his wares will affirm that his wares are good, or that his horse is sound ; yet, if he does not warrant them to be so, it is no cause of action." The same doctrine is repeated in Bailie v. Merrill.*' The case of Chandelor v. Lopus has recently found an able defender in the pages of this Review.'^ In the number for November, 1887, Mr. R. C. McMurtrie urges that the decision was a necessary conse- quence of the rule of pleading, that the pleader must state the legal effect of his evidence, and not the evidence itself. It is possible that the judgment would have been arrested in Chandelor v. Lopus, if '3 Doug. 18. *3 Y. B. 42, Lib. Ass. pi. 8. 'But see Kenrick v. Burp:es, Moore 126, per Gawdy, J., and Roswell v. Vaughan, Cro. Jac. 196, per Tanfield, C. B. * Y. B. 9 H. VI. S3, pl- .37; Kcilw. gi, pi. 16; Roswell v. Vaughan, Cro. Jac. 196: Burnby v. BollcU, 16 M. & W. 644, 654. "Dy. 75 a. n. (2.3) ; Cro. Jac. 4. See also. 8 Harv. L. Rev. 282. •l Roll. R. 275. See, also, Leakins v. Clizard, i Keb. 522, per Jones. ^ I Harv. L. Rev. 191. HISTORY OF ASSUMPSIT. 66 1 it had come before an English court of the present century.^ But it is certain that the judges in the time of James I. did not proceed upon this rule of pleading. To their minds the word "warrant,"' or, at least, a word cciually importing an express undertaking, was as essential in a warranty as the words of promise were in the Ro- man stipulatio. The modern doctrine of implied warranty, as stated by Mr. Baron Parke in Barr v. Gibson,'- "But the bargain and sale of a chattel, as being of a particular description, does imply a contract that the article sold is of that description," would have sounded as strangely in the ears of the early lawyers as their archaic doctrine sounds in ours. The warranty of title stood anciently upon the same footing as the warranty of quality.^ But in Lord Holt's time an affirmation was equivalent to a warranty,* and to-day a warranty of title is commonly implied from the mere fact of selling.^ However much the actions against a surgeon or carpenter for misfeasance, those against a bailee for negligent custody, and, above all, those against a vendor for a false warranty, may have contrib- uted, indirectly, to the introduction of special assumpsit, there is yet a fourth class of cases which seem to have been more intimately con- nected with the development of the modern parol contract than any of those yet considered. These cases were, also, like the actions for a false warranty, actions on the case for deceit. That their signifi- cance may be fully appreciated, however, it will be well to give first a short account of the successive attempts to maintain an action for the simple breach of a naked parol promise, i. e,, for a pure non- feasance. The earliest of these attempts was in 1400, when an action was brought against a carpenter for a breach of his undertaking to build a house. The court was unanimous against the plaintiff, since he counted on a promise, and showed no specialty.^ In the same reign there was a similar case, with the same result.'^ The harmony of judicial opinion was somewhat interrupted fifteen years later in a case against a millwright on a breach of promise to build a mill within a certain time. Martin, J., like his predecessors, was against the action ; Cockayne, J., favored it. Babington, C. J., at first agreed wnth Cockayne, J., but was evidently shaken by the remark of Martin, J. : "Truly, if this action is maintained, one shall have trespass for breach of any covenant^ in the world," for he ^ But see Crosse v. Gardner, 3 Mod. 261, Comb. 142, s. c. ; Medina v. Stough- ton, I Ld. Ray. 593, i Salk. 210, s. c. ==3 M. & W. 390. ^Co. Lit. 102a; Springwell v. Allen (1649) Al. 91, 2 East, 448, n. (a), s. c. * Crosse v. Gardner, 3 Mod. 261 ; i Show. 65, s. c. ; Medina v. Stoughton, i Ld. Ray. 593, I Salk. 210, s. c. ^Eichholtz V. Bannister, 17 C. B. n. s. 708; Benj. Sale (3d ed.) 620-631. « Y. B. 2 H. IV. 3, pl- 9- 'Y. B. II H. IV. 2,3, pl. 60. See, also, 7 H. VL i, pl. 3- * Covenant was often used in the old books (for example, in Sharrington 662 APPENDIX. then said: "Our talk is idle, for they have not demurred in judg- ment. Plead and say what you will, or demur, and then it can be debated and disputed at leisure." The case went off on another point.^ Martin, ]., appears finally to have won over the Chief Justice to his view, for, eight years later, we find Babington, C. J., Martin and Cotesmore, JJ., agreeing in a dictum that no action will lie for the breach of a parol promise to buy a manor. Paston, J., showed an inclination to allow the action.- In 1435 he gave effect to this inclination, holding, with Juyn, J., that the de- fendant was liable in an action on the case for the breach of a pa- rol promise to procure certain releases for the plaintiff.'' But this decision was ineffectual to change the law. Made without a prece- dent, it has had no following. The doctrine laid down in the time of Henry IV. has been repeatedly reaffirmed.* The remaining actions on the case for deceit before mentioned may now be considered. In the first of these cases the writ is given, and the reader will notice the striking resemblance between its phraseology and the later count in assumpsit. The defendant was to answer for that he, for a certain sum to be paid to him by the plaintiff, undertook to buy a manor of one J. B. for the plaintiff ; but that he, by collusion between himself and one M. N., contriving cunningly to defraud the plaintiff, disclosed the latter's evidence, and falsely and fraudulently became of counsel with M. N., and bought the manor for M. N., to the damage of the plaintiff. All V. Strotton, Plow. 298, passim: Diversite of Courts, Chancerie) in the sense of agreement, a fact sometimes overlooked, as in Hare, Contracts, 138, 139. _ ^Y. B. 3 H. VI. 36, pi. 33. One of the objections to the count was that it did not disclose how much the defendant was to have for his work. The re- marks of the judges and counsel upon this objection seem to have been generally misapprehended. Holmes, Common Law 267, 285 ; Hare, Contracts 162. The point was this ; debt would lie only for a sum certain. H, then, the price had not been agreed upon for building the mill, the millwright, after completing the mill, would get nothing for his labor. It could not, therefore, be right to charge him in an action for refusing to throw away his time and money. Babington, C. J., and Cockayne, J., admitted the force of this argu- ment, but the latter thought it must be intended that the parties had deter- mined the price to be paid. There is no allusion in the case to a qtiid pro quo, or a consideration as a basis for the defendant's promise. Indeed, the case IS valueless as an authority upon the doctrine of consideration. ''Y. B. II H. VI. 18, pi. 10; 24, pi. i; 55, pl- 26. 'Y. B. 14 H. VI. 18, pl. q8. *Y. B. 20 H. VI. 25. pl. II, per Newton, C. J.; Y. B. 20 H. VI. 34, pl. 4, per Ayscoghe, T. ; Y. B. 21 H. VI. 5^-12; Y. B. 37 H. VI. 9, pl- 18, per Moyle, J.; Y. B. 2 H. VII. II, pl. 9, and Y. B. 2 H. VII. 12, pl. 15, per Townsend, J.; 18 H. VII. Keilw. 50, pl. 4, per curiam; Doct. & St. Dial. 11, c. 24; Coggs v. Bernard, 2 Ld. Ray. 909, 919, per Lord Holt; Elsee v. Gatward, 5 T. R. 143. Newton, C. J., said on several occasions (Y. B. 19 H. VL, 24 b, pl. 47; Y. B. 20 H. VI. 34, pl. 4; Y. B. 22 H. VI. 43, ph 2^) as did Prisol, C. J., in Y. B. 37 H. VI. "8-t8, that one who bargained to sell land for a certain sum to be "paid might have del)t for the money, and, therefore, on the principle of reciprocity, was liable in an action on the case to his debtor. _ But this view must be regarded as an idiosyncrasy of these judges, for their premise was plainly false. There was no quid pro quo to create a debt. See Y. B. 20 H. VI. 35-4. HISTORY OF ASSUMPSIT. 663 the judges agreed that the count was good. Babington, C. ].: "If he discovers his counsel, and becomes of counsel for another, now that is a deceit, for which I shall have an action on my case." CoTESMORE, J. : "I say, that matter lying wholly in covenant may by matter e.v post facto be converted into deceit. * * * When he becomes of counsel for another, that is a deceit, and changes all that was before only covenant, for which deceit he shall have an action on his case."^ The act of the defendant did not afifect, it is true, the person or physical property of the plaintiff. Still, it was hardly an extension of the familiar principle of misfeasance to regard the betrayal of the plaintiff's secrets as a tortious invasion of his rights. But the judges encountered a real difficulty in applying that principle to a case that came before the Exchequer Chamber a few years later. - It was a bill of deceit in the King's Bench, the plaintiff counting that he bargained with the defendant to buy of him certain land for £100 in hand paid, but that the defendant had enfeoffed another of the land, and so deceived him. The promise not being binding of itself, how could the enfeoffment of a stranger be a tortious in- fringement of any right of the plaintiff ? What was the distinction, it was urged, between this case and those of pure nonfeasance, in which confessedly there was no remedy? So far as the plaintiff was concerned, as Ayscoghe, J., said, "it was all one case whether the defendant made a feoffment to a stranger or kept the land in his own hands." He and Fortescue, J., accordingly thought the count bad. A majority of the judges, however, were in favor of the action. But the case was adjourned. Thirty-five years later (1476), the validity of the action in a similar case was impliedly recognized.^ In 1487 Townsend, J., and Brian, C. J., agreed that a traverse of the feoffment to the stranger was a good traverse, since "that was the effect of the action, for otherwise the action could not be maintained."* In the following year,^ the language of Brian, C. J., is most explicit : "If there be an accord between you and me that you shall make me an estate of certain land, and you enfeoff another, shall I not have an action on my case? Quasi diceret sic. Et Curia cum illo. For when he undertook to make the feoffment, and conveyed to another, this is a great misfeasance." In the Exchequer Chamber case, and in the case following, in 1476, the purchase-money was paid at the time of the bargain. Whether the same was true of the two cases in the time of Henry VII., the reports do not disclose. It is possible, but by no means clear, that a payment contemporaneous with the promise was not at that time deemed essential. Be that as it may, if money was in ^ Y. B. II H. VI. 18, pi. 10; 24, pi. I ; 55, pl- 26. See, also, Y. B. 20 H. VI. 25 pi. II. *Y. B. 20 H. VI. 34, pl- 4. *Y. B. 16 Ed. IV. 9, pl. 7. *Y. B. 2 H. VII. 12, pl. 15. •Y. B. 3 H. VII. 14, pl. 20. 664 APPENDIX. fact paid for a promise to convey land, the breach of the promise by a conveyance to a stranger was certainly, as already seen, an action- able deceit by the time of Henry VII. This being so, it must, in the nature of things, be only a question of time when the breach of such a promise, by making no conveyance at all, would also be a cause of action. The mischief to the plaintiff was identical in both cases. The distinction between misfeasance and nonfeasance, in the case of promises given for money, was altogether too shadowy to be main- tained. It was formally abandoned in 1504, as appears from the fol- lowing extract from the opinion of Frowyk, C. J. : "And so, if I sell you ten acres of land, parcel of my manor, and then make a feoff- ment of my manor, you shall have an action on the case against me, because I received your money, and in that case you have no other remedy against me. And so, if I sell you my land and covenant to enfeoff you and do not, you shall have a good action on the case, and this is adjudged. * * * ^nd if I covenant with a carpenter to build a house and pay him £20 for the house to be built by a certain day, now I shall have a good action on my case because of payment of money, and still it sounds only in covenant and without payment of money in this case no remedy, and still if he builds it and mis- builds, action on the case lies. And also for nonfeasance, if money paid case lies."^ The gist of the action being the deceit in breaking a promise on the faith of which the plaintiff had been induced to part with his money or other property, it was obviously immaterial whether the promisor or a third person got the benefit of what the plaintiff gave up. It was accordingly decided in 1520, that one who sold goods to a third person on the faith of the defendant's promise that the price should be paid might have an action on the case upon the promise.'^ This decision introduced the whole law of parol guaranty. Cases in which the plaintiff gave his time or labor were as much within the principle of the new action as those in which he parted with property. And this fact was speedily recognized. In Saint-Germain's book, published in 1522, the student of law thus defines the liability of a promisor : "If he to whom the promise is made have a charge by reason of the promise, * * * he shall have an action for that thing that was promised, though he that made the promise have no worldly profit Idv it."^ From that day to this a detriment has always been deemed a valid consideration for a promise if incurred at the promisor's request.* ^ Keilw. 70, pi. 25, which seems to be the same case as Y. B. 20 H. VII. 8, pi. 18; Y. B. 21 H. VII. 41, pi. 66, per Fineux, C. J., accord. See, also, Brooke's allusion to an "action on the case upon an assumpsit pro tali summa." Br. Ab. Disccit, pi. 29. In 1455 there was an action on the case for a nonfeasance against a defendant who "assumpsit super se pro certa pecuniat summa" but "machinans, etc., made no enrolment." Y. B. 34 H. VI. 4, pi. 12. *Y. B. 12 H. VIII. II, pi. 3. "Doct. and Stud. Dial. II. c. 24. 'Y. B. 27 H. VIII. 24, pi. 3; Pecke v. Redman (i555\ T^Y- ii3, the earliest HISTORY OF ASSUMPSIT. 665 Jealousy of the growing jurisdiction of the chancellors was doubt- less a potent influence in bringing the common-law judges to the point of allowing the action of assumpsit. Fairfax, J., in 1481, ad- vised pleaders to pay more attention to actions on the case, and thereby diminish the resort to Chancery ;^ and Fineux, C. J., re- marked, after that advice had been followed and sanctioned by the courts, that it was no longer necessary to sue a subpoena in such cases,^ That equity gave relief, before 1500, to a plaintiff who had in- curred detriment on the faith of the defendant's promise, is reasona- bly clear, although there are but three reported cases. ^ In one of them, between 1377 and 1399, the defendant promised to convey cer- tain land to the plaintiff, who, trusting in the promise, paid out money in travelling to London and consulting counsel ; and upon the defendant's refusal to convey, prayed for a subpoena to compel the defendant to answer of his ''deceit."* The bill sounds in tort rather than in contract, and inasmuch as even cestuis que use could not compel a conveyance by their f coffers to use at this time, its object was doubtless not specific performance, but reimbursement for the expenses incurred. Appilgarth v. Sergeantson^ ( 1438) was also a bill for restitutio in integrum, savoring strongly of tort. It was brought against a defendant who had obtained the plaintiff's money by promising to marry her, and who had then married another in "grete deceit."'^ The remaining case, thirty years later,' does not differ materially from the other two. The defendant, having induced the plaintiff to become the procurator of his benefice, by a promise to save him harmless for the occupancy, secretly resigned his benefice, and the plaintiff, being afterward vexed for the occupancy, obtained relief by subpoena. Both in equity^ and at law, therefore, a remedial breach of a reported case of assumpsit upon mutual promises; Webb's Case (1578), 4 Leon, no; Richards v. Bartlett (1584), i Leon. 19; Baxter v. Read (1585), 3 Dyer 272, b, note; Foster v. Scarlett (1588), Cro. El. 70; Sturlyn v. Albany (1588) Cro. El. 57; Greenleaf v. Barker (1590), Cro. El. 193; Knight v. Rush- worth (1596), Cro. El. 469; Bane's Case (161 1), 9 Rep. 93, b. These au- thorities disprove the remark of Mr. Justice Holmes (Common Law, 287) that "the law oscillated for a time in the direction of reward, as the true es- sence of consideration." In the cases cited in support of that remark the ar- gument turned upon the point of benefit as the only arguable point. The idea that the plaintiff in those cases had, in fact, incurred a detriment would have seemed preposterous. Professor Langdell's observations (Summary of Con- tract, § 64) are open to similar criticism. ^ Y. B. 21 Ed. IV. 23, pi. 6. = Y. B. 21 H. VIL 41. pi. 66. ^ Two other cases are given by Mr. S. R. Bird in the Antiquary, Vol. IV., p. i8s ; Vol. v., p. 38. See 8 Harv. L. R. 256. *2 Cal. Ch. II. " I Cal. Ch. XLI. "An action on the case was allowed under similar circumstances in 1505, Anon., Cro. El. 79 (cited). 'Y. B. 8 Ed. TV. 4. pl- II. *The Chancellor (Stillington) says, it is true, that a subpcena will lie 666 APPENDIX. parol promise was originally conceived of as a deceit ; that is, a tort. Assumpsit was in several instances distinguished from contract.^ By a natural transition, however, actions upon parol promises came to be regarded as actions ex contractu^ Damages were soon as- sessed, not upon the theory of reimbursement for the loss of the thing given for the promise, but upon the principle of compensation for the failure to obtain the thing promised. Again, the liability for a tort ended with the life of the wrongdoer. But after the struggle of a century, it was finally decided that the personal representatives of a deceased person were as fully liable for his assumpsits as for his covenants.^ Assumpsit, however, long retained certain traces of its delictual origin. The plea of not guilty was good after verdict, "because there is a deceit alleged."* Chief Baron Gilbert explains the comprehensive scope of the general issue in assumpsit by the fact that "the gist of the action is the fraud and delusion that the defendant hath ofifered the plaintiff in not performing the promise he had made, and on relying on which the plaintiff is hurt."^ This allegation of deceit, in the familiar form : "Yet the said C. D., not regarding his said promise, but contriving and fraudulently intend- ing, craftily and subtly, to deceive and defraud the plaintiff," etc.,*' which persisted to the present century, is an unmistakable mark of the genealogy of the action. Finally, the consideration must move from the plaintiff to-day, because only he who had incurred detri- ment upon the faith of the defendant's promise, could maintain the action on the case, for deceit in the time of Henry VII. The view here advanced as to the origin of special assumpsit, al- though reached by an independent process, accords with, it will be against a carpenter for breach of his promise to build. But neither this re- mark, nor the statement in Diversity of Courts, Chancerie, justifies a belief that equity ever enforced gratuitous parol promises. 8 Harv. L. Rev. 255- 258. But see Holmes, i L. Q. Rev. 172, 173; Salmond, 3 L. Q. Rev. 173. The practice of decreeing specific performance of any promises can hardly be much older than the middle of the sixteenth century. Bro. Ab. Act. on Case, pi. 72. Specific Performance of Contracts, Green Bag, vol. i, p. 26. The invalidity of a miduni pactum was clearly stated by Saint-Germain in 1531. Doct. & St. Dial. II., Ch. 22, 23 and 24. See similar statements in a little treatise concerning writs of subpoena, Doct. & St. (i8th ed.) Ap- pendix, 17, Harg. L. Tr. 334, which was written shortly after 1523. ^ Y. B. 27 H. VIII. 24, 25, pi. 3; Sidenham v. Worlington, 2 Leon. 224; Banks v. Thwaites, 3 Leon. 72>', Shandois v. Simpson, Cro. El. 880; Sands v. Trevilian, Cro. Car. 107; Doct. & St. Dial. II., Ch. 23 and 24; Bret v. J. S.. Cro. El. 756; Milles v. Millcs, Cro. Car. 241; Jordan v. Tompkins, 6 Mod. 77. Contract originally meant what we now call a real contract, that is, a contract arising from the receipt of a quid pro quo; in other words, a debt. See 8 Har. L. Rev. 253, n. 3. "Williams v. Hide, Palm. 548, 549; Wirral v. Brand, i Lev. 165. 'Legate v. Pinchion, 9 Rep. 86; Sanders v. Esterby, Cro. Jac. 417. ^ Corby v. Brown, Cro. El. 470; Elrington v. Doshant, i Lev. 142. " Common Pleas. 53. "In Impey's King's Bench C.qth ed.) 486. the pleader is directed^ to omit these words in declaring against a Peer: "For the Lords have adjudged it a very high contempt and misdemeanor, in any person, to charge them with any species of fraud or deceit." HISTORY OF ASSUMPSIT. 667 seen, and confirms, it is hoped, the theory first advanced by Judge Hare. The origin of indebitatus assumpsit may be explained in a few words : Slade's case,^ decided in 1603, is commonly thought to be the source of this action.- But this is a misapprehension. Itidebi- tatiis assujiipsit upon an express promise is at least sixty years older than Slade's case.^ The evidence of its existence throughout the last half of the sixteenth century is conclusive. There is a note by Brooke, who died in 1558, as follows: "Where one is indebted to me, and he promises to pay me before Michaelmas, I may have an action of debt on the contract, or an action on the case on the promise."* In Manwood v. Burston^ (1588), Manwood, C. B., speaks of "three manners of considerations upon which an assump- sit may be grounded: (i) A debt precedent, (2) where he to whom such a promise is made is damnified by doing anything, or spends his labor at the instance of the promisor, although no benefit comes to the promisor * * * (3) or there is a present consideration."*^ The Queen's Bench went even further. In that court proof of a simple contract debt, w'ithout an express promise, would support an indebitatus assumpsit.'^ The other courts, for many years, resisted this doctrine. Judgments against a debtor in the Queen's Bench upon an implied assumpsit were several times reversed in the Ex- chequer Chamber.- But the Queen's Bench refused to be bound by these reversals, and it is the final triumph of that court that is signal- ized by Slade's case, in which the jury found that "there was no other promise or assumption, but only the said bargain ;" and yet all the judges of England resolved "that every contract executory implied an assumpsit." Indebitatus assumpsit, unlike special assumpsit, did not create a new substantive right ; it was primarily only a new form of proced- ure, whose introduction was facilitated by the same circumstances which had already made Case concurrent with Detinue. But as an express assumpsit was requisite to a charge the bailee, so it was for a long time indispensable to charge the debtor. The basis or cause of action was, of course, the same as the basis of debt, i. e., quid pro quo, or benefit. This may explain the inveterate practice of defining ^4 Rep. 92a; Yelv. 21; Moore, 433, 667. ^Langdell, Cont., § 48; Pollock, Cont. (4th ed.) 144; Hare, Cont. 136, 137; Salmon d, 3 L. Q. Rev. 179. ''Br. Ab. Act. on Case, pi. 105 (1542). * Br. Ab. Act. on Case, pi. 5. "2 Leon. 203, 204. "See further, Anon. (B. R. 1572), Dal. 84, pi. 35; Pulmant's Case (C. B. 1585), 4 Leon. 2; Anon. (C. B. 1587), Godb. 98, pi. 12; Gill v. Hanvood (C. B. 1587), I Leon. 61. It was even decided that assumpsit would lie upon a subsequent promise to pay a precedent debt due by covenant. Ashbrooke v. Snape (B. R. 1591), Cro. El. 240. But this decision was not followed. 'Edwards v. Burr (1573), Dal. 108; Anon. (1583), Godb. 13; Estrigge v. Owles (1589), 3 Leon. 200. ^ Hinson v. Burridge, Moore, 701; Turges v. Beecher, Moore, 694; Para- mour v. Payne, Moore, 703; Maylard v. Kester, Moore, 711. 668 APPENDIX. consideration as either a detriment to the plaintiff or a benefit to the defendant. Promises not being binding of themselves, but only because of the detriment or the debt for which they were given, a need was natu- rally felt for a single word to express the additional and essential requisite of all parol contracts. No word was so apt for the purpose as the word "consideration," Soon after the reign of Henry VIII., ii not earlier, it became the practice, in pleading, to lay all assumpsits as made in consideratione of the detriment or debt.^ And these words became the peculiar mark of the technical action of assumpsit, as distinguished from other actions on the case against surgeons or carpenters, bailees and warranting vendors, in which, as we have seen, it was still customary to allege an undertaking by the de- fendant. It follows, from what has been written, that the theory that con- sideration is a "modification of quid pro quo" is not tenable. On the one hand, the consideration of indebitatus assumpsit was identical with quid pro quo, and not a modification of it. On the other hand, the consideration of detriment was developed in a field of the law remote from debt ; and, in view of the sharp contrast that has always been drawn between special assumpsit and debt, it is impossible to believe that the basis of the one action was evolved from that of the other.2 Nor can that other theory be admitted by which consideration was borrowed from equity, as a modification O'f the Roman "causa." The word "consideration" was doubtless first used in equity ; but without any technical significance before the sixteenth century.^ Considera- tion in its essence, however, whether in the form of detriment or debt, is a common-law growth. Uses arising upon a bargain or covenant were of too late introduction to have any influence upon the law of assumpsit. Two out of three judges questioned their va- lidity in 1505, a year after assumpsit was definitely established.* ^In Joscelin v. Sheldon (1557), 3 Leon. 4, Moore, 13, Ben. & Dal. 57, pi. S3, s. c, a promise is described as made "in consideration of,'' etc. An ex- amination of the original records might disclose an earlier use of these tech- nical words in connection with an assumpsit. But it is a noteworthy fact, that in the reports of the half dozen cases of the reign of Henry VIII. and Edward VI. the word "consideration" does not appear. In Whorwood v. Gibbons (1577), Goldsb. 48, i Leon. 61, s. c, it was said by the court to be "a common course in actions upon the case against him, by whom the debt is due, to declare without any words in consideratione." ^ Sec, also, Mr. Salmoncl's criticism of this theory, in 3 L. Q. Rev. 178. "31 H. VI. Fitz. A. Subp., pi. 2^: Fowler v. Iwardby, i Cal. Ch. LXVIII; Pole V. Richard, 1 Cal. Ch. LXXXVIIL; Y. B. 20 H. VII. 10, pi. 20; Br. Feff. al use, pi. 40; Bcnl. & Dal. 16, pi. 20. *Y. B. 21 H. VII. 18, pi. 30. The consideration of blood was not sufficient to create a use, until the decision, in 1565, of Sharrington v. Strotton, Plow. 295. In 1533 Hales said, "A man cannot change a use by a covenant which is executed before, as to covenant to bee seised to the use of W. S. because that W. S. is his cosin ; or because that W. S. before gave to him twenty pound, except the twenty pound was given to have the same Land. But HISTORY OF ASSUMPSIT. 669 But we may go further. Not only was the consideration of the com- mon-law action of assumpsit not borrowed from equity, but, on the contrary, the consideration, which gave validity to parol uses by bar- gain and agreement, was borrowed from the common law. The bargain and sale of a use, as well as the agreement to stand seised, were not executory contracts, but conveyances. No action at law could ever be brought against a bargainor or covenantor.^ The ab- solute owner of land was conceived of as having in himself two dis- tinct things, the seisin and the use. As he might make livery of seisin and retain the use, so he was permitted, at last, to grant away the use and keep the seisin. The grant of the use was furthermore assimilated to the grant of a chattel or money. A quid pro quo, or a deed, being essential to the transfer of a chattel or the grant of a debt,- it was required also in the grant of a use.^ Equity might conceivably have enforced uses wherever the grant was by deed. But the chancellors declined to carry the innovation so far as this. They enforced only those gratuitous covenants which tended to "the establishment of the house" of the covenantor ; in other words, covenants made in consideration of blood or marriage.* II. Implied Assumpsit. Nothing impresses the student of the common law more than its extraordinary conservatism. The reader will easily call to mind numerous rules in the law of Real Property and Pleading which illustrate the persistency of archaic reverence for form and of scho- otherwise of a consideration, present or future, for the same purpose as for one hundred pounds paid for the hand tempore conventionis, or to bee paid at a future day, or for to marry his daughter or the like." Bro. Ab. Feff. al use, 54. ^ Plow. 298, 308 ; Buckley v. Simonds, Winch 35-37, 59, 61 ; Hore v. Dix, I Sid. 25, 27; Pybus v. Mitford, 2 Lev. 75, 77. 'That a debt, as suggested by Professor Langdell (Contracts, § 100), was regarded as a grant, finds strong confirmation in the fact that debt was the ex- clusive remedy upon a covenant to pay money down to a late period. Chawner V. Bowes, Godb. 217. See, also, i Roll. Ab. 518, pi. 2 and 3; Brown v. Hancock, Hetl. no, III, per Barklcy. ^ Bacon, St. of Uses (Rowe's ed.) 13-14. *"If the bargain was for the sale of land and there was no livery of seisin, the buyer had no common-law remedy for the recovery of the land, like that of Detinue for chattels. Equity, however, near the beginning of the sixteenth century, supplied the common-law defect by compelling the seller to hold the land to the use of the buyer, if the latter had either paid or agreed to pay the purchase money. Br. Ab. Feoff, al Use, 54; Barker v. Keate, i Freem. 249; 2 Mod. 249, s. c. ; Gilbert, Uses 52; 2 Sand. Uses 57. The considera- tion essential to give the buyer the use of land was therefore identical with the quid pro quo which enabled him to maintain Detinue for a chattel. Inas- much as the consideration for parol uses was thus clearly borrowed from the common-law doctrine of quid pro quo, it seems in the highest degree improb- able that the consideration for an assumpsit was borrowed by the common law from equity." From the writer's Essay on Parol Contracts Prior to Assumpsit, 8 Harv. L. Rev. 259. 670 APPENDIX. lastic methods of interpretation. But these same characteristics will be found in ahnost an}' branch of the law by one who carries his in- vestigations as far back as the beginning of the seventeenth century. The history of assumpsit, for example, although the fact seems to have escaped general observation, furnishes a convincing illustration of the vitality of mediaeval conceptions. We have had occasion in the preceding part of this paper, to see that an express assumpsit was for a long time essential in the actions of tort against surgeons or carpenters, and bailees. It also appeared that in the action of tort for a false warranty the vendor's affirmation as to quality or title was not admissible, before the time of Lord Holt, as a substitute for an express undertaking. We are quite pre- pared, therefore, to find that the action of assumpsit proper was, for generations, maintainable only upon an express promise. Further- more, assumpsit would not lie in certain cases even though there were an express promise. For example, a defendant who promised to pay a sum certain in exchange for a quid pro quo was, before Slade's case,^ chargeable only in debt unless he made a second prom- ise to pay the debt. It was only by degrees that the scope of the action was enlarged. The extension was in three directions. In the first place, indebitatus assumpsit became concurrent with debt upon a simple contract in all cases. Secondly, proof of a promise implied in fact, that is, a prom- ise inferred from circumstantial evidence, was at length deemed sufficient to support an action. Finally indebitatus assumpsit became the appropriate form of action upon constructive obligations, or quasi-contracts for the payment of money. These three develop- ments will be considered separately. Although indebitatus assumpsit upon an express promise was val- uable so far as it went, it could not be resorted to by plaintift's in the majority of cases as a protection from wager of law by their debtors. For the promise to be proved must not only be express, but subse- quent to the debt. In an anonymous case, in 1572, Manwood ob- jected to the count that the plaintifif "ought to have said quod postca assumpsit, for if he assumed at the time of the contract, then debt lies, and not assumpsit ; but if he assumed after the contract, then an action lies upon the assumpsit, otherwise not, quod Whiddon and South COTE, J J., with the assent of Catlin, C. J., concesse- runt."^ The consideration in this class of cases was accordingly de- scribed as a "debt precedent."^ The necessity of a subsequent prom- ise is conspicuously shown by the case of Maylard v. Kester.^ The allegations of the count were, that, in consideration that the plain- tifif would sell and deliver to the defendant certain goods, the latter promised to pay therefor a certain price ; that the plaintiff did sell '4 Rep. 92 a. ^Dal. 84, pi. 35. ' ManwcKxl v. Burston, 2 Leon, 203, 204; supra, p. 667. * Moore, 711 (1601). HISTORY OF ASSUMPSIT. 67 1 and deliver the goods, and that the defendant did not pay according to his promise and undertaking. The plaintiff had a verdict and judgment thereon in the Queen's Bench; but the judgment was re- versed in the Exchequer Chamber "because debt lies properly, and not an action on the case ; the matter proving a perfect sale and contract." What was the peculiar significance of the subsequent promise? Why should the same courts which, for sixty years before Slade's case, sanctioned the action of assumpsit upon a promise in considera- tion of a precedent debt, refuse, during the same period, to allow the action, when the receipt of the quid pro quo was contemporane- ous with or subsequent to the promise? The solution of this puzzle must be sought, it is believed, in the nature of the action of debt. A simple contract debt, as well as a debt by specialty, was originally conceived of, not as a contract in the modern sense of the term, that is, as a promise, but as a grant.^ A bargain and sale, and a loan, were exchanges of values. The action of debt, as several writers have remarked, was a real rather than a personal action. The judg- ment was not for damages, but for the recovery of a debt, regarded as a res. This conception of a debt was clearly expressed by Vaughan, J., who, some seventy years after Slade's case, spoke of the action of assumpsit as "much inferior and ignobler than the action of debt," and characterized the rule that every contract exec- utory implies a promise as "a false gloss, thereby to turn actions of debt into actions on the case ; for contracts of debt are reciprocal grants. "- Inasmuch as the simple contract debt had been created from time immemorial by a promise or agreement to pay a definite amount of money in exchange for a quid pro quo, the courts could not allow an action of assumpsit also upon such a promise or agreement, without admitting that two legal relations, fundamentally distinct, might be produced by one and the same set of words. This implied a liberality of interpretation to which the lawyers of the sixteenth century had not generally attained. To them it seemed more natural to consider that the force of the words of agreement was spent in creating the debt. Hence the necessity of a new promise, if the creditor desired to charge his debtor in assvimpsit. As the actions of assumpsit multiplied, however, it would naturally become more and more difficult to discriminate between promises to pay money and promises to doi other things. The recognition of an agreement to pay money for a quid pro quo in its double aspect, that is, as being both a grant and a promise, and the consequent ad- missibility of assumpsit, with its procedural advantages, as a con- current remedy with debt were inevitable. It was accordingly re- ^ See Langdell, Contracts, § 100. "Edgecomb v. Dee, Vaugh. 89, loi. Si homme countast simplcmcnt d'un graunte d'un dette, il ne serra mye resccu saiinc espccialte." Per Sharshulle, J., Y. B. II & 12 Ed. III., 587. 6/2 APPENDIX. solved by all the justices and barons in Slade's case, in 1603, although "there was no other promise or assumption but the said bargain," that "every contract executory imports in itself an assumpsit, for when one agrees to pay money, or to deliver anything, thereby he assumes or promises to pay or deliver it ; and, therefore, when one sells any goods to another, and agrees to deliver them at a day to come, and the other, in consideration thereof, agrees to pay so much money at such a day, in that case both parties may have an action of debt, or an action on the case on assumpsit, for the mutual execu- tory agreement of both parties imports in itself reciprocal actions upon the case as well as actions of debt," Inasmuch as the judges were giving a new interpretation to an old transaction ; since they, in pursuance of the presumed intention oi the parties, were working out a promise from words of agreement which had hitherto been conceived of as sounding only in grant, it was not unnatural that they should speak of the promise thus evolved as an "implied assumpsit." But the promise was in no sense a fiction. The ficti- tious assumpsit, by means of which the action of indebitatus assump- sit acquired its greatest expansion, was an innovation many years later than Slade's case. The account just given of the development of indebitatus assump- sit, although novel, seems to find confirmation in the parallel devel- opment of the action of covenant. Strange as it may seem, covenant was not the normal remedy upon a covenant to pay a definite amount of money or chattels. Such a covenant being regarded as a grant of the money or chattels, debt was the appropriate action for their re- covery.^ The writer has discovered no case in which a plaintiff su-ceeded in an action of covenant, where the claim was for a sum certain, antecedent to the seventeenth century ; but in an action of debt upon such a claim, in the Queen's Bench, in 1585, "it was holden by the court that an action of covenant lay upon it, as well as an action of debt, at the election of the plaintiff."^ The same right of election was conceded by the court in two cases^ in 1609, in terms which indicate that the privilege was of recent introduction. It does not appear in what court these cases were decided ; but it seems probable that they were in the King's Bench, for, in Chawner V. Bowes,* in the Common Bench, four years later, Warburton and Nichols, JJ., said : "If a man covenant to pay iio at a day certain, an action of debt lieth for the money, and not an action of covenant." As late as 1628, in the same court, Berkeley, Sergeant, in answer to 'Anon. (1591), I Leon. 208. "Per curiam. If one covenant to pay me £100 at such a day, an action of debt lieth; a fortiori when the words of the deed are covenant and grant, for the word covenant sometimes sounds in covenant, sometimes in contract secundum stibjectani matcriam." ' Anon., 3 Leon. 119. 'Anon., I Roll. Ab. 518, pi. 3; Strong v. WaUs, i Roll. Ah. 518, pi. 2. See, also, Mordant v. Watts, Brownl. 19; Anon., Sty. 2>i; Frere v. , Sty. 133; Norrice's Case, Hard, 178. *^Godb. 217. HISTORY OF ASSUMPSIT. 673 the objection that covenant did not He, but debt, against a defendant who had covenanted to perform an agreement, and had obliged him- self in a certain sum for its performance, admitted that, "if a cove- nant had been for £30, then debt only lies ; but here it is to perform an agreement."^ Precisely when the Common Bench adopted the practice of the King's Bench it is, perhaps, impossible to discover ; but the change was probably effected before the end of the reign of Charles I, That covenant became concurrent with debt on a specialty so many years after assumpsit was allowed as a substitute for debt on a simple contract, was doubtless due to- the fact that there was no wager of law in debt on a sealed obligation. Although the right to a trial by jury was the principal reason for a creditor's preference for indehitatiis asswnpsit, the new action very soon gave plaintillfs a privilege which must have contributed greatly to its popularity. In declaring in debt, except possibly upon an account stated, the plaintiff was required to set forth his cause of action with great particularity. Thus, the count in debt must state the quantity and description of goods sold, with the details of the price, all the particulars of a loan, the names of the persons to whom money was paid with the amounts of each payment, the names of the persons from whom money was received to the use of the plain- tiff, with the amounts of each receipt, the precise nature and amount of services rendered. In indebitatus assumpsit, on the other hand, the debt being laid as an inducement or conveyance to the assumpsit, it was not necessary tO' set forth all the details of the transaction from which it arose. It was enough to allege the general nature of the indebtedness, as for goods sold,- money lent,^ money paid at the defendant's request,* money had and received to the plaintiff's use'^ work and labor at the defendant's request,*' or upon an account stated,'^ and that the defendant being so indebted promised to pay. This was the origin of the common counts. In all the cases thus far considered there was a definite bargain or agreement between the plaintiff and defendant. But instances, of course, occurred in which the parties did not reduce their transac- tions to the form of a distinct bargain. Services would be rendered, for example, by a tailor or other workman, an innkeeper or common carrier, without any agreement as to the amount of compensation. Such cases present no difficulty at the present day, but for centuries ^ Brown v. Hancock, Hetl. no, in. * Hughes V. Rowbotham (1592), Popb. .30, 31; Woodford v. Deacon (1608), Cro. Jac. 206; Gardiner v. Bellingham (1612), Hob. 5, i Roll. R. 24, s. c. ^Rooke V. Rooke (1610), Cro. Jac. 245, Yelv. 175, s. c. * Rooke V. Rooke, supra; Moore v. Moore (1611), i Bulst. 160, ^Babington v. Lambert (1616), Moore, 854. ® Russell V. Collins (1669), I Sid. 425, i Mod. 8, i Vent. 44, 2 Keb. 552, s. c. ^Brinsley v. Partridge (1611), Hob. 88; Vale v. Egles (1605), Yelv. 70, Cro. Jac. 69. Woodruff's C.vses — 43 674 APPENDIX. there was no common-law action by which compensation could be recovered. Debt could not be maintained, for that action was always for the recovery of a liquidated amount.^ Assumpsit would not lie for want of a promise. There was confessedly no express promise ; to raise by implication a promise to pay as much as the plaintiff reasonably deserved for his goods or services was to break with the most venerable traditions. The lawyer of to-day, familiar with the ethical character of the law as now administered, can hardly fail to be startled when he discovers how slowly the conception of a promise implied in fact, as the equivalent of an express promise, made its way in our law. There seems to have been no recognition of the right to sue upon an implied quantum meruit before 1609. The innkeeper was the first to profit by the innovation. Reciprocity demanded that, if the law imposed a duty upon the innkeeper to receive and keep safely, it should also imply a promise on the part of the guest to pay what w^as reasonable.^ The tailor was in the same case with the innkeeper, and his right to recover upon a qiiaiitiiiii meruit v/as recognized in 1610.^ Sheppard,* citing a case of the year 1632, says : "If one bid me do work for him, and do not promise anything for it, in that case the law implieth the promise, and I may sue for the wages." But it was only four years before, that the court in a similar case were of opinion that an action lay if the party either before or after the services rendered promised to pay for them, "but not without a special promise."^ In Nichols v. More® (1661), a common carrier resisted an action for negligence, because, no price for the carriage being agreed upon, he was without remedy against the bailor. The court, however, answered that " the carrier may declare upon a quantum meruit like a tailor, and therefore shall be charged."'^ As late as 1697, Powell, J., speaking of the sale of goods for so much as they were worth, thought it worth while to add : "And note the very taking up of the goode implies such a contract."^ The right of one who signed a bond as surety for another without insisting upon a counter bond or express promise to save harmless, -"If I bring cloth to a tailor to have a cloak made, if the price is not ascertained beforehand that I shall pay for the work, he shall not have an action against me." Y. B. 12 Ed. IV. 9, pi. 22, per Brian, C. J. To the same effect, Young v. Ashbumham (1587), 3 Leon. 161; Mason v. Welland (1688), Skin. 23S, 242. ^ "It is an implied promise of every part, that is, of the part of the inn- keeper, that he will preserve the goods of his guest, and of the part of the guest, that he will pay all duties and charges which he caused in the house." Warbrooke v. Griffin, 2 Brownl. 254; Moore, 876, 877, s. c. " Six Carpenters' Case, 8 Rep. 147a. But the statement that the tailor could recover in debt is contradicted by precedent and following authorities. * Actions on the Case (2d cd.), 50. ''Thursby v. Warren, W. Jones, 208. "i Sid. 36. Sec, also. Boson v. Sandford (1689), i Show. lOi, per Eyres, J. 'The defendant's objection was similar to the one raised in Y. B. 3 H. VI. 36, pi. 33, supra, p. 662 n. i. "Ilayward v. Davenport, Comb. 426. HISTORY OF ASSUMPSIT. 675 to charge his principal upon an impHcd contract of indemnity, was developed nearly a century later. In Bosden v. Thinne^ (1603) the plaintiff at the defendant's request had executed a bond as surety for one F., and had been cast in a judgment thereon. The judges all agreed that upon the first request only assumpsit did not lie, Yel- VERTON, J., adding: "For a bare request does not imply any prom- ise, as if I say to a merchant, I pray trust J. S. with iioo, and he does so, this is of his own head, and he shall not charge me, unless I say I will see you paid, or the like." The absence of any remedy at law was conceded in 1662.- It was said by Duller, J., in Tous- saint V. Martinnant," that the first case in which a surety, who had paid the creditor, succeeded in an action at law against the principal for indemnity, "was before Gould, J.,* at Dorchester, which was de- cided on equitable grounds." The innovation seems to be due, how- ever to Lord Mansfield, who ruled in favor of a surety in Decker V. Pope, in 1757, "observing that when a debtor desires another person to be bound with him or for him, and the surety is afterward obliged to pay the debt, this is a sufficient consideration to raise a promise in law.""'"' The late development of the implied contract to pay quantjini meruit, and to indemnify a surety, would be the more surprising, but for the fact that Equity gave relief to tailors and the like, and to sureties long before the common law helped them. Spence, although at a loss to account for the jurisdiction, mentions a suit brought in chancery, in 1567, by a tailor, to recover the amount due for clothes furnished. The suit was referred to the queen's tailor, to ascertain the amount due, and upon his report a decree was made. The learned writer adds that "there were suits for wages and many others of like nature."** A surety who had no counter bond filed a bill against his principal, in 1632, in a case which would seem to have been one of the earliest of the kind, for the reporter, after stating that there was a decree for the plaintiff", adds "quod nota."'' The account just given of the promise implied in fact seems to ^Yelv. 40. * Scott V. Stephenson, i Lev. 71, i Sid. 89, s. c. But see Shepp. Act. on Cas. (2d. ed.) 49. ' 2 T. R. 100, 105. * Justice of the Common Pleas, 1763-1794. ''i Sel. N. P. (13th ed.) 91. " I Spence, Eq. Jnr. 694. "Daie v. Hampden (1628), Toth. 174. Concern- ing salary for serving of a cure." ' Ford V. Stobridge, Nels. Ch. 24. In 1613. in Wormlington v. Evans. Godb. 243, a surety was denied the right of contribution even in equity. The right was given, however, early in the reign of Charles I. Fleet v. Charnock (1630), Nels. 10, Toth. 41, s. c; Parkhurst v. Bathurst (1630), Toth. 41; Wilcox V. Dunsmore (1637), Toth. 41. The first intimation of a right to contribution at law is believed to be the dictum of Lord Kenj'on in Turner V. Davies (1796), 2 Esp. 479. The right to contribution at law was estab- lished in England by Cowcll v. Edwards (1800), 2 B. & P. 268. But in North Carolina, in 1801, a surety failed because he proceeded at law instead of in equity. Carrington v. Carson, Cam. & Nor. Conf. R. 216. 676 APPENDIX. throw much light upon the doctrine of "executed consideration," One who had incurred a detriment at the request of another by ren- dering service, or by becoming a surety with the reasonable expecta- tion of compensation or indemnity, was as fully entitled, in point of justice, to enforce his claim at law as one who had acted in a similar way upon the faith of an express promise. Nothing was wanting but an express assumpsit to make a perfect cause of action. If the defendant saw fit to make an express assumpsit, even after the detri- ment was incurred, the temptation to treat this as removing the technical objection to the plaintiff's claim at law might be expected to be, as it proved to be, irresistible.^ The already established practice of suing upon a promise to pay a precedent debt made it the more easy to support an action upon a promise when the antecedent act of the plaintiff at the defendant's request did not create a strict debt.^ To bring the new doctrine into harmony with the accepted theory of consideration, the promise was "coupled with" the prior request by the fiction of relation,^ or, by a similar fiction, the consideration was brought forward or continued to the promise.* This fiction doubt- less enabled plaintiffs sometimes to recover, although the promise was not identical with what would be implied, and in some cases even where it would be impossible to imply any promise.^ But after the conception of a promise implied in fact was recognized and under- stood, these anomaUes gradually disappeared, and the subsequent promise came to be regarded in its true light of cogent evidence of what the plaintiff deserved, for what he had done at the defendant's request. The non-existence of the promise implied, in fact, in early times, also makes intelligible a distinction in the law of lien, which greatly puzzled Lord Ellenborough and his colleagues. Williams, J., is reported to have said in 1605 : "If I put my cloths to a tailor to make up he may keep them till satisfaction for the making. But if I contract with a tailor that he shall have so much for the making of my apparel he cannot keep them till satisfaction for the making."*^ In the one case, having no remedy by action, he was allowed a lien to prevent intolerable hardship. In the other, as he had a right to sue on the express agreement, it was not thought necessary to give him the additional benefit of a lien.^ As soon as the right to recover '^The view here suggested is in accordance with what has been called, in a questioning spirit, the "ingenious explanation" of Professor Langdell. Holmes, Common Law, 286. The general tenor of this paper will serve, it is hoped, to remove the doubts of the learned critic. ^Sidenham v. Worlington (1585), 2 Leon. 224. * Langdell, Contracts, § 92. * Langdell, Contracts, § 92; i Vin. Ab. 280, pi. 13. ''Langdell, Contracts, §§ 93, 94- "2 Roll. Ab. 92, pi. I, 2. . , J 'An innkeeper had the further right of selling a horse as soon as it had eaten its value, if there were no express contract. For, as he had no right of action for its keep, the horse thereafter was like a damnosa hcreditas. The Hostler's Case (1605), Yelv. 66, 67. This right of sale disappeared HISTORY OF ASSUMPSIT. 677 upon an implied quantum meruit was admitted, the reason for this distinction vanished. But the acquisition of a new remedy by action did not displace the old remedy by lien.^ The old rule, expressed, however, in the new form of a distinction between an express and an implied contract, survived to the present century.- At length, in 1816, the judges of the King's Bench, unable to see any reason in the distinction, and unconscious of its origin, declared the old dicta erroneous, and allowed a miller his lien in the case of an express contract.^ The career of the agistor's lien is also interesting. That such a lien existed before the days of implied contracts is intrinsically prob- able, and is also indicated by several of the books.'* But in Chapman V. Allen" (1632), the first reported decision involving the agistor's right of detainer, there happened to be an express contract, and the lien was accordingly disallowed. When a similar case arose two centuries later in Jackson v. Cummins, "^ this precedent was deemed controlling, and, as the old distinction between express and implied contracts was no longer recognized, the agistor ceased to have a lien in any case. Thus was established the modern and artificial dis- tinction in the law of lien between bailees for agistment and "bailees who spend their labor and skill in the improvement of the chattels" delivered to them.'^ The value of the discovery of the implied promise in fact was ex- emplified further in the case of a parol submission to an award. If the arbitrators awarded the payment of a sum of money, the money was recoverable in debt, since an award, after the analogy of a judg- ment, created a debt. But if the award was for the performance of a collateral act, as, for example, the execution of a release, there was, originally, no mode of compelling compliance with the award, unless the parties expressly promised to abide by the decision of the ar- bitrators. Tilford V. French** (1663) is a case in point. So, also, afterwards with the reason upon which it was founded. Jones v. Pearle, I Stra. 556. ^"And it was resolved that an innkeeper may detain a horse for his feed- ing, and yet he may have an action on the case for the meat." Watbrooke v. Griffith (1609), Moore 876, S77, 2 Brownl. 254. s. c. ^Chapman v. Allen, Cro. Car. 271; Collins v. Ongly, Selw. N. P. (13th ed.) 1312, n. (x), per Lord Holt; Brennan v. Currint (1755), Say. 224, Buller, N. P. (7th ed.), 45, n. (c) ; Cowell v. Simpson, 16 Ves. 275, 281, per Lord Eldon ; Scarfe v. Morgan, 4 M. & W. 270, 283, per Parke, B. ^ Chase v. Westmore, 5 M. & Sel. 180. *2 Roll. Ab. 85, pi. 4 (1604) ; Mackerney v. Erwin (1628), Hutt. loi ; Chap- man V. Allen (1632), 2 Roll. Ab. 92, pi. 6, Cro. Car. 271, s. c. See, also, Bro. Ab. Distresse, 67. *2 Roll. Ab. 92, pi. 6, Cro. Car. 271, s. c. « 5 M. & W. 342. 'The agistor has a lien by the Scotch law. Schouler Bailments (2d ed.), § 122. *i Lev. 113; I Sid. 160; I Keb. 599, 635. To the same effect. Penruddock V. Monteagle (1612), i Roll. Ab. 7, pi. 3; Browne v. Downing (1620), 2 Roll. R. 194; Read v. Palmer (1648), Al. 69, 70. 678 APPENDIX. seven years later, "it was said by Twisden, J., that if two submit to an award this contains not a reciprocal promise to perform ; but there must be an express promise to ground an action upon."^ This doc- trine was abandoned by the time of Lord Holt, who, after referring to the ancient rule, said : "But the contrary has been held since ; for if two men submit to the award of a third person they do also thereby promise expressly to abide by his determination, for agree- ing to refer is a promise in itself."' In the cases already considered the innovation of assumpsit upon a promise implied in fact gave a remedy by action, where none ex- isted before. In several oth>.i cases the action upon such a promise furnished not a new, but a concurrent remedy. Assumpsit, as we have seen,^ was allowed, in the time of Charles I., in competition with Detinue and Case against a bailee for custody. At a later period Lord Holt suggested that one might "turn an action against a com- mon carrier into a special assumpsit (which the law implies) in re- spect of his hire."'* Dale v. HalP (1750) is understood to have been the first reported case in which that suggestion was followed. As- sumpsit could also be brought against an innkeeper.** Account was originally the sole form of action against a factor or baihfif. But in Wilkins v. Wilkins^ (1689), three of the judges fa- vored an action of assumpsit against a factor because the action was brought upon an express promise, and not upon a promise by impli- cation. Lord Holt, however, in the same case, attached no import- ance to the distinction between an express and an implied promise, remarking that "there is no case where a man acts as bailiff, but he promises to render an account."® The requisite of an express prom- ise was heard of no more. Assumpsit became theoretically concur- rent with account against a bailiff or factor in all cases, although by reason of the competing jurisdiction of equity, actions at common law were rare.'' In the early cases of bills and notes the holders declared in an ac- tion on the case upon the custom of merchants. "Afterwards they came to declare upon an assiimpsit."'^^ It remains to consider the development of indehitatus assumpsit as a remedy upon quasi-contracts, or, as they have been commonly ^Anon., I Vent. 69. ^Squire v. Grevell (1703), 6 Mod. 34, 35. See similar statements by Lord Holt in Allen v. Harris (1695), i Ld. Ray. 122; Freeman v. Barnard (1696), I Ld. Ray. 248; Purslow v. Baily (1704), 2 Ld. Ray. 1439, 6 Mod. 221, s. c; Lupart V. Welson (1708), 11 Mod. 171. ^ Supra, pp. 658-9. ^ Comb. 334. " I Wils. 281. See, also, Brown v. Dixon, i T. R. 274, per Buller, J. • Morgan v. Ravey, 6 H. & N. 265. But see Stanley v. Bircher, 78 Mo. 245. 'Carth. 89; I Salk. 9, Holt. 6, s. c. 'But in Spurravvay v. Rogers (1700) Lord Holt is reported as allowing as- sumpsit against a factor only upon his express promise. •Tompkins v. Willsbaer. 5 ^1 aunt. 430. "Milton's Case (1668), Hard. 485, per Lord Hale. HISTORY OF ASSUMPSIT. 6/9 called, contracts implied in law. The contract implied in fact, as we have seen, is a true contract. But the obligation created by law is no contract at all. Neither mutual assent nor consideration is es- sential to its validity. It is enforced regardless of the intention of the obligor. It resembles the true contract, however, in one im- portant particular. The duty of the obligor is a positive one, that is, to act. In this respect they both differ from obligations, the breach of which constitutes a tort, where the duty is negative, that is, to forbear. Inasmuch as it has been customary to regard all obliga- tions as arising either ex contractu or ex delicto, it is readily seen why obligations created by law should have been treated as contracts. These constructive duties are more aptly defined in the Roman law as obligations quasi ex contractu than by our ambiguous "implied contracts."^ Quasi-contracts are founded (i) upon a record; (2) upon a statu- tory, official, or customary duty, or (3) upon the fundamental prin- ciple of justice that no one ought unjustly to enrich himself at the expense of another. As assumpsit cannot be brought upon a record, the first class of quasi-contracts need not be considered here. Many of the statutory, official, or customary duties, also, e. g., the duty of the innkeeper to entertain,- of the carrier to carry, ^ of the smith to shoe,'* of the chap- lain to read prayers, of the rector to keep the rectory in repair,'^ of the Udei-comniiss to maintain the estate,*' of the finder to keep with care,^ of the sheriff and other officers to perform the functions of their office,^ of the shipowner to keep medicines on his sliip,^ and the like, which are enforced by an action on the case, are beyond the scope of this essay, since indebitatus assumpsit lies only where the duty is to pay money or a definite amount of chattels. For the same reason we are not concerned here with a large class of duties grow- ing out of the principle of unjust enrichment, namely, constructive or quasi trusts, w'hich are enforced, of course, only in equity. Debt was originally the remedy for the enforcement of a statutory or customary duty for the payment of money. The right to sue in indebitatus assumpsit was gained only after a struggle. The as- snmpsit in such cases was a pure fiction. These cases w-ere not, therefore, within the principle of Slade's case, w^hich required, as we have seen,^** a genuine agreement. The authorities leave no room for doubt upon this point, although it is a common opinion that, from ^ In Finch, Law, 150, they are called "as it were" contracts. "Keil. 50, pi. 4. 'Jackson v. Rogers, 2 Show. 327; Anon., 12 Mod. 3. * Stcinson v. Heath, 3 Lev. 4CO; ^ Bryan v. Clay, i E. & B. 38. * Batthyany v. Walford, 36 Ch. Div. 269. 'Story, Bailments (Sth ed.), §§ 85-87. *3 Bl. Com. 165. * Couch V. Steel, 3 E. & B. 402. But see Atkinson v. Newcastle Co., 2 Ex. Div. 441. ^"Sitpra, pp. 671-2. 68o APPENDIX. the time of that case, indebitatus assumpsit was concurrent with debt in all cases, unless the debt was due by record, specialty, or for rent. The earliest reported case of indebitatus assumpsit upon a cus- tomary duty seems to be City of London v. Goree,^ decided seventy years later than Slade's case. "Assumpsit for money due by custom for scavage. Upon non-assumpsit the jury found the duty to be due, but that no promise was expressly made. And whether assumpsit lies for this money thus due by custom, without express promise, was the question. Resolved it does." On the authority of that case an officer of a corporation was charged in assumpsit, three years later, for money forfeited under a by-law.^ So, also, in 1688, a copy- holder was held liable in this form of action for a customary fine due on the death of the lord, although it was objected "that no in- debitatus assumpsit lieth where the cause of action is grounded on a custom."^ Lord Holt had not regarded these extensions of indebi- tatus assumpsit with favor.* Accordingly, in York v. Toun,^ when the defendant urged that such an action would not lie for a fine im- posed for not holding the office of sheriff, "for how can there be any privity of assent implied when a fine is imposed on a man against his will?" the learned judge replied: "We will consider very well of this matter ; it is time to have these actions redressed. It is hard that customs, by-laws, rights to impose fines, charters, and every- thing should be left to a jury." By another report of the same case^ "Holt seemed to incline for the defendant. * * * And upon motion of the plaintiff's counsel, that it might stay till the next term. Holt, C. J., said that it should stay till dooms-day with all his heart ; but RoKESBY, J., seemed to be of opinion that the action would lie. — Et adjournatur. Note. — A day or two after I met the Lord Chief Justice Treby visiting the Lord Chief Justice Holt at his house, and Holt repeated the said case to him, as a new attempt to extend the indebitatus assumpsit, which had been too much encouraged al- ready, and Treby, C. J., seemed also to be of the same opinion with Holt." But Rokesby's opinion finally prevailed. The new action continued to be encouraged. Assumpsit was allowed upon a foreign judgment in 1705,'^ and the "metaphysical notion"^ of a promise im- plied in law became fixed in our law. ^2 Lev. 174, I Vent. 298; 3 Keb. 677, Freem. 433, s. c. * Barber Surgeons v. Pelson (1676), 2 Lev. 252. To the same efifect, Mayor v. Hunt (1681), 2 Lev. 37, Assumpsit for weighage ; Duppa v. Gerard (1688), I Show. 78, Assumpsit for fees of knighthood; Tobacco Co. v. Loder, 16 Q. B. 765. ' Shuttlcvvorth v. Garrett, Comb. 151, i Show. 35, Carth. 90, 3 Mod. 240, 3 Lev. 261, s. c. ■* In Smith v. Airey, 6 Mod. 128, 129, he said: "An indebitatus has been brought for a tenant right fine, which I could never digest." See, also. Anon. Farresly, 12. ° 5 Mod. 444. * I Ld. Ray. 502. ^ Dupleix v. DeRover, 2 Vern. 540. * Starke v. Cheesman, i Ld. Ray. 538. HISTORY OF ASSUMPSIT. 681 The equitable principle which lies at the foundation of the great bulk of quasi-contracts, namely, that one person shall not unjustly enrich himself at the expense of another, has established itself very gradually in the common law. Indeed, one seeks in vain to-day in the treatises upon the law of contract for an adequate account of the nature, importance, and numerous applications of this principle.^ The most fruitful manifestations of this doctrine in the early law are to be found in the action of account. One who received money from another to be applied in a particular way was bound to give an account of his stewardship. If he fulfilled his commission, a plea to that effect would be a valid discharge. If he failed for any reason to apply the money in the mode directed the auditors would find that the amount received was due to the plaintiff, who would have a judg- ment for its recovery. If, for example, the money was to be applied in payment of a debt erroneously supposed to be due from the plaintiff to the defendant, either because of a mutual mistake or be- cause of fraudulent representations of the defendant, the intended application of the money being impossible, the plaintiff would re- cover the money in account.^ Debt would also lie in such cases, since, at an early period, debt became concurrent with account, when the object of the action was to recover the precise amount received by the defendant.^ By means of the fiction of a promise implied in law indebitatus assimipsit became concurrent with debt, and thus was established the familiar action of assumpsit for money had and re- ceived to recover money paid to the defendant by mistake. Bonnel V. Fowke* (1657), is, perhaps, the first action of the kind.-'"' Although assumpsit for money had and received was in its in- fancy merely a substitute for account, it gradually outgrew the limits of that action. Thus, if one was induced by fraudulent representa- tions to buy property, the purchase money could not be recovered from the fraudulent vendor by the action of account. For a time, also, indebitatus assmnpsit would not lie in such a case. Lord Holt said in 1696: "But w^here there is a bargain, though a corrupt one, or where one sells goods that were not his own, I will never allow an indebitatus."*^ His successors, however, allowed the action. Simi- larly, account was not admissible for the recovery of money paid for a promise which the defendant refused to perform. Here, too, ^ Professor Keener published his Cases in Quasi-Contracts in 1888, and fol- lowed it, in 1893, with his admirable treatise on the same subject. "Hewer v. Bartholomew (1597), Cro. El. 614; Anon. (1696), Comb. 447; Cavendish v. Middleton, Cro. Car. 141, W. Jones, 196, s. c. ^Lincoln v. Topliff (1597). Cro. El. 644. *2 Sid. 4. To the same effect, Martin v. Sitwell (1690), i Show. 156, Holt, 25; Newdigate v. Dary (1692), i Ld. Ray. 742; Palmer v. Staveley (1700), 12 Mod. 510. Mn Mead v. Death (1700), i Ld. Ray. 742, however, one who paid money under a judgment was not allowed to recover it, although the judgment was afterwards reversed. The rule to-day is, of course, otherwise. Keener Quasi- Contracts, 417. "Anon., Comb. 447. 682 APPENDIX debt and indebitatus assumpsit did not at once transcend the bounds of the parent action.^ But in 1794 Lord Holt reluctantly declined to non-suit a plaintiff who had in such a case declared in indebitatus assumpsit.- Again, account could not be brought for money acquired by a tort, for example, by a disseisin and collection of rents or a con- version and sale of a chattel.^ It was decided, accordingly, in Phil- lips V. Thompson* (1675), that assumpsit would not lie for the pro- ceeds of a conversion. But in the following year the usurper of an office was charged in assumpsit for the profits of the office, no objec- tion being taken to the form of action. ° Objection was made in a similar case in 1677, that there was no privity and no contract ; but the court, in disregard of all the precedents of account, answered : "An indebitatus assumpsit will lie for rents received by one who pretends a title ; for in such cases an account will lie. Wherever the plaintiff may have an account an indebitatus will lie."*^ These prece- dents were deemed conclusive in Howard v. Wood^ (1678), but Lord ScROGGS remarked : "If this were now an original case, we are agreed it would by no means lie." Assumpsit soon became concur- rent with trover, where the goods had been sold.^ Finally under the influence of Lord Mansfield the action was so much encouraged that it became almost the universal remedy where a defendant had received money which he was "obliged by the ties of natural justice and equity to refund."^ But one is often bound by those same ties of justice and equity to pay for an unjust enrichment enjoyed at the expense of another, although no money has been received. The quasi-contractual lia- bility to make restitution is the same in reason, whether, for example, one who has converted another's goods turns them into money or consumes them. Nor is any distinction drawn, in general, between the two cases. In both of them the claim for the amount of the unjust enrichment would be provable in the bankruptcy of the wrong-doer as an equitable debt,^*' and would survive against his rep- resentative.^^ Nevertheless the value of the goods consumed was never recoverable in indebitatus assumpsit. There was a certain * Brig's Case (1623), Palm, 364; Dewbery v. Chapman (1695), Holt, 35; Anon. (1696), Comb. 447. "Holmes v. Hall, 6 Mod. 161, Holt, 36, s. c. See, also, Dutch v. Warren (1720), I Stra. 406, 2 Burr. loio, s. c.; Anon., i Stra. 407. "Tottenham v. Bedingficld (1572), Dal. 99, 3 Leon. 24, 0\v. 35,