Boyer v. Pack

2 Denio 107

Opinion

By the Court, Jewett, J.

There is no dispute in respect to the facts in this case, and very little room, as I think, to differ as to the-principles of law which must control it.

It is a familiar principle which seems not to be denied here, that money paid by one to another, under a mistake as to facts, may be recovered back in an action for money had and received. (Mowatt v. Wright, 1 Wend. 355; Waite v. Leggett, 8 Cowen 195.) Was there an error of fact in this case 1 The fact supposed to exist was, that the interest at the time this money was paid to the defendant, had been correctly computed. It turned out that both parties were mistaken in that fact. The computation had been made upon erroneous principles, by reason of which the amount apparently due on the bond and mortgage was larger by the amount for which the judgment was obtained than the true sum when computed upon correct principles. No doubt if the plaintiff had paid the money voluntarily, with knowledge or information of the mode adopted in computing the amount, she would have been without remedy—as it was not received usuriously. It is a clear case of the payment of money under a mistake of fact, to recover which the action was well sustained. (Stoughton v. Lynch, 2 John. Ch. 209; Mowry v. Bishop, 5 Paige, 98; Connecticut v. Jackson, 1 John. Ch. R. 13.)

Judgment affirmed.