Mowatt v. Wright

1 Wend. 355

• Court: New York Supreme Court
• Decided: October 15, 1828
• Status: Published

Opinion

By the Court,

Savage, Ch. J.

The question is, whether the $1000 were paid by mistake of the facts, or compulsion of law; or whether it was voluntary, and to compromise a suit and a disputed claim 1 At the trial, it was attempted to shew fraud in Mrs. Wright; but that was satisfactorily re_ butted. She was married at 17 years of age, and soon after executed the conveyance of these lots. In 1821, she was informed by a Mr. Baldwin, that she had a right of dower in certain lots; but she had forgotten that her husband had ever owned those lots, and took pains to make all possible enquiries for the conveyance, before she brought her suits. The jury passed upon the question of actual fraud, and found a verdict in her favor. On the question of mistake and compulsion, the judge decided that the plaintiffs were not entitled to recover. It appeared that the attornies and counsel for the defendants in the dower suits, were of opinion that a release had been executed by Dr. Wright, in which the defendant had joined. A lease for one year from Dr. Wright to Col. Burr was found ; and it was therefore believed that a proper release had also been executed. The testimony is uncontradicted, that the payment of the ¡000 was voluntary, as a compromise of Mrs. Wright’s claim, and of the claim of' the heirs of her husband ; but it is contended that the payment was compulsory, inasmuch as a suit was brought, and at the time of the compromise, the conveyance from Mrs. Wright could not be found.

The action for money had and received, in general, lies for money which ex mquo et bono, the defendant ought to refund, as for money paid by mistake ; or upon a consideration which happens to fail; or for money obtained by imposition ; or extortion ; or oppression ; or by taking an undue advantage of the plaintiff’s situation. (2 Burr. 1012.) A mistake which entitles a party to sustain this action, must be a mistake of fact. Where there is no fraud nor mistake in matter of fact, if the law was mistaken, the rule applies that ignorantia juris non excusat. (Doug. 471.) An error of fact takes place, either when some fact which really exists is unknown, or some fact is supposed to exist, which really does not exist. But when a person is truly acquainted with the existence or non-existence of the facts, but is ignorant of the legal consequences, he is under an error of law. (2 Ev. Polk. App. 437.) It is now generally conceded, that the law is as laid down by Buller justice, (Doug. 471,) that the mistake must be a mistake of fact and not of law, though a very learned argument will be found in Evan’s Potkier, sustaining the proposition that a mistake of either law or fact, will entitle the party, paying money under if, to maintain this action to recover it back. Some of the earlier cases do not take the distinction; and De Grey, chief justice, in Farmer v. Arundel, (2 Bl. Rep. 824, 5,) says, 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 ; 'but the later authorities contradict this proposition so far as regards a mistake of the law. There aré cases also of payment by compulsion, and by legal process, where the party has been subsequently permitted to recover it back. The case of Astley v. Reynolds, (2 Sir. 915,) was an action for money had and received. The plaintiff had pawned plate to the defendant for ¿£20, and went afterwards to redeem it, and offered the principo. and £4, which was more than legal interest; but the defendant demanded £10, which the plaintiff paid, and then brought his action to recover the excess above lawful interest. It was contended that he could not recover, there being neither mistake nor force, and his remedy by trover being open to him after tender, and therefore he came within the rule that volenti non fit injuria. But the court said they considered it a payment by compulsion ; that the plaintiff might have such immediate want of his goods, that trover would not afford him a proper remedy; that volenti non fit injuria applies only where the party had his freedom of exercising his will, which this man had not. I presume there were facts in that case not reported, from this remark, as there is nothing in the case to shew that the plaintiff had not the liberty of exercising his will. This case, Ch. J. Spencer, in Hall v. Schultz, (4 Johns. R. 245,) considers as overruled by Knibbs v. Hall, (1 Esp. 84,) where in an action for use and occupation, it appeared that the plaintiff had let certain rooms to the defendant. The plaintiff demanded rent at 25 guineas; the defendant insisted he had taken them at 20 guineas ; but on the plaintiff’s threatening to distrain, defendant paid the 25 guineas.. He now offered to shew, that the rent was really but 20 guineas, and to set off the 5 guineas in this action, as having been paid by compulsion. But Ld. Kenyon was of opinion, that this could not be deemed a payment by compulsion, as the defendant might, by a replevin, have defended himself against the distress.

There are cases, undoubtedly, where an undue advantage is taken of the party’s situation, in which he may pay money, with knowledge of all the facts and the law too, and afterwards recover it back. Such was the case of- v. Piggott, cited in Cartwright v. Rowley, (2 Esp. 723,) where the steward of an estate being in possession of deeds, wanted on a trial, charged extravagantly for producing them, and the money was recovered back from him in this action. The money was held not to have been paid voluntarily, but from necessity and the urgency of the case, as the plaintiff could not do without the deeds.

The case of Cobden v. Kendrick, (4 T. R. 431,) has been relied on for the plaintiff. The facts were these : Previous to that suit, the defendant, IL, had sued the plaintiff, C., on a promissory note ; and after a writ of inquiry executed, the suit was compromised and part paid. Soon afterwards, Kendrick told his attorney that he was glad it was compromised, for it was a lottery transaction, and he had given but <£10 for the note, which was for ¿£150: thereupon, this suit was brought for the money so paid. No question was raised but that the action was sustainable. It was a clear case of fraud. But in Marriott v. Hampton, (7 T. R. 269,) the facts were more analogous to the case before us. H. had previously sued M. for goods sold, and which had actually been paid for and a receipt given ; but not being able to produce the receipt, nor prove payment in any other manner, M. gave a cognovit and paid the money. Mariott afterwards found the receipt, and brought his action for money had and received; but Lord Kenyon held, that money recovered under legal process, could not be recovered back, however unconscientiously retained by the defendant, and nonsuited the plaintiff. On a motion to set aside the nonsuit, the court said, that after recovery by legal process, there must be an end of litigation ; and that it would tend to encourage the greatest negligence, if a door were opened to parties to try their causes again, because they were not properly prepared with their evidence the first time. Neither of these cases can be said to be like this case ; for, in the first, the recovery was on the ground of fraud, which is negatived here ; and the last differs from this, because there had been an actual judgment, though by cognovit,. and here there was a compromise before judgment. The cases founded on mistake, seem to rest on this principle: that if parties, believing that a certain state of things exists, come to an agreement with such belief for its basis, on discovering their mutual error, they are remitted to their original rights. On this principle was determined the case of Cox v. Prentice, (3 M. & S. 344,) where a bar of silver was purchased by the plaintiffs of the defendant, and paid for according to the number of ounces calculated by an assay-master ; but it being ascertained afterwards that a mistake had been made, by which they had paid more than the value, they brought their action and recovered the excess. Lord Ellenborough said it was a case of mutual innocence and equal error, and a proper case for such an action. But when a party pays money voluntarily, with full knowledge, or full means of knowledge of all the facts of the case, the party so paying cannot recover it back. (Bilbie v. Lumley, 2 East, 470.) The ground on which the action was brought, was, that the money was paid under a mistake, by which the underwriter had paid an insurance, a material letter having been withheld at the time of insurance. At the trial, that fact was contradicted; and the plaintiff then insisted that the money having been paid under a mistake of the law, the action might be sustained; and so the judge ruled at nisi prills, But on motion to set aside the verdict, Lord Ellenborough said he never heard of any case, except Chalfield v. Paxton, where such a recovery was ha°d ; and that case was ultimately decidéd on some other circumstances; but it was so doubtful as not to be reported.

In Brisbane v. Dacers, (5 Taunt. 155,) Best, justice, gives a full statement of the case of Chatfield v. Paxton, having been counsel in the cause, from which it seems that the intimation given by Lord Kenyon at the trial, that ignorance of the law was a sufficient ground for the action, was abandoned, and the judges put it wholly on the ground that the plaintiff had not a knowledge of the facts. In the course of the argument, Best, sergeant, advanced this proposition, speaking of the doctrine of Lord Ellenborough, in Bilvie v. Lumley, to wit: that money shall not be recovered back, if it be consistent with honor and conscience to retain it, but otherwise it shall. Gibbs, justice, interrupted him, saying, “ The principle has always been this: wherever the money has been paid in consequence of a demand as of right, then, although the demand was unfounded, the payment cannot be recovered back.” There is a case of money paid under distress for standings in a market; though the party had no right to distrain, the money could not be recovered back. The facts in the case then under argument were, that the plaintiff was captain of a ship under command of the defendant’s testator, admiral Daccrs. The plaintiff had received a considerable sum for transporting specie, one third of which he paid to the admiral, under a mistaken apprehension that he was entitled to it, and then brought his action to recover it back. In deciding the case, Gibbs, justice, says, “ We must take this payment to have been made under a demand of right,” and then repeats the doctrine above stated. He adds, “ I think, that by submitting to the demand, he that pays the money gives it to the person to whom he pays it, and makes it his, and closes the transaction between them.” This was said under the supposition that there was a full knowledge of all the facts upon which the demand was founded.

In the case of Bulkely v. Stewart, (1 Day, 133,) the supreme court of Connecticut say, “ This action does not lie to recover back money voluntarily paid on a claim which the party disputes, though he pay it, expressly reserving his right to litigate his claim.” The cases in Massachusetts, where the plaintiff recovered, are cases where the money was paid under a mistake of the' facts. Many more cases might be cited, but those already referred to, shew the principles upon which the action has been sustained, and upon which it has been defeated. In the present case, it now appears that the defendant had, in fact, no right to the money paid by the plaintiffs; but it was paid upon a claim of right which was honestly made by her; and the plaintiffs here, who were virtually defendants in the dower suits, acted under as full a knowledge of the facts as the demandant. She, in truth, believed that she had never executed a deed; but the plaintiffs acted under the belief, as testified by the witnesses, that there was such a deed in existence, but for reasons which are stated, they thought that the payment of the $1000 was the shortest and cheapest way of settling the dispute. This sum of money, then, was given to Mrs. Wright to quiet the claim, in the language of Mr. Justice Best. She had a right-to consider it her own without dispute. She has probably spent it; “ and it would be most mischievous and unjust, if he who has acquiesced in the right by such voluntary payment, should be at liberty, at any time within the statute of limitations, to rip up the matter and recover back the money.”

1 cannot consider this as a case of mistake of fact or of law. Mrs. Wright brought suits for a claim which she thought well founded. The defendants believed there was a defence, but they could not produce the evidence of it, like the case of the lost receipt: they, therefore, paid a sum of money, as the easiest and cheapest Way of settling the claim. It is a voluntary 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.

I am of opinion that the motion to set aside the verdict be denied.