The Charleston and Western Carolina Railway Company brought an action against “Frank G. Mangrem and T. T. Warr, partners doing business as the Augusta Stockyard Company.” The plaintiff’s petition was dismissed on demurrer, and the plaintiff excepted. An examination of the petition, a copy of which appears in the preceding official report, shows that it was lacking in the essential averment that the defendants had no right to present to and collect from the United States Government the bill of charges which the plaintiff’ alleges that it paid to the defendants, upon their representation that such a right upon their part existed. The defendants in error contend that the petition shows that the plaintiff sued to recover a voluntary payment which it had made to the defendants, and that such a payment can not be recovered from the one who received it. The plaintiff in error contends that its petition shows that the payment which it made to the defendants was made under a mistake of fact; and that money so paid may be recovered by the party paying it from the party receiving it. In our opinion, it matters not which of these contentions is right, because, in any view of the case, the petition is fatally defective in the absolutely essential averment above indicated. Assuming that the nature of the petition and the law applicable thereto are in accordance with the contention of the plaintiff, before it could recover the money which it paid to the defendants it would have to first allege and then prove the mistake of fact
The'learned and able counsel for the plaintiff does not insist that, anything in this paragraph amounts to an allegation that the representations of the defendants, upon which the plaintiff relied when it paid the defendants’ bill, were untrue. He does, however, seem to rely upon the concluding clause of the 14th paragraph, as an allegation that the defendants did not have the authority in reference
If the plaintiff intended to allege that the defendants did not have the authority in reference to the stock which they claimed to have, why did it not do so in paragraph 7, wherein it is alleged that the defendants represented to the plaintiff that they had such authority, or in paragraph 8, in which it is alleged that the plaintiff, relying upon such representation upon the part of the defendants and believing it to be true, paid the defendants’ claim, or, at least, follow these paragraphs with another, clearly and unequivocally denying the truthfulness of this representation made by the defendants? Why pass over the most natural places and connections in which to deny the truthfulness of the representation made by the defendants, and then attempt to make such denial in a place and a connection where one would not naturally expect to find-it, and, in doing so, use language which, in the connection in which it is used, is, at least, of doubtful and ambiguous meaning ? One relying for the recovery of money paid to another under a mistake of fact, induced by the representations of the person receiving the money, must clearly
When these principles are applied to the plaintiff’s petition, we think it is evident that it failed to allege the non-existence of the fact upon which it relied when it made the payment which it seeks to recover. Consequently the petition was fatally defective, and there was no error in dismissing it upon demurrer.
Judgment affirmed.