187 Wis. 93 | Wis. | 1925
This is an appeal from an order sustaining a demurrer to a complaint which, in substance, alleges that a shipment of steel made by'the Seneca Iron & Steel Company of Lackawanna, New York, to the defendant at Beaver Dam, Wisconsin, was rusted and damaged by water which came through the sides and roof of the car while in transit, and that the defendant presented a claim against the plaintiff for $1,603.76. This claim was accompanied by an affidavit made by one Quinn, who stated that he was an employee of
The trial court held that the complaint did not state a cause of action for the recovery of money paid under mistake, because the plaintiff was'negligent in relying upon the affidavit of Quinn as to the condition of the car in which the shipment was made, and that it was not enough to entitle plaintiff to recover that the money was paid under a mistake of fact actually entertained by the plaintiff if by reasonable inquiry it might have obtained the facts.
The principle invoked by the trial court in this case is applicable in many classes of actions where it is sought to rescind or avoid contracts, but it is not applicable in actions brought to recover money paid by mistake, especially where there is no legal or moral obligation on the part of the party making the payment, where he receives no benefit or consideration for the money paid,' and where it, in effect, amounts to nothing more than a gift. The rule is quite well
By the Court. — Order reversed, and cause remanded with instructions to overrule the demurrer.