229 Wis. 231 | Wis. | 1938
The sole question presented on this appeal is whether the court erred in holding that the defendant, Radtke, was not entitled to recover the payments made by him on the note and contract subsequent to the date of their alteration. A brief summary of the facts will be necessary. On June 20, 1935, the defendant, Radtke, purchased an automobile from Emmett Wright and Willard Wright, copartners, then doing business under the firm name of Wright Brothers Motor Company, the purchase price of which, including a radio, was $782. The defendant, Radtke, turned in his old car for a credit of $237, paid $100 cash, and signed a note and conditional sale contract for $593.33, which included certain financing and insurance charges, and thereby contracted to pay Wright Brothers $25 per month for seventeen months, commencing July 20, 1935, and the balance at the end of eighteen months. The note and conditional sale contract were drawn on partially printed forms furnished by the plaintiff to Wright Brothers. On June 22, 1935, Wright Brothers sold, assigned, and transferred the note and contract to the plaintiff. A Mr. Hoag acted for the plaintiff in purchasing the note and contract. When Hoag first examined the note and contract he observed that they called for an eighteen months’ payment plan. He informed Willard Wright that his company would not accept that type of deal. He advised Willard Wright, that as a condition of his company’s purchasing the note and contract, they would have to be changed to a twelve months’ payment plan, that is to say, $25 each month for
The defendant, Radtke, argues that when the note and contract were altered they became null and void, under the
The cross complaint is confusing in its allegations. It has allegations which sound in fraud, allegations which sound in rescission, and allegations which sound in quasi contract. In his principal brief Radtke contends that he is entitled to recover the instalments paid on the note and contract because they were induced by representations made to him by the plaintiff and Wright Brothers to. the effect that the note and contract had not been altered, which representations were untrue and constituted fraud and deceit; or that he is entitled to recover the instalments paid because they were made by reason of a mistake of a material fact, namely, that he thought when the payments were made that the note and contract had not been altered. The plaintiff, in its brief, argues that the cross complaint is for equitable rescission. In his reply brief the defendant, Radtke, finally contends that his cross complaint is a straight action at law for the recovery of moneys paid by mistake. This contention clarifies the theory on which the defendant, Radtke, seeks to recover.
An action for. money paid by mistake is an action. for money had and received. In 41 C. J. p. 50, § 37, it is said:
“An action for money had and received is the proper form of action for the recovery of money paid under a mistake of facts.”
The trial court, in its decision, expressed the view that it would be unconscionable for the defendant, Radtke, to recover on his cross complaint and still retain the automobile and radio which he purchased from Wright Brothers. As a result of the alteration of his note and contract, the defendant, Radtke, has profited to the-extent of at least $318.33. We are of the opinion that neither the plaintiff nor the defendants, Wright, under the circumstances of this case, have in their possession moneys belonging to the defendant, Radtke, which in equity and good conscience they ought to repay to Radtke. Nor can it be said that the payments made by the defendant, Radtke, unjustly enriched either the plaintiff or the defendants, Wright.
The defendant, Radtke, cites numerous cases where recoveries of money paid by mistake have been permitted but none of them deals with a situation at all like the present. In every case cited, it clearly would have been inequitable to permit the defendant to retain the moneys paid to him by
By the Court. — That part of the judgment appealed from is affirmed.