George v. Tallman, 5 Lans. 392

George v. Tallman

5 Lans. 392 | N.Y. Sup. Ct. | 1871

By the Court

Johnson, J.

Upon the facts found by the. referee, which seem to be abundantly supported by the evi*396dence, this is a plain case of money paid by the plaintiff under a mistake in regard to a material fact.

In every such case, the law gives the party so paying a remedy by action, to recover back the money, as money had and received by the defendant to and for the use of the plaintiff. As the party who thus receives money cannot in equity and good, conscience retain it, the law presumes a promise on his part to pay it over to the party justly entitled . to it, and establishes a privity between them as matter of law. The principle is elementary. (The Bank of Commerce v. The Union Bank; 3 N. Y., 230 ; Boyer v. Pack, 2 Denio, 107; Burr v. Veeder, 3 Wend., 412; Wheadon v Olds, 20 Wend., 174, 176; Mowatt v. Wright, 1 id., 360 ; Canal Bank v. Bank of Albany, 1 Hill., 287.)

What the defendant was legally entitled to receive, under his contract with the plaintiff, was the sum of forty dollars per acre for each and every acre contained in the lots mentioned and described in the contract, the number of acres to be ascertained by an accurate survey and measurement of the lots thus described. The surveyor, selected by the parties to survey, measure and ascertain the number of acres, made a mistake, either in his measurement or computation afterward, and reported to the parties that the lots contained nine and thirty-one one-hundredths acres mqre than were actually contained therein.

The plaintiff and defendant, both supposing and. believing the survey and statement of the surveyor so chosen to be correct, acted upon it, and the plaintiff paid and the defendant received the sum of forty dollars per acre for the entire quantity thus ascertained and reported by such surveyor. . Both acted in good faith at the time, and were equally ignorant of the mistake made by their surveyor. The mistake was discovered afterward, and the over-payment then became money due from the defendant to the plaintiff, by operation of law, and the relation of debtor and creditor was established. The mistake was made by the surveyor; but he misled the parties. They acted under the supposition and belief that he had made *397no mistake. His mistake thus became their mistake. In this respect the case is quite analogous to that of Boyer v. Pack (supra), where a third person had been employed to cast . interest upon an obligation due, and payment had been made according to his computation, upon the supposition and belief that the computation had been made upon correct principles. It is of no sort of consequence that the plaintiff had taken possession of the premises, and sold and conveyed the same before the error or mistake of the first surveyor had been discovered. The question is, how much was actually and legally due to the defendant on the contract when the final payment was made, and was the overplus paid by the plaintiff in ignorance and under a mistake as to the true quantity and number of acres of land?

The plaintiff, having fulfilled his contract by paying the whole purchase-price, is entitled to a deed describing the land purchased correctly, either by metes and bounds or other description, so that the precise piece or parcel of land mentioned and described in the contract can be readily traced out, identified and ascertained from the deed. It should also contain the true purchase-price and consideration; though this is not absolutely necessary.

The judgment is in all respects right, and must be affirmed, with costs.

Judgment affirmed.