23 Pa. Super. 615 | Pa. Super. Ct. | 1903
Opinion by
This was an action of assumpsit brought by the plaintiff to recover back from the defendant money alleged to have been paid to him upon a mistake of fact. The parties, by writing filed, dispensed with a jury trial and submitted the case to the determination of a judge of the court below. The pivotal poiuts in the case are two: 1. Was the money claimed in the suit paid to the defendant upon a mistake of fact ? 2. Had the defendant’s relation to this fund as attorney for A. H. Weir and Mrs. A. E. Weir, his wife, ceased before the money was paid to the defendant by the plaintiff on July 23, 1900 ? The learned judge below found both of these facts against the defendant, and a careful examination of the testimony convinces us that his conclusions are fully sustained by the evidence.
The defendant appeared as counsel for A. H. Weir in the orphans’ court in the matter of Weir’s claim under the will of Martha H. Chambers, deceased. The defendant also claims that he was counsel for- Mrs. A. E. Weir, the wife of A. H. Weir. While there is some confusion as to whether or not he was counsel for both Mr. and Mrs. Weir, yet he so testifies, and for the purposes of this suit it may be conceded that he was counsel for both. The plaintiff company was the trustee under the will of Martha H. Chambers, deceased, and was the accountant in the orphans’ court of the fund upon which the claim was made by Mr. Weir. The orphans’ court, by its adjudication, awarded to A. H. Weir as his share of the Chambers estate, $2,292.11, made up of cash and undivided interest in unconverted property, as specially appears in the schedule of distribution annexed to the adjudication. One of the items of unconverted security was a $3,000 bond and mortgage of John M. Finn, Weir’s interest therein amounting to $250, and being so valued in the schedule of distribution. Subsequently a settlement took place at the office of the plaintiff company, which was attended by A. H. Weir, Mrs. A. E. Weir, the de
The other important question in the case is this: Was the
The same principle of law seems to be well settled.in Pennsylvania. The fact that the person making the payment has the means of knowledge at hand and overlooks the same by an inadvertence is immaterial if the party receiving the same is not entitled to it: Meredith v. Haines et al., 14 W. N. C. 364. In that case (page 366), Mr. Justice Tbunkey speaking for the Supreme Court, said: “ Money paid by the plaintiff to the defendant under a bona fide forgetfulness of facts, which disentitled the defendant to receive it may be recovered back; it is not sufficient to prevent a party from recovering
It is not contended in this case that the payment was made under a mistake of law. What is meant by a mistake of law is the misapprehension of a principle of law, and the failure of the party to appreciate his rights under that principle. A mistake of law means a mistake of a principle of law, that is some substantive principle of law; for example, a mistake of the law of a foreign country, or even the misapprehension of the private statutes of a state are not mistakes of law, but are mistakes of fact: Haven v. Foster, 26 Mass. 112.
It is clear in this case that the error was not committed by Mr. Rhoads thinking that Mr. Harrington was entitled, by virtue of his office of attorney, to receive the money, but was Mr. Rhoads’s misapprehension of the existence of the facts which had terminated the office of attorney on the part of the defendant as to the money in question. The question was not the right of an attorney to receive his client’s money as a legal principle, but it was whether the defendant stood in the relation of attorney as to this fund and clearly this was one of fact.
The defendant contends that because the plaintiff sues for the full sum of $250 and only proves that it paid to the Weirs $160$ that therefore it cannot recover at all. We are not able to see the force of this contention. The plaintiff did pay to the defendant $250 under a mistake of fact, but upon being informed of the transaction the Weirs consented that the plaintiff might permit the defendant to retain $90.00 of this money and only required the plaintiff to pay to them
One other question is to be considered. The sixteenth assignment raises the question of the competency of the defendant as a witness for himself in this suit. The learned judge below took his testimony in full and then held it incompetent on the ground that A. H. Weir was then dead. This was manifest error. The thing in action was the $250 paid over to defendant by plaintiff on a mistake of fact, and there is no rule of law or public policy making the defendant incompetent to testify in this suit between the plaintiff and himself. While this assignment must be sustained, yet it is not reversible error. The learned judge had the defendant’s testimony before him and he expressly held that it would not change his finding of fact even if he considered it competent. We have carefully examined this and all of the other testimony and concur with the learned judge below that it is not sufficient to change his findings of fact. We, therefore, sustain the sixteenth assignment as technical, but not reversible error, and dismiss all of the other assignments and affirm the judgment.