182 Mass. 328 | Mass. | 1902
This is an action for money had and received to recover a sum paid to the defendant for fifty sets of Balzac’s works and charges on the same, sent to the plaintiffs by Caiman, Levy and Company, from Paris. The goods were to be delivered to the plaintiffs at Boston by the defendant carrier, “ C. O. D.,” that is to say, on the plaintiffs’ paying for the goods and charges. The goods arrived in Boston, and the defendant was notified by the Cunard Company on November 28,1898, that they showed signs of wet damage. The next day the defendant’s agent, knowing of this notice but. saying nothing about it, called on
The first question in logical order is whether the facts stated disclose or in any degree tend to prove a breach of duty on the defendant’s part. If two persons are at arm’s length, and each is acting and is understood to be acting at his peril, one could not recover a payment from the other on the ground of mistake of fact. Dedham National Bank v. Everett National Bank, 177 Mass. 392, 395. It may be that this would have been the situation of the plaintiff in Lane v. Chadwick, 146 Mass. 68, if he had paid the defendant express messenger on his terms in that case. But the present case is different. It would be a harsh interpretation to charge the defendant with actual dishonesty. But there is ground for maintaining that in point of law it obtained the money by false representations or an unjustifiable suppression of the truth. It did so if it was chargeable with a duty when, knowing what it had been notified of by the Cunard Company, it asked for and received the sum.
We are of opinion that the defendant was subject to such a
But it is said that the plaintiffs should have given prompt notice, and that they did not use reasonable diligence in doing so. We assume that they were bound to use reasonable diligence in that respect, although some of the cases seem to recognize no such rule. See e. g. Larkin v. Hapgood, 56 Vt. 597. After all, the defendant did not know the condition of the goods. It knew only of outside indications. It might be that the plaintiffs would accept them. The plaintiffs must be taken
But a further defence is pressed with force, that there was no offer to return the goods. We agree with the defendant that the plaintiffs were not excused from this by the fact that the defendant was not the vendor. It represented the vendor and also had a right to be reinstated in its own lien. We agree also that the goods were not so absolutely worthless as to excuse the plaintiffs on that ground. Morse v. Brackett, 98 Mass. 205, 209. Snow v. Alley, 144 Mass. 546, 551. The plaintiffs said they were worth five or six dollars. But the jury might find, and we cannot say that they would not be justified in finding, that from the beginning the plaintiffs showed that they were willing to give up the goods if they got back their money, and that the defendant indicated plainly enough to excuse them from a ten
Exceptions sustained.