41 App. D.C. 592 | D.C. Cir. | 1914
delivered the opinion of the Court:
There are no disputed questions of fact in the case, and it therefore becomes material to determine whether the plaintiff was in any event entitled to recover. It is a general rule that where money is paid by mistake, neither party being in fault, the party paying the money may recover it as money paid without consideration, as money had and received by the defendant to the use of the plaintiff. Strauss v. Hensey, 9 App. D. C. 541; United States v. Carr, 132 U. S. 644, 33 L. ed. 483, 10 Sup. Ct. Rep. 182. But this rule is not without limitations. Where the mistake and the payment result from the negligence of the plaintiff himself, without any fault on the part of the defendant, and where the effect of such negligent payment has been to leave the defendant in a position where he canxxot be placed in statu quo, the plaintiff may not recover the payment. Bend v. Hoyt, 13 Pet. 263, 10 L. ed. 154; Pingree v. Mutual Gas Co. 107 Mich. 156, 65 N. W. 6; Ball v. Shepard, 202 N. Y. 247, 95 N. E. 719. In the case last cited it was held that the mistake relied upon must arise in the transaction between the parties to the action. If there is any qxxestion as to whether it would be inequitable to requix’e the defendant to refxxnd, the burden of proving that fact rests upon him. Hathaway v. Delaware County, 185 N. Y. 368, 13 L.R.A.(N.S.) 273, 113 Am. St. Rep. 909, 78 N. E. 153; Bend v. Hoyt, above cited, was an action of assumpsit against the collector of the port of New York to x’ecover a sxxxn alleged to have beexx paid him as collector by mistake. The court denied the plaintiff’s right of recovery, sayixxg: “No case has been cited, and xxone has come to our knowledge, where an action has been maixxtained at law, under circumstances like the present, where money has been sought to be recovered for a mistake of fact, occasioned by the cxxlpable negligence of the plaintiff, and where the retainixxg of it oh the other side is not unconscientious.”
In the present case the- defendant applied to the plaintiff to have-sold Douglass Mining * stock, .He exhibited that stock t(> the plaintiff, and, after the sale and before payment, delivered
There is another ground upon which plaintiff’s action may he dismissed under the admitted facts. A party seeking redress from the effect of his own mistake nrast show that his conduct has been consistent. Thus, where a party desires to rescind a contract on the ground of mistake, and it appears that after the discovery of the mistake his conduct was not consistent with his claim of rescission, relief will be denied him. “He is not permitted to play fast and loose. Delay and vacillation are fatal to the right which had before subsisted.” Grymes v. Sanders, 93 U. S. 55, 23 L. ed. 198, 10 Mor. Min. Rep. 445. Here, after the discovery of the mistake, the plaintiff had issued in the firm name, in lieu of the three certificates delivered by the defendant, eight certificates “in order to handle the same better in case there should be any value to the stock.” While these certificates represented the same stock, the conclusion is irresistible that the change was made for the sole purpose of realiz
The judgment must be affirmed, with costs. Affirmed.