Hibbs v. Beall

41 App. D.C. 592 | D.C. Cir. | 1914

Mr. Justice Robb

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 the certificates for that stock to the plaintiff. He received a check in settlement and turned over its proceeds to his client. The plaintiff carelessly, for no other term would properly characterize the transaction, sold another stock. The defendant neither directly nor indirectly contributed to this mistake. In short, he was entirely blameless in the matter. When the plaintiff discovered the mistake the defendant had changed his position. He had parted with the proceeds, and could not make a refund unless he did so out of his own pocket. That his agency was undisclosed to the plaintiff does not affect the situation. He acted in good faith, and there was no apparent reason why he should either make known the fact of his agency or retain the proceeds of the sale for a longer time. He was dealing with stockbrokers, possessing special knowledge of stock, and he had the right to assume, when he delivered the certificates in question and the check was sent him, that the transaction was ended so far as-,his relations with the plaintiff were concerned. To permit the plaintiff to recover, under the facts of this case, would be to reverse the rule and permit the party through whose negligence the loss occurred, if loss there was, to recover at the expense of a perfectly innocent party.

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 realizing on this stock if á rising market should make it profitable or possible to do so. They were not indorsed until about thirteen months after the original transaction, and it is clear, we think, that jfiaintiff did not conclude to institute this suit until it became apparent that a loss would otherwise be suffered. Can there be any doubt on the admitted facts that, had this stock appreciated in value during the time the eight certificates were being held by the plaintiff, to such an extent as to have made possible their sale at a profit to the plaintiff, such a sale would have been made and the profit retained by the plaintiff? In other words, the action of the plaintiff in causing the reissue of this stock, in the circumstances named, was inconsistent with the claim now made. To be in a position to insist upon rescission of the contract,-plaintiff should have maintained a consistent position, ilv evincing a willingness, for a period of thirteen months, to speculate upon the rise of this stock, the plaintiff is not now in a position to insist upon what in effect would be a rescission -of the contract.

The judgment must be affirmed, with costs. Affirmed.