133 Va. 94 | Va. | 1922
after making the foregoing statement, delivered the following opinion of the court:
The questions raised by the assignments of error will be dealt with in their order as stated below.
1. Were the plaintiffs, under the circumstances, entitled to recover from the bank the money paid to it under the mistake of fact above set forth?
The question must be answered in the negative.
The principle upon which a right of recovery
As said in 21 R. C. L., sec. 201, p. 170: “The rule that money paid under a mistake of fact may be recovered back does not apply where the payment has caused such a change in the position of the other party that it would be unjust to require him to refund.” ■ — Citing numerous American and English cases. To the same effect is section 1390 of Elliott on Contracts.
In Grand Lodge, etc., v. Towne, supra, this is held: “In an action to recover for money had and received under a mutual mistake, defendant is not liable where he has irrevocably altered his position to his loss in reliance upon the payment.”
There are many cases and authorities which deal with the effect of the negligence of the payor plaintiff (by reason of which the mistake is occasioned), upon the right of recovery back of money paid under a mistake of fact, where the payee defendant is free from fault, or is less in fault than the payor; but as there is present in the case in judgment the element of the change of status quo ante aforesaid, which, certainly where the payee is wholly without fault, of itself renders it unjust that he should be required to refund to the payor, .we have not entered upon any specific consideration of the cases and authorities concerning the comparative degrees of the negligence of the plaintiff and the defendant or the effect of the negligence in such cases.
It is argued in behalf of the plaintiffs that the bank, upon receiving notice that payment had- been made under the mistake of fact aforesaid, at the least owed to the plaintiffs the duty of instituting an inter-pleader proceeding, convening the plaintiffs, Duffey and Sprague, before the court, and thus having the rights of all parties determined while the money was yet in the hands of the bank. The answer to this, however, is obvious. The bank would have owed such duty only had it had control of the money at the time it received such notice. As we have seen, it then no longer had such control. It had prior to that time become the debtor of Duffey for the money, and as much so as if Duffey had obtained it from some source with which the bank had no connection and of which it had had no information.
This question must also be answered in the negative.
The principle and the considerations affecting the right of the plaintiffs to recover of Duffey are, manifestly, in general the same as those above considered as affecting the right of recovery of the bank; and there was the same entire absence of fault on the part of Duffey, as there was on the part of the bank, in bringing about the mistake; and also an absence of all responsibility for the employment of those, one or the other of whom made the mistake; so that the mistake, in so far as Duffey is concerned also, must be regarded as a mistake wholly made by the plaintiffs. Further: And since in the case of Duffey also, we find the presence, as claimed, of the element of change of status quo ante, which, if true, must have the same effect upon his liability as upon that of the bank, we shall, upon the question now before us, confine ourselves to the consideration of whether there was sufficient evidence before the jury to warrant their finding that there was such change of status, and, if so, whether there was evidence before the jury from which they could properly reach the conclusion that Duffey, in equity and good conscience, did nothing which forfeited his right to rely upon such change of position.
That Duffey, on receipt of information from the bank, on December 13th, that the money was paid to the bank and had been deposited to his credit (which was three days before he had any notice of
Tbe sole remaining enquiry is, whether tbe application by Duffey, of tbe other half of tbe money in question, to tbe satisfaction of Sprague’s indebtedness to him, and bis acquittance of Sprague of sucb indebtedness, in pursuance of tbeir prior mutual understanding and agreement to tbat effect (wbicb application and acquittance occurred upon Duffey’s receipt of notice from tbe bank tbat tbe payment of tbe money into bank bad been made, as aforesaid), constituted sucb a change of position on tbe part of Duffey, with respect to sucb half of tbe money, tbat it would, in equity and good conscience, be unjust to require Duffey to refund sucb money to tbe plaintiffs? This was unquestionably so, if, by sucb applicátion and
As disclosed by the evidence it would seem that, more probably, the claim of Duffey against Sprague, was not a definitely ascertained amount — was not evidenced by an obligation for a definite sum — but was merely the reasonable value of certain professional services rendered by Duffey at the instance and request of Sprague; that is to say, it was an unliquidated demand. If that was so, the agreement between Sprague and Duffey, fixing its amount, as between eight hundred and a thousand dollars, constituted an accord. And, in such ease, the application by Duffey of the one-half of the money in question to the satisfaction in full of the indebtedness • and his complete acquittance of Sprague from the obligation thereof, in pursuance of the prior agreement authorizing him so to do, while that agreement still existed, executed the accord; so that, at common law, the
The case will be affirmed.
Affirmed.