51 Iowa 135 | Iowa | 1879
The cause of action, as it was presented to us upon the former appeal, accrued in May, 1865. It being for a mistake, the act of the Thirteenth General Assembly did not affect the action, and it was fully barred by the statute of limitations, more than five years having elapsed after the action accrued, and before the suit was commenced. The opinion heretofore filed must, therefore, be considered as overruled.
The instructions, so far as they referred to the questions of frarid, were excepted to because they were not justified by the pleadings. Counsel for appellee insist that appellant cannot be allowed to object to these instructions because no objection was made to the evidence tending to show the fraud.
However this may be, we think the position of counsel for appellant, that these instructions are erroneous, is well taken, because this action is not for relief on the ground of fraud, “in a case heretofore solely cognizable in a court of chancery.”
The true test as to what is a case solely cognizable in a court of chancery is this: Did .chancery, before the enact-' ment of the statute, have exclusive jurisdiction to grant the relief prayed for in the action ?
That an action at law for the recovery of - this money, whether paid in mutual mistake or by the mistake of one party alone, and fraudulently received and retained by the other, was always maintainable, can admit of no question. Kerr on Fraud and Mistake, 415; 1 Story’s Equity, § 60.
The relief asked by-plaintiff is just what he could have obtained at common law in an action of assumpsit, under the count for money had and received.' 2 Greenleaf on Evidence,, § 123.
The relief asked, therefore, not being such as was, before the statute, exclusively cognizable in a court of chancery, the action was barred by the statute of limitations, conceding that Mendenhall received the. money in bad faith or fraudulently concealed the alleged mistake.
Reversed.