105 Cal. 273 | Cal. | 1894
This is, in substance, an action to recover the sum of seven hundred and fifty dollars, upon the ground that the same was paid under a mistake of fact.
Plaintiff had judgment, and from this and an order denying their motion for a new trial defendants appeal.
In December, 1888, the California National Bank became insolvent and closed its doors, and thereupon the defendant Young was, by the comptroller of the currency of the United States, appointed a receiver to take charge of the affairs of said bank, and pay the creditors thereof, in accordance with the provisions of the National Banking Act.
In order to procure funds with which to pay the creditors there was levied an assessment upon the capital stock of the said bank, which it became the duty of the receiver to collect. The plaintiff was a director of said bank, and his name, among others, appeared upon the books of the bank as the owner of sixty shares of the stock, and in due course he was notified by the receiver to come in and pay the assessment thereon. In response to this demand he claimed and represented to the receiver that he was the owner in fact of hut ten shares of said stock; that he had sold fifty of the shares standing in his name to R. P. Thomas, the other defendant herein, but that said shares had never been transferred
There is no question of the right to recover money paid under mistake of a material fact and without consideration, but we do not think this such a case. The payment in this instance cannot be said to have been made under a misapprehension or mistake as to the facts. The circumstances calling for the payment were well known to and perfectly understood by the plaintiff. He knew that the assessment was levied and was being collected to procure funds to pay the creditors of the bank, and he made the payment voluntarily with that understanding. And it appears that the money was needed, and was in fact used, for that purpose. The fact that subsequently more funds were collected than were required to pay the creditors in full, and that a surplus now remains, does not disclose such a mistake of fact on the part of plaintiff as entitles him to recover. The stock standing in his name was primarily as liable for the assessment as that of any other stockholder, and, having paid voluntarily, he is no more entitled to recover his money than would be any other one of such stockholders. Nor was there a want of consideration for the payment. Assuming that he did not own the stock, if he saw fit to pay, in order to avoid litigation with the receiver,that was sufficient consideration. A payment thus voluntarily made with knowledge of the facts affords no ground for an action to recover it back. (Keener on Quasi Contracts, c. 2, and cases there cited; Brumagim v. Tillinghast, 18 Cal. 271; 79 Am. Dec. 176.)
The lower court seems to have proceeded upon the theory that plaintiff made his payment under duress, as it finds that “ plaintiff was required under threat of suit to pay the same to the receiver for the benefit of the creditors of said bank.” But that fact did not constitute duress. It is not legal duress to threaten to or
Under the facts disclosed the plaintiff was not entitled to recover against either of the defendants. If there are any rights or equities as between plaintiff and the defendant Thomas growing out of the sale of plaintiff’s stock which would entitle the latter to relief against Thomas, they must be litigated in another form of action.
The judgment and order denying new trial are reversed.
Garoutte, J., and Harrison, J., concurred.