14 Wis. 241 | Wis. | 1861
By the Court,
This is an action to recover back money paid and received under a mistake, and comes to this court on appeal from an order overruling a demurrer to tbe answer. Tbe facts stated in tbe pleadings, so far as they are tbe source of any questions of law, are, with two exceptions, tbe same as those in tbe case of Hurd vs. Hall, 12 Wis., 112. Tbe plaintiff in that case, before tbe commencement of bis action, offered to return tbe void certificates, with a re-assignment of bis interest, and demanded a surrender of bis notes, and that tbe money be refunded, which were refused; and those facts were alleged in tbe complaint and proved on tbe trial. In this, tbe complaint contains neither of these averments. On tbe other band, tbe appellant admits that after discovering that tbe certificates were void, be surrendered them to tbe commissioners, who thereupon refunded to him tbe principal and interest which bad been paid upon them, and this sum be offers to allow to tbe respondent in reduction of bis demand. With these exceptions, therefore, tbe judgment in that case must be decisive of this, unless, as was strongly urged, we should, upon further consideration, conclude that it was erroneously given. We have carefully reviewed tbe principles and authorities upon which tbe decision was placed, and are still satisfied of its correctness.
Tbe appellant insists that the recovery in that case was too small; that it should have been tbe entire sum paid by tbe plaintiff to the defendant. One of tbe reasons given is, that
But it is not true, as to notes and bills, that the vendee may always recover back the entire consideration paid. If he has received any profit or advantage from the transfer,
Hurd vs. Hall was a proceeding in equity to compel a surrender of the notes, and for the restitution of the money which had been paid. This is an action at law, in the nature of an action for money had and received, to recover back the price paid. It is a kind of equitable action. “ This is a very extensive and beneficial remedy, applicable to almost every case where the defendant has received money which, ex aequo et bono, he ought to refund.” 3 Bl. Comm., 163. “ Great benefit arises from a liberal extension of the action for money had and received; because the charge and defense in this kind of action are both governed by the true equity and conscience of the case.” Lord Mansfield, in Longchamp vs. Kenny, Doug., 137. “It is beneficial to the defendant. It is the most favorable way in which he can be sued; he can be liable no further than the money he has received; and against that he may go into every equitable defense upon the general issue; he may claim every equitable allowance; in short, he may defend himself by every thing which shows that the plaintiff, ex aequo et bono, is not entitled to the whole of his demand or to anypart of it.” Idem, in Moses vs. Macferlan, 2 Burr., 1005. “ The plaintiff can recover no more than he is, in conscience and equity, entitled to; which can be no more than what remains after deducting all just allowances which the defendant has a right to retain out of the very sum demanded. This is not in the nature of a cross demand or mutual debt; it is a charge which makes the sum of money received for the plaintiff’s use so much less.” Idem in Dale vs. Sollet, 4 Burr., 2133. It follows from these principles that there can be no fixed legal rule of damages in such actions, and that it is immaterial that the present parties are before a court of law instead of a court of equity. In no case can the plaintiff have judg
It is furthermore insisted that the rule of damages was wrong, because the assignment of - the certificates created no relation- of trust or confidence between the parties — that the contract was executed. We are not prepared to dispute this proposition; nor have we asserted to the contrary, though it would be hard to distinguish between these cases and that of Thredgill vs. Pintard, 12 How., 24. Reference was made to that case, not to establish the relation of the parties, but to show what we deemed to be the true sum which the plaintiff was entitled to recover. It is a general principle that a tenant, trustee, mortgagee or purchaser-^ — in short, whoever comes into possession of real estate by recognizing the title of another, will not be permitted, while so possessed, to dispute that title, or to purchase an outstanding claim; or if he does, that it will enure to the benefit of the person whose paramount ownership has thus been acknowledged. 2 Johns. Ch. R, 33; 3 Peters, 43; 12 id., 264; 5 Yerg., 398; 8 id., 502; 4 Mon., 297; 2 A. K. Marsh., 242; 12 How., 24. Rut the principle goes no further. Therefore one who enters and claims in his own right and for his own benefit, is not thus estopped. His possession is adverse to that of his grantor, as well as to the rest of the world. He is under no obligation to maintain his grantor’s title, but may if he chooses, fortify it by the purchase of any other which may protect him. in the quiet enjoyment of the premises. 7 Wheat., 548; 4 Litt., 274. This was the position of the present appellant as to all persons save the state. Hence we cannot say that he was guilty of any bad faith or moral wrong in purchasing the outstanding certificates; but the bad faith and wrong consist- in his unjustifiable attempt to withhold from the respondent compensation for the benefits which actually accrued to him from his contract with the latter. The rule, therefore, does not depend upon the existence of a relation of trust, but rests on the general principles applicable to actions for money had and received.
Again, it is said that the rule of damages in actions of covenant, where it appears that the plaintiff has acquired an
The counsel for the respondent, though apparently contented with the rule of damages, vigorously assails the other points of the former decision. In reply to the main feature of his argument — that the certificates were not worthless and void — it is sufficient to refer to the case of Damman vs. The
But, be this as it may, tbe legislature itself, so far as it concerns tbe present controversy, bas put tbe question at rest. It was provided by statute, at" the time these certificates issued, tbat in case of tbe sale of any school or univer
Neither do we think that the decision was any infringement of the maxim caveat emptor. The case was peculiar, and may stand either on the ground of a mistake of fact, or as an exception to the rule of caveat emptor, which the authorities show to be well established on sales of written instruments or things in action founded upon them. To the authorities there cited may be added Jones vs. Ryde, supra. The source of the liability is, perhaps, more correctly described as an implied warranty that the instruments sold are of the kind and description which they purport on their face to be. 1 Story on Con., sec. 411. As such it resembles the implied warranty of title on sales of goods. The defect is of such a nature that it is useless to scrutinize and examine the instrument. No skill or watchfulness at the time of sale will enable the purchaser to detect it. Being without the means of self-protection, it may well be said that he relies upon the responsibility of the seller that the instrument is
It follows from wbat has been said, that it was needless for the appellant to return or offer to return the certificates before be could maintain bis action. They were void, and of no use to the respondent except to enable him to withdraw the money which bad been paid on them. The appellant has done this and allowed him the amount. It was a beneficial act, of which be cannot complain. Jones vs. Ryde, supra, is a similar case. The holders of the altered navy bill deposited it with the commissioners -of the pay office, received the sum for which it was originally given, and brought suit for the residue. The court observe that everything which the plaintiff had done was done for the good of the defendant. Moreover the statute required the appellant to surrender the certificates, and it would be very singular if a performance of this duty should be construed as a forfeiture of a private right of action.
It follows also that the answer is good- — at least the third special defense, so far as it professes to go. It avers a purchase of the outstanding certificates for a less sum than the price paid to the respondent. The demurrer is to the whole answer, and was therefore properly overruled. Van Santv. PL, 706; 1 Chitty’s PL, 665. The second special defense is clearly bad. For the value of the wood and the rents and profits the appellant was responsible to the holder of the paramount title, and not to the respondent. As to the improvements made by the respondent,1, the circumstances under which they were made are not distinctly specified so that the court can determine 'that he was entitled to pay for them. It should distinctly appear that he Vas in possession, holding adversely by color, or title asserted in good faith. E. S., chap. 141, sec. 33. In that case it is not improbable that the respondent would be entitled to their value. This question, however, will cease to be of practical importance, provided the respondent succeeds in establishing the other branch of his defense. For then the measure of the appellant’s recovery will be the amount paid for the outstanding certificates, after deducting the sum received from the corn-
The demurrer was properly overruled for another reason. On demurrer the whole record is to be considered, and if it appear that the complaint is bad in substance, judgment must be rendered for the defendant. The complaint is defective in not alleging a demand of the money before the commencement of the action. This is matter of substance, and the defect is not waived by answering over. The money was received by the respondent as a payment, not as a loan; and it would be most unjust and oppressive to subject him to an action before demand, or notice that he is required to refund. Abbott vs. Draper, 4 Denio, 53. In most actions of this kind it will be found that a demand was made before they were commenced; and every principle of law and justice seems to require it.
Order affirmed.