96 P. 74 | Kan. | 1908
The opinion of the court was delivered by
The facts being agreed upon and in writing, this court is in the same position to weigh and interpret them as was the court below. Whether the money was paid under a mistake of fact is practically conceded to be the controlling question.
To entitle the plaintiff to recover, we shall assume,
When the defendant’s agent under these circumstances demanded payment of the loss from the plaintiff’s son and received the payment from the plaintiff we think the defendant should not be heard to say that it did not believe that the plaintiff’s son had lost or appropriated the money. Both parties, then, believed a material fact to exist which did not exist, and which alone led to the payment of the money.
That another stole. the money after the plaintiff’s son had “safely conveyed it to defendant’s office at the. depot in Emporia, Kan., 'and there placed it with other packages,” is not material except to show the mistake by reason of which the plaintiff paid the money. There is no recital in the statement of facts, and there is no presumption, that the failure of W. H. Lowe to take a
The defendant bases its defense practically upon the proposition “that the money was lost, and lost by reason of the carelessness and neglect of duty on the part of W. H. Lowe.” We do not think this conclusion follows from the facts.
There is much discussion and citation of authorities in the briefs as to what must be the nature of the mistake of fact to entitle a party to recover. A succinct definition, which-we think correct, is given in volume 27 of the Cyclopedia of Law and Procedure, at page 809:
“A mistake which takes place when some fact which really exists is unknown, or some fact is supposed to exist which really does not exist; one not caused by the neglect of a legal duty on the part of the person making the mistake; an unconscious ignorance or forgetfulness of a fact past or present material to the contract ; a mistake not caused by the neglect of a legal duty on the part of the person making the mistake and consisting in an unconscious ignorance or forgetfulness of a fact past or present material to the contract or belief in the present existence of a thing material to the con*112 tract which does not exist or in the past existence of a thing which has not existed.”
It is a general rule that money paid under a mistake of fact, where the party seeking to recover was not intentionally ignorant nor grossly negligent in failing to discover the facts, can be recovered. Money paid by an express company on a claim for the loss of goods, under the mistaken belief that it had received them for shipment, may be recovered. (J. S. Hulse Hardware Co. v. American Express Co., 65 Ill. App. 596.) Plaintiff’s recovery of a bank-book could not be defeated on the principle of voluntary payment where, her son having accidentally set fire to defendant’s property, she transferred the book to the defendant, not willingly, but because of some supposed legal liability on account of the son’s act, defendant having no right or pretense of right, but merely having asked plaintiff if she could not make him some recompense for the loss, and having asked her to sign a writing transferring the book. (Bishop v. Corning, 37 N. Y. Supr. Ct., App. Div., 345, 57 N. Y. Supp. 697.)
“Money paid under a mistake of fact may be recovered. The fact that the person making the payment has the means of knowledge at hand and overlooks the same by an inadvertence is immaterial if the party receiving the same is not entitled to it.” (Girard Trust Co. v. Harrington, Appellant, 23 Pa. Super. Ct. 615, syllabus.)
(See, also, City of Covington v. Powell, 59 Ky. 266; City of Louisville v. Henning & Speed, 64 Ky. 381; Pearson v. Lord, 6 Mass. *82; Lazell v. Miller, 15 Mass. 207; Guild v. Baldridge, 32 Tenn. 295; Scott v. Ford, 45 Ore. 531, 78 Pac. 742, 80 Pac. 899, 68 L. R. A. 469.)
It is contended that the payment in question was a voluntary one and can not be recovered, and among other authorities cited to support this proposition are the following: Phillips v. Jefferson Co., 5 Kan. 412, Wabaunsee Co. v. Walker, 8 Kan. 431, Irwin v. Thomas, 12 Kan. 93, K. P. Rly. Co. v. Comm’rs of
In the case at bar the plaintiff made every reasonable effort to ascertain what became of the lost package of money, without success. The facts which came to his knowledge from investigation evidently led him to believe, and he paid the money believing, that his son had lost the package by dropping it. This was not true. It was lost by being stolen by another employee from a place in the defendant’s office where the plaintiff’s son had safely deposited it. This we think is a clear mistake of fact. A fact was believed to exist which did not exist, and a fact existed which was not known; otherwise the money would not have been paid, it is safe to infer. Under the real facts neither the plaintiff nor his son were under a duty to pay the loss, and the defendant had no right to retain the money after it was paid. The company was indemnified against loss from the misfeasance of Davis as well as of young Lowe.
It is contended that the language incorporated with the receipt which the defendant executed and delivered to the plaintiff became a contract when accepted, and determined the conditions only upon the occurrence of which the defendant was bound to return the money or any part thereof. Some courts hold that equity refuses to enforce contracts made under a mistake of fact against one injured thereby, where no wrong is done to the other party. The repayment of the money puts the defendant in the same position that it was in before payment.
The judgment is reversed and the case is remanded, with instructions to render judgment for the plaintiff.