| N.H. | Jul 15, 1865
The action is brought to recover back money paid by the plaintiff to the defendant upon the plaintiff’s promissory note, upon the ground that there was a partial failure of consideration for the note, and that, by the agreement when it was given, the amount of such failure, on being ascertained, was to be deducted.
The money appears to have been paid by the plaintiff with a knowledge of all the circumstances showing such failure of consideration, and the defendant was requested by the plaintiff to make the deduction, but he refused to'do it. The first question is, whether the money so paid could be recovered back, provided the agreement set up by the plaintiff is proved.
If it were proved, the payment nevertheless was voluntary, and without any mistake of fact, and cannot be recovered back.' To this effect the authorities are uniform; among them are Bean v. Jones, 8 N. H. 149; Evans v. Gale, 17 N. H. 573; where it is said to be perfectly clear that where a man demands money of another as a matter of right, and he pays it with a full knowledge of tbe facts upon which the demand is founded, he never can recover back the sum he so voluntarily paid. By submitting to the demand, he that pays the money gives it to the person to whom he pays it, and makes it his, and closes the transaction between them.
The cases relied upon by the plaintiff stand upon a different footing and do not apply here. Those are cases where goods are sold and delivered upon an agreement to make application of the price upon some debt of the vendor, and afterwards the vendee .refuses to make such application but enforces the full payment of the debt. In such case the vendor may treat the agreement as rescinded, and sue for the price of the goods, and so it- would be in case money was so delivered instead of goods. Fuller v. Little, 7 N. H. 535; Snow v. Prescott, 12 N. H. 535. But the case before us is very different. Here the money was paid to discharge the note in question, the amount being claimed by the defendant as matter of right, and nothing has since taken place to entitle the plaintiff to treat the agreement so to apply. the money as rescinded.
These views make it unnecessary to examine the other question, and the verdict must therefore be set aside, and there must be
A new trial,