(SnrtiFll ICaui i>rl|ooI ICtbtary KF 1244 ^'je"*"""'™""^'"""''"^ *ifM?Mi™„!?,1 "'^ '^* °* quasi-contracts 3 1924 019 221 948 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31 92401 9221 948 TREATISE ON THE LAW OF QUASI-CONTRACTS. BY WILLIAM A. KEENFR. KENT PROFESSOK OF LAW AND DEAN OF THE PACnLTT OF LAW IN COLUUBIA COLLEQE. NEW YORK: BAKER, VOORHIS AND COMPANY. 1893. Copyright, 1893, iST William A. Keenbb.. TO JAMES BARR AMES, Bussei/ Professor of Law in Harvard University, TO WHOM AI,L ISTERESTED IX THE DEVEI-OPMENT OP THE LAW, AND THI! AUTHOR OF THIS WORK IN PAKTICULAR, ARE INDEBTED FOR HIS SCIENTIFIC INVESTIGATION AND EXPOSITION THEREOF, THIS BOOK IS DEDICATED, NOTE. The reason for the publication of this work is the fact that no attempt has hitherto been made to treat exhaustively the topics here considered. The ground covered is indicated sufficiently in the first chapter, dealing with the nature and scope of Quasi- Contracts. In substituting the term " Quasi-Contract " for the term "Contract impl ed in Law," the writer has only followed the lead of Sir Frederick Pollock and Sir William Anson. While under such leadership the pro- priety of the substitution does not admit of question, the necessity therefor will soon become apparent to the reader. New York, September, 1893. CONTENTS. CHAPTER I. PAQE Nature and Scope of the Obligation 3 CHAPTER II. Recoveri- of Monev paid under Mistake 26 CHAPTER III. Waiver of Tort 159 CHAPTER IV. Rights of a Plaintiff ix Default under a Contract . 214 Sect. I. Where the Plaintiff's Default is Wilful or In- excusable 215 Sect. II. Where the Plaintiff relies upon the Statute of Frauds 231 Sect. III. Performance b}' Plaintiff impossible .... 241 Sect. lY. Contract Illegal 258 CHAPTER V. Obligation of a Defendant in Default under a Contract 267 Sect. I. Contract unenforceable because of Illegality . 267 Sect. II. Contract unenforceable because of the Statute of Frauds 277 VIU CONTENTS. Sect. III. Contract unenforceable because of the Impossi- bilitj' of Performance 292 Sect. IV. Defendant wilfuUj' or inexcusably in Default under a Contract 298 CHAPTER VI. Recovery for Benefits conferred at Request, but in THE Absence of Contract 315 Sect. I. Benefits conferred as a Gratuity with Knowl- edge of all Material Facts 31. 5 Sect. II. Services rendered gratuitously under Mistake as to a Material Fact 318 Sect. III. Benefits conferred under Mistake as to the Existence of a Contract 326 CHAPTER VII. Eecoveut for Benefits intentionally conferred with- out Request 341 CHAPTER Vm. Recovery for Improvements made upon the Land of Another without Request 363 Sect. I. Recovery for Improvements made while in Pos- session of Land under an Oral Contract which the Vendor has refused to perform .... 363 Sect. II. Recovery by a Vendee for Improvements made under an Oral Contract which he has refused to perform 373 Sect. III. Recovery for Improvements made under Mis- take as to the Ownership of Land .... 377 CONTENTS. ix CHAPTER IX. FAOE Recovery of Moxet paid to the Use of the Defendant 388 Sect. I. Recover^' of Money paid to prevent a Sale of Property 388 Sect. II. Right of a Plaintiff who has paid a Claim which as between the Plaintiff and the Defendant should have been paid either in Whole or in Part by the Defendant 395 CHAPTER X. Recovery of Mosey paid under Compulsion of Law . 411 Sect. I. Recovery of Money paid after Action brought 411 Sect. II. Recovery of Money paid to prevent a Threat- ened Sale of Property under Legal Process . 421 CHAPTER XI. Recovery of Money paid to the Defendant under Duress, Legal or Equitable 4'26 Sect. I. Recover^' of Money paid to prevent the Un- lawful Taking or Detention of Property . • 426 Sect. II. Recovery of Money paid to avoid an Injury to One's Business 430 Sect. III. Recoverj' of Money paid under a Usurious Contract 436 Sect. IV. Recovery of Mone}- paid to induce the Per- formance of a Duty 437 Sect. V. Recovery of Money paid to avoid Arrest, or to be released therefrom 438 Index 443 TABLE OF CASES. Kossuth 79, 81, 82, 173, 326, 32!i, Abbott V. Draper l: Inskip ads. Merchants' Ins. Co. 78, 80, 82, 155, Abbotts v. Barry Abel ads. Morck Abell ads. Eucker Acer V. Hotclikiss Adams ads. Everts Adams v. Irving National Bank 439, Adamson, Ex parte JEtaa, Iron Works County Agry ads. Wallace Ahern ads. Dixon Aiken v. Short Ainslie v. Wilson Aitkin ads. Bond Albany, Bank of, ads. Canal Bank Albea v. Griffin Alderbury Union ads. Mills Aldine Mfg. Co. u Barnard Aldrich v. Aldrich Allen V. Ford t . Jarvis ads. Richards 284, V. United States AUis ads. Terry Allison f. Bristol Marine Ins. Co. Alfred v. Fitzjames Ambrose v. Kerrison American National Bank ads. Lawrence American Tract Society ads. Mor- ville Araidon ads. Hunt 400, Anderson ads. Brakefield 232, FAOB 232 233 81, 157 196 269 372 207 347 i,440 160 314 105 192 1.57 410 333 154 364 119 194 400 199 307 306 207 30.3 294 320 342 71 271 441 240 FAOB 303 307 207 167 194 Anderson ads. Ehrensperger V. Rice Andrews v. Artisans' Bank V. Hawley Androscoggin Co. v. Metcalf Anglo-Egyptian Navigation Co. ;■. Rennie 294 Anonymous, Str. 407 298 12 Mod. 3 18 Freem. 486 278 Ansonia Clock Co. ads. Whelan 257 Appleby v. Dods 249 V. Myers 258 Appleton Bank v. McGilvray 71 Armstrong County v. Clarion County 408 Arnold ads. Soper 229 Arnot u. Pittston Coal Co. 262, 263, 269 188 207 43,86 269 428 396 230, 314 Butcher Arris v. Stukeley Artisans' Bank ads. Andrews Arundel ads. Farmer Ashbrook v. Dale Ashmole v. Wainwright Aspinwall - . Sacchi Atkins V. Barnstable Aikinson ads. William Steel Works 289 V. Denby 274 Atlantic Cotton Mills ;'. Indian Orchard Mills 184 Atlantic National Bank v. Tavener 338 Attenborough ads, Morley 126, 129 Atty V. Parish 308 Atwater r. Tupper 209 Aude Furniture Co. ads. Gruetzner 222 AuU Savings Bank <•. AuU 192 TABLE OF CASES. PAGB Austin V. Great Western R. W. Co. 18 ads. Griggs 293 Astley V. Reynolds 427 Atwater «. Tupper 209 Avery ads. McGoren 133 Ayres ads. Woods 14, 16, 208 Bachley ads. Yates 365 Badger ads. Prickett 300 Badeau ads. United States 37 Bailey v. Bussing 409 V. Paullina 85 Baker ads. Chamblee 218 ads. Clark 302 ads. Duncan 218 ads. Smith 203, 206 Baleh v. Patton 173 Baldwin v. Liverpool Steamship Co. 428 ads. Regan 434 Baldridge ads. Guild 29 Ballou V. Billings 298, 308 Baltimore ads. Lester 85 Baltimore Gaslight Co. ado. Gibbs 269 Baltimore R. R. Co. v. Faunce 71 Bancroft ads. Browning 207 Bangs ads. National Bank of North America 154 Bank of Commerce v. Union Bank 154 Banister ads. Wells 384 Bannister ads. Eichholz 129 Baptist Church ads. Haynes 257 Barber ads. Easterly 405, 407 ads. White 263 Barker ads. Howes 124 ads. Wilson 70 Barnard ads. Aldine Mfg. Co. 194 Barnes ads. Lockwood 233 Barnstable ads. Atkins 230, 314 Barrett ads. Towers 304, 305, 306 Barry ads. Abbotts 196 Bartholomew ads. Hewes 85 V. Jackson 354, 356 V. Markwick 304, 308 Bartlett ads. Gompertz 181 Barton ads. Lockard 192 Bassett ads. Carson River Lum- bering Co. 191 Batard v. Hawes 403, 405 Bates V. New York Ins. Co. 428 Batte ads. Wooley 409 Batthyany v. Walford 18 Baxter v. Gray 317 Bayne v. United States 184 Beadenbaugh v. Cowper 141 Beale ads. Skeate 426 Beard v. Beard 85 ads. Bradshaw 343 Bearnard ads. Raymond 309 Beaubien ads. Lawrence 85, 96 Beaumont ads. Morgan 259 Becker ads. Farwell 408 Beed v. Blanford 305 Beers ads. Causidere 184 Beha v. Ottenberg 230 Belden v. State 55, 56 Belknapp ads. Philbrook 233 Bell ads. Russell 193, 198 Benjamin nds. Cromwell 23 Bennett ads. Deaver 261 ads. Moulton 94 Bentley ads. Rundell 352 ads. Weaver 308 Bergenthal v. Fiebrantz 30 Bernard v. Dickins 307 Bernier v. Cabot Mfg. Co. 234 Betlilehem Borough v. Perseverance Fire Ins. Co. 194 Betts I). Reading 439 Bickford ads. Earle 128, 145, 147, 151 Biddlson v. Whytel 16 Bigelow V. Jones 172 Bilbie v. Lumley 85, 86 Billings ads. Ballou 298, 308 V. McCoy 121 u. Monmouth 333 Bingliam v. Bingham 86 ads. Harmony 428 Binsse ads. Niblo 256, 257, 258 Birney ads. Malbon 215 Bishop V. Brown 152 Bize i>. Dickason 51, 86 Black ads. Fowler 85 Blakeslee v. Holt 230 TABLE OF CASES. Xlll Blalock i: Pliillips Bland ads. Troy Blanford ads. Beed Bleaden v. Charles Blethen v. Lovering Bliss ads. Kelly Blood V. Wilson Bloxsome o. Williams Blum ads. Van Deusen Bly ads. Rickey Boardman ads. Edes V. Ward Boas r Updegrove Bohart ads. Norton Bolender ads. Boyer Boley ads. Sullivan Bond u. Aitkin Bonebrake ads. Medsker Bonnel v. Fouke Boots V. Ferguson Bornstein ads. Kent PAGE 199 30 305 397 145, 148 292 230, 314 274 326, 327 208 103 320 58,61 122 408 307 326, 329, 333 338 85 207 138 Borough V. Perseverance Fire Ins. Co. 194 Bosanquett v. Dashwood 436 Bosley v. Shanner 439 Bostock V. Jardine 120 Boston Glass Co. v. Boston 423 Boston ads. Preston 422 Boston Ice Co. ;;. Potter 360 Boughton ads. Buel 51 Boulton v. Jones 358, 359, 360 Bovill ads. Knowles 295 Bower v. Thompson 141, 152 Bowers ads. Taylor 259 Bowker v. Hoyt 228 ads. Hutchinson 100 Bowman v. Browning 194 Boyd ads. Briggs 427, 429 ads. Bright 379, 383, 386 ads. Crow 189 Boyer v. Bolender 408 Boylston Nat. Bank j>. Richardson 82 Boyter v. Dodsworth 189 Bozarth v. Dudley 231 Bradford ads. Bragg 215, 231 Bradley v. Brigham 203, 207 „. Levy 308 ads. Miner 302 Bradley ads. Wiley Bradshaw v. Beard Bragg II. Bradford Brakefield v. Anderson Bree v. Holbech Brewer r. Sparrow Brewster v. Burnett ads. Gillett Briggs V. Boyd Brigham ads. Bradley ads. Coolidge Bright V. Boyd Brimsmead v. Harrison Brisbane i: Dacres PAGE 278 343 215, 231 232, 240 131, 133, 145 203 138 141 427, 429 203, 207 129 379, 383, 386 200 59, 73, 87 Bristol Marine Ins. Co. ads. Alli- son , 294 Brittain v. Lloyd 398 Britton v. Turner 218, 219, 220 Bromage ads. Piatt 45 Bromley ads. Smith 271, 273 Brooke v. White 304 Brooklyn, City of, ads. Chapman 128 Brooks V. Scott's Executors 308 Broom ads. Oldham 400 Brown ads. Bishop 152 I). Brown 167 V. College Corner Road Co. 71 <-. Fales 100, 101 ... Fitch 215 ads. Higgins 489 ads. Hawkins 377, 378 (J. Hodgson 396 ads. Lehigh Coal Co. 430 ads. Leroux 232 ads. Preston 377 V. St. Paul R. R. Co. 308 ads. Scotten 240 ads. Thomas 232 V. Tuttle 316 Browne ads. Floyd 210 Brownell ads. Ford 141 Browning v. Bancroft 207 ads. Bowman 194 V. Morris 269, 436 Brueclier r. Port Chester 424 Brumby v. Smith 258 Brummitt v. McGuire 70 Brundage v. Port Chester 139 TABLE OF CASES. Bruning ads. Goldsmith ads. Smith Bryant o. Peck & Whipple Co. Buck ads. Larkin Bucknall v. Story Bucknam ads. Plummer Budd V. Hiler Buck ads. Manhattan Life Ins. ( Buckland v. Jolinson 207, Buel u. Boughton Buford V. Lonegan Bull ads. Wyley Bundy v. Hyde Banner ads. Gordon Burk ads. Needles Burness ads. Hopper Burnett ads. Brewster ads. Cahaba Burr ads. Peck Burson ads. McCrowell Burrows n. Ward Burton v. Driggs Bush ads. Scott Bussing ads. Bailey Butler ads. Gilbert Mfg. Co. ads. Strother Butt ads. Munro Butterworth v. Gould Byrne v, Schiller Cabot Mfg. Co. ads. Bernier Cadman v. Markle Cadwallader ads. Thomas Cahaba v. Burnett Caldwell ads. Jaycox Calkins v. Griswold Calland v. Lloyd Calnan ads. Welles Camden u. Green Campbell ads. Hitchins Canal Bank l\ Bank of Albany Careiv i: Rutherford 200, i Carpen ads Hall Carpenter ads. Sheridan V. Weller Carrington ads. Ferguson PAGE PAOK 275 Carroll v. Giddings 308 275 V. Welch 218 , 441 ads. Windbiel ■ 29 215 Carson v. Cochran 85, 437 85 Carson River Co. v. Bassett 191 232 Carwin v. Nashville 85 170 , 173 Cary ads. Ellis 278 Co. 246, Cass ads. Spiller 306 247 ,248 Cassidy ads. McManus 308 208 210 Casson ads. Shipton 227, 51 Catlln V. Tobias 226, 228, 231* 427 Catts V. Phalen 180, 181 315 Caughey ads. First Baptist Church 318 319 332 207 Causidere v. Beers 184 32 Cavanaugh ads, Jones 266 251 Cecil V. Rose 167 138 Central Mills Co. <-. Hart 192 85 Central National Bank ads. Koontz 263 71,72 807 Central Transportation Co. v. Pull- 320 man's Car Co. 272 180 Challeis v. Wylie 207 240 Chamber v, Hopkins 41 409 Chambers v. Miller 76, 79, 81, 82, 157 257 300 Charablee v. Baker 218 194 Champlin v. Laytin 96 227 231 V. Rowley 226, 228, 231 167 168 Chandler v. Sanger 416 293 Chapman v. Brooklyn 128 ads. Dougherty 175 ads. Fames 215 234 u. HoUis 254 279 ads. Walker 259 224 Charles ads. Bleaden 397 85 Charleston Bank v. State Bank 185 338 Chase v. Corcoran 356, 357 121 Cliatfield V. Paxton 29 184 Chaude v. Shepard 217 254 Chesapeake Bank ads. Hardy 155 85 Chesapeake Ins. Co. v. Stark 105 205, 207 Chester ads. Taylor 274 154 Chew ads. R. R. Co. 194 201 430 Chicago V. Tilley 300 167 Chicago R. R. Co. ads. Cook 438 47 Chillicothe Bank v. Dodge 93 319 Churchill v. Holt 408 197 199 Cieotte v. St. Anne's Church 315 TABLE OF CASES. XV PAGE I City Bank ads Whiting 7(5 City Nat Bank v. Nat. Park Bank 201 Claflin V Godfrey 39, 41 Clarance v. Marshall 167, 192 Clare i-. Lamb 128 Clark V Baker 302 v. Davidson 367 V. New York 311 V. Pinney 417 I . Terry 233 ads. Ridermund 206 V. United States 263 Clarke v Butcher 85, 86 I.. Shee 180, 181, 273 Clarion County ads. Armstrong County 408 Cleary v. Sohier 254, 255 Close V. Phipps 428 Clough V. Hosford 278 Clouston ads. Lightly 189 Coates ads. Collier 232, 233 Coburn ads. Earle 353 Cochran ads. Carson 85, 437 Cockran v. Tatum 307 Cockroft V. Muller 298 Cocks I'. Masterman 66 Coe 1-. Smith 314 Colburn ads Fiance 300, 308 Coleman ads Robertson 64, 65 College Corner Road Co. ads. Brown 71 Collier v. Coates 232, 233 ads. DeCadaral 416 Collins ads. Kleeman 232 L-. Stimson 215, 217 Colls ads. Wright 303 CoUyer v. Collyer 192, 316 Commerce, Bank of, v. Union Bank 1.54 Commissioners ads. R. R. Co 423 Commonwealth ads. L. & N. R. R Co. 85 ads. Mulford 16, 17 u. Stebbins 88 Commonwealth, National Bank of, ads. Merchants' National Bank 34, 82, 83 ads. Talbot 120 PAGE Corastock V. Hier 170, 174 Conant ads. Walker 71, 74, 80 Congress Spring Co. ads. Knowl- ton 259, 264 Conolly ads. Devaux 121 Continental Construction Co. ads. Vinal 93 Cook (ids. Chicago R. R. Co. 438 V. Doggett 278, 368 ads. Kinney 321 <•. McCabe 268 Coolidge I'. Brigham 129 Coons ads. Norton 400, 403 Cooper V. Cooper 321, 323 Corcoran ads. Chase 356, 357 Corn Exchange Bank u. Nassau Bank 70, 144, 145, 148, 149 Corson v. Neatheny 261 Cory V. Freeholders 180 Cotton V. Tlmrland 261 Cotzhausen ads. Dent 168 County Commissioners ads. Lam- born 423, 424 Cowell V. Edwards 405 Cowper ads. Beadenbaugh 141 Cox ads. Sheldon 307 Cravens ads. Vaughan 364 Crawford v. Parsons 232, 240 Craythorne v. Swinburne 406 Cribbs v. Sowle 439 Cripps V. Reade 129 Cromwell i\ Benjamin 23 Crosby v. Home Co. 192 Crosthwait ads. Reed 396 Crow V. Bojd 189 Crowdy ads. Townsend 30, 121 Cuff ads. Smith 274, 435 Culbertson ads. Schultz 439, 440 Culbreath v. Culbreath 85, 90, 96 Gumming v. Hackley 410 Cuningham v. Cuningham 85, 96 Cunningham u. Reardon 22, 349 ads. Straw 307 Currier v. Studley 177 Curry of/s. Stringfellow 192 Curtis 1-. Leavitt 274 Cushing ads. Stevens 304 XVI TABLE OF CASES. Cutter V. Powell Cutting ads. Way PAGE 244, 247, 248 304, 306 Dacres ads. Brisbane 59, 73, 86 Dakin ads. De Mesnil 438 Dale ads. Ashbrook 269 Daniel ads. Bank of United States 145, 146 Daning v. Freeman 196 Dashaway Association v. Rogers 180 Dashwood ads. Bosanquett 436 Dautel ads. Nunez 104 Davidson ads. Clark 367 Davies ads. Farnam 374 V. Humphreys 407 ads. Turner 406 Davis ads. Kendall 436 ads. Mathews 364, 371 !•. Smith 167 Dawson ads. Fox 323 Day ads. MuCreery 311 V. New York Central R. R. Co. 282, 284 Dayton ads. Ryan 244 Deaver v. Bennett 261 De Cadaval v. Collins 416 Decker v. Pope 400 V. Saltzman 167 ads. Troewert 269 Deering i;. Winchelsea 401, 406, 407 Deery v. Hamilton 115 De Halin v. Hartley 51 De La Cuesta v. Ins. Co. 423, 428 De Mesnil v. Dakin 438 Denby ads. Atkinson 274 Dent V. Cotzhausen 168 Denver, First National Bank of, V. Devenish 70 Denver ads. Richardson 85 De Palos ads. Hooker 269 Derby v. Johnson 308, 311 Dermott i-. Jones 230 Des Arts nds. Moore 184 Dc Silvale )■. Kendall 293 Detroit ails. Henderson 192 / . Martin 423, 424 Devaux v. ConoUy 121 Devenish ads. First National Bank of Denver 70 Devine v. Edwards 58, 71, 121 Dew V. Parsons 437 Dickason ads. Bize 51, 86 Dickins ads. Bernard 307 Dickinson ads. Wright 130, 306 Dietz i;. Suiclitfe 199 Dill V. Wareham 145-146, 151 Diller i'. Johnson 439 Disbrow v. Durand 315, 318, 319 Dix V. Marcy 281 Dixon V. Ahem 192 Dodge ads. Cliillicothe, Bank of 93 Dods ads. Appleby 249 Dods worth ads. Boyter 189 Doggett ads. Cook 278, 368 Doolittle V. McCuUough 313 Doon V. Ravey 173 Dorrell ads. Lamme 170, 171, 172, 205 Dougherty v. Chapman 175 V. Snyder 338 Douville V. Merrick 269 Dow V. King 209 Dowling V. McKenney 278, 279 Doyle V. Trinity Church 315 Drake ads. Smith 377, 378 Draper ads. Abbott 232 Dresser ads. Kemble 385 Driggs ads. Burton 180 Dudley ads. Bozarth 231 Duluth Co. ads. Panton 430 Dunbar r. Williams 848 Duncan v. Baker 218 ads. Milnes 119 ads. Richardson 439 ads. Walker 194 Dunigan ads. Graham 390 Dunn ad's. Gregg 222 ads. Porter 301 Durand ads. Disbrow 815, 318, 319 Durrant r. Ecclesiastical Coram'rs 66 Dusenbury r. Speir 4, 12, 160 Dutch V. Warren 298 Dutcher ads. Clarke 85, 86 Dutton V. Solomonson 304 Duval ?•. Wellman 271, 275 Dye ;;. Kerr 315_ 318 TABLE Oi' CASES. XVll FAOB Eames ads. Chapman 216 Easterly v. Barber 405, 407 Earle v. Bickford 128, 146, 147 151 V. Coburn 353 V. Reed 21 ads. Solinger 436 Ecclesiastical Commissioners ads. Durrant G6 Edes V. Boardman 103 Edgerton ads. Hutton 96 Edmunds v. Wallingford 391 Edwards ads. Cowell 405 ads. Devine 68, 71, 121 Egleston ads. Kneil 336, 337, 338, 339 Ehrensperger v. Anderson 303 Eichholz V. Bannister 129 Eldridge v. Rowe 215 Elliott V. Hayden 200, 209 ads. Winters 232, 240 ads. Northwestern Ins. Co. 181 Ellis i: Cary 278 V. Hamlen 227, 231 ads. McGhee 396 ads. Middleditch 308 V. Ohio L. & T. Co. 67 Eltinge arfs. Kingston Bank 46, 67, 69, 70 Emmons v. Scudder 434 Emery v. Smith 289 Emp. State F'dry Co. v. Grant 215, 217 England v. Marsden 390 England, Bank of, v. Tomkins 137, 138 Enslin ads. Mat. Savings Institution 85 Equitable Nuptial Benefit Union ads. White 275 Equitable Trust Co. ads. Fowler 4.36 Erben v. Lorillard 289, 290 ads. Mayor 46 Erkens v. Nicolin 86 Escott V. White 216 Evans v. Garlock 187 V. Hughes County 86 V. Miller 194 ads. Staat 170 ads. Thomas 377 Eversole v. Moore 207, 208 Everts r. Adams 347 Evertson ads. Ketchum 232 Exall V. Partridge 388, 390, 391 PAGE Fales ads. Brown 100, 101 Falkner ads. Martindale 90 Fanson v. Linsley 160, 162, 191, 194, 207 Farmer «. Arundel 43, 86 Farmer ads. Green 66 Farnam v. Davis 374 FarringtoD ads. Whittemore 128 Farwell v. Becker 408 Faulkner ads McSorley 165 Faunce ads. Baltimore R. R. Co. 71 Feise v. Parkinson 112 Felsenthal ads. 111. Trust & Sav- ings Bank 35 Ferguson ads. Boots 207 V. Carrington 197, 199 Ferrill v. Mooney 194 Fewings v. Tisdal 307 Fiebrantz ads. Bergenthal 30 Finch ('. Parker 309 Finlyson ads. Kilgour 116 First Baptist Church v. Caughey 332 First National Bank ads. Port Jer- vis 408 First National Bank of Denver v. Devenish 70 Fiske ads. Wyraan 263 Fitch ads. Brown 215 ads. Stevens 419 Fitzjames ads. Alfred 320 Flower v. Lance 423 Floyd V. Browne 210 Flury ads. Hazard 110 Force v. Haines 344 ads. Wilson 199 Ford ads. Allen 199 V. Brownell 141 Forsyth v. Ganson 351 Foster ads. Heaven 92, 94 ads. People 85 ^. Stewart 189 Fouke ads. Bonnel 85 Fowler v. Black 86 ... Equitable Trust Co. 436 Fox V. Dawson 323 Fraker v. Little 79 Frambers v. Risk 28 Frank Bros. Co. ads. Robertson 432, 433 Franklin c. Waters 321 XVlll TABLE OF CASES. pA.aE Franklin Bank v. Kaymond 49, 50 ads. White 259, 266, 274 Franklin Fire Ins. Co. ads. Hazard 119 Freeholders ads. Cory 180 Freeman ads. Daning 196 ads. Hales 397 V. Jeffries 141 Freichnecht v. Meyer 377, 378 o. Seely 377 Fulchire ads. Webb 180, 181 Fuller ads. Goodspeed 125 ads. Kneeland 288 V. Reed 290 Gale ads. Smart 130 Galloway v. Holmes 199 Galvin v. Prentice 233, 290, 291 Gammon ads. Manton 304 Ganson ads. Forsyth 351 Gardner ads. Shaw 268 Garlook ads. Evans 187 Garnet ads. Montague 279 Garr v. Martin 419 Garrett ads. Moule 399 Georgia R. R. Co. e. Smith 151 Gibbes ads. Williams 377 Gibbs V. Baltimore Gas Co. 269 Giddings ads. Carroll 308 ads. Hitchcock 132 Gilbert ads. Green 244 Gilbert Man'f g Co. v. Butler 257, 300 Gilchrist ads. Murdock 125 Gillet V. Maynard 376 Gillett V. Brewster 141 GiUey V. GiUey 23 Gilliland ads. Hudson 170 Gilmore v. Wilbur 170 Glasscock )'. Hazell 173 Gleason ads. National Trust Co. 160, 200, 201 ads. New York Guaranty Co. 160, 200, 201 Glenn v. Shannon 71 Goddard v. Merchants' Bank 154 ads. Miller 215 V. Town of Seymour 47 Godfrey ads. Claflin 39, U TKGK Goepel V. Swlnden 406 Goldsmith v. Bruning 275 Golightly ads. Jaques 268 Gompertz v. Bartlett 131 Goodman v. Poeock 309, 311 Goodnow V. Moulton 380' Goodrich ads. Ham 290 ads. Hendricks 139 Goodspeed v. Fuller 125 Goodwin v. Griffis 194 Gordon v. Banner 207 Gotwalt V. Neal 440 Gould ads. Butterworth 167, 168 c. Thompson 278 ads. Thompson 292 Gove V. Island City Co. 231 Graham v. Dunigan 390 V. Graham's Executors 289' Grant ads. Empire State Foundry 21.5, 217 7& 85 317 232 271, 274 Co. ads. Troy City Bank Graves ads. Northrop Gray ads. Baxter u. Gray u. Roberts Great Northern Railway Co. v. Swaffield 398,899 Great West. R. R. Co. ads. Austin 18 Great Western R. Co. ads. Parker 438 Green ads. Camden 85 V. Farmer 56 0. Gilbert 244 ads. Willie 436 Greenbush ads. Rogers 178 Greenwood ads. Skyring 73 Gregg V. Dunn 222 Greton v. Smith 233 Grier v. Huston 60 Griffin ads. Albea 364 Griffis ads. Goodwin 194 Griggs V. Austin 293 Grimes ads. Schreve 367 Grims Estate 154 Griswold ads. Calkins 12) Groff ads. Morgan 269 Gruetzner v. Aude Furniture Co. 222 Guild V. Baldridge 29 318, 319 . Guild TABLE OF CASES. XIX PAGE Gurney v. Wormersley 131 Guthrie i'. Holt 374 Gutta Percha Mfg. Co. i. Mayor 13 Guy's Hospital ads. Osborn 315, 316, 317 Hackett v. King 439 Hackley ads. Cumming 410 Haggerty r. McCanna 377, 378, 379 Haines ads. Force 344 ads. Meredith 71 Hale V. Sherwood 261 Hales !'. Freeman 397 Hall II. Carpen 167 ads. Hard 71 ads. Nibbs 427 V Peckhara 170 ads. Rex 88 Halsey ads. Scholey 418 Ham V. Goodrich 290 Hambly i-. Trott 160, 162, 190 Hamilton ads. Deery 115 Hamilton County ads. Hines 439 Hamlen ads. Ellis 227, 231 Hamhn ads. SheflSeld 123 Hampton ads. Marriott 411, 412, 413 Handforth !■. Jackson 305 Hanley v. Walker 215 Hanna v. Mills 304 Hapgood V. Shaw 215, 217 Harding ads. Neate 180 Hardy v. Chesapeake Bank 155 ads. Mauzy 130 Hare ads. Taylor 37 Hargraves ads. Townsend 232 Harman ads Hartley 311 Harmon v. Harmon 439 Harmony v. Bingham 428 Harris v. Loyd 41 Harrison ads. Brinsmead 200 V. Luke 307 ads. Preston 396 Hart ads. Central Mills Co. 192 Hartley ads De Hahn 57 1,. Harman 311 Harvey ads. .Johnson 400 ads. Love 261 PAGE Harvey r. Merrill 269 Harvie ads, McKinney 232 Haslack v. Mayers 215 Hastelow v. Jackson 261 Hatch ads. Smith 288 373 Haven t. Foster 92,94 Hawes ads. Batard 403 405 Hawkins v. Brown 377 378 c. Miller 390 Hawley ads. Andrews 167 u. Moody 285 288 ads. Preston 192 t. Sage 151 Hayden ads. Elliott 200 209 Haynes v. Baptist Church 257 u. Rudd 440 441 Hayward c. Leonard 230 314 Hazard r. Flury 110 V. Franklin Fire Ins. Co. 119 Hazell ads. Glasscock 173 Heavenrich ads. Wilkinson 232 Heckman v. Swartz 439 Herlley ads. Williams 274 Heffner v. Lewis 274 Heilbut V. Nevill 184 Heindill v. White 180 Helps V. Winterbottom 304 Henderson v. Detroit 192 ads. Skinner 263 Hendricks v. Goodrich 139 Henning ads. Louisville 85 Hentig v. Stanilorth 273 Herman ads. Isaacs 196 <-•. Jeuchner 20:; Herrick v. Newell 278 Hertm ads Isle Royale Mining Co. 385 386 Hertzog v. Hertzog 4,7, 8.9 Hewes i\ Bartholomew «.') Hewitt ads. Vandick 269 Hickam v. Hickam 320 321 Hickman ads. Hubbard 43 Hickok ads. Schwinger 128 Hicks nds. Rheel 31 Hier ads. Comstock 170 174 Higgins V. Brown 439 o. McNally 323 Iliggs V. Scott 113 XX TABLE OF CASES. PAGE PAGB Hiler ads. Budd 170 , 173 Howes V, Barker 124 HiU V. Hill 318 ads. Wolfe 244 V. Perrott 196 Hoxter v. Poppleton 128 ads. Woodward 415 Hoyt ads. Bowker 228 ads. Quin 350 Hubbard v. Hickman 43 Hillebrands v. Nibbelink 290 Huddleston ads. Rainer 374 Hills V. Street 427 Hudson V. Gilliland no Hindemarch v. HofEman 184 ,188 ads. Phillips 128 Hines v. Hamilton County 439 Huffman v. Hughlett 159, 160, 207, Hitchcock v. Giddings 132 212 Hitcliin V. Campbell 205 207 Hughes County ads. Evans 85 Hoar ads. Jones 194 ads. Whincup 296 Hobbs ads. Knapp 170 Hughlett ads. Huffman 159, 160 207, Hodgdon ads. Peterborough Sav- ings Bank 437 Hodgson ads. Brown 396 Hodson ads. Smith 206 Hoffman v. Bank of Milwaukee 154 ads. Hindemarch 184, 188 Hogan V. Titlow 215 Hogg V. Laster 318, 319 Holbech ads, Bree 131, 133, 145 HoUingsworth v. Stone 85 HoUis V. Chapman 254 Holmes ads. Galloway 199 Holt ads. Blakeslee 230 ads Churchill 408 ads. Guthrie 374 Holtz V. Schmidt 121 Homestead Co. i'. Valley Co. 380 Homfray ads. Phillips 163, 164, 165, 167, 191 Hooker v. De Palos 269 Hooper ads. Linden 173, 183, 429 V. The Mayor &c. 427 Hopkins ads. Chamber 41 Hopper V. Burness 251, 25..'. Home Co ads. Crosby 192 Hosford ads. Clough 278 lloskins V. Mitcheson 232 Hotchkiss ads. Acer 207 Houck's Exs. V. Houck 317 Houston ads. West 70 Howard ads. Thompson 204,205, 206 V Wood 188 Howe ads. Laflln 130 ads Lawton 138, 141 212 Humphreys ads. Davies 407 ads. Planning 303 Hunt V. Silk 304, 305 ads. Amidon 400, 441 Hunter v. R. R. Co. 107 Hurd U.Hall 71 Hurley ads. O'Conner 382, 384, 385 Huston ads. Grier 60 Hutchinson v. Bowker 100 Hutton V. Edgerton 96 K Wetherald 194 Hyde ads. Bundy 318, 319 ads. Smart 274 llbery ads. Smout 334, 336 Illinois Trust & Savings Bank v. Felsenthal 35 Indian Orchard Mills ads. Atlantic Cotton Mills 184 Ingram ads. Pixley 437 Inness ads. Jones 180 Inskip ads. Abbott 233 Insurance Co. ads. De La Cuesta 423, 428 Iron Co. ads. Railway Co. 85 Irving National Bank ads. Adams 439, 440 Isaacs V. Herman 196 Island City Co. ads. Gove 231 Isle Royale Mining Co. v. Heriin 385, 386 Isom V John 420 TABLE OF CASES. Jaboe f. Severin 278, 288 Jacobs V. Morange 96 Jackson ads. Bartholomew 261, 354, ooO ads. Handforth 305 ads. Hastelow •261 «. JIcKnight 52,58 James, Ex parte 94 V. Le Roy 189 ads. Tennessee Mfg. Co. 217 Jameson ads. Maxwell 410 Jaques v. Golightly 268 Jardine ads. Bostock 120 Jarvis ads. Allen 307 Jaycox 1-. Caldwell 338 Jeff V. Wade 263 Jefferies uds. Montrion 87 Jeffries ads. Freeman 141 Jellison v Jordan 306 Jenkins v. Tucker 341 Jennings v. Lyons 244 Jeuehner ads. Herman 263 Jewett r. Petit 206 Joannin v. Ogilvie 429 John ads. Isom 420 Johnson ads. Buckland 207 , 208, 210 ads. Derby 308, 311 ads. Diller 429 V. Harvey 400 I. Johnson 128 t. Royal Mail Co. 393 (,. McGinness 85 ads. Wilkinson 154 Johnston ads. Reynolds 371, 372, 373 Joliffe ads. Steamship Co. 16, 17 Jones ads. Bigelow 172 ads. Boulton 358, 359, 360 u. Cavanaugh 266 ads. Dermott 230 17, Hoar 194 u. Inness 180 u. Judd 244 ads. National Life Ins. Co. 28, 30 V. Ryde 131 ads. Tew 192 Jordan ads. Jellison 306 Jourdan ads. Reynolds 290 Judd ads. Jones 244 PAGE Kansas R. R. Co. ads Sandeen 194 Keasley i'. Thomson 260 Keating ads. Marsh \~,2 Keepers ads. Leslie 303 Kelley v. Lindsey 330, 333 Kelly V. Bliss 292 ' Solari 31, 52, 70 Kemble v. Dresser 385 Kendall v. Davis 43ij V. De Silvale 29:! Kennedy ads. McGrath 261 Kenosha nds. Paul 188 Kent V. Bornslein 138 Kentucky, Bank of, ads. Ray 85 Keokuk uds. Kraft 85 Keokuk Packet Co. ads. Musca- tine 434 Kerr ads. Dye 315, 318 Kerrison ads. Ambrose 342 Kessel i. Zeiser 188 Ketchum v. Evertson 232 Kidney v. Pinous 173 Kiewert v. Rmdkopf 180, 181 Kilgour y. Filyson 116 King ads. Dow 209 ads. Haokett 43!) V. Mason 192, 429 a. Welcome 234, 236, 237, 238 Kingston Bank r. Eltinge 46, 67, 69, 70 Kmney v. Cook 321 Kirkman v. Phillips 194, 196, 213 Kleeman v. Collins 232 Kloppenburg ads. Sageman 398 Knapp c. Hobbs 170 Kneeland v. Fuller 288 Kneil ;•. Egleston 336, 337, 338, 339 Knowles v. Bovill 295 Knowlton v. Congress Spring Co. ^9. 264 ads. Sprmg Ca 259, 264, 265 Koch <: Williams 232, 240 Koontz 0. Central National Bank 71, 72 Kossuth County ads. Aetna Iron Works 314 Kraft V. Keokuk 85 Kriger r. Leppel 233 xxu TABLE OF CASES. Lafayette & Indianapolis E. R. Co. V. Pattison 428 Laflin v. Howe 130 Lakeman v. Pollard 244 Lamb ads. Clare 128 Lamborn v. County Commissioners 423, 424 Lamine v. Dorrell 170, 171, 172, 205 Lancashire ads. Mayor, &o. 85, 124 Lancaster ads. Peterborough 70 Lance ads. Flower 42.3 Lane v. Shackford 232 Langevin v. St. Paul 32 Lansdowne v. Lansdowne 85, 90 Lantry e. Parks 215, 217 Larkin v. Buck 215 Larsen ads. Moritz 215 Laster ads. Hogg 318, 319 Latban ads. Wynne 191 Lawes ads. Pulbrook 278 Lawrence . Tappan 433, 434 O'Conley v. Natchez 168 O'Conner v. Huriey 382, 384, 385 O'Dougherty ads. Remington Paper Co. 13 O'Gilvie ads. Joannin 429 Ohio L. & T. Co. ads. Ellis 67 Oldham ;•. Broom Olds ads. Wheadon Olive i; Olive Ohver ads White O'Neal ads. Phillips Osborn v. Guy's Hospital 315, 316, 317 Ottenberg ads. Beha 230 Oughton V. Seppings 170, 179 Oxendale v. Wetherell 226, 227 PAGE 400 30 170 230, 314 130 Pacific Railroad Co. ads. United States 361 Paine v. Upton 124 Panton v. Duluth Co. 480 Parcell v. McComber 218 Parcher v. Marathon County 423 Park Brothers ads. Philadelphia Co. 191 Parker v. Finch 309 .7. Great Western R. R. Co. 438 ads. Noyes 121 i: Scott 258 ads. Stark 215, 216 V. Steed 231 ads. Tainter 280, 281 Parkinson ads. Feise 112 ads. Scarisbrick 290 Parks ads. Lantry 215, 217 Parish v. Atty 308 Parry ads. Spencer 397, 398 Parsons ads. Crawford 232, 240 ads. Dew 437 Patnote v. Sanders 215 Patrick v. Metcalf 167, 168 Partridge v. Exall 388 390, 391 Patterson v. Patterson 344 ^. Prior 160, 162 Pattison ads. Laf. & Ind, R, R. Co. 428 Patton ads. Balch 173 ads. Lusk 263 Paul V. Kenosha 138 PauUina ads. Bailey 85 Paxton ads. Chatfield 29 Payne ads. Thrift 215 V. Whale 305 Peacemaker ads. McDonald 194 XXVI TABLE Of CASES. PAGE Pearson v. Skelton 408 Peck V. Burr 263 Peck & Whipple Co. ads. Bryant 441 Peckham ads. Hall 170 V. Van Wagenen 168 Pendergrast ads. Mason 184 People V. Foster 85 V. Spelr 160 V. Wood 180 Perrott ads. Hill 196 V. Perrott 86 Perryman ads. Lister 111 Perseverance Fire Ins. Co. v. Beth- lehem Borough 194 Peru ads. Livermore 85 Peter v. Steel 321 Peterborough v. Lancaster 70 Peterborough Savings Bank v. Hodgdon 437 Peterson v. Mayer 215, 217 Petit V. Jewett 206 Phalen ads. Catts 180, 181 Pliilbrook v. Belknapp 233 Philadelphia Co. v. Park Bros. 191 Philips V. Hudson 128 V. O'Neal 130 Phillips ads. Blalock 199 V. Homfray 163, 164, 165, 167, 191 ads. Kirkman 194, 196, 213 V. Thompson 171 Pliipps ads. Close 428 Pickman v. Trinity Church 429 Pierson v. Spaulding 307 Pinchback ads. Sliaffner 269 Pinches v. Swedish Lutheran Church 230, 314 Pine, County of, ads Sibley 154 Pinney v. Clark 417 Pinous ads. Kidney 173 Pitt V. Purssord 408 Pittston Coal Co. ads. Arnot 262, 263, 269 Pixley V. Ingram 437 Pixler V. Nichols 218 Planchfe V. Colburn 300, 308 Piatt V. Bromage 45 Plummer v. Bucknam 2.32 Pocock ads. Goodman 309, 311 PAGE Pollard ads Lakeman 244 Pope ads. Decker 400 Poppleton ads. Hoxter 128 Port Chester ads. Bruecher 139, 424 u. Brundage 139 Port Huron ads. Whitney 424 Port Jervis v. First National Bank 408 Porter v. Dunn 301 ads. Wells 389 Potter ads. Boston Ice Co. 360 ads. Seavey 207 V. Taggart 303 Poussard v. Spiers 235 Powell ads. Cutter 244, 247, 248 V. Rees 160, 170 Pray ads. Thacher 185, 187 Prentice ads. Galvin 233, 290, 291 Preston v. Boston 422 V. Brown 377 u. Harrison 396 V. Hawley 192 ads. Leigh ton 170 ads. Sturgis 141, 145, 150 ads. Tucker 330 Price ads. Mussen 304 «.. Neal 154, 157 ads. Rogers 344 Prickett v. Badger 300 Prior ads. Patterson 160, 162 Pritchard v. Woodruff 85 Pucket V. Roguemore 269 Pulbrook V. Lawes 278 Pullman's Car Co, ads. Central Transportation Co. 272 Purssord ads. Pitt 408 Putnam ads. Simmons 305 Queen v. Tewksbury 88, 90 Quin V. Hill 350 Railroad Co. ads. Commissioners 423 V. Hunter j07 Railway Co. 0. Iron Co. 85 ads. Rumsey 165 Rainer i: Huddleston 374 Rand v. Webber i24 TABLE OF CASES. xxvn Randall ads. Tappenden ads. Wayae County Kavey ads. Doon Ray c. Bank of Kentucky Raymond i;. Bearnard ads. Franklin Bank Read i. Legard Reade ads. Crlpps Reading ads. Betts Real Estate Savings Inst. v. Linder Reardon ads. Cunningham 22, Reed r. Crosthwait ads. Earle ads. Fuller Rees ads. Powell 160, Reeves ads. Trinkle 298, Regan v. Baldwin Regina r. Twose Remington Paper Co. u. O'Dougherty Rennie ads. Anglo-Egyptian Nav. PAGE 250 85 171 85 309 40,50 22 129 439 85 349 3% 21 290 170 309 434 13 Co. 294 Rex r. Hall 88 Reynolds ads. Astley 427 V. Johnston 371, 372, 373 1. Jourdan 290 , . Wheeler 407 Rheel v. Hicks 31 Rhodes, In re 9, 20, 195 Rice ads. Anderson 307 Richards v. Allen 284,306 ads. Speake 19 Richardson ads. Boylston National Bank 82 V. Denver 85 1. Duncan 439 Richmond, City of, ads. Thomas 269, 274 mboat Co. 429 Richmond i-. Union Stea Rickey t. Bly 208 Riley c. Williams 237, 239 Rindkopf ads. Kiewert 180, 181 Risk ads. Frambers 28 Roberts ads. Gray 271, 274 Robertson v. Coleman 64,65 I Frank Brothers 432, 433 Robeson ». Niles 310 Robinson ads. Morris 20 1 PAGE Robinson ads. Turner 215, 227 Rochester ads. Vauderbeck So Rodermund r. Clark 20C Rogers ads. Dashaway Asso. 180 c. Greenbush 173 (■. Price 344 ads. Tobias 400, 402 Roquemore ads. Pucket 269 Rose ads. Cecil 167 Ross ads. Standish 139 Rowe ads. Eldridge 215 Rowley oafs. Champlin 226, 228, 231 ads. Sutton 2S'0 Royal Exchange Assurance Co. ads. McCuUoch 118 Royal Mail Co. ads. Johnson 393 Rucker v. Abell 372 Rudd ads. Haynes 440, 441 Rumsey !'. R. R. Co. 165 Rundell v. Bentley 352 Rusli ads. Watkins ,306 Rushville v. Rushville 167 Russell ( . Bell 193, 108 Rutherford ads. Carew 200, 201, 430 V. Mclvor 70, 141 Ryan c. Dayton 244 Ryde ads. Jones 131 Sacehi v. Aspinwall 396 Sageman r. Kloppenburg 398 Sage ads. Hawlej' 151 Saltzman ads. Decker 167 St. Anne's Church ads. Cicotte 315 St. Louis ads. Westlake 430 St. Paul, City of, ads. Langevin 32 St. Paul Railway Co. ads. Brown 308 Sampson r. Shaw 275 Sanchez ads. Steele 129 Sandeen r. Kansas City R. R. Co. 194 Sanders ads. Patnote 215 ads. Valpy 20:! Sanger ads. Chandler 416 Savage v. McCorkle 361, 352 Saville v. Welch 173 Sawyer v. Lufkin 20 Suarisbrick r. Parkinson 290 Sceva 1-. True 10, 14, 20, 160, 195 XXVIU TABLE OF CASES. PAOE Schiller ads. Byrne 293 Scliillinger v. United States 165 Schmidt ads. Holtz 121 ads. Lehmann 193 Schoener v. Lissauer 441 Scholey v. Halsey 418 Scholey v. Mumford 428 Schreve v. Grimes 367 Schultz V. Culbertson 439 ,440 Sehweizer ;;. Weiber 194 Schwinger v. Hickok 128 Scott V. Bush 240 ads. Higgs 113 ads. Parker 258 Scott's Executors ads. Brooks 308 Scotten V. Brown 240 Scudder ads. Emmons 434 Sears ads. Short 396 ads. Stuart 30 121 Seavey v. Potter 207 Seely ads. French 377 Segars v. Segars 278 Sennett v. Shehan 232 Seppings ads. Oughton 170 179 Severin ads. Jaboe 278 288 Seymore ads. Goddard 47 Shackford ads. Lane 232 Shaffner v. Pinehback 269 Shanner ads. Bosley 439 Shannon ads. Glenn 71 Sharkey v. Mansfield 141 152 Shaw V. Gardner 263 ads. Hapgood 215 217 ads. Sampson 275 V. The Turnpike 215 Shaboygan ads. Sticks 141 Shee ads. Clarke 180, 181 273 Sheffield v. Hamlin 123 Shehan ads. Sennett 232 Sheldon v. Cox 307 ads. Wood 131 Shepard ads. Chaude 217 Sheridan v. Carpenter 47 Sherwood ads. Hale 261 Shipton V. Casson 227 Shoemaker ads. Moyer 29 Short ads. Aiken 79, 81 ,82, 157 V. Sears 396 Sibley v. Pine County 154 Sickel ads. Weigand 199 Silk ads. Hunt 304, 305 Simmonds, Ex parte 94, 95 Simmons v. Putnam 305 Simpson v. Nichols 269 Sinslar v. May 139 Sitwell ads. Martin 112 Skeate «. Beale 426 Skelton ads. Pearson 408 Skinner v. Henderson 263 Skyring v. Greenwood 73 Slayton v. McDonald 307 Smart v. Gale 130 <-•. Hyde 274 Smith V. Baker 203, 206 V. Bromley 271, 273 ads. Brumby 258 V. Bruning 275- V. Coe 314 V. Cuff 274, 435 u. Davis 167 u. Drake 377, 378 ads. Emery 289 ads. Georgia R. R. Co. 154 ads. Greton 233 V. Hatch 288, 373 V. Hodson 206 V. Mercer 60, 73 ads. Myers 394 V. Smith 194 v. Stewart 278 V. Wooding 278 Smout V. Ilbery 334, 336 Snelson v. The State 85 Snowdon, Ex parte 407 Snyder ads. Dougherty 338 Sohier ads. Cleary 254, 255 Solari ads. Kelly 31, 52, 70 Solinger v. Earle 436 Solomonson v. Dutton 304 Soper V. Arnold 229 V. Stevens 128 Southwick V. First National Bank of Memphis 74, 76, 77, 80, 141, 145, 149, 157, 188 Sowle ads. Cribbs 439 Spalding ads. Pierson 307 TABLE Of CASES. XXIX PAGE Sparrow ads. Brewer 203 Speake v. Richards 19 Speir ads. Dusenbury 4, 12, 160 Spencer r. Parry 397, 398 Spiers nJs. Poussard 235 Spiller •■■ Cass 306 Spring Co. i. Knowlton 259, 264, 265 Staat r. Evans 170 Standard OH Co. ads. Van Santen 309 Standish v. Ross 139 Staniforth ads. Hentig 273 Stark (irfs. Chesapeake In 5. Co. 105 r. Parker 215, 216 State ads. Belden 55,50 ads. Snelson So State Bank arfs. Bank of Charleston 185 ( . United States Bank 185 States Bank ads. United States Bank Ste.iniship Co. v. JolifEe Stebbins ads. Commonwealth r Union Pacific R. R. Co. Steed ads. Parker Steel ads. Peter Steele v. Sanchez ' . Williams Stevens v. Cushlng I. Fitch ads. Soper Stewart ads. Foster ads. Soiitli Stimson ads. Collins -Stockett i: Watkins' Adm'rs I . Walker Stocks r. City of Sheboygan Stokes 1-. Lewis ads. Munt Stone ads. HoUingsworth V. Nichols Story ads. Bucknall Strauss ads. Thornton Straw f. Cunningham Street ads. Hills Strickland c. Turner Stringfellow c. Curry Strother r. Butler Stuart (-. Sears Studlev "ds. Currier 215, 184 16, 17 88 141 231 321 129 438 304 419 128 189 278 17 189 192 141 361 44 85 307 85 170 307 427 131 192 194 30, 121 177 PAGE Stukeley ads. Arris 188 Sturgis r. Preston 141, 145, 150 Sullivan v. Boley 307 Sutcliffe ads. Dietz's Assignee 199 Sutton V. Rowley 290 Swaffieldod.'!. Great Northern R. R. Co, 398, 399 Swartz ads. Heckman 439 Swedish Lutheran Church ads. Pinches 230, 314 Swezey ads. Lott 418 Swift V. Swift 24U Swift Co. ... United States 431 Swinburne ads. Craythorne 400 Swinden ads. Goepel 406 Taggart ads. Potter 303 Tainter ads. Parker 280, 281 Talbot L. National Bank of the Commonwealth 120 Talmage ads. Tracy 259, 271, 274 Tappan ads. Ocean Navigation Co. 433, 434 Tappenden v. Randall 259 Tatum ads. Cochran 307 t . Trenton 85 Tavener ads. Atlantic National Bank 338 Taylor r. Bowers 259 r. Chester 274 !•. Hare 37 V. Williams 231 Tennessee ilfg. Co. i-. James 21 7 Terry i: AUis 303 ads. Clark 233 , . Munger 210, 212 Terwilliger ads Levy 46 Tew r. Jones 102 Tewksbury ads. Queen 88, 90 Thacher v. Pray 185, 187 Thomas r. Brown 232 v. Cadwallader 224 i: City of Richmond 269, 274 V. Evans 377 Thomas Executors adv. Thomas 377 Thompson ads. Bower 141, 1-52 c. Gould 292 XXX TABLE OF CASES. PAGE Thompson ads. Gould 278 ... Howard 204, 205, 206 ads. Phillips 171 V. Thompson 170 V. Williams 269, 270, 271 Thomson ads. Keasley 260 Thornton v. Strauss 170 Thrift V. Payne 215 Thunder Bay Co. ads. Loekwood 192 Thurland ads. Cotton 261 Tightmyer v. Mongold 160, 162 Tilley ads. Chicago 300 Tisdal ads. Fewings 307 Titlow ads. Hogan 215 Tobias ads. Catliu 226, 228, 231 V. Rogers 400, 402 Tobie ads. Miller 866 Tomkins ads. Bank of England 137, 138 Tomlinson ads. Newall 61 Toussaint v. Martinnant 400, 401 Towers v. Barrett 304, 305, 306 Towle ads. Western Assurance Co. 180, 183 Towne ads. Nash 300 Townsend v. Crowdy 30, 121 V. Hargraves 232 Tracy v. Talmage 259, 271, 274 Trainer v. Trumbull 21 Trenton ads. Tatum 85 Trinity Cliurch ads. Doyle 315 ads. Pickman 429 Trinkle v. Reeves 298, 309 Troewert v. Decker 269 Trott ads. Hambly 160, 162, 190 Troy V. Bland 30 Troy City Bank v. Grant 76 True ads. Sceva 10, 14, 20, 160, 195 Trumbull ads. Trainer 21 T, N. W. Railroad Co. v. Chew 194 Tucker ads. Jenkins 341 V. Preston 330 Tupper ads. Atwater 209 Turner ads. Britton 218, 219, 220 V. Davies 406 V. Robinson 215, 227 ads. Strickland 131 PA«E Turner v. Turner 85 V. Webster 330 ads. Wright 216 Turnpike ads. Shaw 215 Tuska ads. MoUer 206 Tuttle ads. Brown 316 Twose ads. Regina 88 Underwood ads. United Society 209 Union Bank ads. Bank of Com- merce 154 V. United States Bank 72 Union Hall Association v. Morrison 377, 379 Union Pacific Railway Co. ads. Stebbins 141 Union Steamboat Co. ads. Rich- mond 429 United Society v. Underwood 209 United States ads. Allen 207 V. Badeau 37 ads. Bayne 184 ads. Clark 263 ads. Schillinger 165 ads. Swift Co. 431 ads. Waples 85 United States, Bank of, v. Daniel 145, 146 V. Bank of Washington 420 United Slates Bank ads. State Bank 185 y. State Bank 184 ads. Union Bank 72 United States v. Pacific Railroad Co. 361 Updegrove ads. Boas 58, 61 Upton ads. Paine 124 Utica Bank v. Van Gieson 145, 150, 151 Valley Co. ads. Homestead Co. 380 Valpy V. Sanders 203 Vanderbeck v. Rochester 85 Van Deusen v. Blum 326, 327 Vandyck v. Hewitt 269 Van Gieson ads. Utica Bank 145, 150, 151 TABLE OF CASES. XXXI PAGB PAGE Van Santen r. Standard Oil Co. 399 Welcome ads. King 234, 236, 237, Van Wagenen ads. Peckliam 168 238 Vauglian v. Cravens 364 Weller v. Carpenter 319 V. Mathews 167 169 Welles r. Calnan 254 Vernon i\ Lythgoe 203 WtUniau ads. Duval 271, 275 Vinal V. Continental Construction Wells t. Banister 384 Co. 93 !>. Porter 389 Vining ads. Leach 154 Welsh V. Welsh West r. Houston 173, 368, 370 70 Western Assurance Co. V. Towle Wade ads. Je£E 263 180 183 Wakefield c. Xewbon 428 Westlake r. St. Louis 430 Wainwright ads. Ashmole 428 Wetlierald ads. Button 194 Walford ads. Batthyany 18 Wetherell ads. Oxendale 226 227 Walker v. Chapman 259 Whale ads. Payne 305 r. Conant 71, 7 i. 80 Wheadon v. Olds 30 r. Duncan 194 Wheatly r. Miscal 218 ads. Hanley 215 Wheeler ads. Lord 254 255 t. JIathews 386 ads. Reynolds 407 ads. Moody 173 Whelan c. Ansonia Clock Co. 257 ads. Stockett 192 Whincup V. Hughes 296 Wallace f. Agry 105 White r. Barber 293 ads. Logan 194 ads. Brooke 304 Wallingford ads. Edmunds 391 V. Equitable Nuptial Benefit Waples V. United States 85 Union 275 Ward ads. Boardman 320 ads. Eseott 215 ads. Burrows 320 I'. Franklin Bank 259 266 274 Wareham ads. Dill 145, 146 ,151 ads. Heindill 180 Warren ads. Dutch 298 ads. Morford 194 Washington, Bank of, ads. Bank ads. Newton Mfg. Co. 194 of United States 420 r. Oliver 230 314 Waters v. Frankhn 321 Whiting i: City Bank 76 Watkins i'. Rush 306 Whitney v. Port Huron 424 Watkin's Administrators ads. Whittemore v. Farrington 128 Stockett 189 Whytel ads. Biddleson 16 Waterworks arfs. -Montgomery 4 Wilbur ads. Gilmore 170 Way V. Cutting 304 306 Wiley r. Bradley 278 Wayne County v. Randall 85 ads. Lemans 42 Weaver, In re 9 Wilkinson v. Heavenrich 232 ,,. Bentley 308 !i. Johnson 154 Webb V. Fulchire 180, 181 William Butcher Steel Works c. V. Myers 168 Atkinson 289 Webber ads. Rand 124 Williams ads. Bloxsome 274 Webster ads. Turner 330 ads. Dunbar 348 Weiber ads. Schweizer 194 u. Gibbes 377 Weigand v. Sichel 199 u. Hedley 274 Welch ads. Carroll 218 ads. Koch 232 240 ads. Saville 173 ads. Marzetti 4 XXX 11 TABLE OE CASES. PAGE Williams ads, Moore 128 ads. Riley 237, 239 ads. Steele 438 ads. Taylor 231 ads. Thompson 269, 270, 271 Willie V. Green 436 Wilson ads. Ainslie 173, 410 f. Barker 70 ads. Blood 280, 314 V. Force 199 Winchell v. Noyes 194 Winehelsea ads. Deering 401, 405, 407 Windbiel v. Carroll 27 Winterbottom ads. Helps 804 Winters v. Elliott 232, 240 Witherow v. Witherow 228 Wolfe V. Howes 244 Wonsettler v. Lee 279 Wood ads. Howard 188 ads. Louisiana 274 ads. People 180 V. Sheldon 131 Wooding ads. Smith 278 Woodruff ads. Pritchard 85 PAGE Woods V. Ayres 14, 16, 208 Woodward v. Hill 415 V. Woodward 337 Wooley V. Batte 409 Worley v. Moore 121, 141 Wormersley ads. Gurney 131 Wright V. Bank of Metropolis 106 V. Colls 303 V. Dickinson 130, 806 V. Turner 215 Wyley v. Bull 315 WyUe ads. Challeis 207 Wyman v. Fiske 263 Wynne v. Latham 191 Yates ti. Bachley 365 York Railway Co. ads, Marshall 18 Young V. Marshall 170 ads. O'Brien 13, 16 Zeiser ads. Kessel 188 THE LAW OF QUASI-CONTRACTS. THE LAW OE QUASI-CONTRACTS. CHAPTER I. NATCRE AND SCOPE OF THE OBLIGATION. It is usual to divide Contracts into three classes, — 1. Simple Contracts. Classification 2. Contracts under Seal. 3. Contracts of Record. Where this classification is made, Simple Contracts are subdivided into — 1. Express Contracts. 2. Contracts implied in Fact. 3. Contracts implied in Law. In this classification of Contracts, obligations of a quasi- contractual nature are treated either as Simple Contracts or as Contracts of Record. This treatment of Quasi-Contracts is, in the opinion of the ■writer, not only unscientific, and therefore theoretically ■wrong, but is also destructive of clear thinking, and there- fore ■vicious in practice. It needs no argument to establish the proposition that it is not scientific to treat as one and the same thing, an obliga- tion that exists in every case because of the assent of the defendant, and an obligation that not only does not depend in any case upon his assent, but in many cases exists not- 4 THE LAW OF QUASI-CONTRACTS. withstanding his dissent. And yet witli this wide difference between simple contracts and quasi-contracts, the latter are generally treated to-day as a species of simple contract. Equally objectionable in principle, though perhaps not so misleading in practice, is tLe classification of such quasi- contracts as cannot by any possibility be treated as simple contracts, as contracts of record. A true contract, whether it be arsimple contract, a^spe- CTntractrests"^ cialty,-'a' contract in the nature of a specialty, or aZcontract uponinten- . Qf re cord ^ exists as an obligation, because the contracting party has ivilled, in circumstances to which the law attaches the sanction of an obligation, that he shall be bound. Had he not so willed, he would not be under a contractual obliga- tion. This statement is as true of a contract implied in fact as of an express contract. Indeed, the division of Simple Contracts into "express contracts" and "contracts implied in fact " does not involve a consideration of the principles of contracts at all. ^ In the case of a contract implied in fact, as much as in the case of an express contract, the plaintiff must prove that the defendant either made or accepted an offer which resulted in a promise on the defendant's part, and that the promise was not only in fact made, but that a sufficient consideration was given therefor. If the defendant gave in words a promise containing all the terms of the contract which the plaintiff claims that he made, for a consideration expressly requested in words by him, in exchange therefor, then the contract is an express contract. Thus, if A should say to B : "I will promise to sell you my horse X for the sum of |500 in cash if you will promise to purchase on these terms," and B should so promise, an express contract would be created thereby. Suppose, however, that A should write to a livery-keeper, 1 Marzetti v. Williams, 1 B. & Speir, 77 ??. Y. 144; Hertzog v. Ad. 415; Montgomery v. Water Hertzog, 29 Pa. St. 465. Works. 77 Ala. 248 : Diisfinhnrv ». NATURE AND SCOPE OF THE OBLIGATION. 5 simply requesting him to send a coupe to his house at a cer- tain hour, and the coupe was sent and used by A, there would certainly be no express contract, since A has never in words said that he intended to assume any obligation in favor of B. And yet A's conduct speaks quite as loudly as words, and leaves no doubt of his intention to enter into a contract with B for the use of the coupe. Xo one would question that A has communicated such an intention to B, and that he can be fairly said to have promised to pay him for the use of his property, and that to allow A to escape liability would defeat the intention of the parties quite as much as to allow him to refuse to be bound by his contract to sell the horse in the case first supposed. The difference between the cases is a difference simply in the kind of the evidence used to establish the contract. In the "Express con- one case the language of contract is in terms used,' and "Contracts because of the expressions used, the contract is called an f™c^"are°crms express contract : whei'eas in the other case the contract is ° established by the conduct of the parties, viewed in the light of surrounding circumstances, and is called a contract implied in fact. The terms, " express contracts " and " contracts implied in fact," are used then to indicate, not a distinction in the prin- ciples of contract, but a difference in the character of the evidence by which a simple contract is proved. The source of the obligation in each case is the intention of the parties. The term '• contract implied in law " is used, however, to denote, not the nature of the evidence by which the claim of contracts , , , , , n ii 1 1 • implied in law the plaintiff is to be established, but the source of the obii- exist inde- gation itself. It is a term used to cover a class of obligations i^ft"entron^ " where the law, though the defendant did not intend to assume an obligation, imposes an obligation upon him, notwithstand- ing the absence of intention on his part, and in many cases in spite of his actual dissent.*- The identity in principle of express contracts and contracts THE LAW OF QUASI-CONTEACTS. Distinction in principle between genu- ine contracts and quasi- contracts. implied in fact, and the distinction between a genuine con- tract, whether express or implied in fact, and a quasi-contract, commonly called a contract implied in law, is thus stated by Maine in his " Ancient Law " ^ : " The part of Roman law which has had most extensive influence on foreign subjects of inquiry has been the law of Obligation, or, what comes nearly to the same thing, of Contract and Delict. The Eomans themselves were not unaware of the offices which the copious and malleable terminology belonging to this part of their system might be made to discharge, and this is proved by their employment of the peculiar adjunct quasi in such expressions as Quasi-Contract and Quasi-Delict. ' Quasi, ' so used, is exclusively a term of classification. It has been usual with English critics to identify the quasi-contracts with implied contracts; but this is an error, for implied contracts are true contracts, which quasi-contracts are not. In implied contracts, acts and circumstances are the symbols of the same ingredients which are symbolized, in express contracts, by words; and whether a man employs one set of sym- bols or the other must be a matter of indifference so far as concerns the theory of agreement. But a quasi-contract is not a contract at all. The commonest sample of the class is the relation subsisting between two persons, one of whom has paid money to the other through mistalje. Tlie law, consulting the interests of morality, imposes an obligation on the receiver to refund; but the very nature of the transaction indicates that it is not a contract, inasmuch as the convention, the most essential ingredient of con- >tract, is wanting. This word ' quasi,' prefixed to a term of Roman law, implies that the conception to which it serves as an index is connected with the conception with whicli the comparison is insti- tuted by a strong superficia l analogy or resemblance. It does not denote that the two conceptions are the same, or that they belong to the same genus. On the contrary, it n egativ es the notion of an identity between them; but it points out that they are sufficiently similar for one to be classed as the sequel to the other, and that the phraseology taken from one department of law may be trans- ferred to the other, and employed without violent straining, in the statement of rules which would otherwise be imperfectly expressed." » 3d Am. Ed. 3.'52. NATURE AXD SCOPE OF THE OBLIGATION, 7 Notwithstanding the existence ajid recognition of this well-defined line of demarcation between genuine contracts, confused use whether express or implied, and quasi-contracts, there exists 'He^'Term'' "^ the greatest confusion in the application thereof in practice, contract''' Thus Blackstone confuses contracts implied in fact and quasi- contracts, when he says : ^ — '• This contract or agreement may be either express or implied. Express contracts are ^yhe^e the terms of the agreement are openly- Tittered and avowed at the time of the making, as to deliver an ox, or ten load of timber, or to pay a stated price for certain goods. Imj)Ued, are such as rea son and ju stice dic tate, and which, there- fore, tFe law presumes inat every man underta£es to perform. As if I employ a person to do aiiv business for me, or perform any work; the law implies that I undertook, or contracted, to pay him as much as his labor deserves. If I take up wares from a trades- man, without any agreement of price, the law concludes that I con- tracted to pay their real value." While this definition of an implied contract is, at best, true only of quasi-contracts, all the cases put are illustrations of contracts implied in fact. Mr. Justice Lowrie, referring to the language just quoted from Blackstone, properly says : ^ "There is some looseness of thought in supposing that reason and justice ever dictate any contracts between parties, or impose such upon them. All true contracts grow out of the intentions of the parties to transactions, and are dictated only by their mutual and accordant wills. When this intention is expressed, we call the contract an express one. When it is not expressed, it may be inferred, implied, or presumed, from circumstances as really exist- ing; and then the contract, thus ascertained, is called an implied one. The instances given by Blackstone are an illustration of this. "But it appears in another place, 3 Comm. 159-166, that Black- stone introduces this thought about reason and justice dictating contracts, in order to embrace, under this definition of an implied ' 2 Bl. Comm. 443. » Hertzog v. Hertzog, 29 Pa. St. 465, 487. 8 THE LAW OF QUASI-CONTRACTS. contract, another large class of relations which involve no intention to contract at all, though they may be treated as if they did. Thus, whenever not our variant notions of reason and justice, hut the common sense and common justice of the country, and there- fore the common law or statute law, impose upon any one a duty, irrespective of contract, and allow it to be enforced by a contract remedy, he calls this a case of implied contract. Thus out of torts grows the duty of compensation, and in many cases the tort may be waived, and the action brought in assumpsit. "It is quite apparent, therefore, that radically different rela- tions are classified under the same term ; and this must often give rise to indistinctness of thought. And this was not at all neces- sary; for we have another well-authorized technical term exactl}' adapted to the office of making the true distinction. The latter class are merely constructive contracts, while the former are truly implied ones. In one case, the contract is mere fiction, — a form imposed in order to adapt the case to a given remedy ; in the other, it is a fact legitimately inferred. In one, the intention is disre- garded; in the other, it is ascertained and enforced. In one, the duty defines the contract; in the other, the contract defines the duty." Yet the learned Justice, after so intelligently criticising Blackstone, falls into the same confusion of statement when he says, in the same opinion : i — "The law ordinarily presumes or implies a contract whenever this is necessary to account for other relations found to have existed between the parties. "Thus if a man is found to have done work for another, and. there appears no known relation between them that accounts for such service, the law presumes a contract of hiring. But if a man's house takes fire, the law does not presume or imply a con- tract to pay his neighbors for their services in saving his property. The common principles of human conduct mark self-interest as the motive of action in the one case, and kindness in the other; and therefore, by common custom, compensation is mutually counted on in one case, and in the other not." Plainly, in the case put by Mr. Justice Lowrie, the infer- ence of a contract is one of fact ; and in another part of the 1 Hertzog v. Hertzog, 29 Pa. St. 465, 468. NATURE AND SCOPE OF THE OBLIGATION. 9 same opinion the learned Justice clearly regards the inference as one of fact and not one of law, when he says : ^ — ••Every induction, inference, implication, or presumption in reasoning of any kind, is a logical conclusion derived from and demanded liy certain data or ascertained circumstances. If such circumstances demand the conclusion of a contract to account for them, a contract is proved; if not, not. If we find, as ascer- tained circumstances, that a stranger has heen in the employment of another, we immediately infer a contract of hiring, hecause the principles of individuality and self-interest, common to human nature, and therefore the customs of society, require the inference." In the opinion of Lord Justice Lindley, it was the failure of Lord Justice Brett to recognize the distinction in question, which led him to doubt ^ that a lunatic was liable for neces- saries furnished to him by one knowing of his lunacy. On this point Lord Justice Brett expressed himself as follows : " A question has heen Hushed, if I may use the word, in this case which it is not necessary to decide, namely, whether if a person supplies necessaries to a lunatic, knowing of the lunacy at the time, a contract on the part of the lunatic to pay for them can he implied. I give no opinion upon that point. It has not heen fully argued to-day, and it appears to me to involve a very difficult point of law, which I do not think has ever been settled by authority. For my part I should doubt whether in favor of a person who knows of the lunacy you can imply a contract to pay for a supply of necessaries to a lunatic." In Rhodes v. Rhodes,^ Lord Justice Lindley, referring to the doubt raised by Lord Justice Brett, said : — "The question whether an implied obligation arises in favor of a person who supplies a lunatic with necessaries is a question of law, and In re Weaver, a doubt was expressed whether there is any obligation on the part of the lunatic to repay. I confess I cannot participate in that doubt. I think that that doubt has arisen from the unfortunate terminology of our law, owing to which 1 Hertzog '■. Hertzog, 29 Pa. St. ^ /„ ,.g Weaver, 21 Ch. D. 615, 465, 469. 620. » 44 Ch. D. 94, 107. 10 THE LAW OF QUASI-CO^vTRACTS. the expression 'implied contract' has been used to denote, not only a genuine contract established by inference, but also an obli- gation which does not arise from any real contract, but which can be enforced as if it had a contractual origin. Obligations of this class are called hy civilians obligationes quasi ex contractu." It was this confusion of ideas that caused the counsel in Sceva V. True ^ to contend that as an insane person was not able to contract, the defendant was not liable for necessaries furnished to her by one knowing her to be insane. The coun- sel's argument in that case was as follows : — " The foundation principle of the entire law of contracts is, that the parties must have the capacity to contract, and must actually exercise their faculties by contracting. Here there was no capacity, for there was but one mind; no contract was made, and no attempt was made to make one. The two vital facts, without which no contract, tacit or express, can exist, — capacity and its exercise, — are wanting. Was there an implied contract ? What does that term mean ? In thousands of cases, in the books, we know just what it means. The parties have capacity to contract; facts, circumstances, few or many, clear or complicated, exist, which lead the minds of the jurors to the conclusion that the minds of the parties met. Minds may meet by words, acts, or both. The words even may negative such meeting; but 'acts which speak louder than words ' may conclude him who denies a tacit contract. Aside from cases where the capacity to contract is wanting, no instance now occurs to us in which the implied contract cannot be supported upon these principles, and the familiar doctrines of waiver and estoppel. ... It is another fundamental principle that no one, by voluntarily performing services for another, can make that other his debtor. If these principles apply to cases where the contract- ing mind is wanting, they settle this case. We know it is some- times said, in such a case, 'the law will imply a contract.' What does that mean ? As it seems to us, only this : that where A, who has capacity to contract, furnishes B, who is totally destitute of such capacity, what is proper for B to have, the judges will turn the bench into a broker's board, will substitute themselves for B, make a contract where none existed, cause it to relate back to the 1 53 N. H. 627. NATURE AXD SCOPE OF THE OBLIGATIOX. 11 voluntary acts of A, and then sit in judgment upon and enforce their own contract. It is a perversion of language to call such a performance a contract of any kind. It is judicial usurpaticm. The Constitution gave the court no such power. The court has no power to make contracts for people : it can only infer one where a jury might." To this argument the court made the following conclusive answer : — "We regard it as well settled by the cases referred to in the briefs of counsel, manj- of which have been commented on at length by Mr. Shirley for the defendant, that an insane person, an idiot, or a person utterly bereft of all sense and reason by the sudden stroke of accident or disease, may be held liable, in assumpsit, for necessaries furnished to him in good faith while in that unfortunate and helpless condition. And tlie reasons upon which this rests are too broad, as well as too sensible and humane, to be overborne by any deductions which a refined logic may make from the circumstances that in such cases there can be no contract or promise in fact, no meeting of the minds of the parties. The cases put it on the ground of an implied contract; and by this is not meant, as the defendant's counsel seems to suppose, an actual contract, — that is. an actual meeting of the minds of the parties, an actual mutual understanding, to be inferred from language, acts, and circumstances, by the jur}-, — but a contract and promise, said to be implied by the law, where, in point of fact, there was no contract, no mutual understanding, and so no promise. The defendant's counsel says it is usurpation for the court to hold, as matter of law, that there is a contract and a promise, when all the evidence in the case shows that there was not a contract, nor the semblance of one. It is doubtless a legal fiction, invented and used for the sake of the remedy. If it was originally usurpa- tion, certainly it has now become verj- inveterate, and firmly fixed in the body of the law."' Xot only has this identification in classification, of quasi- contracts with genuine contracts, led to a confusion of ideas, 1 Furtherillustrationsof this con- found in the discussion of the scope fusion of ideas, which might be mul- of quasi-contract, tiplied almost indefinitely, will be 12 THE LAW OF QUASI-CONTRACTS. Meaning of the term " implied con- tract " when used in sta- tutes. but it has also rendered the iaterpretation of written laws or statutes exceedingly difficult where the word "contract" is used ; thus, for example, in Dusenbury v. Speir, i the legality of an arrest turned upon the meaning to be given to the phrase "contract express or implied," as used in a statute regulating arrests in civil actions. The plaintiff had been arrested in an action, coi'i-esponding to the common law action, for money had and received, brought to recover money which the plaintiff (the defendant in that action) had fraudu- lently obtained. The plaintiff was arrested on a warrant issued on the theory that the action was that of contract, express or implied, within the meaning of the statute. It was held that his liability was in quasi-contract, and not in con- tract, and that as the phrase " contract express or implied " was used in the statute with reference solely to genuine con- tracts, the arrest was illegal, and the judgment of the lower court was reversed. And yet the court, whose judgment was reversed by the Court of Appeals, recognized as fully as did the Court of Appeals that the obligation to return the money was a quasi-contractual, and not a contractual, obligation. 2 1 77 N. Y. 144. =* Probably no clearer statement of the distinction between a genu- ine contract and a quasi-contract can be found than is contained in the following statement, taken from the opinion of Mr. Justice Danforth in this case : — "We cannot agree with the learned judge in this construction of the statute. On the contrary, we think that the express contract referred to in the statute is one which has been entei-ed into by the parties, and upon which, if broken, an action will lie for damages, or is implied, when the intention of the parties, if not expressed in words, may be gathered from tlieir acts and from surrounding circumstances ; and in either case must be the re- sult of the free and bona fide exer- cise of the will, producing the aggre- gatio mentium, the joining together of two minds, essential to a contract at common law. (There is a class of cases where the law prescribes the rights and liabilities of persons who have not in reality entered into any contract at all with one another, but between whom circumstances have arisen which make it just that one should have a right, and the other should be subject to a liability, simi- NATURE AND SCOPE OF THE OBLIGATION. 13 111 O'Brien r. Youiig,i the question involved was the con- struction of the statute reducing the rate of interest from seven per cent to six per cent. The statute contained a clause excepting from its operations " any contract or obliga- tion " made before the passage of the Act. It was contended that a judgment obtained before the passage of the Act was exempted from its operations, and that the judgment creditor was, therefore, entitled to seven per cent interest. But the court reversed the judgment of the lower court, holding that the clause in question referred, not to quasi-contracts, but to genuine contracts only, and that, therefore, the judgment- creditor was entitled to only six per cent after the passage of the Act. But in The Gutta Percha Shoe Co. v. Mayor, etc. ,2 it was held that although a judgment was not a genuine contract, yet an attachment could issue in an action brought on a foreign judgment under a section of the code of civil proce- dure, allowing an attachment against property, in an action brought for " breach of contract, express or implied, other than a contract to marry." Yet the same court held, in Rem- ington Paper Co. v. O'Dougherty,^ that an attachment could lar to the rights and liabilities in jg recognized in the civil law, where certain cases of express contract, jt is said: 'In contracts it is the Thus, if one man has obtained consent of the contracting parties money from another through the which produces the obligation ; in medium of oppression, imposition, quasi-contracts there is not any con- extortion, or deceit, or by the com- sent. The law alone, or natural mission of a ti-espass, such money equity, produces the obligation by may be recovered back, for the law rendering obligatory the fact from implies a promise from the wrong- which it results. Therefore these doer to restore it to the rightful facts are called quasi-contracts, be- owner, although it is obvious that cause, without being contracts, they is the very opposite of his intention, produce obligations in the same Implied or constructive contracts of manner as actual contracts.' " this nature are similar to the con- 1 95 N. Y. 428. structive trusts of courts of equity, ^ "J^S N. Y. 276. and in fact are not contracts at all. ^ gg n. Y. 666, affirming 32 Hun, And a >omewhat similar distinction 265. 14 THE LAW OF QUASI-CONTRACTS. not issue under the same section of the code, in an action brought to enforce a statutory liability created by the Legis- lature of New York to pay the cost of an action. The law of The question naturally arises, why a classification produc- r 61116(1 168 tll6 reason for the tive of SO much conf usion was ever adopted. The answer to ot^^quasi-cOT- this question is to be sought, not in the substantive law, but tracts with con- . , , , » t tracts. in the law of remedies. The only forms of action known to the common law were actions of tort and contract. If the wrong complained of would not sustain an action, either in contract or tort, then the plaintiff was without redress, unless the facts would sup- port a bill in equity.^ Although from time to time the judicial view of substan- tive rights broadened under the leavening effect of equity and other considerations, the broadening process did not lead to the creation of remedies sounding in neither contract nor tort. The judges attempted, however, by means of fictions, to adapt the old remedies to the new rights, with the result usually following the attempt to put new wine into old bottles. Thus, largely through the action of assumpsit, that portion of the law of quasi-contract usually considered under the head of simple contracts, was introduced into our law. In the action of assumpsit, as the word assumpsit implies, whether it be special or indebitatus assumpsit, a promise must always be alleged,^ and at one time it was an allegation which had to be proved.^ It was only natural, therefore, that the courts in using a purely contractual remedy to give relief in a class of cases possessing none of the elements of contract, should have resorted to fictions to justify such a course. This was done in the extension of assumpsit to quasi-contract ; and the insuperable difficulty of proving a promise where none existed was met by the statement that 1 1 Spence,Eq. Jur. 243; Woods 2 Chitty on Pleading, 301. ■B. Ayres, 39 Mich. 345; Sceva v. ^ Ames, The History of Assump- True, 53 N. H. 627. sit, 2 Harv. Law Rev. 64. NATURE AND SCOPE OF THE OBLIGATION. 15 '•the law implied a promise." The statement that the law imposes the obligation would not have met the difficulties of the situation, since the action of assumpsit presupposed the existence of a promise. The fiction of a promise was adopted then in this class of cases solely tliat the remedy of assump- sit might be used to cover a class of cases where, in fact, there was no promise. It might be asked : Why did the court extend to this class of obligations the remedies peculiar to contracts rather than the Distinction be- remedies peculiar to tort ? The right conferred in quasi- contracTand contract, and the right, the violation of which constitutes a tort, undoubtedly possess this common characteristic, — that the obligation is imposed by operation of law, regard- less of the consent of the defendant. But treating a tort as the violation of a right in rem, the obligations differ in an important particular ; for while to avoid committing a tort, one need only forbear,^ to discharge tlie obligation imposed by quasi-contract one must act.^ It is true that the obligation imposed by a contract may be simply to forbear ; but the obligation most generally assumed under a contract requires one to act, and therefore contract rather than tort would naturally suggest an analogy. Another consideration would also suggest the analogy of contract rather than of tort; not only in most cases where a quasi-contractual obli- gation is imposed has the defendant not acted in violation of a right in rem, in consequence of which the law could impose an obligation ; but in many cases he has either not acted at all, — as, for example, where an absent husband, who is ignorant of the death of his wife, is obliged to reimburse one who has defrayed the expenses attendant upon her burial, — or, if he has acted, has acted with the consent, and perhaps the co-operation, of the plaintiff ; as, for example, 1 Austin, Jarisprndence, Lect. will be given in discussing the scope XIV. of the obligation. 2 Illustrations of this proposition 16 THE LAW OF QUASI-CONTRACTS. Sources of the quasi-contract- ual obligation. A judgment is not a contract, but a quasi- contract. An obligation created by- statute is quasi-con- tractual. where a defendant is obliged to refund money which he has received from the plaintiff, botli parties acting under a misapprehension. It remains to consider the scope of quasi-contract. Quasi-contracts may be said in general to be founded,^ — 1. Upon a record. 2. Upon a statutory, or official, or customary duty. 3. Upon the doctrine that no one shall be allowed to enrich himself unjustly at the expense of another. The obligation created by a judgment which, as Sir William Anson has said,^ is unfortunately styled in our law a con- tract of record, resting, not upon the agreement of the par- ties, but regardless thereof, is a quasi-contractual, and not a contractual, obligation.** In Louisiana v. New Orleans,* Mr. Justice Field, delivering the opinion of the court, in support of the decision that a judgment was not a contract within the meaning of that word as used in the clause of the Constitu- tion forbidding the enactment by a State of a law impairing the obligation of a contract, said : — ■ "A judgment for damages, estimated in money, is sometimes called by text-writers a specialty or contract of record, because it establishes a legal obligation to pay the amount recovered; and by a fiction of law a promise to pay is implied where such legal obligation exists. It is on the principle that an action ex con- tractu lies upon a judgment. But this fiction cannot convert a trans- action wanting the consent of parties into one which necessarily implies it." A statutory obligation which does not rest upon the consent of the parties, is clearly quasi-contractual in its nature.^ In '■ Ames, The History of Assump- sit, 2 Harv. Law Rev. 64. ^ Anson, Contracts, 6 ed. 7. 2 Biddleson v. Whytel, 3 Burr. 1545; State of Louisiana v. New Orleans, 109 U. S. 285; O'Brien v. Young, 95 N. Y. 428. < 109 U. S. 285. 5 S teamship C o. v. JolifEe, 2 Wall. 450; Louisiana v. New Orleans, 109 U. S. 285; Inhabitants of Milford V. Commonwealth, 144 Mass. 64; Woods D. Ayres, 39 Mich. 345; McCoun V. New York Central & Hartford R. R. Co., 50 N. Y. 176. NATURE AND SCOPE OF THE OBLIGATION. 17 S teamboat Co. i: Joliffe.i Mr. Justice Field, in discussing the nature of the claim for half-pilotage fees under a statute allow- ing such fees, where a pilot's services are offered and declined, thus distinguishes between a contract liability and a liabilit}- imposed by statute ; — "The trausnetioii in this latter case, between the pilot and the master or owners, cannot be strictly termed a contract, but it is a ti-ansaction to which the law attaches similar consequences; it is a quasi-contract. The absence of assent on the part of the master or owner of the vessel does not change the case. In that large class of transactions designated in the law as implied contracts, the assent or convention which is an essential ingredient of an actual contract is often wanting. . '•The claim of the plaintiff below for half-pilotage fees resting upon a transaction regarded by the law as a 2';((!s/-contract, there is no just ground for the position that it fell with the repeal of the statute under which the transaction was had." In Inhabitants_pf Milford v. Commonwealth,^ the court, dis- cussing the nature of the plaintiff's claim for the support of a pauper under a statute imposing upon the Commonwealth an obligation to reimburse the plaintiff for the expenses so incurred, recognizes the distinction between a contract liability and a liability imposed by statute, in the following language : — ■ ' The law regards the money as expended at the implied request of the defendant, and a promise to pay the money is said to be implied from the liability created by the statute. A contract may be expressly made, or a contract may be inferred or implied when it is found that there is an agreement of the parties and an inten- tion to create a contract, although that intention has not been expressed in terms of contract; in either case, there is an actual contract. But a contract is sometimes said to be implied when there is no intention to create a contract, and no agreement of parties ; but the law has imposed an obligation which is enforced as if it were an obligation arising ex oontnictu. In such a case there is not a contract, and the obligation arises ex lerje." 1 2 Wall. 450. - 144 Mass. 64. 18 THE LAW OF QUASI-CONTRACTS. Of a quasi-contractual nature, it is submitted, is the duty of Nature of the a carrier, founded upon the custom of the realm to receive carrier or and to Carry safely. That the liability in such cases arises, not from contract, but from a duty, is clear.^ While it is true that the liability is ordinarily described as one in tort, it is submitted that it has been so described because of the usual classification of legal rights into contracts and torts, and that since the obligation imposed upon the carrier is to act, the obligation is really quasi-contractual in its nature, and not in the nature of a tort. If this be the proper classifica- tion of the duties imposed by law upon a carrier, it must neces- sarily be true of the common law liability of an innkeeper to receive guests, or to keep their goods safely.^ The obligation in these cases seems analogous in principle to the obligation imposed by the Austrian law upon one in possession under a fidei commiss in favor of his successor, as to the care of the property. That liability is thus described by Lord Justice Cotton in Batthyany v. Walford ; ^ — "It appears, as far as I understand the evidence, that the law of Austria (I will omit Hungary, because the Hungarian law on this ' head is practically the same as that of Austria) is this : The tenant in possession under & fidei commiss, both of real and personal estate, is considered in possession in a different way from that in which a tenant for life or a tenant in tail in England stands. There are no trustees, and if he loses any portion of the personal estate, which axjparently stands as regards the provision of the fidei commiss nearly in the same position as real estate, he must make that loss good. As regards the real estate, he is answerable, at the time when he surrenders, by death or otherwise, the possession of the property in the y?cZei commiss, for the deterioration of the estate which has taken place since the time when he took possession. He is considered as having possession of the estate, not only for his ' Anonymous, 12 Mod. 3; iMar- 2 Morgan v. Ravey, 6 H. & N. shall V. York, N. & B. Railway Co., 265, 275. 11 C. B. 655; Austin o. Great ^ 36 Ch. Div. 269, 278. Western Railway Co., L. R. 2 Q. B. 442, 445. XATUKE AND SCOPE OF TlIK OBLH;.\.TION. 10 own benetit, but subject also to an obligation to hand it over to his suoci'ssoi- in as good a condition as when he took imsM'ssion, subjei't only to this, that he can excuse himself if he shows that the deterioration took place without any fault ('cul[)a." as it is called) on his part. But, as I undcistand tlic evidence, the claim accord- ing to the law of Austria is not in the nature of damages for default, but a claim under an obligation to keep the property in as good condition a^ the late possessor found it. with liberty to exeu,-e himself from making good the deficiency if he can show that it wa-* not caused by any default of his own. That, in my opinion, is not a claim simply depending on tort, and does not come within the rule of actio personalis moritiir cum persona. It maybe that it is a wrong which has produced the deterioration; but the claim, in my opinion, is one depending on the implied contract or obligation vrhich. bv the law of Austria, every possessor under ajidei commis.< takes upon him>elf when he enters into possession. ■'It was contended that there could be no such liability- of a personal representative for anything connected with default, nnles-^ there was an express contract. Xo authority was referred to in support of that proposition, and in my opinion it is contrary to English law-. ... It is not only where there is an express contract that a suit grounded on some default of the person whose repre- sentative is sued can be maintained: but if the po^ition of the parties was such that the law of England would imply a contract from that position, then on assumpsit the executor might still be held liable. There are many cases where an action can be brought upon an obligation implied by law in consequence of the position which the parties have undertaken one to auother. " Of thi-; nature also, it is submitted, is the obligation of a sheriffs <.bii aation is qua sheriflf to lew execution and pay the proceeds thereot to a contractual. judgment creditor.^ Bv far the most important and most numerous illustrations of the scope of quasi-contract are found in those cases where Ujijustenrid the plaintiff's right to recover rests upon the doctrine tliat important a man shall not be allowed to enrich himself unjustly at the q'uasiconirac ual obligati" expense of another. As the question to be determined is not the defendant's 1 .Speake -•. Richards. Hobait,206; 3 Bl. Coram. 163. 20 THE LAW OF QUASI-CONTRACTS. Liability of a lunatic "for necessaries is quasi-con- tractual. intention, but what in equity and good conscience the defend- ant ought to do, the liability, while enforced in the action of assumpsit, is plainly of a quasi-contractual, and not con- tractual nature. It is on the theory of quasi-contract, founded on the doc- trine of unjust enrichment, that an insane man, known to be insane by the party furnishing necessaries, is held liable there- for. That such is the nature of the liability is evident, not only from the fact that he has no contracting mind, but also from the fact that he is equally liable for necessaries fur- nished at a time when there was no attempt on his part to contract.! The nature of the obligation incurred by a lunatic for neces- saries was thus stated by Lord Justice Cotton, in Rhodes v. Rhodes : ^ — "Now the term ' implied contract ' is a most unfortunate expres- sion, because there cannot be a contract by a lunatic. But when- ever necessaries are supplied to a person who by reason of disability cannot himself contract, the law implies an obligation on the part of such person to pay for such necessaries out of his own propertj'. It is asljed, Can there be an implied contract by a person who cannot himself contract in express terms ? The answer is, that what the law implies on the part of such a person is an obligation, which has been improperly termed a contract, to repay money spent in sup- plying necessaries." Of a quasi-contractual nature also, is the obligation of an Tiie liability of infant to pay for necessaries. It is usually stated that an necessaries is infant is bound by his contract for necessaries. But if, as is Stuir" lield in many jurisdictions, the infant is bound to pay for necessaries, not the contract price, but the reasonable value thereof, it would seem clear that he is not liable on his con- tract. By the terms of his contract he is required to pay a stated sum, and not the reasonable value for necessaries fur- 1 In re Rhodes, 44 Ch. D. 94 308; Sceva v. True, (semble); Sawyer v. Lufkin, 56 Me. 627. 2 44 Ch. D. 94, 105. 53 N. H. XATUKE .VXD SCOrK OF THE OBLIGATIOX. 21 nisbed. If he is bound by his contract to pay for necessaries, then of course he should be liable in damages for having, in violation of his contract, refused to pay therefor; and if hable in damages, the amount of the plaintiff's recovery \yould be determined, not by the reasonable value of the necessaries, but by the price agreed upon,— since had the infant per- formed his conti-act, the plaintiff would have received that amount of money. When, therefore, the infant is required to pay, not the stated price, but simply the reasonable value of the necessaries, the obligation differs from that which he assumed; and though the result reached, as to the amount of the recovery, by a plaintiff' in any given case, may be the same as would have been reached had the recovery been had on the theory of the plaintiff's being entitled to the price agreed upon, yet such a result is purely accidental. The doc- trine, therefore,! that while the payee of a note given by an infant for necessaries can recover on the note, he can recover, not the amount thereof, but simply the reasonable value of the necessaries, must be regarded as an anomaly in procedure. In no other way can the result actually reached in some juris- dictions - — that while the payee of the note can recover in the action on a note the value of necessaries furnished, an indorsee thereof has no right of action — be explained. That the liability is really in quasi-contract seems to be recognized in the jurisdiction which has furnished the lead- ing authority ^ for the proposition that the payee, while not allowed to recover the amount of the note, can, in an action brought on the note, recover the value of the necessaries. In Trainer v. Trumbull,* where the court held an infant liable for necessaries furnished in the absence of contract, Allen, J., delivering the opinion of the court, said : — '■The practical question in this case is. whether the food, cloth- ing, etc., furnished to the defendant were necessaries for which he 1 1 Daniel Neg. Inst, 4th ed., s Eavle v. Reed, 10 Met. 387. § 226. ^ Ul Mass. 527, 530. 2 Ibid. 22 THE LAW OF QUASI-CONTRACTS. should be lield responsible. . . . The question whether or not the infant made an express promise to pay, is not important. He is held on a promise implied by law, and not, strictly speaking, on his actual promise. The law implies the promise to pay, from the necessity of his situation; just as in the case of a lunatic. (1 Chit. Con. 11th Am. ed. 197; Hyman y. Cain, 3 Jones (N. C), 11; Eichard.son v. Strong, 13 Ired. 106; Gay v. Eallou, 4 "Wend. 403 ; Epperson v. Xugent, 57 Miss. 45, 47.) In other words, he is liable to pay only what the necessaries were reasonably worth, and not what he maj^ improvidently have agreed to pay for them. If he has made an express promise to pay, or has given a note in payment for necessaries, the real value will be inquired into, and he will be held only for that amount." Such also, it is submitted, is the nature of tlie liability of a The liability of husband for necessaries furnished a wife whom he has necessaries is wrongfuUj refused to Support, where the circumstances do tractiiai. not justify the party supplying the necessaries in supposing that the husband in fact authorized the wife to pledge his credit. In such cases it is settled that one furnishing neces- saries can recover against the husband therefor, notwithstand- ing his knowledge at the time he furnished them that the hus- band did not intend to pay therefor. It is usually stated that the wife, in such circumstances, is authorized to pledge the credit of the husband. Since, however, the husband may be liable for necessaries furnished even though the wife made no attempt to pledge liis credit, — as, for example, for neces- saries furnished a deserted wife while she is unconscious ; and since, furthermore, the husband is held liable for neces- saries furnished a wife while he is incapable of contracting, — as where necessaries are furnished a wife while the hus- band is insane,! — the better form of statement would seem to be that an obligation is imposed by law upon the hus- band to pay for necessaries furnished in such circumstances. That sucli is the nature of the liability was recognized in Cunningham v. Reardon,^ where Hoar, J., delivering the opin- i Read v. Legard, 6 Ex. 63G. - 98 Mass. 538. NATURE AXD SCOPE OF THE OBLIGATION. 23 ion holding the husband liable for necessaries furnished a Avife, said : — •• The husband, who hj- his cruelty, compels his wife to leave him, is cousidered hy the law as giving her thereby a credit to procure necessaries on his account; and is responsible to any person who may furnish her with theai. This responsibility extends not only to supplies furnished her while living, but to decent burial when dead. Its origin is not merely and strictly from the law making her his agent to procure the articles of which she stands in need. If it were so, the consequence would follow for which the defendant contends, that the agency would end with the life of the agent. But it is rather an authoritj' to do for him what law and duty require hira to do, and which he neglects or refuses to do for himself; and it is applicable as well to supplies furnished to the wife when ^lle is sick, insensible, or insane, and to the care of her lifeless remains, as to contracts expressly made by her." ^ On this sround must also be put the obligation of a father, Liability of a ^ ° fatlierfor where such obligation is imposed by law, to pay for neces- necessaries saries furnished a child whom he has refused to support.^ tractuai. That the right to recover money paid under mistake rests upon a quasi-contractual obligation is a self-evident proposi- Quasi-contrac tion, when it is remembered tliat in the typical cases where obligation to money is recovered as paid under mistake, the mind of the paid"undeT^" plaintiff as well as the mind of the defendant was directed, ™'stake. Tiot to the creation of, but the discharge of an obligation.^ 1 The theory of holding a hus- sent afterwards, he is liable to this band liable in qaasi-contract to pre- Debt, and the Count shall be of a vent an unjust enrichment, where Receipt by the Hands of the Hus- the facts will not warrant the infer- band. Such manner of Count will €nce of ii contract, is of very early serve in Debt in this Case. The origin in our law. An illustration Reason is, the Wife's Contract is of this is found in case V. of Jen- void; and it ought not to be alleged kins' Century Cases, p. 4, reported in the Count, but the Count ought to as follows: be as above, yemo debet locupleiari " The Wife of A. receives £10 to ex aherius iacommodo." the Use of A. and this comes to the ^ Gilley c. Gilley, 79 Me. 292 ; Use of her Husband in a convenient Cromwell c. Benjamin, 41 Barb, or necessary ^^'ay; altho' the Hus- 558. band did not command it, nor con- * See infra, Ch. II. p. 26, passim. 24 THE LAW OF QUASI-CONTRACTS. Waiver of Tort. Recovery by a plaintiff in de- fault under a contract. Obligation of a defendant not liable for his breach of contract. Obligation of a defendant who has re- quested but has not con- tracted to pay for benefits. Obligation of a defendant for benerits con- ferred without request. That quasi-contract is the basis of liability where a plain- tiff is allowed to sue a tort-feasor iu assumpsit is equally clear, since it is the want of assent on the part of the plaintiff that renders the defendant's act tortious. It is idle to speak of the possibility of contract where there is not even the sugges- tion of a meeting of minds. For example : A takes B's horse, believing him to be his own, and sells it. B can recover from A, in a count for money had and received, the proceeds of the sale. To speak of a contract in such a case is simply tO' attempt to deceive one's self by a form of words.^ Quasi-contractual, of necessity, is the nature of the obliga- tion of the defendant, where a liability exists to compensate the plaintiff for benefits received under a contract which the plaintiff cannot enforce because he has failed to comply with the conditions thereof.^ When it is for any reason conceded — -e. g. illegality, the stai^ ute of frauds, impossibility of performance — that a defendant is not liable to a plaintiff for a failure to perform a contract made with the plaintiff, and yet it is held that he is liable in assumpsit, or other contractual remedy, for benefits conferred by the plaintiff under the contract, such liability is neces- sarily quasi-contractual, and rests on the doctrine of unjust enrichment.^ Of this character also is the liability of a defendant for benefits received, which, though requested by him, were not conferred under a contract, because of some misunderstandings of the parties, or other reason, preventing the creation of a. contract.* Where the benefit for which the plaintiff seeks a recovery was conferred without the assent of the defendant, there can,, of course, be no contract, and unless the facts would establish a liability in tort, the plaintiff must proceed on the theory of qun si-contract.^ ^ See infra, Ch. III. p. 159, passim. * See infra, Ch. VI. p. 315, possi'm. - See infra, Ch. IV". p. 214, passim. ° See m/ra,Ch, VII.p. i^\, passim. s See infra, Ch. V. p. 267, passim, and Ch. VIII. p. 363, joassim. NATURE AND SCOPE OF THE OBLIGATION. 25 Where one is compelled to indemnify, or contribute to the expenses of one with whom he has not consciously entered indemnity iuto any relationship, or with whom he has not consciously or "^^5',,™""''"'" voluntarily had any dealing, the elements of a contract are necessarily wanting, and the basis of the liability is that in equity and good conscience he should either assume or share a burden which was borne by the plaintiff.^ ^Yhere money is paid to another, who demands it as his right, or as a condition of allowing the plaintiff to exercise Recovery of a right, it may well be, and is in many instances, held that the SndeTcompul- money so paid can be recovered ; ^ but to speak of an implied ^""'' contract in such a case is idle, if anything more is meant than that the obligation is imposed by law, and is therefore a quasi- contract. The statement shows the absence of assent on the part of the defendant, and therefore the absence of a contract. 1 See infra, Ch. IX p. 388, passim. '^ See infra, Ch. X. p. 411, passim, and Ch. XI. p. 426, passim. 26 THE LAW OF QUASI-CONTEAUTS. CHAPTER II. RECOVERY OP MONEY PAID UNDER MISTAKE. The recovery at law of money paid under mistake affords Recoveiy is not Only One of the most striking illustrations of the equi- equitabie pvin- table nature of the quasi-contractual obligation, where the upm princip°es liability rests upon the doctrine of unjust enrichment, but of contract. ^^^^ shows, in common with the other topics belonging to the law of Quasi-Contracts, how utterly foreign to the subject are the principles of t^e law of Contract. That one is dealing with an equitable doctrine in discuss- ing the subject-matter of this chapter, is evident from the statement universally accepted that the plaintiff cannot recover, unless it appears that it is against conscience for the defendant to retain that which the plaintiff has paid him.i Although this statement in itself shows that the right to recover money paid under mistake, must be estab- lished on principles other than those of contract, the pro- position becomes, if possible, more apparent, when one considers that while the essence of a contract is that the parties thereto intended to create an obligation, usually the money which the plaintiff seeks to recover as paid by him, and received by the defendant, under mistake, was paid not in the creation of, but as the parties supposed, in dis- charge of, an obligation. Money paid with knowledge that the payee is not entitled No objection to thereto Cannot be recovere d, the law not permitting one who payment ivas kuows. Or belJeves , that a claim is not well founded, to make the voluntary payment thereof a reason for appearing 1 See infra, p. 43. i;eci>veuv of moxey paid rxnER mistake. 27 in court as a plaintiff. Since the payment was iinneccssaiy, the plaintiff ninst be regarded either as having intended to make a gift of that sum of money to the defendant, — in which event there is no reason why he should be allowed to re- cover, — or else as attempting to shift his position from that of a defendant to that of a plaintiff, — a course which would be in most cases unfair to the claimant, and which is not allowed in any case where the law deems the payment a voluntary one. While it is true that a payment made under mistake must be regarded as a voluntary payment, yet since the payment was made in extinguishment of a supposed obligation, a gift thereof was clearly not intended, nor was the party paying endeavoring to change his position from that of a defendant to that of a plaintiff'. It would therefore be clearly unjust and inequitable to deny a recovery in such cases, simply because the payment need not in fact have been made. Since, however, the plaintiff seeking to recover money paid under a mistake proves the mistake for the purpose of Money must , , , , . J. T be iiaid under takinu' the case out of the rule denying a recovery of volun- a belief that it tarv payments made with knowledge, :' proof merely of an '^ inabilitv to produce evidence necessary to defeat the demand of the ' defendant will not sustain a recovery, if in fact it appears that he was satisfied when he made the payment that he did not owe the claim. In Windbiel r. CarrolP it was held that the plaintiff, who had purchased property, assuming the payment of a mortcacc thereon, and who had paid a sum of money claimed by the defendant to be due on the mortgage debt, statin? at the time of payment that the claim had been paid, could not recover the money so paid. Learned, P. J., said : — '■Ignorance of fact is one thing; ignorance of tlie means of proving a fact is another. Wlien money voluntarily paid is recov- 1 16 IIiui, 101. 28 THE LAW or QUASI-CONTRACTS. ered back, it is because there was some mistake as to the fact. But here the plaintiff was not mistaken as to the fact. Only at the time he did not know how to prove it. The subsequent discovery of evidence to prove a fact known to the party when he makes the payment cannot authorize a recovery back of the money. Such a principle would be most dangerous." In National Life Insurance Co. v. Jones, ^ the plaintifi: sought to recover money which it had paid on a policy of life insurance, believing at the time of payment that the policy was procured by false and fraudulent representations. It was held that the money so paid could not be recovered. On this point Talcott, J., said : — " In the case before us the finding, which seems to be abun- dantly sustained by the evidence, is not that the party paying acted under the ' supposition ' or ' impression ' that the policy had been fairly obtained, but the precise contrary, and tliat the plain- tiff, at the time of the payment, actually not only believed, but had considerable evidence to establish the existence of the precise state of facts which it now sets up to rescind the payment. . "The plaintiff, believing that a good defence existed to the demand, might be unwilling to encounter the risk of undertaking to prove it, might doubt whether it could be proved with sufficient clearness to secure a verdict, and for that reason have concluded that it was better to pay than to encounter a litigation which might prove unsuccessful. " In such case a payment is not made under a mistake of fact, but upon the ground that, notwithstanding the fact, it is for the interest of the party paying to make the payment." On the same principle it was held in Frambers v. Risk^ that the plaintiff, who had paid a sum of money estimated to be due according to certain weights, which he stated at the time of payment were not correct, could not recover the money so paid. ^While one makinp- a payment, believing the same not to be due, will not be allowed to recover the money so paid, a i 59 K Y. 649. Affirming 1 T. & C. 466, on the opinion of Talcott, J. delivered at general term. ■^ 2 111. Ap. 499. EECOVERY OF MONEY PAID UNDER MISTAKE. 29 mere s uspicio n that the money is not due will not, prevenf; n recovery. > Thus in Chattield v. Paxton,i it was held that Ameiesuspi- a plaintiff who paid a bill of exchange, ignorant of the fact money Is not that the defendant had by his laches lost his right to de- prevent T" mand payment thereof, could recover the money paid thereon, '"^™^^'"^' notwithstanding the fact that he had a slight suspicion that the defendant had been guilty of laches. It is only on the groimd of the money having been paid under a bare suspicion of the fact of a prior payment that the decision in Guild v. Baldridge ^ can be supported. The case hardly seems, however, to warrant the inference that the plaintiff', when he paid the money, was not satisfied that he did not owe the claim. The defendant demanded of the plaintiff' money which he claimed the plaintiff owed one Manning, against whom the defendant had recovered a judgment, by virtue of which he was entitled to demand payment of the plaintiff to the extent that the plaintiff was indebted to Manning. The plaintiff stated to the defendant that "he believed he had paid the debt, but that he had nothing to show payment, and as Manning was dead, he would have no bad feelings about it, and rather than have them he would pay it again. " The trial judge charged the jury in substance that if the plaintiff, believing that he had paid the debt to Manning, chose to pay it again rather than be supposed to withhold the payment of the money from the defendant, as a creditor of Manning, without any under- standing with the defendant that the money should be refunded if the claim had in fact been paid, then the plain- tiff would not be entitled to recover; that it was important that the jury should ascertain whether there was any under- standing between the plaintiff and the defendant on the subject. If there was not, the defendant would be entitled to a verdict. The jury having found a verdict for the de- fendant, the judgment entered thereon was reversed. 1 2 East, J71, note (a). = 2 Swan. 295. 30 THE LAW OF QUASI-CONTRACTS. It seems difficult in view of the facts of this case to say that the plaintiff had simply a vague belief that it might not be due, and in fact paid the money believing it to be due. Money paid by Since money cannot be recovered as paid under mistake ^rom?se™M unless the payment was induced by mistake, /money paid by only whVe the way of Compromise or settlement cannot generally be recov- based™a"mis-^ ered, for in such cases the plaintiff makes tne payment with- ^^^^' out regard to the real facts of the case to rid himself of all further dispute and possible litigation.* If, however, the settlement or comprom ise is made under mistake as to the ,gxistcnce of_ a certain fact, when but tV)r the mistake the compromise in question would not have been made, then, as the plaintiff cannot be said to have made the payment without regard to the truth of the matter, about which he claims he was mistaken, the money so paid can be recovered. " Thus in Stuart v. Sears, ^ it was held that a payment made in consequence of the plaintiff's mis- taken belief in the existence of vouchers showing two pay- ments made by the defendant, when in fact only one payment had been, made, could be recovered. This is the principle involved in Wheadon v. Olds.^ In that case the defendant had agreed to sell to the plaintiff from 1,600 to 2,000 bushels of oats, the oats to be delivered on board a vessel. When a quantity of oats, supposed by the plaintiff and the defendant to be 500 bushels, had been delivered, the plaintiff and the defendant agreed to guess as to the quantity delivered there- after. In performance of this agreement the plaintiff paid the defendant for 412 bushels of oats more than had been delivered. This overpayment was due to the fact that only 250 bushels had been delivered at the time when the parties supposed 500 had been delivered. It was held that the 1 T ownsend v. Crowdy, 8 C. B. v. Jones, 59 N. Y. 649 ; Bergenthal N. 8. 477 (semble) ; Tioy v. Bland, v, Fiebrantz, 48 AVis. 435. 58 Ala. 197 ; McAvthur r. Luce, 43 2 119 Mass. 143. Mich. 435 ; National Life Tns. Co. ^ 20 Wend. 174. EECOYERV OF MOXEY PAID UNDER MISTAKE. 31 plaintiff could recover back the overpayment made by him in consequence of this mistake. On this principle it was held in Rheel v. Hicks ' that money paid by the plaintiff to the defendant by way of compromise for the support of an unborn bastard child could be recovered, it appearing that the supposed mother was not in fact pregnant. Said the court : — "The fact as to who was the father of the child may have been waived by the compromise, but not the vital fact which gave it all its force, and without the existence of which the superintendent had no power to act, viz., the pregnancy of Louisa Hebr. There was no disagreement or compromise between the pbiintiff and the defend- ant as to the fact of pregnancy. They both believed and acted upon the assumption that she was pregnant, and it turns out that they were both mistaken." If the plaintiff' is able to establish that the fact was not Knowledge o — ■ : . — ^ facts prior to present to his mind when he made the pavment, that he at time of pay- ' ' ment imma- one time knew of the fact about whicli he claims to have. tenai. been mistaken at the time when he made the pavment. is immaterial. Thus it was held in Kellv v. Solari.^ that the plaintiff, -who in forgetfulncss of the fact that a policy of life insurance had lapsed in consequence of non-payment of the premium, paid the policy, could recover the money so paid. Lord Abinger, who had misdirected the jmy, on making the rule absolute for a new trial, said : — "There may also be cases in which, although he might by inves- tigation learn the state of facts more accurately, he declmes to do so, and chooses to pay the money notwithstanding^ in that case there can be no doubt that lie is equally bound. Then there is a third case, and the most difficult one, — where the party had once a full knowledge of the facts, but has since forgotten them. I cer- tainly laid down the rule too widely to the jury, when I told them that if the directors once knew the facts they must be taken still to know them, and could not recover by saying that they had since J 25 X. Y. 289. = 9 M. & W. .54. 32 THE LAW OF QUASI-CONTRACTS. forgotten them. I think the knowledge of the facts which disen- titles the party from recovering, must mean a knowledge existing in the mind at the time of payment." Mistake must ( A plaintiff paying a claim, supposing himself to be under terial fact."''' an obligation to pay the same, because of mistake as to a fact, which, if true, would not have imposed an obligation upon him, cannot recover the money so paid in jurisdictions where a recovery is not allowed of money paid under mis- take of law ; since had the plaintiff known the law, the fact about which he was mistaken would not have induced him to make the payment. Thus in Needles v. Burk,i the plaintiff paid to the defendant a sum of money, supposing that his, the plaintiff's, child had burned the .defendant's barn, and that in consequence thereof the defendant had a claim upon him for indemnity. It was held that, assuming that the child did not burn the barn, there could be no recovery, since the fact, if true, would not have induced the plaintiff to have paid the money but for his ignorance of law. ( yihen a defendant has a right to demand a payment of money as a condition of allowing the plaintiff to assert a right, there can be no r ecovery of money paid by the plain- tiff not in the performance of a supposed obligation, but in the assertion of a right under a mistake as to a fact, which if it had been as the plaintiff supposed, would not have changed the plaintiff's rights, but have simply ren- dered the assertion thereof le ss desirable. ^ Thus in Langevin V. City of St. Paul,2 two lots owned by me plaintiff's intes- tate and an adjoining lot had been assessed for the im- provement of a street, on which the adjoining lot fronted. This assessment had been made under the belief that the two lots of the plaintiff's intestate fronted also on this street. The three lots were sold under a judgment obtained for the non-payment of the assessment. The plaintiff's intes- 1 81 Mo. 56a 2 49 Minn. 189. KECOVERY OF MONEY PAID UNDER MISTAKE. 33 tate afterwards paid to the defendant the sum necessaiy to redeem the three lots, he and the defendant both supposing that he owned the three lots, and that the three fronted on the street which had been improved. It was held that as the judgment was valid, and as the plaintiff could not have redeemed his two lots without also redeeming the adjoin- ing lot, there could be no recovery of the monej' so paid. Dickinson, J. delivering the opinion of the court said : "If upon the facts stated, the action is maintainable against the citv, it is as in assuynjjsit for money had and received; and so the plaintiff treats the case, resting the right of recovery upon the alleged mutual mistake of fact. But it is not maintainable on that ground. To justify a recovery in such an action, the money must have been received under such circumstances that, in equity and good conscience, the defendant ought not to retain it. The mis- take, where that is the foundation of the action, must relate to a fact whicli is material, essential to the transaction between the parties. A payment made under the influence of a mistake, con- cerning a fact which, even if it were as it is supposed to be, would create no legal obligation, but merely operate as an inducement upon the mind of the party paying the money, the other party being without fault, would not justify a recovery as for money had and received. (Aiken v. Short, 1 Hurl. & X. 210; Leake, Cont. 103. See also. Chambers v. Miller, 13 0. B. x. s. 125.) The city was entitled to receive the money for redemption of the prop- erty, if any one having the legal right to redeem should elect to do so. It was not only legally authorized, but required, to receive the money, .and neither its authority nor obligation was in any manner affected by the fact concerning which a mistake is alleged. It made no difference to it whether the plaintiff owned lot 5 or not, nor whether or not lots 3 and 4, which the plaintiff did own, fronted on the street improved. Such facts were whollj' imma- terial, so far as its right and dut}' to receive the money was con- cerned. The plaintiff's property, lots 3 and 4, had been sold pursuant to the judgment, in connection with lot 6. The plaintiff was entitled to redeem the whole propertj- by paying to the city the money necessary therefor. It was necessary for him to do this if he would save his own property. If he chose to do it, the city was equally bound to receive the money, whatever the fact might 8 34 THE LAW OF QUASI-CONTEACTS. be concerning which a mistake is alleged. Nor was the supposed obligation of the plaintiff in any way affected by the alleged mis- take. He was at liberty to pay or not, as he should deem to be most for his interest. Plainly, the fact in question was in no way material, except as it might influence the plaintiff in determining for himself whether or not he would make redemption. It was not in any proper sense a mutual mistake of an essential fact. As he voluntarily paid the money, and thereby effectually redeemed his land, and as the city ought to have received it, irrespective of what may be the truth as to the fact in question, it is under no legal or moral duty to repay it merely because his election to pay was influ- enced by an erroneous conception as to a fact which concerned him only, and not the other party." Money must To recover money paid undei* mistake, it is not sufficient without the that the plaintiff estal)lish that the money was in fact paid eqiiTvaient*" Under mistake ; he must in addition thereto prove that there has been a failure of consideration, in that the money was paid without his receiving an equivalent therefor. > Thus in Merc hants' National Bank v. National Bank of the Common- wealth, ^ the plaintiff under a mistake as to the amount of its depositor's account, paid the amount of an overdrawn check to the defendant, the endorsee thereof. The drawer of the check had an account with the bank, but the amount thereof was not equal to the face of the check. Under the custom of banking, the plaintiff had a right to refuse to pay any sum whatever. In an action brought by the plaintiff to recover the money so paid, as money paid under mistake, it was held, that while the plaintiff had a right of action against the defendant, it could only recover from the de- fendant the difference between the face of the check and the amount of the depositor's account. The court said : "The fact that, if Burgess & Sons had overdrawn, and this had been known to the plaintiff, it would have wholly refused the check, should not deprive the defendant of that which it was the duty of the plaintiff to pay him, upon a check properly drawn, ^ 139 Mass. 513. HECOYEKY OF MOXF.V I'AID UXDEi; MISTAKE. 3."i when it lias itselt honored the clieck as it was actually drawn. The plaintiff bank was entitled, if it saw lit, to pay the c-hock to tlu' amount actually due from it to Burgess &- ."^ons. if the defendant was wrlliiig to accept that sum. To this "Burgess >.^- Sons could have made no objection. . . "The money which was the subject of the mistake was M»7,r>00. In the forenoon of September 4, and necessarily before the check of the defendant could be treated as paid, three checks, together amounting to 81,420, Avere drawn from the deposit of Burgess i!t Sons, which w-as nominally 817,145.46. These two sums beini;' deducted from this deposit, there remained 8S,l*20.4ti, for which Burgess & Sons had a right to draw. The cimount which the plaintiff is entitled to recover is the difference between this sum and 815,000 (the amount of the check), with interest from the date of the writ." Tliis doctrine is well illustrated in Illinois Trust A: S'aA- ings Bank v. Felsenthal. > In that case the plaintiff sought to recover money paid in the following circumstances ■ One Hertel borrowed money of the plaintiff, giving his note for the amount of the loan secured by a mort- gage of certain real estate, Hertel had represented that there was a house on the land, and in reply to a ques- tion of the plaintiff's attorney stated that one Zimmerman and one Breyer had claims against him for services ren- dered and materials furnished in the building of .-;aid house. In making the loan to Hertel the plaintiff's attor- nev at Hertel's rerpiest deducted from the amount of the loan the amounts of the claims owing tu Zimmerman and Breyer, and gave to Hertel two checks for the amount thereof, payable to the order ni Zimmerman and Breyer respectively. In fact there was not, nor had there been a house on the land, and therefure neither Zimmerman nor Breyer had any such claim as was represented by Hertel. Hertel endorsed the checks in the name of the res]iectivc payees, and the defendant in ignorance of the forgery dis- ' 26 111. Ap. 624. 36 THE LAW OF QUASI-CONTKACTS. counted the checks in the course of business. The plaintiff, with knowledge of the fraud practised upon him by Hertel, brought an action against Hertel upon the note, and obtained judgment thereon. It was held that although he had paid the checks to the defendant in ignorance of the fact that the endorsements were forged, he could not recover from the defendant the amounts so paid. Bailey, J., delivering the opinion of the court, said : — "It is plain from the foregoing facts, that, as between Hertel on the one hand, and Zimmerman and Breyer on the other, Hertel was the equitable owner of the moneys represented by said checks, and therefore the equitable owner of the checks themselves. They were given for money which he had borrowed from the plaintiff and for which he had given the plaintiff his note and deed of trust. He was owing Zimmerman and Breyer nothing, and they, therefore, had and could have no claim on said money or any portion of it. If Hertel had retained the checks in his possession, they would have been powerless to compel him to deliver the same over to them. Nor can they have any claim upon the plaintiff based upon the checks, or upon the payment of them bj' the plaintiff without their endorsement. "Hertel, by selling and delivering the checks to the defendants, transferred to them his equitable title. We may entirely disregard the endorsement of the names of the payees, and treat such endorse- ments as mere forgeries. The rights of the defendants in that case are the same as though Hertel had sold them the checks with, out endorsement, which would have amounted to an equitable assignment. The defendants' equitable title to the checks gave them an equitable right to the moneys payable thereon, a right ■which they could doubtless have enforced by a proper proceeding. The plaintiff then having the defendants' money, which the latter were equitably entitled to receive, we see no ground upon which said money can be recovered back. The action for money had and received is an equitable action, and lies where a defendant has received money which ex mquo et bono he ought not to retain. In this case, however, the money in controversy belongs ex cequo et bono to the defendants, and it is therefore plain that the plain- iiff's action therefor should not be maintained." KKCOVERY OF MONEY PAID rXDER MISTAKE. 37 This principle was recognized in United States v. Badeau,^ where it was held that waiving the question of the right of the government to recover money paid by its officers to the ■ defendant, under mistake of law, there could he no recovers, for the reason that the defendant, if not a deju.re was a de facto officer, and actually rendered services during the period for which he received pay. This doctrine receives its most striking illustration in the cases where it is held, that one who has paid a royalty for permission to use what in fact was a void patent right, can- not recover the money so paid, although both the plaintiff and the defendant believed at the time when the money was paid, that the defendant had the exclusive right to use the invention described in his letters patent. This decision was first reached in the case of Taylor v. Eare.^ In that case the plaintiff sought to recover royalties paid to the defendant under an agreement by which the defendant agreed to per- mit the plaintiff to use a certain apparatus of which the defendant was supposed to be the inventor, and for the invention of which the defendant held letters patent. It was afterwards discovered that the invention was not patent- able by the defendant, having been used by the public before the defendant applied for his letters patent. Notwithstand- ing the fact that the plaintiff laboring under this mistake paid for the use of an apparatus which he had a perfect right to use without payment of a royalty, the court held that he could not recover the money so paid because there was not a failure of consideration. Chambers, J., said: — "The plaintiff has had the enjoyment of what he stipulated for, and in this action the court ought not to interfere unless there be something, ex mquo at bono, which shows that the defendant ought to refund." Heath, J. , said : — "There never has been a case, and there never will be, in which a plaintiff having received benefit from a thing which has after- 1 130 U. S. 439. 2 1 B. & P. N. R. 260. 38 THE LAW OF QUASI-CONTRACTS. wards been recovered from him, lias been allowed to maintain an action for the consideration originally paid. We cannot take an account here of the profits, and it might as well be said that if a man leases laud and the lessee pay rent, and afterwards be evicted, he shall recover back the rent, though he has taken the fruits of the land." Although the decision has been almost universally fol- lowed, the author is not able to agree with the result reached'** That the plaintiff enjoyed all that he would have enjoyed had the defendant been in fact the owner of the patent goes without saying, and that the plaintiff would not have de- rived this enjoyment but for the agreement made with the defendant, is probably true, since the plaintiff regarded the defendant as the owner of valid letters patent. What the plaintiff contracted for in Taylor v. Hare, however, was the right to manufacture under the letters patent, and the contract was made on the basis of the defendants hav- ing transferred such a right to the plaintiff. The plaintiff did not get from the defendant the right in question because the defendant had not the right to withhold, and therefore did not receive from the defendant an equivalent for the money paid by him. As well might it be said, that a man who, under mistake of fact, contracts with a defendant in possession thereof for permission to use his own land, cannot recover from the defendant the money paid by him as rent, for the reason that he has enjoyed the land just as he would have enjoyed it, had the defendant in fact been the owner, and has enjoyed it as he would not have en- joyed it but for the contract, for the reason that believing the defendant to be the owner he would not have attempted to use the same without the defendant's permission. The case put by Heath, J., of a party in possession of land not being allowed to recover rent paid to his lessee before eviction, is hardly analogous. In such a case, although the lessor may not have been the owner of the land, yet he had a right to hold possession as against every one RECOVERY OF MOXEV PAID UNDER MISTAKE. 39 except the true owner. When, therefore, he transferred this possession to the phiiutiff lie did in fact confer upon the phxintiff something of value and something which could only have heen conferred upon him by the defendant or the true owner. Furthermore, not only has something been con- ferred upon the plaintiff, but the defendant has in reality deprived himself, in that he no longer has a right to the possession thereof during the period of the lease to the phiintift'. In the case of letters patent, which are a grant of an incorporeal right, of which one cannot predicate pos- session, the defendant either has or has not that right, and if he has not the right, he has nothing to transfer. There may be in the case of land possession of land, as distinct from ownership, confei'ring certain rights as against every one except the true owner. But in the case of an idea which one owns by virtue of letters patent, unless one claims under the true owner there is no such thing as having a right thereto as against every one except the true owner, with the ownership thereof outstanding in another. In Taylor v. ^i^a-d l-^. Hare, since the defendant claimed nothing by way of assign- ^^.t^/-'^-' ment, and was not in fact the owner of the idea, he had no ^j,, c^^x better right to the use of the patent than the plaintiff. He -"/^ -vi'/a^-' therefore had nothing to give the plaintiff, and the plaintiff in fact received nothing from him. The doctrine that failure of consideration is the basis of the recovery of money paid under mistake, the plaintiff proving the mistake simplv as a means to an end, was lost sight of in the case of Claflin v. Godfrey.^ In that case the plaintiff, ignorant of the fact that payment operated in law as a discharge of a mortgage, and that the mortgage thereby became functus officio, advanced to the defendant a sum of money for an assignment of a one-third interest in a mort- gage held by the defendant. On discovering that the mort- gage was in fact defunct because it had been paid, he sued 1 21 Pick. 1. 40 THE LAW OF QUASI-CONTEACTS. in assumpsit to recover the money so paid. In answer to the objection that the plaintiff could not recover because the mistake was one of law, the court said : — ■ "It was undoubtedly the clear understanding of all the parties that the plaintiff should receive and become the legal owner of one-third of the Farnum mortgage. This is the consideration for which he paid his money, but contrary to the honest belief of all this proved to be a legal nullity. The plaintiff acquired nothing. He paid his money, and for it received nothing in return. Upon the plainest principles of right, therefore, the consideration should be restored to him. Nor would this operate unjustly upon the defend- ant. He supposed that he had something of value, and undertook to transfer it to the plaintiff. But it turned out that it had no legal existence, and that he had transferred nothing. Having by misapprehension got something without parting with anything, why should he not restore ? He not only conveyed nothing but he lost nothing. If he restores what he received he will be in as good a situation as if he never had received it. . . . "It cannot properly be objected to this view of the case that the parties contracted with a full knowledge of all the facts, and that the mistake arose altogether from a misapprehension of the law. We shall not here enter into a discussion of the vexed ques- tion, whether money paid by mistake of law can be recovered back, because we do not think that the doctrine, if sound, applies. (See Haven v. Foster, 1 Pick. 112). Here was a total misapprehension of everything material to the subject of negotiation. The plaintiff strives to reclaim the consideration of a contract which never had any legal force or effect. The general principle is well settled that when the consideration totally fails, where nothing passes by the attempted transfer or conveyance, the amount paid may be recov- ered back. And the application of the principle does not at all depend upon the question whether the failure arose from ignorance of law or of fact." A better statement of the doctrine of failure of considera- tion is probably nowhere to be found than in the paragraphs just quoted; but a greater misconception of the province of mistake where the plaintiff seeks to recover money paid under mistake never existed. KECOVEKY OF MONEY PAID UNDER MISTAKE. 41 In Claflin v. Godfrey the failure of consideration was, established only by the plaintiff's proving that the mouey paid by him was paid on the mistaken supposition that he was receiving a valid mortgage, and the writer knows of no case where a plaintiff has been allowed to recover because of mistake, except where failure of consideration has been established to the satisfaction of the court allowing the recovery. ' If, however, the plaintiff has received the equivalent, Mistake ai which he demanded in return for the money paid by him, '"h"?. """ the fact that he is mistaken as to the value of the equiva- lent is immaterial. In such a case there is no failure of consideration, and to recover the money which h€ has paid, he must est ablish a warranty on the part of the person to whom the money was paid. Any other result would seem manifestly unjust to the defendant, since he gave to the plaintiff all that the plaintiff demanded, and has only received in exchange therefor what he stipulated for at the time when the exchange was made. Thus in Harris V. Loyd,^ the plaintiff, an assignee under a trust deed for the benefit of creditors, who had paid a claim, to release goods from an execution which had been levied by the defendant to satisfy a judgment, sought to recover the money so paid, alleging that the goods were subsequently taken from him by an assignee in bankruptcy, appointed because of an act of bankruptcy of the plaintiff's assignor, committed before the plaintiff's appointment as trustee, but not discovered until after the ])laintitt' had made the pay- ment. The plaintiff contended that he was entitled to recover the money so paid, for the reason that he would not have paid the money had he known of the act of bank- ruptcy. The court held that the plaintiff was not entitled to recover; that the plaintiff had engaged in a speculation which proved to be a bad venture, but that the worthlessness 1 5 M. & W. 432. See also Chamber v. Hopkins, 4 M. & W. 309. 42 THE LAW OF QUASI-CONTKACTS. of the bargain could not affect the validity of the transaction between the plaintiff' and the defendant. Lord Abinger, C. B., said: — "The plaintiffs appeared to have been mere volunteers. Sup- pose the friends of the debtor had paid the money, and the posses- sion of the goods had been thereupon delivered back to him ; could they have recovered it back upon it afterwards turning out that he had previously committed an act of bankruptcy ? The plaintiffs claim under a deed of assignment, and pay the money, supposing that under it they have a right to the goods ; in that they are mis- taken. But the goods were liable to seizure; the property in them was not divested by the writ, and the trustees might take them, but only subject to the writ of the execution creditor. . . . The short answer, however, to the action is, that the money was not paid under mistake of fact, but upon a speculation, the failure of which cannot entitle the plaintiffs to recover it back." In Lemans v, Wiley, ^ the plaintiff, the widow of the maker of two notes, secured by mortgage of land which had descended to the widow and her children, paid one of the notes to avoid a foreclosure suit, believing that she would "be entitled to contribution from the heirs. The remaining note not being paid, the mortgage was foreclosed and the land sold. She then brought an action to recover back the money so paid, claiming that she supposed at the time she made the payment that she would be reimbursed out of the land. It was held that she was not entitled to recover, the court saying: — "There was no contract or promise on the part of appellant to receive the money or note as the money and note of appellee, or to in any way return the one or its amount, or repay the other. The consideration was ample. Appellee was not personally liable upon the notes held by appellant, but she was the owner of the undi- vided one-third of the land held for the purchase-money and covered by the mortgage, and was interested in the extinguishment of those liens, and, besides, appellant surrendered a note that might have 1 92 Ind. 436. KECOVEKY OF MONEY PAIll I'XnER MISTAKE. -43 beeu enforced against the laud, or against the personal estate of appellee's husband, if there was any. ••This note is not shown to have been a worthless thing, and we know of no rule of law or eqnity which will sanction her holding- it. and recovering of appellant what she paid for it. It is not a sufficient answer to say that .she was not legally liable upon the notes held by appellant, nor for the purchase-money for the land. She had the undoubted right to make the payments, and had the balance of the debt been paid and the land saved, she doubtless would have beeu entitled to contribution from the heirs, as was told her by appellant and her son. The money was voluntarily paid, and money so paid cannot be recovered back. (Lafayette, >.S:c. E. E. Co. r. Pattison, -41 Ind. 312; Worley r. :Hoore, 77 Ind. r>67; Thompson v. Doty, 71' Ind. 336.) Had the balance of the purchase-money been paid and the land saved, the payments by appellee might have been a wise thing. As it turned out, her payments proved to be a misfortune to her: but the courts cannot repair the many misfortunes which follow accidents, ill-luck, ill- health, and bad judgment. "We are of the opinion that the evi- dence does not make, nor tend to make, a case against appellant for money had and received, and that for this reason the judgment must be reversed." To entitle the plaintiff, who has paid money under mis- Eetention of , ■, , , -1 • J 1 i. J. 1 monev mu^t be take, to recover the money so paid, he must not onlj' prove against coa- that he has paid the money without receiving the equivalent ^'^"^"'^^" contemplated by him, liut he must in addition thereto prove that it is aQ:ainst conscience for the defendant to retain the money so paid. Thus, for example, money paid in igno- rance of the facf that the statute of limitations has run, cannot be recovered.^ F(jr although the creditor could not have collected the claim liy suit, had the debtor interposed the defence of the statute of limitations, yet since he received from his debtor only wdiat in point of conscience was due, he is doiui;,' nothing inequitable in refusing to return it. In Farmer v. Arundel,- the plaintiff sought to recover I Moses V. -Alacferlan, 2 Burr. '-^ 2 Wm. Bl. 824. 1005 (semble); Hubbard v. Hick- man, 4 Bush, 204 (semble). 44 THE LAW OF QUASI-CONTRACTS. money which he had paid the defendant for the support of a pauper, supposing that the defendant, who had supported the pauper, had a right to call upon him for reimbursement. It was held that regardless of the defendant's right to demand payment, there could be no recovery, since it was not against conscience for the defendant to retain the money so paid. De Grey, C. J., said: — "When money is paid by one man to another on a mistake either of fact or of law, or by deceit, this action will certainly lie. But the proposition is not universal that whenever a man pays money which he is not bound to pay he may by this action recover it back. Money due in point of honor or conscience, though a man is not compellable to pay it, yet if paid, shall not be recovered back as a bona fide debt, which is barred by the statute of limitations .... "Admitting, therefore, that the money could not have been demanded by the defendant (which it is not now necessary to decide), yet I am of the opinion that it is an honest debt, and that the plaintiff having once paid it shall not by this action, which is considered an equitable action, recover it back again." ' In Munt V. Stokes ^ the plaintiff sought to recover money paid by him in the following circumstances. The laws of 1 Lord Mansfield's description in any course of law, as in payment of Moses V. Macf erlan of the count for a debt barred by the statute of money had and received, is often limitations, or contracted during his quoted in favor of the proposition infancy, or to the extent of principal stated in the text. and legal interest upon a usurious " This kind of equitable action," contract, or for money fairly lost at said Lord Mansfield, "to recover play; because in all these cases the back money which ought not in jus- defendant may retain it with a safe ticetobekept, is very beneficial, and conscience, though by positive law therefore much encouraged. It lies he was barred from recovering. . . . only for money which ex cequo et " In one word, the gist of this bono the defendant ought to refund: kind of action is, that the defendant it does not lie for money paid by upon a circumstance of the kind is the plaintiff, which is claimed of obligedby the ties of natural justice him as payable in point of honor and equity to refund the money." and honesty, although it could not ^ 4 T. R. 561. have been recovered from him by RECOVERY OF MONEY PAID UNDER MISTAKE. 45 Denmark required the master of a vessel flying the Danish flag to be a natural born subject, or a denizen who had taken the oath of allegiance. The plaintiff's testator, an English- man, who had not taken the oath of allegiance, gave, as master of a vessel flying the Danish flag, a respondentia bond, in exchange for a loan of money. The plaintiff, ignorant of the fact that under the laws of Denmark the bond could not be enforced, paid the amount of the bond. It was held that as there was nothing inequitable in the defendants' receiving and retaining the money which they had advanced, there could be no recovery of the money so paid. In Piatt V. Bromage,^ the plaintiff, who claimed that he had consented to the defendant's selling certain after acquired property, and receiving the proceeds thereof, because he supposed that the defendant had a right to do so, under the mortgage given by the plaintiff to the defendant in terms covering "after acquired property," sought to re- cover the money so received. It was held that he was not entitled to recover. One of the grounds upon which the decision was based, was that it was not against conscience for the defendant to keep the money so paid. A striking illustration of this doctrine is afforded by the decision in The Mayor v. Erben.'^ In that case the plaintiff, who had taken proceedings for the opening of a street, sought to recover from the defendant money paid to him as the owner of certain lots, in excess of the amount awarded Ijy the Commissioners of Estimate and Assessment. The defendant, when the report of the commissioners was filed, called at the office to examine the report. The clerk did not show him the report, but named, as the sum awarded, the amount which the defendant afterwards demanded of the plaintiff, and which the plaintiff paid. When the 1 24 L. J. Ex. 63. ^ 10 Bosw. 189 ; s. c. on Appeal, 3 Abb. App. Dec. 255. 46 THE LAW OF QUASI-CONTKACTS. plaintiff sued to recover the overpayment, the time within which the defendant could file exceptions to the report of the commissioners had expired. It was held that the de- fendant could defeat the action of the plaintiff by proving that the amount which he had received from the plaintiff, while in excess of the award made by the commissioners,, was not in excess of the value of his property, and therefore should have been awarded to him by the commissioners. On this ground was put the decision in Kingst on Bank 1). Eltinge,! where the plaintiff sought to recover money which had been paid with his consent by the sheriff to the defendant. The money so paid was the proceeds of personal property sold by the sheriff on an execution issued on the plaintiff's judgment. The plaintiff and the defendant both had judgments against the debtor, whose property was thus sold, the defendant's judgment because of priority of record being a prior lien on the real estate. The plaintiff consented to the payment of the money in question to the defendant, supposing the sale to have been made under an execution levied under the defendant's judgment, whereas the sale was made under the plaintiff's execution, the de- fendant's execution having expired by lapse of time. On receiving payment, the defendant satisfied his judgment of record, thereby releasing the real estate from the lien thereof. The plaintiff realized from the sale of the real estate so released at least as much money as had been paid under mistake to defendant. Assuming the money to have been paid under mistake, the court held, that as "defendant received no more than his due, and thereupon relinquished a lien from which plaintiff derived full as much benefit as if it had itself received the money, plaintiff on this ground alone was not entitled to recover." In Levy v. Terwilliger,^ the plaintiff sought to recover money paid in the following circumstances : The plaintiff 1 66 N. Y. 62.5. « 10 Daly, 194. EECOVERY OF MONEY PAID UNDER MISTAKE. 47 priced a safe of the defendant, and asked that information bo given him through his agent, at a certain address, as to the shipping rates. The plaintiff then piircliased of another dealer, of the same name as the defendant, a safe, and directed his agent, whose name he liad given to the defend- ant, to pay for the same on tlie presentation of the bill of lading. Defendant having ascertained the shipping rates, called on the agent and gave him the rates. The agent, supposing him to be the party of whom his principal had bought a safe, informed him that he would give him a check i\pon his shipping the safe, and delivering to him the bill of lading. The defendant shipped the safe and delivered the bill of lading, and was paid by the agent out of a fund belonging to the plaintiff. It was held that, as the ship- ment of the safe was due to the negligence of the plaintiff, unless the safe shipped by the defendant was returned to him, there could be no recovery of the money so paid, not- withstanding the plaintiff had not received the safe from the vessel by which it was shipped. In Goddard r. Town of Seymour, ^ plaintiff sought to recover money paid by him, in extinguishment of a claim for taxes, to an officer having a warrant for the collection thereof. This warrant was irregular and void, because the selectmen had not signed the rate bills, and the plaintiff, because of his ignorance of the fact that the bills had not been so signed, supposed the warrant to be legal, and paid the taxes. It was held that, as it was the duty of the plaintiff to pay the taxes without the issuing of process, the town might equitably retain what it had received, and that the plaintiff could not recover. This principle seems to have been overlooked in Sheridan V. Carpenter. 2 In that case the plaintiff, the payee of a note executed by one Hull, and signed "John T. Hull, Treasurer of St. Paul's Parish," paid the amount thereof as 1 30 Conn. 394. ^ 61 Me. 83. 48 THE LAW OF QUASI-CONTRACTS. endorser to the defendant, not noticing that in the signature of the maker, the word " for " had been substituted for the word "of," thereby changing the signature so as to read "John T. Hull, Treasurer for St. Paul's Parish." At the time the note was executed, and at the time it was endorsed to the defendant, all the parties supposed that the instru- ment was a note binding St. Paul's Parish, and not John T. Hull personally. After the note had been endorsed to the defendant, the parish being insolvent, Hull, fearing that he would be held personally liable on the instrument, asked the defendant to let him see the note, and on examin- ing it, said to him that he understood that the note executed in that form was not a parish note, and that with his per- mission he would alter it so as to make it a parish note, and the defendant consenting, he made the change aforesaid. It was held that the plaintiff was entitled to recover from the defendant the amount paid by him in extinguishment of his supposed obligation; that the alteration being a mate- rial one absolved him from liability, and the payment having been made in ignorance of a fact which released him from liability, was paid without consideration, and could be recovered. It is submitted that this decision cannot be supported. By the alteration, which was in fact made, the note corresponded exactly to the note which the plaintiff intended to receive, and thought he was receiving at the time the note was delivered to him as payee. It was never the intention of Hull to execute a note binding himself person- ally. As between the plaintiff and Hull it would seem that Hull could have filed a bill in equity to have had the instru- ment reformed so as to conform to the intention of the parties, and bind the parish instead of Hull personally. The plaintiff when he transferred the instrument by en- dorsement to the defendant intended to transfer to the defendant an obligation against the parish, and not against Hull, and that obligation the defendant meant to receive. RECOVERY OF MONEY PAID UNDER MISTAKE. 49 Had the plaintiff desired so to do, on discovering that he had not the parish obligation, but the obligation of Hull, he also could have had the instrument reformed; and it would seem that the defendant, as his assignee, would have had the right to ask for such reformation as against the plaintiff and Hull. If as against the plaintiff he had a right in equity to ask for the reformation of the instru- ment, on what ground can the plaintiff complain that without his, the plaintiff's consent, the instrument was changed so as to conform to what the defendant was equita- bly entitled to claim against the plaintiff ? Furthermore, even if it be assumed that equity would not have reformed the instrument in question, why should a plaintiff, who has sold an instrument on the theory that it was a parish note, the defendant purchasing it on that theory, be entitled to recover money from the defendant that he would have had to pay, had the instrument been originally what the party sup- posed it to be, and what it was in fact made, though without the plaintiff's consent ? In Franklin Bank v. Raymond,^ the defendant sought to establish by way of set-off a claim against the plaintiff for money had and received, arising from a ])ayment made in the following circumstances: The defendant had given his promissory note to one Bailey ; this note was sold and delivered before maturity by Bailey to the Hoboken Bank ; by a mutual mistake the note was delivered unendorsed. At the maturity of the note, the plaintiff, as the agent of the Hoboken Bank, presented the note for payment to the defendant, who paid the same, not noticing that the note was not endorsed, and believing that title thereto had been transferred by endorsement. At the time when the payment was made the defendant had a set-off against Bailey. The fact that the note was not endorsed was discovered shortly after the payment, and notice thereof given the plaintiff, 1 3 Wend. 69. 4 50 THE LAW OF QUASI-CONTRACTS. who nevertheless paid the money to his principal. It was held that the money so paid could not be recovered. The court said : — "The debt paid by the defendants was one tliat subsisted against them at the time of payment. The fact of which they were ignorant did not show that there was no debt existing at the time: it only showed that they were in a situation which enabled them to set off against the demand they had paid, a demand due to them from Bailey. I do not find any case where money paid on a subsisting demand has been recovered back on the ground that the person making the payment has subsequently dis- covered facts that show he had a set-off against the demand. . . . According to the principles laid down by Lord Mansfield, in Price V. Neal, 3 Burr. 1354, money paid by mistake or ignorance of facts can never be recovered unless it be against conscience for the defendant to retain it. The operation of this principle destroys the defence in this case ; for it will scarcely be contended that it is against conscience for the Hoboken Bank to retain the monej'. The defendants gave the note to Bailey, not doubting that he would negotiate it; and on the reasonable supposition that he had done so, they paid it. The Hoboken Bank paid the amount of the note when it was transferred to them by Bailey, intending it should be, and believing it had been duly negotiated to them. By mistake it was not, and by ignorance of this mistake the note was paid. It was by a mere accident that the defendants were in a situation to avail themselves of their set-off at the time the note became due; and it was because ignorant of this accident that they f-ailed to avail themselves of this advantage. To retain tlie money paid under these circumstances cannot be against conscience." While the result reached in Franklin Bank v. Raymond can be justified on the ground that it was not against con- science for the plaintiff to keep that which the defendant would have had to pay, bjit for the ac cidental circums tance that the note was unendorsed, it is submitted tljat the court went too far"rn" intimating that there could be no recovery of money paid in ignorance of a fact, showing, not the non- existence of the debt, but simply a right of set-off. Had the Hoboken Bank been insolvent, and had the money been pnid, JIKCOVEUY OK ilOXEY PAID UXDKR MISTAKK 51 not to a purchaser of the note, but to assignees in insol- vency, it is submitted that a ditTerent result should have been reached. As between the debtor and the original creditor the difference in amount between the two debts represents what in conscience should be paid by the one to the other. And the fact that in our system of law one claim does not extinguish the other, and must be pleaded, not as payment, but by way of set-off or counter-claim, does not prove that a creditor receiving in such circumstances, not the amount of his debt less the set-off, but the entire amount of his claim, has not in conscience received more than he should keep. Accordingly it was held in Bize v. Dickason, assignee, etc. ,i that money so paid could be recovered. In Buel V. Boughton,^ the plaintiff' gave a promissory note to one Fuller, which, in consequence of a mutual mistake, did not call for the payment of interest, and when the obli- gation matured, he paid to the defendant, an endorsee, the principal sum with interest, supposing the note to call for interest. It was held that he could not recover the money so paid, Bronson, Chief Justice, saying: "This is a re- markable case. The plaintiff has omitted by mistake to make the note payable with interest, as he should have done; and then, by another mistake, he corrected the first error by paying interest, when the note itself imposed no such obligation. And thus by tvN^o blunders the parties have come out right at last. ..." It would seem that this principle might have been success- fully urged in DeHahn v. Hartley,^ where the plaintiff, who issued a policy of Marine Insurance, was allowed to recover money paid on the policy, in ignorance of the fact tliat the defendant had sailed with forty-six hands instead of fifty, as stipulated in the policy. The shortage was made good soou after sailing, and the loss of the vessel was in no way attri- 1 1 T. R. 285. 3 1 T. R. 343. 2 2 Den. 91. 52 THE LAW OF QUASI-CONTRACTS. butable to the fact that the vessel sailed short-hande The plaintiff had received the premiums from the defen ant for the voyage, and the defendant received, as he su posed, from the plaintiff a policy indemnifying him again loss, and in consequence thereof took no steps to procu other insurance. In these circumstances, the loss havii occurred in consequence of events not at all related to tl warranty in the policy of insurance, it would seem that tl defendant, had he been sued on the policy, would, in avai ing himself of the fact that the vessel sailed short-hand& have been pleading a technical legal defence, without tl semblance of equity. If this be true, the defendant cou' in conscience retain the money which had been paid to hi under mistake. It would seem that had it been urged in Kelly v. Solari that it was not against conscience for the defendant to kee the money which the plaintiff had paid in forgetfulness • the fact that the policy had lapsed a month before the deal of the insured, the defendant should have been allowed ■ retain the money so paid, since tlie premiums paid by hi: were in excess of what would have been paid for a term insu ance during the time that the insured lived after procurir the policy of the company. At all events the defendant shou' have been allowed to retain at least the equitable value of tl policy. In JacksOTi v. McKnight,^ the plaintiff, who was indebte to the defendant on an overdue bond secured by mortgag paid to the defendant $230 in payment of interest, which ; the time of payment both the plaintiff and the defendai supposed to be due, but which the plaintiff had previous paid. After such payment the defendant assigned the boi and mortgage to a third party, and after the assignme: the plaintiff, discovering that the money which he had pa as interest was not; in fact due, sued to recover back fro 1 9 M. & W. S4. 2 17 Hun, 2. EECOYEKY OF MONEY PAID UXDER MISTAKE. .".:'. the defendant the money so paid. It was held that he conld not recover. Learned, P. J., deliverinu' the opinion of the court, said: •'The difficulty i^ tliat at the time when ilie plaintiff ma.le this payment, he was owing the defendant a much larger amount, overdue and payable on tlie very obligation upon whitli this payment was made. Clearly, if the plaintiff had handed the defendant 8230 to apply on tlie bond and mortgage, he could not have recovered that sum hack; but iu this present case, he claim ■; to recover, because it was intended as a payment of interest, which had, in fact, been paid, and not as a payment of principal, which had not. The payment, however, was really ni.ade on the debt. Tlie plaintiff always is. and always will be, entitled to a credit for so much paid thereon : and the defendant's assignee can enforce the bond and mortgage only for what is payable after crediting this and all other payments. In fact, over six montlis' interest had accrued at the^"time when this money was paid, payment of which, it would seem, might have been demanded, the principal being- overdue. And further, after tliis money was pcaid, and before the suit was commenced, even before the defendant assigned the bond and mortgage, interest accrued on the boud and mortgage more than tills amount. AYhether any subsequent payments were made is nut shown. The action to recover money paid by mistake is sustained, because otherwise the party would suffer unjust loss. It should not be extended to actions where the relief is not neces- sarv. It is not necessary iu the present case, because the plaintiff can protect himself whenever he is sued on the bond and mortgage. Perhaps in sueli a suit the holder of the mortgage may, voluntarily, give the plaintiff the credit to which he is entitled for this pay- ment. Any question between the defendant and the assignee, as to the liability of the defendant, on the assignment, they must settle among themselves." It is submitted that the plaintiff, if it be assumed that the defendant assigned the bond for its face value, and not for its face value less the jiayment made by the plaintiff, should have been allowed to recover. The reasons assigned by the court for refusing a recovery may be said to be: — 1. That he conld not recover because it was the ordinary case of a man paying jjart of a debt. 54 THE LAM' OF QUASI-CONTRACTS. 2. That even if the debt could not be said to be techni- cally paid, he should not recover because he had lost nothing by the payment, being entitled to avail himself of that pay- ment whenever he was sued by the third party. It is submitted that the position of the court that the pay- ment should be treated as a payment pro tanto of the debt, is not sound in principle. If it be true that the plaintiff did pay the debt in part, it should follow that when sued on the ))ond, he should avail himself of the payment made under mistake, by a plea of payment and not by way of counter- claim or set-off. In McGrinnis v. The Mayor, ^ sued to recover arrears of salary which had accrued subsequently to an overpayment of salary made by the defendant under mistake, the defend- ant endeavored to reduce the plaintiff's recovery by the amount of the overpayment. It was held that the facts did not support the plea, and should have been pleaded as a set-off. While it is true that the two cases differ in that there was a debt due in the one case, to which the money might be applied, while in the other no debt was due at the time when the money was paid, it is submitted that the two cases are not to be distinguished in principle, as the money was paid and received in each case for a certain purpose. It is true that had the bond not been assigned by the obligee, the defendant in Jackson v. McKnight. whenever sued by the plaintiff for the recovery of the money, could liiive defended the action by pleading a counter claim or set- off of the debt owing by the plaintiff to him; but this does not establish that the plaintiff had no claim, but simply that the defendant could settle the claim with the plaintiff by means of a cross action or its equivalent. If the money paid by the plaintiff was in fact a payment on account of the principal debt, though both pai'ties supposed the money was in fact paid upon a different account, it would follow that 1 6 Daly, 416. KECOVEEY OF MONEY PAID UNDER MISTAKE. 55 the plaintiff, whenever siictl upon the bond, would be able to defeat a recovery pro ta)tto : whereas, if he is regarded, not as having paid any i)art of the principal debt, but as having paid money under mistake, the mistake giving rise to a claim against the party to whom it was paid, then, should he fail to assert that claim within the statutory period of time, it would follow that when he was sued on the bond, he would get no credit for the payment so made. At first sight the decision in Belden v. The State i would seem to support the proposition that an overpayment on one account, made under mistake, can be applied in extinguish- ment pro tanto of another account, although the right to recover the money as money paid under mistake has been barred by the statute of limitations. On examination, how- ever, the decision will be found not to be an authority in favor thereof. In that case the plaintiff made a claim against the State before the Board of Audit, and the State claimed that there should be deducted from the amount of the plain- tiff's claim the amount of an overjiaymcnt made by the State on another account. This deduction was made, not- withstanding more than six years had elapsed since the pay- ment of the claim. But it must be remembered that the claim on the part of the plaintiff was made, not in a court of law or equity, but before a Board of Audit, whose powers were defined by the Act conferring jurisdiction, and under that statute the Board of Audit were authorized to allow such sums only as it considered were equitably due from the State. ^ It cannot be disputed that equitably one who has received such an overpayment ought not to compel the payment of any claim arising thereafter, without giving credit for the amount of such overpayment. But to say that after the statute of limitations has run against a claim, it can still be used in an action brought in a Court of Law or Equity to reduce the amount of a plaintiff's recovery, is to 1 103 X. Y. 1. '^ Laws 1870, Ch. 444, § 2. 56 THE LAW OF QUASI-CONTRACTS. say that mutual claims extinguish each other, a proposition which has received no countenance in our law. It was because of the absence of such a doctrine in our law that the plea of set-off was introduced by statute. When, therefore, a party sues in a Court of Law, the question is not what he as an honest man should do, but whether the claim which he presents, exists as a cause of action. If it does, then he is entitled to recover thereon, unless the defendant is in a position to plead a set-off. But to plead successfully a claim by way of set-off, one must plead a claim on which he could succeed in an action as a plaintiff, the statute not creating a right, but simply allowing one to assert an exist- ing right in an action in which he is sued as a defendant, where, but for the statute, he could only assert the claim as a plaintiff. 1 But in Belden v. The State, the broad question presented for the consideration of the Board of Audit was not, what would be the rights of the parties were the plaintiff suing a private individual in a Court of Law or Equity, but what were the rights of a claimant having no right of action except as provided by statute, and, that statute allowing a recovery only of what was justly and equitably due. The Board of Audit could not do otherwise than allow a credit to the State for such overpayment. Nor could the court on appeal, authorized by statute to consider both the law and evidence, "and determine the same between the claimant and the State as shall be equitable and just,"^ do otherwise than affirm such decision. The question involved in Belden V. The State was simply, what amount one would consider himself bound in justice and common fairness to pay to another in such circumstances. In affirming the finding of the Board of Audit, the Court said : — 1 Langdell, Summary of Eq. PL = Laws of 1881, Ch. 211. 2 ed. §§ 151. 152. Green v. Farmer, 4 Burr. 2214, 2220, 2221. KECOVERY DF MONEY PAID UXUER .MISTAKE. T)? " The appellants contend that the statute of liniitatioiis l)arred the right to recover tlie overpayments. Whether time had elapsed sufficient in any view for that purimse, I do not think it needful to inquire. >>\i judgment has gone in favor of the State against the appellants. The money in their hands was in excess of that due from the State when they presented their claims, and a tribunal having the powers of a court not only >.>i law but equity, and expressly charged to allow only such sums as it considered should equitably be paid by the State to the claimants (Laws of 1876, Ch. 444, § 2), has adjudged, that while retaining it, they have no claim which can be allowed. That conclusion has been approved by a court authorized upon appeal to consider both the law and the evidence. ■ and determine the same between the claimant and the State, as shall be equitable and just' (Laws of 1881, Ch. 211). A different decision would he a reproach to either jurisdiction. The claimants could ask for only so much as was due to them, and before a court having power to take an account and strike a just bal- ance between the parties, it would be a surprising assertion for one to say, 'I obtained the money of my adversary under circumstances which imposed on me an obligation to repay; but in the meantime he became justly indebted to me, and as by lapse of time no action can be brought by him, I now demand that my title to the money so obtained shall not be questioned, but be deemed absolute, and he be required to pay the debt which has accrued." It might be well answered: 'You shall be deemed to have done your duty, and at the moment of the accruing of the claim to have applied upon it the money which you had already received from your debtor.' So here the money received by the claimants in overpayment on one contract, must be deemed to have been money in their hands for the use of the State, the State entitled to its application, and the claimants be presumed to have applied it in payment of the other obligation the moment it accrued. Tlie existence of means of pay- ment in the hands of the creditor, and the lapse of time, are con- clusive evidence of the pre-existing fact of an actual discharge of the accruing debt, or are of themselves facts which require a court of equity to adjudge such application to have been made. Equitj' requires that one demand should extinguish the other by deducting the less from the greater." The facts of the case certainly rendered it quite unnoces- sarv for the court to indulge in the fiction of presuming that 58 THE LAW OF QUASI-CONTKACTS. the plaintiff had done his duty, and that at the moment of the accruing of the claim upon which he made his demand, he had applied thereto the money already received by him from his debtor. It is perfectly apparent from the facts of the case, that he did no such thing, and the rights of the parties are the same whether he did or did not do it. The statement made by the court that equity requires that one demand shall extinguish the other by deducting the less from the greater, while true of equity, as that word is used in common parlance, receives no recognition in a court of equity. ^ If it be assumed that the plaintiff in Jackson^ ;;. McKnight, when sued on the bond, should avail himself of the fact of an overpayment of interest, not by plea of payment, but by plea of set-off or counter-claim, the decision cannot be sup- ported, since a counter-claim or set-off presupposes a right of action.^ But a right of action in Jackson v. McKnight would exist, not against the assignee of the bond, who would be the plaintiff in the action on the bond, but against his assignor, the obligee; not against the plaintiff of record, but the plaintiff's assignor, the obligee of the bond, as it was the obligee and not the assignee who received the money. The court, however, in denying the plaintiff's right in J ackson v. McKnight to recover money so paid, necessarily found that he had no claim. Unless, therefore, the facts can support the plea of payment, the plaintiff must lose the amount so paid.''' In Boas v. Updegrove,* the plaintiff sought a recovery of money which he had paid in satisfaction of a judgment obtained against a third party, supposing the judgment to be a lien on land of which he was the terre-tenant. It was ' 12 Story, Eq. Jur. 13 ed. 765. have made an overpayment under ^ Supra, p. 56. mistake, pleaded the overpayment 8 In Devine v. Edwards, 101 111. by way of set-off. 138, the defendant, who claimed to * 5 Pa. St. 516. EECOVEKY OF .MONEY PAID UNDEU MI8 1AKE. o;i held that as the judgment creditor could in conscience refuse to refund the money so paid, there could he no recovery. ( Is it against conscience for a defendant to retain money Right of recov. paid to him under mistake, when the circumstauees arc such fendanrcamiot that the parties can no longer be put in statu (/j/o, and the j^J|"' '" '''"'" repayment thereof will throw a loss upon him '?j^ This ques- tion may arise where, hut for the negligence of the plaintiff, the mistake would not have been made ; where the mistake was due to the negligence of the defendant ; where neither the plaintiff nor the defendant can be said to have been negligent ; where if the plaintiff' was negligent the defend- ant was equally negligent : or where, though there was no negligence at the time of payment, the plaintiff has been guilty of laches in asserting his rights. It was at one time assumed in the English cases t hat if the mistake was one for whi ch the defendant was no more resiMinsible than the plaintiff', the re could be no recovery, if the ]iarties could not he ]uit in statu t/uo ^ In Bri sbane i: Daeres,^ one of the grounds upon which two of the three judges, who decided that the ]>laintiff could not recover, rested their di'cision, was the fact that the defendant's ]Misitiou had been irrevocaVdy changed in consequence of the payment. In that case the plaintiff', a captain of a naval vossol, si night to recover money which he had paid to the defendant's testator, supposing that he was entitled thereto, by virtue of his position as admiral, ifansfield, C .T.. in his opinion denying the plaintiff's right to recover, said: — '• I find nothing contrary to a'qiimn ft honum, to briug it within the case of Muses v. !MacFerlaii, in hi^ retaining it. So far as it Wins; contrarv to n-iinim ft honum, T tliink it would be most con- trarv to (pquum if Ixininii if lie were obliged tn rejiay it back. For sec how it is: If tlie sum be large it probably alters the habits of his life; he increases hi? expeii>e?; lie bas spent it over and over ' .'i Taunt. 144. 60 THE LAW OF QUASI-CONTRACTS. again; perhaps he could not repay it all, or not without great dis- tress. Is he, then, five years and eleven months after to be called on to repay it ? " In Smith v. Mercer,^ one of the grounds upon which a recovery was denied the plaintiff, who sought to recover money paid on a forgery, was, that in consequence of the payment, the defendant had either lost his remedy against the endorser, or perhaps could not realize the amount of his claim, if the remedy still existed. In Grier v. Huston, ^ it was assumed that if the defendant could not be put in statu quo, the plaintiff could not recover money which he had paid to the defendant under mistake. It was objected to a recovery in that case, that the defend- ant could not be charged personally, by the plaintiff seeking to recover money paid under mistake, for money which he had received as administrator. The court, holding that he could be so charged, said : — "But it is objected that it would be both hard and unjust that the defendant, who had received money through the plaintiff's mis- take, and had administered it in payment of debts of the intestate without notice of the mistake, should be responsible personally: whereas, if he had been sued as administrator, he might have pleaded that he had fully administered. Undoubtedly it would be unjust that the defendant should be deprived of his defence by this form of action. But that is not the case. He may plead the special matter, and show that he had disposed of the money in pay- ment of debts of the intestate before he had notice of the mistake; just as an agent may do, who, in a like case, may defend himself by proving that he had paid over the money to his principal before notice. There is, indeed, this difference between an administrator and an agent: The administrator, besides proving that he Las applied the money to the payment of debts, must show that the estate of the intestate is insolvent, because if there are assets he may indemnify himself. But where the agent pays over to his principal, the person who has made the mistake may have his 1 6 Taunt. 76. = 8 S. & R. 402. RECOVERY OF MOXEY IWlli UXHER JIISTAKE. CI action against the principal, wliicli he could not have against a creditor who had received payment of his debt from the admin- istrator. From necessity, therefore, the action must he brought against the administrator personally, and if he has assets by which he may be indemnified he cannot be injured." In Boas i\ Updegrove^ one of the grounds upon which the jihuntiff's right to recover money paid under mistake was denied, was that the defendant had suffered au irrevocable change of position. (It seems, however, that in England to-day an irrevocable chang e of position on the part of a defendant, which will result in a loss to him if he is compelled to refund money paid bv mistake, constitutes no defence, even in cases where the responsibility for the mistake rests as much upon the jlaintift' as o n the defendant. In JNewali ;'. Tomlinsoii^ the plaintiff' and the defendant, each acting for an undis- closed principal, but dealing with each other as principals, entered into a contract whereby the plaintiff contracted to buv, and the defendant contracted to sell, certain cotton. "Weight lists were furnished by the warehouseman to both the plaintiff and the defendant. By a mistake made by the defendant's clerk in adding the figures, the weight appeared to be greater than it really was, and the plaintiff, relying upon the figures made by the defendant's clerk, made an overpayment to the defendant. At the time of the sale to the plaintiff, the defendant's principal was indebted to the defendant for advances made on the cotton sold to the plain- tiff, and the defendant on receiving the money from the plaintiff, applied it, as he was authorized by his principal to do, in extinguishment of this indebtedness. The plaintiff did not discover the mistake which led to the overpayment until after the defendant's principal had become insolvent. It was held that the plaintiff was entitled to recover from the defendant the overpayment so made. It was urged on 1 o Pa. St. 516. L. R. 6 C. P. 405. 62 THE LAW OF QUASI-CONTRACTS. Effect of pay- ment ovei* by one not dis- closing his agency. behalf of the defendant that, as the plaintiff must neces- sarily have known that the defendant was acting for a principal, though undisclosed, that the fact of payment over, or what was the same thing in point of law, the credit in account with his principal, was a complete defence to the action for money had and received. This question seems to have been argued by the counsel without regard to the insolvency of the defendant's principal, and on the simple principles of agency. The court properly refused to apply the doctrines of agency. While it is true that it is a complete defence to an action brought against an agent for money, which was voluntarily paid to him as agent, that he has paid the money over to his principal without notice of any claim thereto on the part of the plaintiff, from whom he received the money, the reason therefor is that in legal contemplation the payment was made by the plaintiff to the defendant's principal; and if in addition thereto the money has in fact reached the principal's hands, without notice on the part of the agent that he should not pay the same over, then, since the money has reached the very person to whom the plaintiff intended to pay it, in circumstances implying nothing inequitable on the part of the defendant in paying it ovei-, the plaintiff should assert his claim against the defendant's principal, and not against the defendant. In Newall V. Tomlinson this doctrine could not be invoked, because the parties dealt with each other, not as agents, but as principals, and therefore the defendant could not claim that in paying the money over to a party, who in fact sustained the relation of principal to him, he had paid the money to the person to whom the plaintiff intended to pay it at the time when he made the payment to the defendant. While, therefore, the plaintiff could not prove that he was in fact an agent for the purpose of invoking the doctrine of payment over, yet if it he assumed that the mistake was one for which the defendant was not more liable than the plaintiff, it RECOVERY OF MOXEY TAIP UNDEK MISTAKE. 63 seems that he should have been allowed to prove any fact which, if proved, would establish or tend to establish that a loss would ill fact be thrown upon hiiu if he were compelled to restore to the plaintiff the money which had been paid under mistake. Why in such a ease should a court pursue a course which will indemnify the plaintiff at the expense of the defendant ? Had the plaintiff not made the mistake, the defendant would have collected from his debtor the amount of his advances. In consequence of the plaintiff's mistake, the defendant, because of appropriating-, as be was authorized to do. the money which he in fact held, not for his own benefit, but for the benefit of his principal, in pay- ment of the debt, is now in a position where he can no longer effectually assert his claim against his debtor, owing to the debtor's insolvency. Why in such a case should not the law leave the loss where it finds it ? Why is not such a case, a case for the application of the rule, that as between equal equities the legal title will prevail ? That the legal title to money paid under a mistake, such Ugai title to as occurred in Xewall v. Tomlinson. i^nsses. does not seem under^inutake to admit of question. The title to the money must be ^^J*^- regarded as vesting in the defendant, just as title to real estate is regarded as vesting in the grantee where the grantor under a mistake as to his obligation to the de- fendant conveys to him by deed a piece of real estate. Unquestionably in such a case the title passes, and a recon- veyance thereof is necessary to revest the title in the original grantor. The title in the case of real estate passes because the grantor has observed the formalities necessary to the transfer of title, and delivered the deed with the intention that the title to the property should pass. Xow the for- mality necessary to the passing of title to personal property is the intention to transfer the same, coupled with a delivery thereof in the case of a gift; and since in a case of money 64 THE LAW OF QUASI-CONTRACTS. paid under mistake, where there is no mistake as to the identity of the party to whom the money is delivered, there is the intent to vest the title, and the intention is accom- panied by delivery, it seems impossible to hold that the defendant does not at law become the owner of the money. That the intention would not have existed but for the mis- take, is as immaterial in considering the question of the vesting of title, as is the fact in a case of fraud that had the plaintiff known that the defendant was defrauding him, he would not have delivered the property in question to him. In either case, whether the case be one of mistake or fraud, the title passes ; but in each case the title is defeasible, that is to say, the legal title passes subject to an equity in the plaintiff to demand a revesting of the title in himself. And though in the case of personal property, courts of law, since no formal conveyance thereof is neces- sary, have substituted for the bill in equity the action of trover, it is nevertheless true that the title to the property was transferred to the defendant. It is because the defend- ant has the title that he can transfer an indefeasible title to an innocent purchaser for value. That the title to personal property — and in this particular there can be no distinction drawn between money and negotiable paper — passes by de- livery with intent to confer title, is well illustrated by the case of Robertson v. Coleman. ^ In that case a person, representing himself to be Charles Barney, left for sale with the defendants a horse and carriage, which they sold for him, giving him in exchange therefor a check payable to the order of Charles Barney. This check was endorsed by the defrauding party in the name of Charles Barney to the plaintiff for value. Before selling the property, the defendants had made inquiries regarding Charles Barney, and had been informed that Charles Barney was a respon- sible and trustworthy man. The person for whom the defend- 1 141 Mass. 231. EECOVEKY OF MOXEY PAID UNDER MISTAKE. G5 ants had sold the hoi-se and cairiagc was not, however, Charles Barney, though the defendants, at the time they sold the property, and at the time they delivered the ehcck to him, believed the individual in question to be Charles Barney. It afterwards appeared that the property which the defend- ants had sold had been stolen by the person who left it with them for sale. It was held that notwithstanding the mis- take made by the defendants, the title to the check had vested in the person to whom they delivered it under the name of Charles Barney, and that therefore the plaintiff had an indefeasible title thereto. Field, J., delivering the opinion of the court, said: — "The defendants for a valuable consideration gave the check to a person who sciid his name was Charles Barney, and whose name they believed to be Charles Barney, and they made it payable to the order of Charles Barney, intending thereby the person to whom they gave the check. . . . ••It appears that the defendants thought the person to whom they gave the check was Charles Barne_y of Swansey, a person in existence. ... It is clear from these facts that, although the defendants may have been mistaken in the sort of man they dealt with, this person was the person intended by them as the payee of the cheek, designated by tlie name he was called in the transfer, and that the endorsement of it was the endorsement of the payee of the check by that name." The legal principle in Robertson v. Coleman is a simple one : namely, that where personal property is delivered to one with an intention of vesting the title thereto in him, the title will vest, notwithstanding the existence of the intention was due to a mistake. If this proposition is true of ordinary chattels, it must equalh- be true where money is delivered in similar circumstances. And it is submitted that where the legal title passes to a defendant not more respon- sible for the mistake than the plaintiff, and acting in good faith in receiving the same, a recovery should not be allowed which would involve him in loss. ^ 66 THE LAW OF QUASI-CONTKACTS. In Durrant v. The Ecclesiastical Commissioners, Mt was held that a plaintiff who had paid tithes in ignorance of the fact that they were assessed in part against land not occu- pied by him, the defendant supposing that the plaintiff was the occupier of the land, could recover the money so paid, notwithstanding the fact that the defendant, because of the time that had elapsed between the time of the payment and the time when the plaintiff sued to recover the same, had lost all remedy against the real occupier of the land. The court regarded the fact of defendant's having suffered an irrevocable change of position as immaterial, for the reason that there was no mutual relation between the parties creat- ing a duty on the part of the plaintiff to the defendant, and on that ground distinguished the case from C ocks v. Masterman. ^ It is submitted that the distinction made by the court is not sustained by the decision in Cocks v. Masterman. In that case the plaintiff had paid a bill of exchange purport- ing to be accepted by the drawees thereof, payable at the plaintiff's, with whom the drawees kept an account. The ' acceptance being forged, the plaintiff gave notice thereof on the following day to the defendant, to whom the money was paid as endorsee of the bill, and sought to recover the money, as money paid under mistake. It was held that the plaintiff could not recover. Bayley, J., delivering the opin- ion of the court, said : — "In this case we give no opinion upon the point whether the plaintiffs would have been entitled to recover if notice of the for- gery had been given to the defendant on the very day on which the bill was paid, so as to enable the defendants on that day to have sent notice to other parties on the bill; but we are all of opinion that the holder of a bill is entitled to know on the day when it becomes due whether it is an honored or dishonored bill, and that if he receive the money and is suffered to retain it during 1 6 Q. B. D. 234. = 9 B. & C. 902. . RECOVERY OF MONEY TAID UNUEK MISTAKE. G7 the whole of that Jay the party who paid it cannot recover it back. The holder, indeed, is not bound by law (if the bill be dishonored by the acceptor) to take any steps against the other parties to the bill until the day after it is dishonored, but he is entitled to do so if he thinks fit, and the parties who pay the bill ought not by their negligence to deprive the holder of anjf right or privilege. If we were to hold that the plaintiii's were entitled to recover, it would be in fact saying ' that the plaintiffs might deprive the holder of a bill of his right to take steps against the parties to the bill on the day when it becomes due.' " It is submitted that the essence of this decision is, not that the plaintiff was under a duty to the defendant (foi* the plaintiff had not accepted the bill), but that the defendant had a right to take steps against the parties secondarily liable on the bill, on the day when it became due, and that one depriving him of that right by paying the bill could not recover the money so paid. To say that a plaintiff can recover money paid by mistake notwithstanding the recovery will throw a loss upon the defendant provided the plaintiff is under no obligation to the defendant, is to lose sight of the grounds upon which a recovery is allowed, — namel}', that the defendant has money which in conscience he cannot keep. It seems difficult to establish in a case where the defendant cannot be said to be more responsible for the mistake made by the plaintiff than is the plaintiff himself, that he should in conscience return to the plaintiff money paid under mistake, where the result of such repayment is to throw a loss upon the defendant which he would not have suffered, had not the payment been made. The principle that forbids the defendant enriching himself at the expense of the plaintiff should clearly forbid the plaintiff indemnifying himself against loss at the expense of an innocent and blameless defendant. ^ In Kingston Bank v. Eltingc,^ the plaintiff and the defend- 1 Ellis V. Ohio L. & T. Co., 4 2 40 N. Y. 391. Oh. St. 628 (xemble). 68 THE LAW OE QUASI-CONTEACTS. ant had obtained judgments against the same debtor. The defendant's judgment was a prior lien upon the real estate because of priority of record. Money realized from the sale of personal property of the judgment debtor on execution by the sheriff was, with the plaintiff's consent, paid to the defend- ant, and the defendant's judgment cancelled of record. The plaintiff at the time he consented to the payment to the de- fendant supposed that the property was sold under the defend- ant's execution and that the defendant was therefore entitled thereto. In fact the execution delivered by the defendant to the sheriff had expired by lapse of time, giving the plaintiff a prior claim on the personal property which was sold by the sheriff. The court held that the fact that the defendant would lose the amount of his judgment if compelled to pay to the plaintiff what he had received, would constitute no defence to an action by the plaintiff to recover the money so paid, although if the money had not been paid to the defend- ant, the amount of the defendant's judgment could have been realized out of the real estate. "The next proposition of the respondents," said Hunt, C. J., "is that by the discharge of their judgments they have lost their lien upon the real estate of their judgment debtors, and if com- pelled to refund would lose their debt. To state it in another form, they insist that the claim against them cannot be maintained unless they can be restored to their original position, and secured from the intervention of other liens and purchases. This, they say, cannot now be done, citing Crozier v. Acker (7 Paige, 137). That was the case of a mistake of law. The Chancellor says: ' If this court can relieve against a mistake in law in any case, where the defendant has been guilty of no fraud, which is very doubtful, it must be in a case in which the defendant has lost nothing by the mistake, and where the parties can be restored to the same situation in which they were at the time the mistake happened. ' "The application of this principle to the present case would substantially destroy the rule that money paid in mistake of facts can be recovered by the payer from the receiver. If the facts could be so arranged that there would be no loss to . either party, there RECOVERY OF MONEY PAID UNDER MISTAKE. 69 would be nothing to contend about, and no sucli actions would be brought. It is only wluno the retention or restoration of the money involves a loss that the parties are anxious about it. It is an ordi- nary result of the transaction that the party receiving has incurred liabilities or paid money which he would not have done except for the receipt of the money. I find no case, however, in which this has been held to relieve him from the performance of his duty. In the present ease the one partj' or the other, upon the facts found, will lose his debt. By cancelling their judgment the respondents will have lost an available security. By failing to receive the amounts due to them upon their subsisting executions the appel- lants will have lost their debt. One party or the other being compelled to lose, the- question is, which shall it be ? The answer given by the authorities is, that the party having the legal right must prevail." That a recovery by a plaintiff in the case of mistake Meaning of necessarily throws a loss upon a defendant; that a loss to title will the plaintiff if he is not allowed to recover, necessarily ^''^^' " means a loss to the defendant if the plaintiff is allowed to recover, will not of course he contended for. Where money is paid under mistake, a recovery by the plaintiff, in the absence of intervening circumstances, leading to an irrevo- cable change of position on the part of the defendant, means, not a loss to the defendant, but that the parties are, by the plaintiff's recovery, put in statu quo. The defendant in such a case only fails to make an acquisition. To assume, as did the court in liingston Bank v. Eltinge, that the defence of an irrevocable change of position throwing a loss upon a defendant, would destroy the rule that money paid under mistake of fact can be recovered, is to lose sight of the many questions of law and fact raised in this class of cases. The statement by the court that "The answer given by the authorities is, that the party having the legal right must prevail," it is submitted, ought to have precluded a recovery by the plaintiff instead of conferring upon him a right of action. The rule that as between innocent parties the legal right will prevail, is a rule asserted in behalf of a 70 THE LAW OF QUASI-CONTKACTS. defendant who seeks to protect himself against an equitable claim. In other words, the proposition that the party having the legal right must prevail, it is submitted, means in this connection, that a defendant can avail himself of that fact as a defence, and not that the defendant who now has a legal right can have it taken away from him, because at some prior time the legal right was in the plaintiff. In ' j^he Horn Exchange Bank v. The Nassau Bank,^ the doctrine of the Kingston , Bank v. Eltinge, that an irrevocable change of position involving a loss to the defendant, where the parties ai-e equally innocent, constitutes no defence to an action brought to recover money paid under mistake, was con- firmed, and a recovery allowed in a case where the defendant offered to prove that the money which had been paid to him by the plaintiff, under a mutual mistake as to the genuineness of an endorsement, had been in fact collected by him for a de- positor, and had been paid to the depositor, who, although insolvent when the recovery was sought, was solvent at the time when the money was paid, and for some time there- after. It may therefore be regarded as the law in New York at the present time, notwithstanding numerous dicta to the contrary in the earlier decisions, that in such circumstances money paid under mistake of fact can be recovered back. There remains for consideration the effect of the plain- tiff's negligence on his right to recover, where a recovery will throw a loss on the defendant. Negligence no Before considering this question it is necessary to consider bar to a recov- ,..„,, ery where de- the effect of the plaintiff's negligence on his right to recover fendant can be , 1 1 . pat in statu qno. in a casc where a recovery will not involve the defendant in a loss. Although the rule is not universal,^ it is generally held^ 1 91 N. Y. 74. 107 N. C. 351. See also First 2 West V. Houston, 4 Havriiig. National Bank of Deuvei- v. 170; Wilson v. Barker, 50 Me. 447; Devenish, 15 Col. 229. Peterborough v. Lancaster, 14 N. H. « Kelly v. Solari, 9 M. & W. 54; 382 (semble); Brummitt v. McGuire, Rutherford v. Mclvor, 21 Ala. 750; EKCOVERY OF MONEY PAID UNDER MISTAKE. 71 that the fact of the plaintiff's mistalvL' havina; been caused by I ns o^^-n neolioencc ^ill not, in the absoiico of other facts. bar a recovery . In Appleton Bank r. .AIcGilvray,! the reasoning by wliich this result has been reached was well put by Bigelow, J. : — "This view of the legal relation of the parties is decisive of the remaining- objection to the plaintiffs' right of recovery in this action. The money was clearly paid over to the defendants under a mistake of fact; and, upon familiar principles, an action can he maintained to recover it back. It is no answer to the plaintiffs' claim, that the mistake arose from the negligence of the plaintiffs. The ground on which the rule rests is, that money, paid through misapprehension of facts, in equity and good conscience belongs to the party who paid it; and cannot be justly retained by the party receiving it. ctuisistently with a true application of the real facts to the legal rights of the parties. 2 Saiind. PI. & Ev. (2d ed.) ■394. The cause uf the mistake therefore is wholly immaterial. The money is none the less due to the plaintiffs, because their negligeuce caused the mistake under which the payment was made. ' ' If, however, where the mistake was due to the plaintiff's Effect of uegU- negligenc e the defendant would suffer a loss if a recovery defendant r; ; — ~ ' ~ ; ~ ! " ^cannot be put •were allowed, it seems clear that negligence should operate in stniu quo. as a bar to a recovery. Since but tor the plaintiff's negli- gence neither plaintiff nor defendant would have suffered a loss, the law should leave the parties where it finds them, and not allow the plaintiff to indemnify himself at the expense of the innocent defendant.^ For the same r eason, it the mistake was due to negligence Devine v. Edwards, 101 111 1.38; Xational Bank, 54 N. Y. 432; Brown i'. College Corner Road Co., ^leredith v. Haines, 14 W. N. C. .56 Ind. 110; Fiaker c. Little, 21 364; Glenn v. Shannon, 12 S. C. Kan. 598 {semhle) : Baltimore R. R. 570 ; Hurd v. Hall, 12 Wis. 112 Co. V. Faunce, (1 Gill, IW; Appleton (semhle). Bank v. McGilvray. 4 Gray, 518; i 4 Gray 518. .i22. Koontz V. Central Xational Bank, - Walker v. Conant, 65 Mich. 51 Mo. 275 ; Lawrence v. American 194. 72 THE LAW OF QUASI-CONTKACTS. on the part of the def endant, and the plaintiff cannot be fairly said to have contributed thereto, the defendant, not- •ffithstanding a recovery by the plaintiff will involve the defendant in loss, should not be allowed to plead that fact in bar of a recovery, since but for the defendant's nesli- gence neither party would have suffered a loss. ^) In Koontz v. Central National Bank,^ the plaintiff sought to recover money paid to the defendant in the following circumstances: The defendant, as agent for collection, by mistake and inadvertence presented to the plaintiff a draft, drawn, not upon the plaintiff, but upon one Simpson. The plaintiff, under the impression that she was indebted to the drawer of the draft, paid the draft, supposing that it was drawn upon her. Before the defendant received notice of the mistake, he had paid the money to his principal, and the drawee of the draft had become insolvent. It was held, nevertheless, that the plaintiff could recover. It is submitted that this result should not have been reached. If the defendant in presenting to the plaintiff for payment a draft drawn upon another was guilty of negli- gence, the plaintiff was equally negligent in paying the draft without inspecting it. The drawee of the draft being insol- vent, the loss must fall, if the plaintiff is allowed to recover, upon the defendant, or upon his principal, and it would seem that as between parties equally innocent, the fact being that, but for the negligence of the plaintiff, no loss would have been incurred, the law should leave the loss where it finds it. ^"Issertiig'^^^ ^^ ^ plaintiff, whose mistake was due to negligence, cannot claim. recover money paid under mistake, where the parties can no longer be put in statu quo, on the same principle / it should he held that there can be no recovery where, though not negligent at the time when the money was paid, he has been 1 Union Bank v. U. S. Bank, 3 2 51 Mo. 275. Mass. 74. KEOOYEKY OF MONEY TAID UNDER MISTAKE. 73 guilty of laclu's in asserting his claim, and a recovery by him will throw a loss u|iou the del'endant.i "^ < ^Assumiuo- that a plaintiff ^vill not be allowed to recover, B mden of es- ii iLrecovery will result in a loss to th. <^<^^'^^^'^^j^% ,it.vemamJ^ lf^X''' to consider upon whom the burden rests of estabfishins the Sfo?^ facts bearing on that question. ^ In Brisbane v. Dacres,^ although there was no evidence in the case bearing on the question, one of the grounds upon which the coiu-t denied the plaintiff a right to recover was that the party to whom the money had been paid might have changed his position. In Smith v. Mercer, 3 Dallas, J., discussing the question of injury arising from a recovery by the plaintiff, of money paid under mistake, said : — •• Is it, however, productive of no injury to any of the parties on the bill? Suppose Smith cS: Co. had not paid it, it would have been immediately returned to Spoouer, and by him to Le Souef the endorser; and it might have been recovered or put in suit. But the effect uf the delay has been to give him an extended credit; and how am I able to say that his situation in the interme- diate time may not have undergone such a change as to render him incapable of paying what he could liave paid upon proper notice and demand ? Xor do I think it will be an answer to observe that nothing of this sort is stated in the case; for the plaintiffs had no right to cast upon the defendants the burthen of such proof, which in point of law, if the fact had existed and could have made any difference, it was for themselves to produce." It is submitted that this position cannot be justified. At the time when the defendant received the money, had the mistake been immediately discovered and a demand made,* the defendant would have been compelled to return to the plaintiff the money so received. Independently of the rule that a state of facts once shown to exist is presumed to con- tinue to exist until the contrary is shown, the plaintiff ' Skyring r. Greenwood, 4 B. & '6 Taunt. 76. C. 281. * A.s to the necessity of demand 2 5 Taunt. 141. see infra, p. 140. 74 THE LAW OF QUASI-CONTRACTS. should be held to have made out his case by proving the receipt of money under a mistake resulting in a failure of consideration, causing an unjust enrichment of defendant in the absence of exceptional circumstances. Furthermore in the case of money paid under mistake, as in other cases, ^ an exceptional state of facts should be alleged and proved as an affirmative defence. And such seems to be the rule of law in regard to the question of change of position, notwith- standing the cases referred to.'' Effect of mis- "it has been said "Ehat even though there has been a failure take being as to , a collateral of Consid eration as to the plaintiff, there can be no recovery by hi m of money paid under mistake, it the mistake was as_ to a collateral fact, j^ Thus in South wic k v. The First National Bank of Mem- phis, ^ the plaintiff, who had authorized the drawing of a bill of exchange upon himself as drawee for the purpose of taking up with the proceeds thereof a note to which the plaintiff was a part^, sought to recover the money paid to the defendant, an endorsee of the bill (the drawers being the payees thereof), claiming that when he paid the bill he supposed that the defendant had collected the bill for the purpose of taking up the note with the proceeds thereof, when in fact the defendant had credited the drawers with the amount of the bill on account of an overdrawn account, and was collecting the bill for its own use. It was held that the plaintiff could not recover. One of the grounds upon which the decision of the court was rested was that the mistake was as to a collateral fact, and that in order that a recovery might be had of money paid under mistake, the mistake must be not as to a collateral, but as to an intrinsic fact. On this point Erie, J., delivering the opinion of the court, said: — 1 Langdell, Summary of Eq. PI. 194 ; Mayer v. New York, 63 N. Y. § 109. 455. 2 Walker v. Conant, 65 Mich. ' 84 N. Y. 420. RECOVEKY OE iM<^NEV FAUi UNDER MISTAKE. 75 "It is certainly triio tliat if the drawers liail Iniown wliat they now know, or if they had known that the proceeds of the draft were to be applied otherwise than upon the whole draft, they would not liave accepted or paid the hill. But were they so mistaken that they can claim the money voluntarily paid hy them? It is not e\ery mistake that will lay the groundwork for relief. It must be a mistake as to some existing fact, not as to something to happen or to be done in the future. It must be a mistake as to some fact not remotely bat directly bearing upon the act against which relief is sought. (Danibman r. yduilting, 75 IST. Y. 55.) If it were the rule to relieve against mistake as to remote or what are sometimes called extrinsic facts, great uncertainty and confusion would attend business transactions. Here the draft was genuine, and addressed to the drawees, who had authorized it to be drawn; and it was held by the defendant which could lawfully receive payment thereof. The fact that the drawers had not acted in good faith with tlie drawee, or had placed the draft and its proceeds beyond their control so that the whole draft might not be paid, were too remote. The mistake of the drawees was rather as to the application of the money paid by them, — a futui-e fact. If the defendant had received this mouej' and applied it upon the old draft, the precise expec- tation of the drawers would liave been met, and there would have been no ground of complaint." Now it is submitted that tlie mistake of the plaintiff in this casr was not, as the court states, simply as to a future fact. It was a mistake as to an existing fact, and as to the rights acquired on ]iaying the amount of the bill to the defendant. The mistake as to an existing fact was that he supposed that the bill was held by the defendant with instructions to pa}- to the drawer of the bill the money in question, or to use the same directly for the purpose of taking up the old draft. In other words, his mistake was that the drawer was collecting the amount of this draft for the purpose of doing a future act, and that the defendant was representing him in furthei-ance of tliat purpose. The plaintiff's mistake in regard to this t'xisting fact resulted in his failure to acquire the right that he experted in ex- 76 THE LAW OF QUASI-CONTEAGTS. change for the money paid by him, namely, a right to have the note taken up with the proceeds of the draft. That great confusion and uncertainty would attend business trans- actions if the court inquired into the mistake as to col- lateral facts seems hardly to be a sufficient reason for refusing to allow a recovery of money paid under mistake, since a plaintiff, if the defendant is not the more blame- worthy of the two, should never be allowed to recover where it can be shown that a recovery will involve the defendant in a loss. And to deny a recovery where the mistake is as to a collateral fact because of the necessity of discouraging and suppressing litigation, while allowing a recovery where the mistake is as to an intrinsic fact, not- withstanding the mistake was due to the negligence of the plaintiff, seems hardly consistent. In Chamber s- v. Miller,^ where it was held that money paid on a check in ignorance of the fact that the drawer's account was overdrawn, the cashier supposing the account to be good, could not be recovered, Williams, J., based his opin- ion upon the fact that the mistake was as to a collateral fact.^ 1 13 C. B. N. s. 125. a mistake as to the account of the ^ If the holder of the check knew maker thereof, could, on discovering that the drawer was paying the the mistake, correct it and serve the check under mistake, he would not endorsers with notice of nonpay- be allowed to retain the money, ment. This decision has been re- Martin V. Morgan, 3 Moore, 635. affirmed in Whiting v. The City In view of the decision in gftu^- Bank, 77 N. Y. 363 ; 89 N. Y. 604. wick V. First National Bank of It is impossible in the opinion of Memphis (supra, p. 74) one would the writer to distinguish the cases, expect to find that in New York a In each case, the instrument was bank cashing a check under mistake genuine, and addressed to the as to the drawer's account, could not drawee. In each case the mistake recover the money so paid. But was as to a fact not to be ascertained such is not the case. It was held in by an inspection of the instrument. The Troy City Bank v. Grant, Hill In each case the instrument was in & Den. 119, that the plaintiff, who the hands of an innocent party, and had credited the holder with the received by him in the course of amount due on a promissory note, business, payable at the plaintiff bank, under RECOVEKY OF MONEY PAID UNDER MISTAKE. 77 It would follow from this doctrine as to collateral mistake, that if money were paid nnder a mistake as to the account of the drawer of a cheek, the drawer having- no account when the bank supposed his account to be good, a mere donee of a check could retain the money so paid. That is to say, if A should draw a check in favor of B and make him a present thereof, that though B had no rights against the drawer for the reason that there was no consideration as between himself and the drawer, and had no claim upon the bank because the bank was not a party to the check, yet, if the bank paid the check thinking the state of the drawer's account required them so to do, the bank could not recover the money su paid. Tt would follow that B would make a profit at the expense of the bank, unless the bank were able to collect the amount thereof from A, and yet such a result would seem to be plainly inequitable. Why should B be allowed to profit by the mistake of the bank and thereby throw a loss upon the bank ? The writer does not believe that such a result, though logically necessary, would be reached. It would seem, however, that t he cases in which it ha s Xoiecoven- been held that a plaintiff could not recover money paid for value under mistake as to a collateral fact were correctly decided, because in all of the cases the defendant received the money in the course of business and in payment of a claim. Hav- ing acquired the legal title to the money,^ and having parted with value therefor in that he surrendered a right, he should be allowed to invoke the rule that one who parts with value in good faith for a legal title takes the same free from equities. This principle was stated in Southwick v. The First Na- tional Bank of ilemphis,^ as an additional ground for hold- ing that the plaintiff was not entitled to recover. '■ If the drawers," said Erie, J., "had received this money from the drawees to pay the old draft, and had used it to pay their ^ Supra, p. 63. - Supra, p. 74. 78 THE LAW OF QUASI-CONTEACTS. antecedent debt to the defendant, it is conceded that the drawees could not have reclaimed it. How can it make any difference in principle that the money was paid to the defendant directly by the drawees upon the order of the drawers ? Whether the monej' was paid in the one way or the other, the principles of public policy and convenience lead to the same conclusion." The principle was also recognized in, and is well illus- trated by, the decision in Merchants ' Insurance Co. v. Abbott,' where the plaintiff sought to recover money paid to the defendants, Denny, Rice, & Co., in the following circum- stances : The plaintiffs had issued a policy of fire insurance to one Abbott. Abbott, who was a debtor to the defendants, burned the premises insured by the policy. Denny, Rice, & Co. making a demand upon him for the payment of their debt, Abbott assigned to them the policy which had been issued to him by the plaintiff. The policy was presented for payment by Denny, Rice, & Co. to the plaintiff and paid by the plaintiff, both parties being ignorant of the fact that Abbott had burned the property covered by the policy. The plaintiff subsequently discovering this fact demanded a return of the money from Denny, Rice, & Co. It was held that the plaintiff was not entitled to recover. Said Gray, C. J. : — "The only contract of the plaintiffs was with Abbott, and the only mistake was as between them and him. The money was vol- untarily paid by the plaintiffs in discharge of Abbott's supposed claim upon them under their policy, and to these defendants as the persons designated by Abbott to receive, and was in legal effect a payment by the plaintiffs to Abbott. These defendants received the money, not in satisfaction of any promises which the plaintiffs had made to them (for the plaintiffs had made no such promise), but under the agreement of Abbott with these defendants that they might receive it from the plaintiffs, and apply it to the satisfaction of Abbott's debt to themselves. In other words, the money was paid by the plaintiffs to these defendants, not as a sum which the latter were entitled to recover from the plaintiffs, but as a sum. 1 131 i\Iass. 397. RECOVERY OF MONEY PAID UNDER MISTAKE. 75 ■which the plaintiffs admitted to he due to Ahhott under their con tract with him, and which at his request and in his hehalf thei paid to these defendants, who at the time of receiving it knew n( facts tending to show that it had not in truth become due fron the plaintiffs to Abbott. This i)ayment of the plaintiffs to theS' defendants at Abbott's request was a satisfaction of Abbott's deb to these defendants, and might have been so pleaded by him if suei by them iipon that debt. (Tucherman i'. Sleeper, 9 Cush. 177. As between the plaintiff and these defendants there was no fraud concealment, or mistake. These defendants had the right to receiv from Abbott the sum which was paid to them; the assignment whicl they presented to the plaintiffs was genuine, and was all that it pui ported to be. They hold the money honestly, for value, with th right to retain it as their own under a title derived from Abbott and independent of the fraud practised by him upon the plaintiffs "The case stands just as if the money had been paid by th plaintiffs to Abbott, and by him to these defendants, in which cas there could be no doubt that while the plaintiffs could recover th amount from Abbott, neither Abbott nor the plaintiffs could recove the amount from these defendants. The fact that the money instea of being paid by the plaintiffs to Abbott, and by Abbott to thes defendants, was paid directly by the plaintiffs to these defendants does not make any difference in the rights of the parties. Th two forms do not differ in substance. In either case Abbott alon is liable to the plaintiffs, and these defendants hold no mone which ex cpquo et bono they are bound to return either to Abbott c to the plaintiffs." It is submitted that the defence of a holder for valii announced by Gray, C. J., is the ground upon which tli decision in Chambers v. Miller ^ is to be supported. Sue also, it is submitted, is the ground upon which the d( cision in Aiken v. Short 2 is to be supported. In Aiken 1 Short the "plaintiff took as security for a debt due him froi one Carter an assignment of an interest in property, whic Carter was supposed to hold under a will, the assignmei being subject to a charge in favor of the defendant's testate which the plaintiff agreed with Carter to pay. The defem 1 Supra, p. 76. ^ 1 H- & N. 210. 80 THE LAW OF QUASI-CONTEACTS. ant made a demand upon Carter for payment, and was referred by him to the plaintiff, who paid the debt. Subse- quently it was discovered that Carter had no interest in the property assigned by him to the plaintiff, the testator having revoked the will under which Carter claimed. The plaintiff then sought to recover from the defendant the money paid, and it was held that there could be no recovery. In this case it is clear that had the money been paid to Carter, and by him been paid to the defendant, the plaintiff could not have recovered from the defendant. ^ Why should the fact that the money was paid directly to the defendant instead of being paid in the first instance to Carter make a difference in the rights of the parties, since in either case the money was received by the defendant in extinguishment of a claim due from Carter ? Another illustration of this principle is afforded by the case of Walker v. Conant.^ In that case the defendant loaned money to one Van Riper, receiving from him a note and mortgage purporting to be executed by his father, but in fact a forgery. Subsequently Van Riper borrowed from the plaintiff a sum of money, a portion of which the plaintiff was to pay the defendant in satisfaction of the loan which he had made Van Riper. The loan from the plaintiff to Van Riper was also obtained by means of a forged note and mortgage purporting to be executed by Van Riper's father. The plaintiff, on discovering the forgery, brought an action to recover the money paid to the defendant as money paid under mistake, and it was held that he was not en- titled to recover. One of the grounds upon which the court rested its decision was that the defendant was a holder for value. The court regarded the case as the same in principle as if the money had been first paid to Van 1 Southwick y. First Nat'l Bank, » 69 Mich. 321. 84 N. Y. 420 ; Merchants Ins. Co. V. Abbott, 131 Mass. 397. EECOVERY OF MOXEY PAID UNDEK iMISTAKE. 81 Riper and had then been paid by Tan Riper to defendant. The court said: ^' The authorities are uniform that where mone}- is received in good faith and in the ordinary course of business and for a valuable consideration, it cannot be recovered back because the money was fraudulently obtained of some other person by the payer. "To hold otherwise would be to put every one who receives money in the due course of business upon inquiry, at his peril, as to the manner in which money was procured by the payer. " "s The cases of Chambers r. Miller and Aiken v. Short, and The Merchants" Insurance Co. v. Abbott are one in principle. In each case the mistake was as to a collateral matter, namely, the obligation of the plaintiff to a third party. In each case the plaintiff supposed that because of his obligation to a third person he must comply with the demand made upon him by the defendant, and in none of the cases did such an obliga- tion exist. In each of the cases the defendant made the demand in course of business, and received the money paid to him by the plaintiff in extinguishment of a claim against a third party. Accordingly Gray, C. J., cites in Merchants Insurance Co. v. Abbott, in support of the conclusion there reached, Chambers i\ ililler, and Aiken v. Short. The Merchants Insurance Co. v. Abbott was decided in 1881 ; Aiken v. Short was decided in 1856 ; and Chambers v. Miller in 18t;2. In view of the fact that the Massachusetts Supreme Judicial Court approved of these decisions in 1881, it is surprising to find that the opposite conclusion was reached by that court in ^ Merchant's National Bank v. National Eagle Bank, decided in 1869.1 The court apparently decided that case without having the English cases before them, saying, "It is well settled l)y recent decisions that money paid to the holder of a check or draft drawn without funds may be recovered back if paid by the drawee under mistake 1 101 Mass. 281. 6 82 THE LAW OF QUASI-CONTEACTS. of fact." Although it had always been regarded as a well- settled rule of law in Massachusetts that negligence was not a bar to a recovery of money paid under mistake of fact, and that doctrine was fully recognized by the court at the same term of the court, in Merchant's National Bank v. The Na- tional Eagle Bank just referred to, it was nevertheless held, in Bojlston National Bank v. Richardson,^ that money so paid could not be recovered back because of the plaintiff's laches in making the payment. And in the Merc hant' s National Bank v. The National Bank of the Commonwealth, decided in 1885,^ it was held that money paid under mistake as to the amount of the depositor's account might be recov- ered. The court cited with approval the Merchant's National Bank v. The National Eagle Bank, which case was not cited in the case of The Merchants Insurance Co. v. Abbott, but made no reference to A iken v. Short and Cliambers v. Miller, the cases which formed the basis of the decision in The Merchants Insurance Co. v. Abbott. In regard to the Merchants Insurance Co v. Abbott, the court said : — "The defendant also relies much on the case of Merchants Insurance Co. v. Abbott as establishing a somewhat different principle from the case of the Merchant's Bank v. National Eagle Bank. The latter case is not there cited, but we do not find any intention to impugn its authority. It appears to us quite dis- tinguishable from the case here presented. Denny, Rice, & Co. held a valid debt due from Abbott, whose premises had been insured by the plaintiff company and had been destroyed by fire. Abbott assigned to Denny, Eice, & Co. his claim against the plaintiff, who at Abbott's instance paid the amount of the loss to Denny, Kice, & Co. There was no question of the validity or genuineness of the assignment, and by the payment made by the plaintiff the debt which Abbott owed Denny, Rice, & Co. was dis- charged and satisfied; and this might have been so pleaded by Abbott had he been sued thereon. A year later the plaintiff discov- ered that the fire had been caused by Abbott, and that his proofs of loss were false and fraudulent. Afterwards an action was brought 1 101 Mass. 287. 2 139 m^ss. 513. EKCOVERY OI'' MON-KY TAIl* INDKU MISTAKE. 83 against -VM'ott and IVniiy, i;io^> & (\,. It was conceded that Donny. l\ice. & Co. had no knowledge of any fraud. As to Abbott, it was not doubted that the phuntiff miglit recover. If tlie money l\ad been paid to him it could have been recovered as money paid under mistuke of fact; and the payment by the plaintiff, at his retiuest in discharge of his debt to Denny, Eice, & Co., was equiva- lent to a receipt by him of so much money. But as to the other defendants, Denny, Eiee, & Co., the case was deemed to stand as if the money had been puid by the plaintiff to Abbott and by Abbott to them in the ordinary conrse of business, in which case it could not be doubted that while the plaintiff could recover the money from Abbott, neither Abbott nor the plaintiff could reeox er the amount from Denny, llice, & Co. There was not only no mis- take between the plaintiff and Dcuny, Eice, & C'o., but by reasoik of the mistake of the plaintiff — produced by the fraud of Abbott, to which Denny, Eice, \- Co. had in no way contributed — they had been induced to surrender and discharge the debt whicli Abbott owed tlieni. It was impossible to restore them to their original position. ■• In the ease at bar there is un change of circumstances after the time when the defendant had a right to treat the check as paid, and before it was returned, whicli would in any way subject the defendant to loss, or render it unjust for the plaintiff to recover. The fact that the defendant gave credit to his depositor in this interval did not make the defendant liable to such depositor when a mistake was discovered which showed it to have been erro- neously done. "The mistake made bv the jdaintiff was such as would bring the case within the rule which has heretofore been held applicable on this subject. There was no carelessness, as in the Boylston Xati.>nal Bank i\ Eichardson (101 ^lass. 287), where they neglected to examine the account of the drawer of a check. Such a transac- tion shows no mistake of fact in any legal sense, but laches simply. The teller in that case was not misled in any way, and had no reason to suppose the account of the depositor was otherwise than as it actually appeared." Although in :M crchant' s Xational Bank v. The National Bank of the Commonwealth the defendant collected the money as aprent of the endorsee of the cheek, the ease should be 84 THE LAW OF QUASI-CONTRACTS. treated as if the endorsee were the defendant and not the agent, because if the plaintiff were entitled to recover from the principal, then of course he would be allowed to recover against the agent if he still held the money as agent ; but if the plaintiff could not recover against the principal, then he could have no right to recover money paid to the principal's agent. The statement made by the court that they found no intention on the part of the court in Merchants Insurance Co. V. Abbott to impugn the principle of the decision in Mer- chant's Bank v. National Eagle Bank, seems hardly warranted by the facts, since the court in The Insurance Co. v. Abbott relied upon a case reaching a directly opposite conclusion to that announced by the court in The Merchant's National Bank v. National Eagle Bank. The fact that had the money been paid in the first instance by the Insurance Company to Abbott, and then by Abbott to Denny, Rice, & Co., there could have been no recovery by either the Insurance Couipa'ny or Abbott against Denny, Rice, & Co., it is submitted, does not distinguish the cases. Surely had the payee of the check in Merchant's National Bank v. National Bank of the Common- wealth received payment in circumstances similar to those under which the payment was made on the payee's endorse- ment, and had then paid the money to the defendant, no one would claim that the plaintiff could recover the money from the defendant. Furthermore, the court, in saying there was no mistake between the plaintiff and Denny, Rice, & Co. in The Merchants Insurance Co. v. Abbott, but that Denny, Rice, & Co., by reason of a mistake of the plaintiff, produced by the fraud of Abbott, to which Denny, Rice, & Co. had in no way contributed, had been induced to surrender and discharge the debt which Abbott owed to them, makes a statement which can be equally stated of the endorsee in the case which they had under consideration. There was no mistake between the endorsee and the bank. The check was a genuine check, the presentment was authorized. The RECOYEEY OF JIOXF.Y PAID UXDKK MISTAKE. 85 endorsee knew nothing about the state of the account of the drawer. And the hank, with a knowledge of all the neces- sary facts as to the check, paid the check, because they thought that the drawer had funds to meet it, and that there- fore they were under an obligation to meet the check. f There is one very general.^ though not universal.- exception Recovery of to the rule that monev paid under mistake may be recovered unTr m^iake where it is against eouseience for the defendant to retain the of law. .money so paid. Generally money paid under mistake of law cannot be re- covered although it is against conscience for the defendant. to retain it. This exception dates from the decision in Bilbie v. Lumley,^ decided in 1802. Prior to that time it had been held and assumed in numerous cases.^ that where 1 Bilbie r. Lumley. 2 East. 469 ; !Mayor c. Lancashire, 60 L. J. Q. B. oio (■•■<:;«/•.'<;) : W a pies v. United States. 110 U. S. 630 : Cahaba, Town Council of. r. Biiniett, oi Ala. 400 ; Pritohard i: AVoodiuff. 36 Ark. 196 (senihU): Buckuall c. Story, 46 Cal. 5S11 : Richardson v. Denver, 17 Col. 3!>S; The People r. Foster, 133 III. 49tl : Fowler r. Black. 1:'.6 III. ",6o; Snelson i: The State. 16 Ind.29: Holling^worth r. Stone. 90 Ind. 244 (nemliit) : Kraft r. Keokuk, 14 Iowa, S'l; Bailey v. Paullina, Oil Iowa, 463 ; Liverraore, Inhabitants of, 1-. Peru, 55 Me. 469 ; Lester v. Baltimore. 29 Md. 415 ; Wayne County V. Randall. 43 Mich. 137 ; Erkens !•. Xicolin, 39 Minn. 461; Car.son -. Cochran, 53 X. AV. Rep. 1130 (Minn. 1>92); Mutual Savinjrs Institution ,-. Enslin, 4i! Mo. 2o0 ; Camden r. Green. .J4 X. J. Law. 591 ; Clarke v. Diitcher. 9 Cow. 074 (semble) ; Vanderbeck r. Rochester, 122 X. Y. 2S5 ; Xewell v. March, S Ire. L. 441 ; Railway !•. Iron Co. , 46 Oh. St. 44 ; Johnson c. Mc- Ginness, 1 Ore. 2;i2 ; Real Estate Saving Institution r. Linder. 74 Pa. St. 371; Evans r. Hughes County. 52 X. W. Rep. 1062 (So. Dakota, 1SP21; Carwiii i. XashviUe. 2 Bax. 453; Beard i'. Beard, 25 \V. Ya. 4S6. ^ Northrop c. Graves, 19 Conn. 54S ; Mansfield r. Lynch, 59 Conn. 320 ; Culbreath c. Culbreath, 7 Ga. 64 (see, however, Tatum r. Trenton, 85 Ga. 46S) ; Ray v. Bank of Ken- tucky, 3 B. Mon. 510; Louisville r. Henning. 1 Bush, oSl (but see Louisville & XashviUe R. R. Co. ,-. Coramonwealth, 89 Ky. 531) ; Lawrence v. Beaubien. 2 Bail. 623 (see, however, Cuningham r. Cun- inghani, 20 S. C. 317). s 2 Ea-t. 469. * Hew es V. Bartholomew. Cro. Eliz. 614; Bonne l /. Fouke, 2 Sid. 4; Turner r. Turner. 2 Rep. Ch. 3 ed. SI ; Lansdowuie.r. Lansdowne, 2 J. ^i W. 20.3, S. C. Moseley, 364; 80 THE LAW OF QUASI-CONTRACTS. a recovery was sought of money paid under mistake, tlie question of whether the mistake was one of fact or law was immaterial. In Bilbie v. Lumley, Lord Ellenborough denied the plain- tiff's right of recovery on the short ground that, " every one must be taken to be cognizant of the law, otherwise there is no saying to what extent the excuse of ignorance might not be carried," It is, however, a curious fact that nine years later Lord Ellenborough did not hesitate to hold i that a deed cancelled under mistake as to the legal effect of a will was not to be regarded as cancelled. " And when once," said he, " it is established, as it clearly is, that a mistake in point of fact may destroy it, it seems difficult upon principle to say that a mistake in point of law clearly evidenced by what occurs at the time of cancelling should not have the same effect." While this proposition of the learned judge is undoubtedly sound, it should be borne in mind that it is only by disregard- ing the statement made by him in Bilbie v. Lumley, that " every one must be taken to be cognizant of the law," that he was able to discover that a mistake of law was made in Perrott v. Per- rott. And if for the purpose of relieving from the effect of cancellation one is allowed to introduce evidence of a mistake of law, it is difficult to see why any greater danger is involved in allowing the same evidence for the purpose of showing that money was paid under a similar mistake. The decision in Bilbie v. Lumley was however followed by the dicta of the judges in Brisbane v. Dacres ^ to the same effect, and is regarded as establishing the rule in England, that money paid under mis- take of law cannot be recovered in an action at law. The same result has been reached generally, though not universally, by the courts of this country. Tlie case of Clarke v. Dutcher,^ Bingham v. Bingham, 1 Ves. Sr. ^ Penott r. Perrott, 14 East, 423. i267~ Farmer v. Arundel, 2 Wm. " .5 Taunt. 144. Bl 824 {nemble)\ Bize v. Dickason, « 9 Cow. 674. 1 T. K. 285. EECOYEKY OF MOXEY PAID UNDER MISTAKE. 87 which is regarded as one of the leading authorities on thia point in the United States, did not really involve this question, what was said by the cotn-t in regard to a mistake of law being a dictum simply. The plaintiff tliere sought to recover money paid mider mistalco as to tlie relative value of the New York and English pound sterling. It was held that a part of the claim was barred by tiie statute of limitations, and that thei'e could be no recovery as to the remainder of the claim not so barred, because it was received by the defendant on account, and that more than that sum was due from the plaintiff to the defendant at the time when the action was brought. The reason usu ally assigned for not allowing a recovery of money paid imder mistake of l aw is, that every one is pre- sumed to know the law ; and mrdoubtedlv this fictitious wav of stating a rule of law in the f orm of a p resumption has had much to do with the establishment of the doctrine under con- sideration. Tliore is a rule of law that in certain cases igno- rance of law excuses no one ; but there is no presumption that everr one knows the law.^ \ Wherever knowledge of the law is material, knowledge wiienitis ■^ material, igno- is an issuable alletration. Thus, for example, the crime of [anceof lawcan '^ ^ be shown. larceny consists not simply in taking property belonging to another, but in taking property with the intention of appro- priatinir it. knowing it to be another's property. Knowledge of the law may therefore be material as bearing on the question of criminal intention, and it is always permissible for a defendant charged with larceny to show that the prop- erty which he in fact took, he regarded as his own and not as the propertv of the person from whom he took it ; and this he can prove, even though in order to prove it, it becomes ' In strikiii.tr contra.st with the Jefferies, 2 C. & P. 113,116. "God saying that every one is presumed forbid," said he, "that it should to know the law, was the opinion be imagined, that an attorney, or a of Abbott, C. .r., as shown in his counsel, or even a judge, is bound to charge to the jury in Montrion v. know all the law." 88 THE LAW OF QUASI-CONTRACTS. necessary for him to show that the mistake on his part as to the title was due to his ignorance of, or mistake of law.^ The same principle was involved in Regina v. Twose,^ where the prisoner, indicted for setting fire to some furze growing on a common, was allowed to show that she did so thinking that she had a right to burn it. The decision in the case of The Queen v. Mayor of Tewksbury,^ can only be supported on the theory that there is no such presumption. In that case the claimant for an office who in fact received a minority vote, sought to establish his election by showing that the ineligi- bility of his opponent was known to the voters casting their votes for him. To establish this proposition he proved as a fact that it was known by the voters that his opponent was mayor of the town of Tewksbury and the returning officer at the election in question, the law being that one who was mayor and returning officer was not eligible for office. It was argued for the claimant that as he had established knowl- edge on the part of the voters of his opponent being mayor and returning officer, he had established knowledge on their part of his ineligibility, since every one is presumed to know the law. This contention was not supported. Blackburn, J., deliver- ing the opinion of the court, said : — "It is therefore necessary to decide whether the mere knowledge of the fact that Blizard was the mayor and returning officer must be taken to involve knowledge of his being disqualified for elec- tion. Every elector in the borough must have known that Blizard was the mayor ; and every elector who saw him presiding at the election must have known that he was the returning officer; and every elector who was a lawyer and who had read the case of Kegina v. Owens (2 E. & B. E. 86), would know that he was dis- qualified. From the knowledge of the fact that Blizard was mayor and returning officer, was everjr elector bound to know as a matter 1 Commonwealth v. Stebbius, 8 ^ U Cox Cr. Ca. 327. Gray, 492 ; Rex v. Hall, 3 C. & P. s l. R. 3 Q. B. 629. 409. KECOVERY OF JIOXF.Y PAID UNDER MISTAKE. 89 of law tliat he was ilis(iualified ? I ag-voc that ignoranco of law doos not excuse, but I think iu Martiudale r. Falkner ['2 C. H. 71;»), ]\[aule, J., eorrectly exphiined the ride of law. He says: 'There is no presumption in this country that every person knows the law. It would be contrary to connuon sense. In Jones r. Eandell (Cow. ;i8-40), Dunning, an/iicin/o. says: --Laws of this char- acter are clearly evident and certain; all the judges know the laws, and knowing them administer justice with uprightness and integrity." But Lord ^Maustield in delivering judgment says: "(As to the certainty of the law mentioned by Mv. Dun- ning), it would be very hard upon the profession, if the law was so certain that everybody knew it; it is so uncertain that it costs much money to know what it is, even in the last resort." It was a nece^jary ground of the decision in that case that a party may be ignorant of the law. The rule is that ignorance of the law shall not excuse a man or relieve him from the consequence of a crime cr from liability upon contract. There are many cases where the giving up of a doubtful point of law has been held to be a good consideration for a promise to pay monej'. Numerous other instances might be cited to show that there may be such a thing as a doubtful point of law. If there were not, there would be no need of courts of appeals, the existence of which shows that judges mav be ignorant of law. That being so, it would he too much to hold that people are bound to know in what particular court such and such a practice does not prevail.' '•I take this to be the rule of law apjjlicable to this case. I think the knowledge that Blizard is the mayor is clearly brought home to every voter. ••But it does not seem to me consistent with justice or common sense or common law to say that because these voters were aware of a certain circumstance they were necessarily aware of the dis- qualification arising from that circumstance, and that therefore their votes were to be considered as mere nullities." Confosscdly, a party seeking to i-ecover money paid under mi.stake of law is in no .sense a delinquent. He has not inflicted a loss upon any one, nor does he seek to inflict a loss. He is only endeavoring to save himself from a loss, the saving not to be at tlie expense of any one. If, then, the rule under consideration presupposes a charge of delin- 90 THE LAW OF QUASI-CONTEACTS. quency, the rule can never be properly invoked, except in cases where the person against whom it is invoked is charged with a violation of a right, and a right of which the wrongful violation is not at all dependent upon one's knowl- edge of law, — a right about which one must inform himself at his peril. In a word, then, one cannot by alleging igno- rance of law justify the commission of a crime (though if knowledge of law is material, he can show that because of ignorance of law no crime was committed), a breach of contract, or gwasi-contract, or the commission of a tort. The very phraseology of the rule that ignorance of law excuses no one implies a charge of delinquency, and there- fore assumes the existence of a defendant seeking to justify an act, in the doing of which it is claimed he has vio- lated some riglit. Such was the' view taken of mistake of law by Lord Ch. King, in Lansdowne v. Lansdowne,^ and Mr. Justice Maule, in Martindale v. Falkner,^ by Mr. Justice Blackburn, in Queen v. Tewksbury,^ and by Nisbet, J., in Cul breath v. Culbreath.* While one charged with larceny is permitted to show that, because of his ignorance of law when he took the property, he supposed the property to be his own,^ this fact when estab- lished does not justify the commission of a crime, but shows that none was committed. The same defendant, were he charged in a civil action with the conversion of the property, would not be permitted to show that he, through mistake of law, regarded himself as the owner of the property, for the reason that it would be immaterial, since one deals with property at his peril. The true owner's right to his property is a right in rem, and any one interfering with the property without the owner's consent, no matter what his state of mind may be, unless he is acting under warrant of law, is 1 Moseley, 364. « 7 Ga. 64. 2 2 C.*B. 719. 6 See supra, p. 87. 8 L. R. 3 Q. B. 635. KECOVERY OF MONEY PAID I'XOER MISTAKE. 91 guilty of a tort. So if one person confer on another contract rights, or if the hu\- confers npon a person gMrt«/-contractual ^rights, those rights must be observed, and tlie defendant's state of mind, if he violates those rights, is immaterial. In other words, one shonld never be allowed to plead his ignorance of law where he has violated rights, whether tliey be public or private, since he has no right morally or legally to throw a loss, wiiich he has caused, upon the party whom he has injured rather than suffer it himself. But where one is seeking to recover money paid under mis- take of law, he is not trying to excuse a delinquency on his part ; lie is not attempting to throw a loss upon any one. If the plaintiff's recovery would lead to a loss on the part of the defendant, then, the parties being equally innocent, that fact of itself is sufficient reason for denying the right of recovery on the plaintiff's part. It is evident that public policy requires that ignorance of law shall not excuse the doing of acts which the welfare of society demands should be prohibited. Furthermore, it would be plainly unjust to allow a man who has injured another to throw the loss on that other rather than sustain it himself, liecause of the fact that if he had known the law, he would not have done the injury. But -what is the public policy whicli demands that one who has done no injury, but simply seeks to avert a loss, shall, because of his ignorance of law, suffer a loss ? The only possible danger arising from allowing recovery of money paid under mistake is, that one who has paid money knowing that the defendant had no claim upon him might, if lie were allowed to plead ignoramo of law, repent of his generosity, and seek to recover it by falsely swearing to the existence of a mistake of law. But this argument proves too much, for it is as easy for a claimant to simulate ignorance of fact as of law. In eitlicr case the inquiry is a^ to the plaintiff's state of mind at tlie time tliat he made the pay- 92 THE LAW OF QUASI-CONTRACTS. ment. It is, therefore, difficult to understand why the same rule should not be applied in each case, since, in an\' case, the plaintiff is required to show, not only that he paid the money imder mistake, but th^it the defendant has no claim in law, ■ equity, or conscience to the money so paid. Mistake as to (A. limitation upon the doctrine that money paid under a foreign law. v^- mistake of law cannot be recovered is made in cases where the mistake made by the plaintiff was, as to tlie law ot a juris- diction, foreign to the plaintiff and to the jurisdiction in which the action is brought. '^ Thus, in Haven v. Foster,^ the plain- tiff had paid money to the defendant under a mistake as to the law of New York. The court held that the rule that money paid under mistake of law could not be recovered had no application, Morton, J., saying: — "That the lex loci reisitm must govern the descent of real estate is a principle of our law with which every one is presumed to be acquainted. But what the lex loci is, the court can only learn from proof adduced before them. The parties knew in fact that the intestate died seised of estate situated in the State of Xew York. Tliej' must be presumed to know that the distribution of that estate must be governed by tlie laws of Kew York. But are they bound, on tlieir peril, to know what the provisions of these laws are ? If the judicial tribunals are not presumed to know, why should pri- vate citizens be ? If they are to be made known to the court by proof, like other facts, why should not ignorance of them by pri- vate individuals have the same effect upon their acts as ignorance of other facts ? Juris ignorantia est cum jus nostruin ignoramus, and does not extend to foreign laws or the statutes of other States. "We are of opinion that in relation to the question now before us, the statute of New York is to be considered as a fact, the igno- rance of which may be ground of repetition." Mistake as to fNor is the doctrine applied where, though the action is domestic law bj' ' - . a foreigner. brought in the jurisdiction about whose law the mistake was made, the mistake was made out of the jurisdiction , and by one residing elsewher e. ^ Thus, in the Bank of Chillicothe v. 1 9 Pick. 112. EECOVERY OF MONEY PAID UNDER MISTAKE. 93 Dodge.i it was held that the iilalnti£f, who had discounted in Ohio commercial paper issued in New York, and void under the laws of New York because of illegality, could neverthe- less recover the money paid thereon, notwithstanding the fact that he could not recover on the instrument itself. Said Johnson, J. : — "The defendant was a resident of this State, and chargeable with a knowledge of all legislative enactments. The law imputes to him knowledge that this paper, negotiated by him, was utterly void and wortliless, — no better than mere blank jsaper. The money was then advanced and paid to him without consideration. It was advanced in Ohio, and the plaintiffs are a corporate body of that State. They are not presumed to have notice of our stat- utes. The statutes of our State are only brought to the notice of courts and citizens of that State by proof. Had it been shown that the plaintiffs, or the officers of the bank, had actual knowledge of tlie statute in question, tliey might, notwithstanding their resi- dence, be placed upon a footing of persons mutually dealing in illegal transactions. There is no such question here. It is not pretended that the officers of the baulc had any knowledge of the fact of our statute. ••Tlie cause was evidently tried upon tlie assumption that the money was advanced upon the draft in good faith by the plaintiffs, supposing It to be good. Xo question of that kind was raised at the trial. "The plaintiffs then stand in precisely the same situation as though the money had been paid by them under a mistake as to material facts. Ignorance of the law of a foreign government is ignorance of fact, —and in this respect the statute laws of the other States of this union are foreign laws. ( Haven p. Foster, '.I Pick. 112; Xorton i-. :Marden. 3 Shepley, 45). And this pro- ceeds upon the principle that foreign laws are matters to be proved, like other facts, before even courts can notice them. "It is an elementary principle that money paid under a mistake of material facts, where the party paying derives no benefit from it, may be recovered back." 1 8 Barb. 233; see also Vinal v. Continental Construction Company, 53 Hun, 2t7 94 THE LAW OF Q0ASI-CONTKACTS. Recovery of money paid under mistaks of law to aii officer of a coart. A plaintiff who seeks to recover money as paid under mistalce as to the law of the jurisdiction where the action is brought, may, although residing in another jurisdiction, have paid the money in the jurisdiction about the laws of which he was mistaken, or, though residing in the jurisdiction about whose laws he was mistaken, may have paid the money elsewhere. It would seem that in neither of these cases could a plain- tiff be allowed to recover, consistently with the doctrine that money paid under mistake of law cannot be recovered. Surely a court would not be justified in saying that a non-resident is entitled to relief, though making a mistake as to the law of the jurisdiction where the money was paid, while in that juris- diction, when a resident making a similar mistake would have no right to recover. Furthermore if it is the policy of the State that its citizens must at their peril be acquainted with its laws, that policy would seem equally applicable to a case where the citizen, though out of the jurisdiction, acts under mistake as to its laws. From this point of view it would seem that had the plaintiff, in Haven v. Foster,' brought his action in New York, he would not have recovered, since the mistake made by him was made in New York and not in Massachusetts. / ^Another limitation upon the doctrine denying the right .01 recovery where money is paid under mistake of law, is .that money pai d under a mistake of law to an officer of .a court can be recovered. '-^ \ Thus, m Jjjx -parte James," it was held that a trustee in bankruptcy who had received from a creditor money which the creditor had realized from a sale upon execution of property belonging to the bankrupt, to which the creditor was in fact entitled, but which was paid to the trustee upon the mistaken supposition that the trustee was > Supra, p. 92. 308. See also Moulton v. Bennett, 2 Ex parte James, 9 Ch. Ap 609; 18 Wend. 586. Ex part e Simmonds, L. R. 16 Q. B. 3 g d, ^^_ ggg EECOVEKY OF MONEY PAID UNDER MISTAKE. 95 entitled thereto as a inattci' of la^', could be recovered back. Lord Justice James said: — '• With regard to the other point, tliat tho money was voluntarily paid to the trustee under a mistake of law, and not of fact, I think that the principle that money paid under a mistake of law cannot he recovered, must not be pressed too far; and there are several cases in which the Court of Chancery has held itself not hound strictlv by it. I am of opinion that a trustee in bankruptcy is an oiEcer of the court. He has inquisitorial jjowers given him by the court, and the court regards him as its officer, and he is to hold money in his hands upon trust for its equitable distribution among the creditors. The court then, finding he has in his hands money which in equity belongs to some one else, ought to set an example to the world, by paying it to the person really entitled to it. In my opinion, the Court of Bankruptcy ought to be as honest as other people." So in Ex 'parte Simmonds i it -was held that money paid to a trustee in liquidation could be recovered. Lord Escher said; ■ — "A rule has been adopted by courts of law for the purpose of putting an end to litigation, that if one litigant party has obtained moneT from the other erroneously, under a mistake of law, the part^-'who has paid it cannot afterwards recover it, but the court has never intimated that it is a high-minded thing to keep money in this way. The court allows the party who has o btained it to do a shabby thing in order to avoid a greater evil, in order, that is, to put an end to litigation; and James, h. J., laid it down in J^x parte. James that although the court will not prevent a litigant party from acting in this way. it will not act so itself, and it will not allow its own oificer to act so. It will direct its of&cer to do that which any high-minded man would do, viz., —not to take advantage of the mistake of law. This rule is not confined to tlie Court of Bank^uptc^■. If money had by a mistake of law come into the hands of an officer of a court of common law, the court would order him to repay it as soon as the mistake was discovered. A distinction has been suggested between ignorance and g||^ mistake of law, the contention being that money paid under o^^l~- 1 L. R. 16 Q. B. 308. 96 THE LAW OF QUASI-CONTKACTS. mistake of law can be recovered, while money paid in igno- rance of law cannot.i This distinction would seem to have no foundation either from the point of view of equity or public policy. Equitably considered it is as unconscientious for a man to retain money paid to liim in ignorance of law as it is to retain money paid under mistake of law. From the standpoint of public policy the distinction would seem to be unwarranted, since mistake always involves ignorance. No one who knows the law can make a mistake in regard to it. y^„°" "l^'^'^^f ( The general recognition of the rule that money paid under mistake of law cannot be recovered, renders it necessary to garded as mistake of law consider when a question is to be regarded as one of law, and not of fact. The existence of a riglit depends upon the appli- cation of a rule of law to the facts of a case. In any given case the controversy between tlie parties may involve questions of fact only ; questions of law only ; or questions of both fact and law. If the controversy is as to a question of fact, it may arise from a conflict of evidence, or it may arise from the fact that while the parties are agreed upon the evidence, they differ as to the inference which should be drawn therefrom, whenknowi- A fact is in its nature transient, existing at one time but alone necessary not at another. But the theory of law is, that for any given question, ques- statc of facts there is a principle of law applicable, though owing to the novelty of the facts the principle of law may assume a new form. Therefore if in a given case a lawyer or judge can, solely because of his knowledge of law, give an opinion as to the result that should be reached, the case neces- sarily involves a question of law and not of fact, feet ma° be- Undoubtedly what was once a question of fact may in time, ofTaV"*^''"" ^^ consequence of repeated adjudications, become a rule of 1 Culbreath v. Culbreath, 7 Ga. Cunitighara, 20 S. C. 317). See 64; Lawrence v. Beaubien, 2 Bail, also Champlin v. Laytin, 18 Wend. 623; Hntton v. Edgevton, 6 S. C. 407, 424; but see contra Jacobs u. 485 (see, however, Cuningham v. Morange, 47 N. Y. 57. RECOYEKY OF MOXEY PAID UNDER MISTAKE. t)7 law. As, for example, the rule that twenty-four hours is a reasonable length of time in which to give notice of the dis- honor of a bill of exchange or promissory note, or thi^ rule that twenty years adverse possession establishes a prescrip- tive right, or the rule that a person is presumed dead who has been absent seven years without being heard of by those who naturally would have heard of him if he had been alive.^ Therefore what is to-day a question of fact may in the future become a rule of law ; hut until a court is prepared to say that on a given state of facts a certain result shall follow in all cases presenting those facts, the question must be one of fact and not of law. Even in the case where the rule is first laid down, the question should be treated as one of fact, if the conclusion reached by the court is re ached by them not because of their learning as lawyers, but for the rensnn th.it the court is of the opinion that no jury of reasonable inteHi- grence could differ from the result which thq court thinks should be reached. It is frequently said that questions of law a.e for the court Questions of while questions of fact are to be decided by the jury. If this saiiiy for the statement were correct, it would be of assistance only in those cases where, because of previous adjudications, one could say that the question at issue was for the court, and not for the jury. But the statement is in fact not correct, if it is to be regarded as indicating anything more than the peculiar prov- ince of tlie jury. The special province of the jury is to pass upon th e ifsuable allegations of fact in an action where the court w ould not be justified in setting aside a verdict as unre aso nable. > It cannot be said, however, that the court has no right to pass upon questions of fact. It is not only the recog- J Thayer, Presumptions and the Professor Thayer for the invaluable Rule of Evidence, 3 Harv. Law suggestions on this subject found in Rev. 148, 155. The author wishes his series of articles iu the Harvard to acknowledge his indebtedness to Law Review. 7 98 THE LAW OF QUASI-CONTRACTS. nized right of the court to pass upon certain questions of fact, but it is the duty of the court so to do.i For example, if the question of the admissibility of evidence depends upon facts about which there is a dispute, it is the duty of the court to decide that question of fact and to admit or exclude the evi- dence offered, according to its finding of the fact upon which the admissibility of the evidence depends. Thus, if evidence is offered as the dying declaration of a person, and it is conceded that the case is a proper one for the admission of a dying declaration, if the person against whom it is offered denies, that the party making the declaration believed himself to be in extremis, it becomes necessary for the court to settle as a fact whether the person making the declaration regarded him- self as in imminent danger of death. Again, it is the duty of a court to require a jury to act as reasonable men in their findings as to the facts, and this the court does by directing a non-suit, or a verdict in the first in- stance, or by setting aside a verdict, which it thinks the facts did not authorize the jury as reasonable men to render. Tf , for example, the question is whether A walked across the street, ' Eind the court is of opinion that no reasonable man could say that lie did, the court should direct a non-suit or a verdict. But no one would seriously contend that because the court thinks that A did not walk across the street, and so declares, that the question of whether A walked across the street has become one of law. This instance will suffice to show that all questions considered by the court are not questions of law, and the fact that this has not been clearly kept in mind has led to much confusion of expression if not of thought. Thus, for example, it has been said that as a contract in wi'iting is to be construed by the court and not by the jury, the questions involved are therefore questions of law; that in certain cases Miere questions are to be passed upon by the court, the 1 Thayer, Law and Fact In Jury Trials, 4 Haw. Law Rev. 147, 159. KECUVEKY OF MONEY V\\\) I'NUEl! MISTAKE. 99 qiu'siion uf negligence becomes one of luw ; ihat as the exis- tence of reasonable or probable cause in an action for malicious prosecution is a question for the court, therefore it is a question of law. Now it is true for historical reasons that a contract in writing is construed by the court and not by the jury ; but it is submitted that whether any given question arising under a contract is one of law or fact depends not upon the fact that the court is dealing with the question, but upon the nature of the question involved. If the question involved is as to the intention of the party making the contract, and that intention depends not upon any peculiar meaning given to the word in law, as distinguished from its ordinary meaning, then the question is in its essence one of fact and not of law. because upon an assumed state of facts any man of the same degree of intelligence as the judge passing upon tl: question, though he possesses no knowledge of law, could a;_ intelligently interpret or construe the instrument. It is true tliat if one not a lawyer were asked to construe the in- strument he might reach a different result from that reached by the court, for the reason that he might consider certain matters as bearing upon its meaning, which under the rules of law could not be used in ascertaining that meaning. This fact simply establishes that judges in interpreting instru- ments are limited in the means which can be used for that purpose. It does not alter the fact, that what they are seeking to ascertain is a question of fact and not of law. That a judge is learned in law enaliles him to avoid mak- ing an error of law in the means used liy him to ascertain the meaning of the word, but it does not enable him to say what the word actually means. If the question is one of law, then the party interpreting or construing the instrument should be able to declare its meaning simply because of his attainments in law. When this is true the question is undoubtedlv one of law; when it is not, the question is one 100 , THE LAW OF QUASI-CONTRACTS. of fact. If, for example, by a deed of conveyance an estate is in terms given to A for life, with remainder to his heirs, the intelligent layman, ignorant of the technical rules of law, would unhesitatingly say that A had an inter- est in the property which would terminate on A's death. The judge because of his knowledge of the rule in Shelly's case is able to say that A takes a fee simple. This conclu- sion he reaches, not because of his general intelligence, but solely because of his knowledge of a rule of law. If the meaning to be given to the language of an instru- ment is conceded, and the question is simply as to the legal result flowing therefrom, then, of course, the question is one of law, because only a man versed in law can assert what result should be reached. But so long as a court is endeavoring to ascertain the intention of a party as expressed in a given instrument, where no well-defined legal meaning as distinguished from the ordinary meaning of the language is given to the language which has been used, the question is necessarily one of fact and not of law. When the language has a legal meaning, and the instrument or sur- rounding circumstances do not show an intention to give the language a meaning other than its legal meaning, the ques- tion, while one of construction, is no longer a question of fact, but a question of law. The distinction between a question of law and a question of fact in dealing with a written instrument is very well illustrated by the cases of Hutchinson v. Bowker ^ and Brown V. Pales. 2 In Hutchinson v. Bowker it appeared that the defendant had written to the plaintiff offering to sell him "good barley." The plaintiff wrote to the defendant accept- ing his oifer of "fine barley;" the defendant refusing to deliver barley to the plaintiff, the plaintiff sued him, alleg- ing a non-delivery, as the defendant's breach of contract. The question was left to the jury as to whether the words 1 5 M. & W. 535. 2 139 Mass. 21. EECOYEEY OF MONEY IWID UNDER .MISTAKE. ••good" and "fine" liad different meanings in the trade. The jnry returned a special verdict stating that the words did have a different meaning in the trade, "fine barlev " being heavier than "good barley," but gave their verdict for the plaintiff, stating that "the parties did not understand each other." This verdict was set aside by the court. The question presented for the consideration of the court i^'-as a question of law. It was conceded that the defendant had only offered good and not fine baric \", and that the plaintiff had only agreed to take fine barley. The question was whether there was a meetinii of minds and therefore a contract between the parties. This question was peculiarly one of law, namely, how far as a matter of law has one who in fact varied the terms of an offer a right to say that Itecause he meant sim- ply to accept in the terms offered, his acceptance should be treated as if the terms of the offer had not been varied ? In answering this question all that the court had to do was to apply a well-recognized rule in the law of contracts to the facts, namel}', that a meeting of minds in the law of con- tract depends not upon the abstract intention of the parties but upon their expressed intention; and with this rule to control the question but one result could be reached. In Brown v. Fales,^ the defendant had delivered to the plaintiff's intestate twelve shares of stock; the intestate sold the stock, but during his lifetime paid to the defendant regularly the dividend declared on the stock, representing that he still held the stock. The defendant making a demand upon the plaintiff as administratrix for the stock, the plain- tiff purchased with money belonging to the estate twelve shares of the stock and delivered the same to the defendant, representing that it was the original stock delivered by him to her intestate, and received from the defendant the following instrument: "Received from :Mrs. J. S. Brown, administra- trix of Walter R. Brown, twelve shares of Calumet & Hecla I 130 Mass. 21. 102 THE LAW OF QDASI-CONTRACTS. mining stock : I agree to hold her harmless in any manner from loss arising out of her above action. " This purchase having been disallowed the plaintiff in her accounts as administratrix, she sued the defendant for indem- nity, relying on the above agreement to establish her right of action, and it was held that she could not recover. Allen, J., said: — "It is therefore now to be assumed as a fact that the defendant executed the agreement in suit under the belief that she was sim- ply receiving back lier own identical shares wliich she owned in 1875. ... It is moreover to be added that this belief of the defendant was induced by information given to lier by tlie plain- tiff. . . . The question then is, what in the light of this fact is the true meaning of the defendant's words, ' I agree to hold her harmless in any manner from loss arising out of lier above action '? The view of the plaintiff is that the words mean an action which she had actvially performed; namely, using the funds of her hus- band's estate for the purchase of new shares and delivering the same to the defendant. But we think the words mean the action which the defendant believed the plaintiff had performed, and which upon the jury's answer it must now be assumed that the plaintiff knew that the defendant believed had been performed. This was the understanding which the defendant must have had of the contract which she made; it was also the understanding which the plaintiff knew that the defendant had of it. This understanding is also consistent with the words used. The result is that the plaintiff was not entitled to recover as the loss sus- tained by the plaintiff was not embraced within the defendant's contract." Now what the court declared in this case was that the defendant had not expressed an intention to indemnify the plaintiff in the event which had happened. This result they were able to reach, not because of the legal, as distinguished from the popular, meaning of the language used by the defendant, but because in the light of surrounding circum- stances as found by the jury, they were able to say, not as men learned in the law, but as men of intelligence, what the KECOVERY OF .MOXEY PAID UNDER MISTAKE. 103 defendant intended. Assuming the existence of the facts which the court assumed, before it attempt(^d to ascertain the meaning of tlie defendant, any man of affairs of the same degree of intelligence Avas just as competent to pass upon that question as the judge who delivered the opinion, and in the construction of such an instrument the only advantage which a judge by virtue of his knowledge of law would have over a layman, would be that lie would know Avhat kind of evidence the law allowed him to call to his aid to assist him in giving a meaning to the instrument. But these rules of law would not warrant him in saying that the word " action " referred not to the purchase of stock with funds belonging to the estate, because after all that was simply a question appealing to his reason as an intelligent man. This idea was well expressed liy Doe, C. J., in Edes v. Boardman,! who, in dealing with the question of whether a common law remedy had been repealed by a statute, said; " The question whether the common law is repealed is a question of statutory construction, which is a question of the intention of the legislature, which is a question of fact, and is determined by the natural weight of competent evidence, and not by an arbitrary formula. Legal rules of constructions, so called, suggest natural methods of finding and weighing evidence and ascertaining the fact of intention, but do not determine the weight which the evidence has in the mind, and do not establish a conclusion at variance with that reached by a due consideration of all the competent proof." Whenever a court is prepared to say that the use of cer- tain words in a given class of transactions shall always produce a certain result, then the court in fact no longer deals with the intention or meaning of the party to the instrument, but simply lays down a rule of law, and the only question involved is whether the facts exist which brings the case within the rule of law. For example, if in 1 58 N. H. 580, 592. 104 THE LAW OF QUASI-CONTRA.CTS. a given jurisdiction it is declared that the use of certain language in a deed gives ownership of property to the middle of the road, and a deed is produced under which the grantee claims such ownership; if the grantor did not intend to convey title to the middle of the road, and supposed that the language used would not so convey, he has made a mistake of law, because had he known the rule in question, he would have known that the legal effect of the conveyance would be to so convey. If, however, a court is not prepared to lay down a rule to govern a class of cases, and will only say that in the case under consideration a certain result was intended by the parties, the question is clearly one of fact, and not of law. If in any given case arising out of the construction of an instrument it is contended that the question is one of law, then the party making the contention ought to be able to suggest how learned one should be in law, and in what branch thereof, to answer the question involved. In Nunez V. Dautel,^ where the only evidence in the case was an instru- ment of which the defendant admitted the execution, whereby the defendant agreed to pay the plaintiff a certain sum of money within a reasonable time, it was held that what was a reasonable time within which to make payment was a ques- tion for the court to decide. It does not appear in the case whether the court regarded the question as one of fact or as a question of law ; but the case serves as an illustration of a class of cases where it is stated that if under the terms of a written instrument an act must be done within a reasonable time, what is a reasonable time is a question of law for the court. In Nunez v. Dautel the defendant was to have a rea- sonable time within which to sell his crop, or raise the money from some other source, before he should be called upon for payment. In jurisdictions where the court would say that the question in such a case is one of law for the 1 19 Wall. 560. EECOYEKY OF MONEY PAID UNDER MISTAKE. 105 court, an iiiterosting; question to ask ^vo^lld be ho^v much law must a man know in order to determine within what time the crop should be sold, or the money obtained from other sources ? That such a question is not a question of law but of fact was the view taken by ilr. Justice Story in Wallace v. Agry.^ In that case, which was an action upon a bill of exchange, payable at sixty days sight, it was ob- jected that the bill had not been presented for i>ayment within a reasonable time. In charging the jury, Mr. Justice Story said: — "There is a difference between a bill of exchange drawn payable at so many days after date, and one drawn payable at so many days after sight. In the former case the bill must be presented at the period of its maturity, in the latter it is sufficient if it be pre- sented in a reasonable time. What that reasonable time is depends upon the circumstances of each particular case; and no defined rule has as yet been laid down, or indeed can be laid down, to govern all cases. The question is a question of fact for the jury, and not of law for the abstract decision of the court." Such also was the view taken of this question by Marshall, C. J., in Chesapeake Ins. Co. v. Stark,^ where in discussing the fact of abandonment he said: — " The law is settled that an abandonment to be effectual must be made in a reasonable time; but what time is reasonable is a question compounded of fact and law, which has not yet been reduced to such certainty as to enable the court to pronounce upon it without the aid of a jury. Certainly the delay may be so great as to enable every man to declare without hesitation that it is unreasonable, or the abandonment may be so immediate that all will admit it to have been made in reasonable time; but there may be >uch a medium between these (extremes as to render it doubtful whether the delay has been reasonable or otherwise. If it was a mere question of law which the court might decide, then the law should determine to a dav or an hour on the time left for delibera- tion after receiving notice of the loss. lUit the law is not so 1 4 Mason, 3.36, 345. " 6 Cranch, 268. 106 THE LAW OF QUASI-CONTRACTS. determined, and it therefore remains a question compounded of fact and law, whicli must be found by a jury under the direction of the court." In contrast with this statement as to the nature of the question involved in determining what is a reasonable time, is the opinion of the court in Wright v. Bank of The Metrop- olis, ^ where the plaintiff sued the defendant for a conversion of stock which the defendant held as pledgee. The court held that the plaintiff was entitled to recover the highest market price which he would have had to pay to replace the stock within a reasonable time after the notice of the conversion. The owner of the stock, who was seventy-six years old, was notified of the conversion of the stock May 9th, 1878. The court held that the expiration of a reasonable time within which the stock should have been replaced was July 1st, 1878. Said the court: — "What is a reasonable time when the facts are undisputed and different inferences cannot reasonably he drawn from the same facts, is a question of law. "We think that beyond all controversy in this case, and taking all the facts into consideration, this reasonable time had expired by July 1st, 1878, following the 9th day of May of the same j'ear. ' ' It is submitted that the question which this court should be able to answer, if the question is one of law, is, how skil- ful must one be as a lawyer to be able to say that July 1st, 1878, is the expiration of a reasonable time ? How much law must a man know to say that no juror could reasonably infer from the evidence in the case that the plaintiff should have had until July 3d, 1878, within which to replace the stock ? 2 1 110 N. Y. 237. court and not for the jury, it is for 2 In many jurisdictions it has the court and not for the jury to say been held that the construction of a what amounts to a reasonable time, written instrument being for the It would seem that the duty of the EKCOYEEY OF MONF.Y PAID VXDF.R MISTAKE. 107 A consideration of two or three eases it is belieycd will show that it is erroneous to regard negligenee as a question of la-n-, oven where the question is to be deeided by the court. In Hunter v. The C. & S. Y. R. R. Co.i it was held that it was negligence, (?.s a nxdicr of law, for an adult, in full possession of his faculties and with nothing to disturb his judgment, to attempt to board a train moving at the rate of from four to six miles an hour. The fact was that the plain- tiff attempted to board the train in consequence of the conductor's telling him to jump on if he intended to go on that train. In delivering the opinion of the couit, holding that the plaintiff' should have been non-suited, Peckham, J., said : — '■The important question which arises is, does a man who is sui juris and in the full pussessiou of his faculties, with nothing to disturb his judgment, act with ordinavy care in endeavoring to board a train moving at the rate "f from four to six miles an hour? It seems to me that there can be but one answer to such a ques- tion. That it is a dangerous, a most hazardous attempt, must be the judgment nf all men. Persons are taught from their earliest youth the great danger attending upon an attempt to board or leave a train while it is in motion; and no person of mature years and judgment but has the knowledge that such an attempt is dangerous in the highest degree. . . . '•There may undoubtedly be cases in which an attempt to get on or off a moving train would not be regarded as negligence as a matter of law, and wliere the question of negligence upon all the facts of the case should be submitted to the jury. . . . "We think that the facts of this ease are so overwhelming in their nature that no reasonable judgment can be formed as to the court under this rule has been dis- with instructions that the contract charged when they have said that requires the defendant to do the act the instrument requires the act to within a reasonable time, and that be done within a reasonable time, the contract has not been performed and that the question of whether if more than a reasonable time has the defendant has performed his elapsed, contract should be left to the jury ' 11'2 X. Y. ".71. 108 THE LAW OF QUASI-CONTRACTS. act of the deceased in attempting to. jump upon this moving tram other than it is dangerous and reckless, and that the injury result- ing therefrom was contributed to by him." On a second trial of this case the plaintiff gave evidence tending to show that the speed of the train was between one and two miles an hour. The jury returned a verdict for the plaintiff. A judgment entered upon this verdict was reversed by a divided court of four to three. In the case as first reported, the conclusion that it was negligent to board a train running at a rate of speed of from four to six miles an hour, was acquiesced in by all the judges save one. In the second report of the case, the decision holding that it was negligent to board a train run- ning at the rate of from one to two miles an hour was reached by vote of four to three. Now what was the rule of law in which all the judges with one exception acquiesced in the first case, but in which only a bare majority of the judges acquiesced in the second case ? What view of the law appli- cable to the case was held by the dissenting judges in either case that differed from the rule of law announced by the majority of the court ? Mr. Justice Peckham in the case as first reported based his opinion upon the fact that the facts in the case were so overwhelming in their nature that no reasonable judgment could be formed as to the act of the plaintiff other than that it was dangerous and reckless, and he therefore thought the plaintiff should have been non-suited. In the second case Mr. Justice Gray, with whom three judges agreed, but from whom three judges differed, was of the opinion that to alight from or board a train in motion is a negligent and hazardous act, and can only be made to appear excusable when a person is under such coercion of circumstances as to raise the question whether he is in the free possession and use of his faculties and judgment. And he thought that the plaintiff was in full possession and use of his faculties and EECOYERV OF MOXEY PAID UXDER MISTAKE. 109 judgment. O'Brien, J., was of the opinion that the act done by the phiintiff was one about which reasonable and prudent men niiglit differ, and that the verdict of the jury and the judgment entered thereon should not be disturbed. There were two rules of law involved in the case, namely : first, that the plaintiff was not entitled to recover if he had been guilty of contributory negligence; secondly, if the facts were so clear that a jury could not as reasonable men have failed to find that the plaintiff had been negligent, the case should not have been submitted to the jury. But it was conceded by the plaintiff', and was not therefore in dispute, that the judgment should be for the defendant, if in fact the jury could not as reasonable men have found that there was no contributory negligence. The only issue between the plaintiff' and the defendant was as to whether reasonable men could dift'er in opinion as to that fact. All the judges in the one case, with one exception, thought that no reasonable man could say that the plaintiff was not guilty of negligence. Four judges in the second case were of the same opinion, while three thought ihat a reasonable man might hold that the plaintiff' was not guilty of negli- gence. Xow what principle of law was it which compelled a majority of the court to say that the plaintiff was negli- gent ? And what principle of law was it which enabled the minority of the court to say that it could not be said that the jury was wrong in finding that the plaintiff was not negli- gent ? How much law should a man know to be able to answer intelligently the question whether in given cir- cumstances certain conduct is negligence ? Clearly in such a case the judge who finds one way or the other bases his decision upon his knowledge of men and of affairs, and not at all upon his legal attainments ; and the judge best fitted to pass upon such a question is not the one most learned in the law, but the one who most thoroughly under- stands the standards of conduct prevailing among men. 110 THE LAW OF QUASI-CONTEAOTS. That the existence of probable cause in malicious prose- cution is in its essence a question not of law but of fact, is evident not only from the nature of the test to be used in determining this question, but also from the treatment of the question by the courts. In Hazard v. Flury,i an excep- tion to the charge to the jury that the plaintiff had no probable cause was overruled, Parker, J., saying: — "The only question requiring consideration is presented by an exception to the charge. . . . Where facts are undisputed and but one inference can be drawn from them, the question of probable cause is one of law for the court. "The facts, so far as that proposition is concerned, are not in dispute. If then they do not permit an inference that defendant had probable cause to believe that the plaintiff had committed an offence against the law, the instruction was right. . . . "Now, can it be said that these facts permit an inference that the defendant had probable cause to believe that the plaintiff was guilty of larceny? . . . " The facts within his knowledge do not indicate that a crime had been committed. . . . " The court therefore rightfully instructed the jury as a matter of laio, that the defendant who caused the arrest of the plaintiff did so without probable cause to believe that an offence had been com- mitted by the plaintiff." If this is a question of law, as the court states, then the court should be able to state the law by which one is to judge whether a given state of facts justifies one man in believing that another has committed a crime. No such an attempt has ever been made. And yet if no test can be given, how can the question be regarded as one of law? If probaWe cause is a question of law, then the courts are in a position to state as rules of law what facts will justify one man in believing another to be guilty of a crime. A formulation of these rules will very materially lighten the labor of the advocate in criminal cases, much of whose argument is often 1 120 N. Y. 223. KEGOYERY OF jrONEY PAID UNDER MISTAKE. Ill addressed to the question of whether fact X establishes fact Y. Xo better statement showing the falhicy underlying the proposition that reasonable cause in malicious prosecution is a question of law has ever been made, than is found in the opinion of Lord Colonsay in Lister v. Ferryman. ^ Said his Lordship : — "I liave frequently had to deal with cases of this kind on the other end of the island; but there this question of want of rea- sonable and probable cause is treated as an inference in fact to be deducted by the jury from the whole circumstances of the case, in like manner as the question of malice is left to the jury. If I had tried the case there, I should have left this matter to the jury; and if the jury had found a verdict for the defendant, I should have approved of that verdict for reasons I am about to explain. If, on the other hand, the jury had found for the plain- tiff, still being a matter so much in the province of the jury, and as it could not be said that they had gone decidedly wrong and con- trary' to evidence, I should have held that it was not a case for the court to interfere. But in England it is settled law that this is a matter for the court to deal with. The court deals with it as an inference to be drawn by tlie court from the facts, but whether an inference of law or an inference of fact, does not, I think, appear from the reports. I do not clearly see whether it is called an inference of law merely because it is left to the court, or whether.it is left to the court because it is really an inference of law. . . . ••• Finding that I had to deal with this as a matter of inference in law, I was desirous to ascertain what are the rules or principles of law by which the court ought to be guided in drawing that infer- ence. I did not find that there were any. Neither in the very able argument heard from the bar, nor in the judgment set out in these papers, nor in the cases that have been referred to, are any such rules or principles enunciated. I think it is laid down by the learned Lord Chief Baron, that it is a mere question of opinion depending entirely on the view that the judges may happen to take of the circumstances of each particular case. And upon a careful consideration of the decisions it seems to me impossible 1 L. R. 4 H. L. .521, 538, 540. 112 THE LAW OF QUASI-CONTJRACTS. to deduce any facts and definite principle to guide and assist the judge in any case that may come before him. Chief Justice Tindal's rule seems almost the only one that can be resorted to, — that there must have existed a state of circumstances upon which a reasonable and discreet person would have acted. Now in the system to which 1 have already alluded, it is thought that twelve reasonable and discreet men (as jurors are supposed to be) can judge of that matter for themselves, and that law3'ers are not the only class of persons competent to determine whether the infor- mation was such as a reasonable and discreet man should have acted upon. For what is it that a judge would have to determine? He would have to determine whether the circumstances war- ranted a reasonable and discreet man to deal with the matter; that is to say, not what impression the circumstances would have made upon his own mind, he being a lawyer, but what impression they ought to have made on the mind of another person, probably not a lawyer." (The question of the ri^lit to ^ recover money paid und er mis- take usually arises, 1. Where the money was paid under a mistake as to the creatio n, existence, or extent of an obligation. 2. Where the money was paid in the purchase of property to wh ich the defendant had no title. 3. Where the money was paid in the purchase of a non- existing thing . \ .^;'!-ff!;if,t± (The failure of consideration caused by the plaintiff' s mis- Sfrightt _take may consist in a failure to obtain contrac t rights~m ^exchange tor tne money paid by him. -^ Thus, in Martin~in "Sitwell,' the piamtitf, tlnnkmg that he had goods "on board a certain vessel, obtained from the defendant a policy of msurance covering said goods, paying him a premium of =£5 therefor. It appearing that the plaintiff in fact had no goods on board the vessel, and that the policy was there- fore void, the plaintiff was allowed to recover the premium as paid on failure of consideration. So in Feise v. Parkinson ^ where the defendant had avoided a contract of insurance 1 1 Show. 156. 2 4 Taunt. 640. RECOVEKY OF JIOXEY PAID TINDER MISTAKE. 113 because of misrepreseutcation, tlie plaintiff was nevertheless allowed to recover the premium paid by him, the misrepre- sentation having been made in consequence of a mistake of fact. On this principle it was held in ilcDonald v. Lynch i that the plaintiff could recover money paid in the belief that a contract had been created between the defendant and him- self for the purchase and sale of land, when in fact there was no contract because of a mutual misunderstanding as to a material term. The principle of the right of a plaintiff to recover money paid for a contract right which he failed to acquire, seems to have been overlooked entirely in Higgs v. Scott.- In that case the plaintiff took a lease of premises from the defendant. After the execution of the lease the defendant mortgaged the property. The mortgagee, the defendant being in default, notified the plaintiff not to pay any further rent to the defendant. He did, however, make a payment of rent to the defendant through one Hodgkinson, professing to represent the defendant. Subsequently being compelled to pay to the mortgagee tlie rent which he had previously paid to the de- fendant, he brought an action to recover the rent so paid. His declaration contained two counts, one a count upon an indemnity given by Hodgkinson in the defendant's name; the seoond-the count for money had and received. The plaintiff having introduced no evidence showing Hodgkinson's authority to make such contract, the court refused to allow the introduction of evidence showing that Hodgkinson entered in terms into a contract of indemnity on behalf of the defend- ant. The court also refused to allow a recovery on the count for money had and received for the reason that the money was paid with a knowledge of all the facts. That the plaintiff could not recover on the contract of indemnity without prov- ing that Hodgkinson had in fact authority to bind the 1 59 Mo. 350. 2 7 C. B. 63. 114 THE LAW OF QUASI-CONTRACTS. defendant by a contract of indemnity or that the defendant was estopped -from denying want of authority, does not admit of question. But it would seem that the evidence should have been received had it been offered not for the purpose of establishing the contract of indemnity, but for the purpose of showing that the plaintiff did not pay his money with knowledge of all the facts ; and that the money was paid not simply to discharge an obligation due from himself as tenant to the defendant as landlord, but in exchange for what he supposed was a contract binding the defendant to return the money in the event of the facts establishing that the person claiming to be mortgagee was in fact entitled to the rent. Had the evidence been received, it would have appeared that the plaintiff did not get the equivalent for whicli he stipulated at the time he paid his money. The defendant had no right to the money as landlord, and while the plaintiff could not recover on the contract of indemnity, because of the absence of authority on the part of the agent to make such a contract, yet, the evidence would have established that he did not occupy the position of one paying as volunteer, knowing all the facts, but that he in fact paid it under mistake, leading to a failure of consideration, and that therefore the defendant should be compelled to refund to the plaintiff that which he had received. That such a result is the only equitable result to reach seems self-evident. The only suggestion that occurs to the writer which might apparently justify any other result is the rule in agency that one dealing with an agent must at his peril ascertain the extend of the agent's authority. But it is submitted that the meaning of this rule is simply that as between the plaintiff and the defendant, two innocent parties, there is no reason why the plaintiff, who takes it upon him- self to contract with the defendant through the defendant's agent, should throw upon the defendant a loss consequent upon an unauthorized act of the agent. One being under no oblio-a- tion to contract, if he seeks to acquire rights against another RKCOVEKY OK .MOXKV PAID U.XDEU MISTAKE. 115 tlirough an agent, nmst ascertain the extent of the agent's anthority. If a plaintiff is allowed to enforce against a°prin- cipal a claim to which the agent had no authority to bind the principal, then the court enables the plaintiff to throw a loss upon the defendant, in a ease where one of two innocent parties must suffer. But to say that a third party shall not as between himself and the defendant throw a loss upon the defendant, where an agent has exceeded his authority, does not authorize the conclusion that because the plaintiff did not ascertain the extent of the agent's authority, the defendant shall be allow-ed to enrich himself at the plaintiff's expense. It may be suggested that if one dealing with an agent who has exceeded his authority is to be given rights against the principal, it matters little whether you allow an action ujion the contract made by the agent or allow an action in quasi- contract. But the case of Higgs r. Scott brings out in a forcible manner the importance of distinguishing between the two rights. If, in a case like Higgs v. Scott, it should be held that the plaintiff is entitled to recover on the contract itself, it would follow that the defendant should indemnify the plaintiff against any expense incurred by him in consequence of having paid the rent to the defendant, relying upon the contract of indemnity. On this theory the plaintiff would lie entitled to recover any expense incurred in litigating the question in dispute. On the other hand if the plaintiff is allowed to recover on the theory that it would result in an unjust enrichment of the defendant to allow him to retain that for which no equivalent was given, the plaintiff would be enti- tled only to restitution, and, if in fact the plaintiff has incurred expense, or suffered damage, restitution does not mean indem- nity. Tliis difference in results is well illustrated by the decision in Deery ;•. Hamilton.^ In that case an executor in excess of his authority had borrowed money from the defend- ant, giving him a note in terms binding the estate, and secur- 1 41 la. 16. 116 THE LAW OF QUASI-CONTRACTS. ing the payment thereof by mortgage of real estate belonging to the estate. A bill was filed by the parties claiming the property under the will asking that this mortgage be cancelled as a cloud upon title. It was held that as the executor had no authority to borrow money for the estate, the estate was not bound by the note and mortgage ; but, that since the estate had received the benefit of the money borrowed by the executor, it was only just that the estate should repay to the defendant the money borrowed. The note under which the defendant claimed called for 10% interest. The court decreed that the plaintiff as a condition of getting the relief should pay to the defendant the principal, but with interest at the rate of 6% only, that being the rate of interest pre- vailing where no rate was specified. Beck, J., delivering the opinion of the court, said : — "This estate has received the benefit of the money which was advanced by defendant. It ought in good conscience to repay it with legal interest. This is not required because of the contract under which tlie money was borrowed, which is invalid, but on the ground that the estate has had the benefit of the money received from the defendant; therefore the interest to be paid defendant must be six per cent per annum, and not ten per cent as agreed by the executrix." In Kilgour v. Pinlyson,^ the plaintiff having failed to recover against the defendant, an ostensible endorser of a bill of exchange, attempted to recover on the count for money had and received. The facts were, that the defen- dan|g, formerly engaged in a copartnership, had dissolved the copartnership and authorized one of the partners, Thomas Pinlyson, to receive and discharge all the debts due to the copartnership. The plaintiff discounted a bill drawn in the name and payable to the late copai'tnership, on the endorse- ment thereof in the firm name by Finlyson, giving to Finlyson his note for the amount of the bill less the discount. This 1 1 H. Bl. 155. KECOVEKY UF MOXF.Y I'AID UNDER .MISTAKE. 117 note Finlyson Imd discounted by Sterling, Douglas, & Co. He then paid back to Sterling, Douglas, & Co. the amount so received in part payment of a debt due to Sterling, Douglas, c^- Co. from the copartnership. It having been held that the plaintiff could not recover upon the endorsement, for the rea- son that Finlyson had no authority to bind the firm by such endorsement, the plaintiff sought to recover in the count for money paid to the use of the firm, treating the monev, which ■was the proceeds of the discount of the note given by plain- tiff', as money paid by plaintiff to the creditor of the firm. It was held by the court that the money could not be followed through all the applications made of it l>y Finlyson, and the plaintiff' was therefore defeated. If the money did not in fact become the money of the firm, but was used by Finlyson in paying the debts of the firm, it would seem that it would not liave been an undue extension of the count for money paid to the use of the defendant, to have allowed the plaintiff to have recovered in that form of action. Whether the plaintiff' should have been allowed to recover on the count for money had and received, would seem to depend upon whether it can be said, not that the firm received the benefit of the plaintiff's money in consequence of the use made of it by Finlyson, but whether the money when received by Finlyson, should be treated as received by the firm. If the money was received by the firm, then the plaintiff should be allowed to recover, since, in such a case, the defendant has not only had tlie benefit of, but has actually had, the money which was given by the plaintiff, without the equivalent which lie sup- posed he was receiving in exchange therefor. The ])laintift" discounted the bill of exchange drawn by Finlyson on the theory that he was receiving in exchange for his note, not the obligation of Finlyson, but an obligation of the firm, in consequence of wliich he regarded himself as amply secured in the event of the bill not being paid by the drawee. The plaintiff, having given his note without receiving the expected 118 THE LAW OF QUASI-COXTRAOTS. equivalent, could, it seems, on tendei'ing back the bill to Finlyson, have demanded a return of his note ; and this right to demand the return of the note would, in equity, have consti- tuted Finlyson a constructive trustee thereof for the plaintiff. Finlyson being' a constructive trustee of the note for the plaintiff, the plaintiff would have had a right to demand of him the proceeds of the note arising from the discount thereof, and could have maintained against Finlyson an action for money had and received to enforce that obligation. In McCulloch v. Royal Exchange Assurance Company,^ the plaintiff, who had insured a vessel under the mistaken supposition that he was the owner thereof, when in fact the title thereto was in another, sought to recover the premiums paid for said insurance. The action was not brought by him until after the vessel had completed the voyage mentioned in the policy of insurance. It was held that after the comple- tion of the voyage it was too late for him to say that he liad no insurable interest. If this case is to be supported it must be supported on the short ground suggested by the court, that to allow a recovery of premiums paid for insur- ance after the safe arrival of a vessel " would place nnder- wi-iters in a very awkward situation." Clearly, as between the plaintiff and the defendant, there was an absolute failure of consideration. Had the vessel been in fact lost, the defend- ant would have had a perfect defence to any action on the policy, namel\', that the vessel was not the property of the plaintiff; and had the defendant paid the amount of the ])olicy in ignorance of this fact, he could, on the discovery of the fact, have recovered the money as paid under mistake. And, to the writer, the policy of saying that although the defendant has not shown any change of position which will involve him in a loss should he be compelled to pay the plain- tiff, he may nevertheless withhold from the plaintiff that for which he gave the plaintiff no equivalent, is at least questionable. 1 3 Camp. 406. EECOVEKY OF MONEY TAID UNDEE MISTAKE. 119 The failu re of eonsideration eoiisequciit upon mistake may Recovery of arise from the payment of money in cxtinonishmeiit of a ird'e? mu^ke supposed obligation Nyhicli did not in fact exist, or from the e«ce"of ar''" payment of a sum in exeess of the amount actually due. A "'^''S'ltion. In Milnes v. Duncan,^ the defendant, an endorsee, who had failed to present a bill of exchange, of \yhicli the jjlaintiff Ayas an endorser, for iniymeut at maturity, demanded pay- ment of the plaintiff for the amount thereof, on the ground that the bill was a foreign bill, and not being properly stamped, was yoid. The plaintiff, supposing the bill to be a foreign bill, paid the defendant the amount thereof. In fact the bill was a domestic bill, and was therefore perfectly valid. The mistake made by the plaintiff, in which the defendant shared, was due to the illegibility of the writing- indicating the place at which the bill was drawn. It was held that the plaintiff' was entitled to recover the money so paid. In Mills V. The Alderbury Union,^ the plaintiff, who had become a surety for one Brodie, paid to the defendant a sum of money to make good a deficit, supposing that Brodie had received in person certain funds, when in fact they had been received, not by Brodie, but by a firm of which Brodie was a member. The court held that in these circumstances he was under no obligation to make gnud the deficit, and allowed him to recover the money so paid. On this principle the plaintiff, in Hazard v. The Franklin Fire Insurance Company,^ who liad paid assessments after he had assigned the property insured, in violation of a clause of the policy of insurance, was allowed to recover the assess- ments so paid. In ^ [ayer v. Xew York,^ the plaintiff, who owned lot 28, and received a notice of assessment against lot 21, was allowed to recover tlie taxes paid by him upon lot 27, 1 6 B. & C. 071. = o Ex. .wo. 8 7 R. I. 429. * 63 X. Y. l-'i.j. 120 THE LAW OF QUASI-CONTRACTS. supposing the assessment to have been made upon lot 28. In Talbot V. The National Bank of the Commonwealth,^ the plain- tiff, an endorser of a note, was allowed to recover money paid by him under the mistaken belief that the note had been duly presented for payment. In Bostock V. Jardine,^ the defendant, who had been au- thorized by the plaintiff to purchase for him fifty bales of cotton, purchased three hundred bales in his own name, the fact being that he represented, not only the plaintiff, but other principals. He then informed the plaintiff that he had purchased the fifty bales, and the plaintiff thereupon paid him the purchase price for that number of bales of cotton. It was held that the money so paid could be re- covered, since the money was paid by the plaintiff in the belief that the purchase made for him was a single pur- chase, and not a part of a purchase made for others, and as a consequence there did not exist a contract which the plain- tiff had authorized to be made, and which he supposed had been made when he made the payment. Mistake result- C ^Although the plaintiff was, in fact, under an obligation to p"a^-ment. '"'"' the defendant, he may have made a payment in excess of th e amount due. A plaintiff may seek a recovery as for an overpayment made under mistake, where ^lie mistake was as ^o me amount require d to be paid by the contract under which the payment was made ; or where, though the payment called for by the contract is the am ount paid, the contract itself was based on mistake. ^ The mistake as to the payment required under a contract may arise from a mistake as to the terms of the contract itself or from facts extrinsic to the contract, but involved in its performance. In either case if the mistake is not one of law, and the consideration is divisible, the plaintiff can, where it is against conscience for the defendant to retain the money 1 129 Mass. 67. ^ B H. k C. 700. EECOVEKY OF MONEY PAID UNDER MISTAKE. I'Jl SO paid, recover the overpayment. As, for example, where goods are sold by weight i or measurement,''' and owing to a mistake in weight or measurement the plaintiff pays for a quantity in excess of that received by him, the money so paid can be recovered. So where an overpayment is made because of a mistake in an account rendered,^ the overpayment can be recovered. 80 also an overpayment made under mistake as to the contract price can be recovered. Thus in Holtz v. Schmidt.-i the plaintiff, who purchased goods from the defend- ant, under a contract by which tlie defendant agreed to sell him the goods at as Ioay a price as he sold to any one else, and who paid the price asked by the defendant, supposing that no one purchased at a lower price, when in fact the defendant was selling to other parties at a price below that which the plaintiff paid, was allowed to recover the differ- ence between what he paid and what was in fact paid by other parties. / Jn the cases of overpayment heretofore considered, the mis- take has been as to the amount called for by the contract under which the payment was made. But the payment made may be due under the contract, th e contract itself, however, being based on mistake, and the fact being that but for the mistake the plainti ff would not have agreed to pay the sum in question. Can there in such a case be a recovery as of money paid under m istake? The contract under which the payment was made may have been oral or may have been in writing, and if in writing, a simple contract or a contract under seal. The mistake may have been a mistak'e made by the plaintiff alone, witliout any fault on the part of the defendant, or a mistake to which the defendant in some way contributed ; or 1 Devaux v. Conolly, 8 C. B. ^ Townsend^)'. Crowdy, 8 C. B. 6-tO; Billings v. McCoy, 5 Neb. 187; n. s. 477; Stuart v. Sears, 119 Mass. Calkins v. Griswold, 11 Hun, 208; 143. Noyes v. Parker, 64 Vt. 379. ' 59 N. Y. 2.53; see also Worley 2 Devine ..-. Edwards, 101 111. v. Moore, 97 Ind. 1.5. 138. 122 THE LAW OF QUASI-CONTRACTS. When mutu- ality of mis- take is neces- sary in case of over-payment the mistake may have been mutual, the plaintiff and the defendant both sharing therein. Where a payment is made i" ayp.pss nf the fimnnnt due under the terms of a contract. , thp nmnnnt so naid (inn bp i— recovered, e ven though the mistake was n ot mutual, for if the defendant knew that be was not entitled tliereto, and that the, plaintiff was paying under mistake, he is o|ni1t^ of fraud in. or if he received tlie money, knowing receiving the money ; that he wa s not entitled thereto, but sup posing that the plain- _ tiff intended to make a gift thereof, then it is plamly ineaui--. table and against conscience for him to retain tlie m oney after being informed that the money was paid under mistake.^] f If, however, the payment was due upder the terms o f the _ contract, but a recovery is sougTiF as for because the contract was made under mistake, the plaintiff, if he does not establish a mutual mistake, must show that the mistake was made in circumstances entitling him to a reforma- Relief in equity in case of over- payment. tion or I'escission of the contract in equity, an d that with the contract reformed or rescinded, the money claimed by him sliould in equity and conscience be refunded to hira.^ M-ny other conclusion would lead, to tins anomaJous result: mat a plaintiff who in malting the payment only performed a con- tract, from the performance of which he would not have been relieved in equity, can recover money so paid, as received or retained inequitably, and against conscience. Since equity will not rescind a contract because of a mis- take made by the plaintiff, to which the defendant has in no way contributed, money paid under such a contract cannot be recovered as for an overpayment. If, htpwever, the contract is one which a court of equity would reform or rescind because of mutual mistake, or would rescind because, while only the plaintiff acted under mistake, the de- fendant either acted fraudulently, or by his conduct contributed to the mistake, the plaintiff is clearly entitled to relief. Can 1 Norton v. Bohart, 105 Mo. 615. KECOVERY OF MONEY l-AIU UXDEl! MISTAKE. ll^S he, liowever, be given relief at law ? This question was con- sidered in Sheffield v. Hamlin,' and a recovery was allowed at law in the following circumstances : The plaintiff and the defendant orally contracted for the sale, by the defendant to the plaintiff, of certain property, both parties supposing that a price named in an inventory, which had been made by a third party, represented the cash value of the property, Avhen in fact it was in excess thereof. It was objected that the plaintiff's only remedy was to file a bill in equity, and that he could not maintain the action for money had and re - ceived, to recover money paid in excess of the cash value. It was held, however, that the count for money had and received would lie. ••We think." said Smith, J., '•that view of tlie case is erro- neous; the contract being in parol and not in writing, an action to reform it is neither neees.-^avy nor proper. In a case of mistake in a written contract the nect-ssity for reforming the contract before seeking to enforce it according t.i the intent of the parties arises from the rule of evidence that tlie written paper is to be treated 35 a full and correct expression of the intent, and it cannot be varied bv parol ; but where the contract rests in parol the intent of the parties may l>e shown by oral pronf, and when the intent is ascertained it i> to control." From the paragraph just quoted, it is evident that the court was of the opinion that, had the contract been in writing, the plaintiff's remedy would liave been in equity and not at law. ^ It is respectfully submitted that there is no necessity for a ; partv resorting to a court of equity for relief even where the j contract is in writing. The plaintiff is not attempting to vary the terms of a written instrument. Were this his position, .' his contention would be that he never made the contract' as claimed by the defendant; whereas, he in fact admits that the contract was performed by him as made, but that Ijecause tlie contract was made under mistake, in circum- stances which would have entitled him to a reformation or 1 26 Hun, L'oT. 124 THE LAW OF QTTASI-CONTEACTS. rescission thei-eof, it is inequitable for the defendant to retain the overpayment. The question being purely an equitable one, the count for money had and received being allowed only on equitable principles, why should a court of law not deal with the question, if in equity the relief, which the plaintiff seeks in the count for money had and received, would be the ultimate relief granted him without any further act on his part ? ^ In jurisdictions where equitable defences are allowed at law, a defendant would be allowed, where the mistake would in equity allow him to defeat a recovery by the plaintiff, to plead the mistake as a defence at law in an action brought for a breach of contract. Why then should not a court which, through the count for money had and received, has taken jurisdiction of equitable principles without the aid of legislation, deal with mistake in the same way when the question is raised in an action for money had and received, in a case where the relief which the plaintiff seeks is what a court of equity would give him on the facts as they are established at law ? CT^istoirtt' Where a recovery is sought as for an overpayment of money of an over- under mistake, the failure of consideration is of course onlv payment, con- ' sideration must partial, else a recovery of the entire amovmt paid would be be apportion- /^ ^''i^' sought. ( In the event of th e failure of consideration being par- tial only, there ca n be no recovery of an overpayment, unless the consideration is divisible.''' \Thus, in Kand v. Webber'' it was held that there could be no recovery in a court of law in a count for money had and received as for an overpayment where land was sold for a gross sum, the plaintiff supposing that a parcel of about ten acres was included in the convey- ance, when in fact that parcel was omitted by the fraud or mistake of the defendant. 1 See, however, Howes !'. Bavkev, Q. B. 323 {semhle)\ Rand v. Web- 3 Johns. 506; Paine v. Upton, 87 ber, 64 Me. 191. N. Y. 306. 3 6-1 .Me. 191. " Mayor v. Lancashire, 60 L. J. KECOVKRY OF MONEY PAID UNDER MISTAKE. 125 In Goodspecd c. Puller,i where the defendaul; contracted to convey to the plaintiti' two lots of land, each for a specified price, and only one lot was conveyed, it was held that the consideration being apportionable or divisible, there being in substance two bargains in one transaction, each lot being sold for a stated price, and the sale of the one not depending upon the sale of the other, that the plaintiff could recover in an action for money had and received, the amount which he had paid to the defendant in excess of that to which he was entitled for the lot conveyed.^ When money has been paid in the purchase of property to feecovei-r of which the defendant had no title, the plaintiff supposing him CXYnfe me to be the owner thereof, the plaintiff may have purchased ~ ^ ° ' '^ - under the belief that the defendant warranted his title thereto, or may have known that the defendant intended to do no more than to transfer such interest in the property as he might have, the plaintiff and not the defendant assuming the risk as to the title. The de cisions would seem to authorize the statement that Plaintiff mn-t ^ prove a war- a pla intiff cannot recover purchase-money because of a failure lanty of tiiie. of title, unless the facts establish his right to sue for a breach of warranty. -^ ^ It is true that in an exceptional case facts might exist which would establish the plaintiff's right to recover as for a failure of consideration where an action for a breach of warranty could not be maintained, yet in such cases the facts would probably always warrant the inference of a con- tract implied in fact to repay the purchase-money in the event of a failure of title. While the plaintiff could recover in the count for money had and received, he would really recover in that count for the reason that it was the under- standing of the parties that the money should be repaid in 1 46 Me. 141. See also Murdock bilityoi- apportionment of considera- V. Gilchrist, r,-2 X. Y. 242. tion, infra, p. 306. 2 .See further, as to the divisi- ' This statement i.s made subject to the limitation stated on p. 12a. 126 THE LAW OF QUASI-CONTRACTS. the event of a failure or want of title. In Morley v. Atten- borough,^ where it was held that there could be no recoveiy of money paid for property to which the defendant had no title, the distinction was taken by Parke, B., who said : " It may be that though there is no implied warranty of title, so that the vendor would not be liable for a breach of it to unliqui- dated damages, yet the purchaser may recover back the purchase- money as on a consideration that failed, if it could be shown that it was the understanding of both parties that the bargain should be put an end to if the purchaser should not have a good title. But if there was no implied warranty of title, some circumstances must be shown to enable the plaintiff to recover for money had and received. This case was not made at the trial, and the only question is whether there is an implied warranty." The suggestion of the learned baron indicates the practical difference between recognizing the right of a party to sue for a breach of warranty and to sue simply as for a failure of con- sideration. If the defendant has in fact given a warranty and there has been a breach thereof, he must pay the plaintiff not simply the amount of money which he received from the plain- tiff at the time of the sale, but must indemnify the plaintiff against any damage which can be approximately traced to his breach of warranty. Thus on the theory of a warranty the plaintiff would be entitled to recover from the defendant, in addition to the purchase-money paid by him, all expenses incurred in an attempt to defend his title to the property against a successful claimant. But on the theory of failure of consideration the plaintiff would be entitled to recover not the expenses which he had incurred in consequence of his failure to obtain a title to the property which he purchased from the defendant, but simply the amount of money which he paid the defendant for such property. In cases where the defendant cannot be regarded as war- ranting his title, or stipulating that the money shall be re- • 3 Ex. 500. EECOVERY OF MONEY PAID rXDEE iMIST.VKE. V^l covered as paid on a failure of consideration in the event of a failure of title, the fact that the plaintiff regarded the defendant as selling not a cliance, but title, Avith a warranty, is immaterial. In such a case the money paid by the plaintiff is paid either in performance of a contract or in compliance with certain negotiations resulting in the sale; and since a contract rests not on abstract intention, but on intention as expressed between the parties, the plaintiff to recover must show that according to the expressed intention of the parties the money paid by him was paid under mistake. If, according to the terms of the contract, the defendant would have had a ridit to demand payment of the plaintiff, then clearly the plaintiff sliuuld not have a right to recover tlie money so paid. And, if the contract as expressed between the parties does not authorize the construction that the plaintiff was in fact pur- chasing a title, or the property with a warranty, to allow the plaintiff to show that he in fact thought he was so doing, would be to hold that a contract depends for its existence not upon the expressed but upon the abstract intention of the parties. To allow the plaintiff to recover because of the mistake based upon his abstract intention, would be to allow liim to contra- dict either the terms of an offer made by him and accepted by the defendant, or to show that what in form was an acceptance of an offer made to him by the defendant was not so in fact because of an unexpressed intention on his part. Wliile in the case of mistake the law will always, where it does not contradict the terms of a contract made between the parties, allow proof of abstract intention for the purpose of showing that a payment which was not in fact due was not intended as a gift ; yet proof of abstract intention should never be allowed to vary the terms of a contract between the parties for the purpose of allowing a recovery of money paid under mistake, where such proof would not be allowed for the purpose of resisting payment on either legal or equitable grounds. 128 THE LAW OF QUASI-CONTKACTS. In accordance with these principles it is held that the rights of a party wlio has purchased real estate, and whoJaas_accepited a dee d of conveyance thereoL are determined by the deed, and if the deed contains no covenants giving him a riglit of action, the plaintiff in the event of failure of title is remediless unless the facts are such as to entitle him to have the deed rescinded or reformed in equity.-' The proposition just stated is, it seems, subject to the limi- tation, that if the title fails for want of authority in the defend- ant to act in the capacity in which he professed to act, the money paid can be recovered, notwithstanding the defendant executed a quit-claim deed only.^ On the same principle it would seem that, notwithstanding the absence of covenants in a deed, there can be a recovery of money paid for property to which the plaintiff does not obtain a title because the execution or process under which the property was sold was a nullity.^ Where, however, the plaintiff is entitled to call for a deed with warranty of title, he can in the event of a failure of title refuse to accept a deed, and recover the money paid under the contract.* And it is not necessary for the plaintiff in such a case to establish that the defendant's title is actually defective ; it is sufficient for him to show that there is a reasonable doubt suf- ficient to create a cloud upon title. ^ So if the interest in the real estate can be conveyed by parol, and is so conveyed, the court will look to the intention 1 Clare v. Lamb, L. R. 10 C. P. 280; Hoxter v. Poppleton, 9 Ore. 334; Soperu. Stevens, 14 Me. 133; 481. Phillips V. City of Hudson, 31 N. J. * .Tqhnson v. Johnson. 3 B. & P. L. 143(sem6/e); Whittemoie w. Far- 162: Phillips v. City of Hudson, 31 rington, 76 N. Y. 452. See, collect- N. J. L. 143; Chapman v. City of ing cases, Rawle, Covenants for Brooklyn, 40 N. Y. 372. Title, 5 Ed. 321. 5 Moore v. Williams, 115 N. Y. 2 Earle v. Bickford, 6 Allen, 549. 586. 8 Sohwinger v. Hickok, 53 N. Y. KECOVERY OF MO.NEY PAID fXDEE MISTAKE. 129 of the parties, and if the intention warrants it, will allow a recovery where the s-endor had no title. Thus, in Cripug v. Eeade,! the plaintiff who purchased from the defendant a leasehold interest, to which the defendant had no title, incon- sequence of a mistake in the letters of administration which had been granted to him, was allowed to recover the money so paid, the transfer having been made by parol. The princij)le that there can be no recovery of money paid for property, to which the defendant had no title, unless the defendant can be regarded as contracting to transfer, not liis interest, but the title to the property, is well illustrated by the case of M orlev v. Attenborough.^ In that case the plain- tiff bought at an auction sale of unredeemed goods, pledged to a pawnbroker, property which he was afterwards compelled to restore to the true owner, the party pledging the goods to the pawnbroker having wrongfully converted them. It was held that there could be no recovery of the money so paid, since the vendor could not be regarded as selling any- thing more than the right which lie himself had to the pledge. If the facts had warranted the inference that the vendor was selling, not simply his right to the goods, but a title thereto, then the plaintiff would have been entitled to recover.^ -"^iiice. however, the obligation of the defendant to refund the When plaintiff ... J, . . , mistaken as to purchase-money rests upon the pnnciple ot unjust enrichment, title must make „„ .' ,11 1 , .1 1 restitufion. the plamtiff will not be allowed to recover the purchase-money when the result of the recovery would be an unjust enrichment of the plaintiff at the defendant's expense. Accordingly, a plaintiff will not be allowed, where the true owner has not asserted his right to the property, to retain possession of the property, and at the same time to recover the purchase-money.* 1 6 T. R. 606. '' Steele u. Sanchez, 80 Iowa, 507; 2 .3 j;x. 500. Coolidge v. Brigham, 1 Met. 547 ; » EichhoJz V. Bannister, 17 C. B. Moyer v. Shoemaker, 5 Barb. 319. N. s. 703 ; see also Benjamin on Sales, Bennett's Notes, 614. 9 130 . THE LAW OF QUASI-CONTfiACTS. If, however, the retention of the property will not enrich the plaintiff at the defendant's expense, then the property need not be returned as a condition of recovering the purchase- money. For this reason it was held in Phillips v. O'Neal ^ that the defendant who purchased under mistake his own land from the plaintiff in possession need not return the same as a con- dition of defeating an action for the recovery of the purchase- money. Where failure Whcrc the failure of title is only partial, there can be no partial, c.ii'i- " recovery of the pur chase-money, unless the consideration Is sideratiDii must ' "TT^"^^ . , , ■ ■ . • be apportion- apportiouable.^ If, however, the consideration is apportion- able, a recovery p7'o tant o will be allowed where no injustice will resyilt therefrom .^ Mistake as to A plaintiff may claim a right to recover, as for a failure _of the subject- Consideration, money paid in the purchase of what has proved to, be a non-existing thing, he supposing the thing to be in existence when he paid the money of which a recoverj_Js sought. In this class of cases the material question is, what wa s the cont ract between the partifes ; upon what assumptio n was it based ? Was it the understanding of the parties that the plaintiff was buying, and the defendant selling, an existing thing ; or did the parties understand that it w^as simply the transfer of the right to the subject matter of the\sale, if such subject matter existed, the plaintiff taking his chances as to the existence or non-existeno^^'Wereof ? If it was the understanding of the parties that the plaintiff was purchasing an existing thing,_then the money pa id can be recovered. If the plaintiff was purchasing simply a chance, then it is the plaintiff's misiFortune that t he res did not exist, a nd there can be no recovery of the money paid by him. "In 1 87 Ga. 727. s Laflin w.iHowe, 112 111. 253. 2 Smart v. Gale, 62 N. H. 62. See also Wfight v. Dickinson, 67 See also Mauzy v. Hai'dy, 13 ^'^eb. Mich. 58/i./' 36. liECOVEKY OF .\10.\KY TAID UNDKU MISTAKE. 131 Strickland c. Turner i it was held that the plaintiff, who failed to acquire title to an annuity because oi the death of the annuitant, both parties supposing the annuitant to be alive, could recover the money so paid, since the contract presup- posed the existence of the annuity, and was a sale thereof. So in Gurney r. Womersley^ it was held that the plaintiff, who purchased a bill genuine only as to the endorsement thereon, could recover the money so paid. So iu Wood ;■. Sheldon 3 it was held that the plaintiff who had purchased from the defendant a script dividend certificate, which the courts had declared null and void, because of illegality in the issue thereof, conld recover the money so paid, since both parties thought the plaintiff was obtaining a valid obligation, whereas in fact what was passed to him was a nullity. So in Jones ('. Ryde^ a plaintiff who had purchased from tho defendant a naval bill, which, though it had a valid and legal inception, had ceased to exist, because of the fraudulent alteration thereof, was allowed to recover from the defendant to the extent that the defendant was unjustly enriched at the expense of the plaintiff. In that case the government, though under no obligation to pay, honored the bill, and in fact paid to the plaintiff' the amount for which the bill was originally issued. It was held that the plaintiff could recover fronr the defendant the difference between what he had paid to the defendant and what he had received from the govern- ment. So in Gompert z^ v. Bartlett^ the plaintiff, who had pur- chased from the defendant, without endorsement, a bill of excliange, apparently a foreign bill, and therefore not requir- ing a stamp, was allowed to recover the money paid therefor, the bill being in fact a domestic bill, and payment thereof being refused because the bill was not stamped. In Bree v. Holbech ^ the plaintiff purchased from the 1 7 Ex. 208. * 5 Taunt. 488. 2 4 E k)i. 13.3. 6 o E. & B. 849. " 42 N. .J. L. 421. 5 2 Doug. 6.54. 132 THE LAW OF QUASI-CONTRACTS. defendant what purported to be a note secured by a mortgage of real estate; both the note and mortgage were forgeries. The court treated the transaction as if it were a purchase by the plaintiff of real estate, and held that as the deed con- tained no covenants for title, there could be no recovery. It seems difHcult to reconcile this decision with the decision in Hitchcog k V. Giddings,! where it was held that a plaintiff could be relieved from the payment of a bond that had been given by him in the purchase of property, which the defendant professed to hold by way of remainder in fee, when in fact the defendant's interest had been destroyed by a recovery suffered by a tenant in tail. Richard, C. B., delivering the opinion of the court, said : — "Both parties at the time of the contract treated on the supposi- tion that a recovery had not then been suffered. The whole of the evidence shows that that was the object in contemplation of the purchaser. If no recoverj' had been then suffered, the defendant had a remainder; if there had, he had no sort of interest whatever. But they agreed for the sale of the remainder, subject to the subse- quent possible contingency of there being no recoverj' suffered. Kow, if a person sell any estate, having no interest in it at the time, and takes a bond for securing the payment of the purchase money, that is certainly a fraud, although both parties should be ignorant of it at the time; and that I believe to have been the case here. A contingency may certainly be sold on speculation, hut not such as was sold here. Two parties are not to be allowed to enter into an agreement to deceive each other. But there was not even a contingency sold here ; it was not selling an interest, sub- ject to a chance, for the defendant had no interest at all to which a chance could attach. "I am therefore clearly of opinion that this bond must he relieved against. Bonds are not conclusive, as has been said, though they may be used to show that the party had acted deliber- ately ; but wherever it can be made to appear that they were not fairly taken, or that the money was not satisfactorily due, courts of equity will order them to he cancelled; for they will not suffer a party to recover on a bond against which a defendant has no defence at law, 1 4 Price, 135. KECOVEEY OF MOXEY PAID UNDER MlaTAKIv 13;j although it were given without such a consideration as would entitle the plaintiff at law to receive the money, the payment of which it IS given to secure. That is undoubtedly the present case. And if more had been done here, — if the money had been paid into court, — the defendant would not have been permitted to take it out if the plaiutift' could have shown, as he does now, that at the time of the sale the defendant had no interest. "Then as to the money which has been already paid: the same equity which attaches to the bond must also attach to the interest which has been paid on it; for if an apj^lication for an injunction has been made immediately it must have been granted, and then no interest would have accrued." It does not seem to the writer that these two cases can be distinguished in principle. In both cases tlie parties had con- tracted on the supposition of the existence of an interest, which in the one case had never existed, and in the other case had ceased to exist. In each case the transaction had been completed in form by the execution of a conveyance. In neither case did the conveyance contain a covenant for title. It is true that in Hitchcock v. Giddings the plaintiff had not paid the purchase-money, but had only given his bond there- for. But if, because of the absence of the covenants in the deed, in the one case, the plaintiff had no equitable claim to the money paid by him, it is submitted that in the other case he had no equitable claim to the surrender of the bond. It would seem that in a case like Bree^v. Holbech the court should treat the purchase of a debt secured by mortgage, not as they would treat an ordinary purchase of real estate, but should consider the transaction as it is looked upon by the parties thereto. It is submitted that where a mortgage debt is sold it is looked upon as something quite distinct from the ownership of the land, the debt being the subject-matter of the sale, and the mortgage, which is regarded merely as giving a lien upon the land, rendering the purchase more desir- able because of the security afforded thereby. From this 134 THE LAW OF QUASI-CONTRACTS. point of view it is submitted, that the note and mortgage in Bree v. Holbech being forgeries, the sale should hare been treated as the sale of a non-existing thing, and not simply as a transaction in which one party purchased land from another by a deed containing no covenants. In McGoren v. Avery et al.,^ the plaintiff, who had purchased from the defendants, as executors of one Forster, a certificate which had been issued to Forster on an execution sale, was allowed to recover the money paid therefor, the fact being that the sale was conducted and the certificate issued under what purported to be a judgment in favor of Forster against one Burch, whose lands were the subject of the levy and sale, when, in fact, no such judgment had been obtained. In Martin v. McCorraiclc,^ the plaintiff, whose estate had been sold for a term of one hundred years for the non-pay- ment of taxes, but who had redeemed the same within the statutory period of time before the conveyance thereof to the defendant, purchased from the defendant what both the plaintiff and the defendant supposed to be a leasehold interest, which did not, however, in fact exist, because of the payment of the taxes by the plaintiff, as aforesaid. The plaintiff, at the time of purchase, was in possession of the premises, and the defendant held an instrument under the seal of the corporation of the city of New York purporting to give him a leasehold interest therein. It was held that the plaintiff could recover the money so paid. In Moore v. DesArts,^ the defendant sold to the plaintiff certain goods which he had imported, and on which he had paid the duties exacted by the collector of customs. The goods if subject to duty were entitled to a drawback if exported within three years, and were sold in the market at two prices, " a long price," which included the amount of the duties and gave the purchaser a right to the drawback, and " a short price," which 1 37 Mich. 120. « 1 N. Y. 359. 2 8 N. Y. 331. EECOVEEY OF MONET PAID UNDER MISTAKE. 135 left the right of drawback with the seller, the purchaser, however, oblig-ating himself to export the goods within the time necessary to enable the seller to receive the drawback from the government. The plaintiff purchased at the " long price." After his jiurchase, and while he was still the owner of the goods, the socretarv of the treasury declared that class of goods not to be subject to duty. As a consequence of this decision the market [irice of the goods was reduced by about the amount of the duties that had been exacted. The right of drawback which the plaintiff supposed he had purchased was by this decision lost. The defendant refused to assign to the plaintiff his right to collect the money which had been paid as a dutj' on the goods, and himself received that sum of money from the government. It was held that the plaintiff was not entitled to recover from the defendant any part of the purchase-money. Brouson, J., delivering the opinion of the court, said : — " Although there is a seeming equity in favor of the complain- ant, I have not been able to discover any principle upon which his claim can be supported. There was no warranty when the complain- ant purchased that the goods were dutiable, and no fraud of any kind is imputed t.i the defendant. So far as appears, the parties dealt upon equal terms, each knowing nil that was known by the other. As the government officers have decided both ways on the question whether the spelter was subject to duties, it may fairly be presumed that these merchants knew that was a debatable ques- tion; they knew that the decision which had been made by the collector might he overruled by the secretary of the tieasury, and the duties be refunded to the importer. "With this knowledge the deff-ndant sold and the complainant purchased the spelter, with a right to the drawback should that right ever become perfect. But there was no sale or purchase of the duties in case they should he refunded by the government on the ground that the goods were not dutiable. " At tlie time of the sale there were two contingen- cies in which tlie duties might be restored to the importer: he miffht receive them as a drawback on exporting tlie goods, or the money might be refunded on the ground that it was improperly 136 THE LA.W OF QUASI-CONTRACTS. demanded at the first. The complainant purchased the right to. the drawback; but he did not purchase the other right, and I do not see how we can give it to him without making a contract for the parties." It is submitted that the only ground upon which this deci- sion can be supported is, that the plaintiff made a mistake of law in supposing the goods to be subject to the payment of a duty. What the plaintiff in fact purchased was two distinct things ; the goods without the right of drawback had a cer- tain ascertained value ; the plaintiff, by paying the " long price," acquired title to the goods, and, as the plaintiff and the defendant supposed, the rights arising against the govern- ment from the exportation thereof. What he in fact got was the goods, but no right against the government. Although the defendant cannot be said technically to have collected from the government the drawback, because the drawback presupposed the goods to be subject to duty, arid its collection depended upon the exportation thereof, whereas the defen- dant's claim against the government presupposed the goods not to be subject to duty, and existed without regard to the disposition made of the goods ; yet, the fact is, that tlie defendant has received for the goods, by the amount of the duty paid by him, a sum in excess of what he would have received had the duty never been levied, or had he not sold the goods at the " long price." The plaintiff and the defendant intended that the right which the defendant had against the government in consequence of the payment of the duty should go with the goods to the plaintiff. It is true that because of the fact that both parties supposed that right to be a right of drawback no other right was thought of. It hardly seems probable that had the plaintiff exported the goods and collected the drawback before the goods were declared not to be subject to duty, that the defendant could have collected from the government the amount which had been paid by him to the collector of customs, since the gov- KECOVERY OF MONEY PAID UNDEK MISTAKK. l;!? ernmeut could say iu such a case that the mistake made by the plaintiff had not damaged him, because of the sale of the goods by him at the " long price." It seems equally improb- able that the defendant in such circumstances could have collected from the plaintiff the money which had been paid to him by the government as a drawback. Such a result would have involved no one in a loss. Why should an acci- dent enable the defendant to involve the plaintiff in a loss ? As the plaintiff and tiie defendant were equally innocent, no recovery should be allowed which would throw a loss upon the defendant, and, therefore, the plaintiff should not have been allowed to recover a sum which would have reduced the pnrchasc-price of the goods below the " short price," which the defendant could have obtained for the goods at the time he sold them to the plaintiff. In The Bank of England r. Tomkins,i where a plaintiff sought to recover from the defendant because of the pur- chase of a forged exchequer bill, the defendant contended that, granting the bill to be a forgery, still tlie plaintiff had no cause of action against him, for the reason that the exche- quer office was estopped from denying the genuineness of the bill. It was held, that as the bill was a forgery, the plaintiff was entitled to maintain his action, without regard to the question of estopjiel. Parke, Baron, delivering the opinion of the court, said : — "The defendant's argument is that the exchequer office is bound to pay the.se bills in their present state, — namel}-, good in three of the essential requisites, but bad in the fourth, as having a forged signature. Xuw that is a question which we are not at all called on to determine at present. Whenever it comes before the proper tribunal it will be decided; it is enough for us to say that the plaintiffs did not bargain for a bill imperfect in any respect, or which might be enforceable against the exchequer by petition of right or otherwise, but for a liill gnod in all respects, and which would at once be paid or exclianged in the usual course ' 6 Jur. 347. 138 THE LAW OF QTTASI-CONTKACTS. When a plain- tiff under mis- take as to the existence of tht res must make restitution. and practice of the office. Xow it is abundantly clear that this is not such a bill, that the plaintiffs have, therefore, not got what they bargained for, and are therefore entitled to be repaid their money." While at first blush the suggestion seems plausible, that an estoppel will put a party in as good a position as he would have occupied had the claim been genuine, still such is not the fact, unless the party against whom the estoppel exists recognizes the estoppel, and pays the claim as readily as he would have paid it had it been genuine. A result reached after litigation is not usually as beneficial to one as the same result reached without litigation. Therefore it cannot be said in The Bank of England v. Tomkins that the plaintiff did not suffer in consequence of the exchequer bill being a forgery. Furthermore it would seem that if an instrument is admitted to be in fact a forgery, a court should not in an action to recover the money paid for such instrument, on the basis of its being genuine, attempt to pass upon the question of estoppel, since no finding thereon would bind the third party, he not being a party to the action. Since in this class of cases, as in the cases where the defendant seeks a recovery of the purchase-money because of failure of title, the basis of the recovery is the unjust enrichment of the defendant, a plaintiff, if he has received anything of value from the defendant, must, as a condition of recovering the purchase-money or any part thereof, re- store to the defendant what he received, unless he is in a position, without fault on his part, where he is unable to make restitution, in which event he will be allowed to recover the amount paid to tlie defendant less the value of that received from hira.^ If the thing received by the plaintiff is of no possible value to the defendant, then it seems it need not be returned.^ 1 Lawton v. Howe, 14 Wis. 241. Wis. 266; Brewster v. Burnett, 125 '•^ Kent V. Bornstein, 12 Allen, Mass. 68. 342; Paul v. City of Kenosha, 22 KECOYEKY OF MONEY TAID IXHEK MISTAKE. 13'J T\> maintain an action for money paid under mistake, it is To maintain an not sufficient for a plaintiff to prove that he has conferred a inpneypaid, , J . I ll iiiimev or its benent upo n the defendant under mistake. It must appear equivalent . 1 1 L- T 1 n must have t hat the de ieudaiit has actually received money, or that which been received. t he part ies treated as money. ^j Thus it is not sufficient to maintain an action for money' paid under mistake, that the defendant received a credit in account to which he was not entitled.^ In Hendricks v. (xoodrich^ it appeared tliat the plain- tiff' had delivered to the defendant a horse of the value of $150 in settlement of his indebtedness to the defendant, supposing the amount thereof to be ¥l50. The amount of the indebtedness was in fact only $53, and this was known to the defendant, as was also the fact that the plaintiff supposed the indebtedness to be $150. The plaintiff on discovering his mistake brought an action to recover $100 as paid to the defendant under mistake. It was held that as the liorse was not received as money, the plaintiff was not entitled to recover. In'Standish V. Ross.* it appeared that the plaintiff, who, as sheriff, had levied execution to satisfy a judgment obtained in favor of the defendant, had assigned the goods to the defendant by bill of sale, and had returned the execution as satisfied. It ■was held that though no money had in fact passed, the trans- action was the same as if the defendant had paid the amount of the judgment to the i)laintiff for the goods, and had then received the money as the amount realized on execution, and that the plaintiff was therefore entitled to recover in a count for money had and received. Assuming the mistake to be of a character otherwise suffi- cient to entitle the plaintiff to reoxer as for money paid under mistake, the question arises as to the necessity of 1 Lee .. Merrett. 8 Q. B. 820 ; = Lee -. Merrett 8 Q B 820; Brundage .. Port Chester. lO- X. Y. Brundage r. Village of Port Chester, 494 ; Hendricks v. Goodrich, 15 Wis. 102 X. Y. 494. RTfi.' See, however, Sinslar v. !\Iay, » 15 Wis. tiTO. SAVend. .561. «3Ex. .rJ,. 140 THE LAW OF QUASI-CONTRACTS. Necessity of de- fnotifying the defendant of the mistake or of making a as a condition demand upon him as a condition of hrinyint;- an action. This of maintaining , . ■ . an action. question may arise : 1. Where the money was paid and received under a mutual mistake, the defendant not knovying of the mistake at the time when the action was brought. 2. - Wliere although the plaintiff paid the money under mis-, take, the defendant knew at the time of payment that the money was not due and that the plaintiff was paying the same under a mistake. 3. "Where though the mistake was mutual at the time when the money was paid, the defendant has subsequently become aware thereof, though not notified by the plaintiff. } It must be remembered in considering this question that to render a defendant liable at law, it is necessary to show that he is a wrong-doer, that he has violated some right in rem or some right in personam of the plaintiff.' And especially must it be remembered that to render a defendant liable in the count for money had and received or in any corresponding form of action, it is necessary to show that the defendant has acted inequitably and against conscience.^ In considering the question as to the necessity of a demand or notice, it is necessary to determine the character of the defendant's act in receiving the money and retaining it. If it be assumed that the plaintiff paid, and the defendant received, the money under a mutual mistake, the defendant receiving only what the plaintiff intended to deliver to him, it seems impossible to predicate any wrong-doing in such receipt ; since what he received he received innocently and with the plaintiff's assent, accompanied by circumstances sufficient to confer the legal title thereto upon him.^ It would seem to be impossible to predicate wrong-doing ^ Holland, Jurisprudence, 5th ed. 2 Supra, p. 4-3. 128, 144. Markby, Elements of » Sujjra, p. 63. Law, 3 ed. 417. EECOVERY OF JIOXF-Y PAID UNDER MISTAKE. 141 either legally or equitabl}- on the part of the defendant in a defendant . . , , ignorant of mis- reccivmg innocently property, the title to which the plaintiff take is entitled intended to vest and did vest in him. If he did no wrong in receiving the property, it seems difficult to say "that he has become a wrong-doer in keeping that which he did no wrong in receiving, and which he has no reason to suppose he should not continue to hold. Surely he is doing nothing inequitable or against conscience in innocently taking with the consent of the plaintiff and in keeping, with his supposed consent, that which the plaintiff intended he should have. Accordingly it hasbeen held ,1 although tlieie is a-confliet of authority,- that a defend ant who iiinoceiitl} receives money paid b y plaintiff under mistake cannot lie sued tiierefor until he i s made aware by notice from tlie plaintiff or other wise of tlie fact of tlie payment having berii made under mistake. \ Til Free man c. Jeffries,^ one of the grounds upon which the decision in favor of the defendant was put, by three of the four judges, was, tliat no demand had been made upon the defendant, wlio had no notice of the mistake before action brought. Bramwell, B., who rested his decision solely on that ground, said: — •■But if tlie plaintiff were under tlie circumstances entitled to be repaid the sum lie claims, he ought to have given notice to the defendant of the facts by reason of which he was so entitled. because until he did so there could be no duty on the defendant to pay it over. Put the claim of this action, which is in the 1 Freeman ..•. Jeffries, L. R. -t Stocks o. City of Sheboygan, 42 Wis Ex. ISri; Worley t>. ^loore. 77 Ind. 315; Stebbins c. Union Pacific Rail- 567 ; Ford v. Brownell, 13 Minn, way Company, 2 Wy. 71 (^semble). 184; S oiUhwick I'. First Xational -Leather Manufacturers Bank Bank of Memphis, 84 X. Y. 420 r :\Ierchants Bank, 128 U. S. 26; (nemble); S harkey '• Mansfield, 90 Rutherford v. Molvor, 21 Ala 750 N. Y. 227 {aemhle); Bower v. Thomp- {semble) ; Sturgis v. Preston, 134 son, 19 X. Y. Supp. 503 (semble); Mass, 372; Beadenbaugh !>. Cowper, Gillett c. Brewster, 62 Vt. 312; 13 Rich. Law, 42. Lawton ,.. Howe, 14 Wis. 241; = L. R. 4 Ex. 189. 142 THE LAW OF QUASI-CONTRACTS. technical form of an action for money liad and received, in a rational way, and it amounts to this. The plaintiff says: 'I, in the belief that a certain valuation had been made, paid certain moneys to you; I have since found that the valuation was not made ; I therefore say there is a duty on j'our part to repay me. ' Would the duty of repayment arise until this notice was given ? I apprehend not; for at what other time could it have arisen ? Not at the moment when the money was paid; for it was paid with the intention that the defendant should keep it. "VYas it, then, at the moment when the mistake was discovered ? This would he most unjust; the mistake was the plaintiff's, and the discovery is the plaintiff's, and the defendant may still think that everything is right, and that no mistake at all was committed. Therefore un- til notice no dutjr would arise, and therefore no cause of action. . . . It is contended that no demand is necessary where there is already a cause of action. But this is begging the question; for the con- tention of the other side is, that there can be no cause of action til] demand." In Leather Manufacturers Bank v. Merchants Bank^ it was held however that where the drawee of a check pays money upon a forged endorsement, the drawee and tlie holder of the check both supposing the endorsement to be genuine, the cause of action to recover the money so paid arises immediately upon the receipt of the money by the defendant without demand by the plaintiff, although the defendant is ignorant of the mistake made by the plaintiff. After referring to the relative rights and duties of a bank and its depositor, Mr. Justice Gray, delivering the opinion of the court, said : — "But as between the bank and the person obtaining money on a forged check the case is quite different. The first step in bring- ing about the payment is the act of the holder of the check in assuming and representing himself to have a right, which he has not, to receive the money. One who by presenting forged paper to a bank procures the payment of the amount thereof to him, even if he makes no express warranty, in law, represents that the paper is genuine, and if the payment is made in ignorance of the forgery, 1 128 U. S. 26. RECOVERY OF MOXEY I'AID UNDER MISTAKE. 143 is liable to an action by the bank to recover bade the money which, in eqnity and good conscience,, lias never ceaoed to be it,^ property'. . . AVlierever money is paid npon the representation ci the receiver that he has either a certain title lo property transferred i. consid- eration of the payment, or a certain authority to receive ;bc money paid, when in fact he has no such title or authority, then although there be no fraud or intentional misreprcsontation on his part, yet there is no consideration for the payment, and the money remains m equity and good eojiscience the property of the payee, and may be recovered back by him without any previous demand as money had and received to his use. His right of action accrues, and the statute of limitation begins to run immediately upon the payment." It will be noticed that the language jnst qnotcd is confined in terms to cases where the defendant is regarded as mak- ing a representation, and therefore this case cannot be said to decide that no demand would be necessary in a case where the defendant could not be said to have made r.ny repre- sentation expressed or implied; and where without any representation on his part a sum of money has been paid to him by mistake, as for example a plaintifp believing himself to be indebted to the defendant in a certain sum of money tenders it to the defendant unsolicited, and the defendant receives it because of the plaintiff's statement that the amount in question is owing to him. Clearly in such a case the defendant could not be said to have made any repre- sentations, and therefore such a case would not be governed by the reasons given by the learned justice.^ ^ If the defendant in Leather intentional, misrepresentation. The ^Manufacturers Bank r. Merchants writer does not believe that the de- Bank is to be regarded as liable to fendant should be held liable on the plaintiff on the theory that he either theory. As a defendant would has made a representation to the be guilty of fraud who should pre- plaintiff, then he must be liable sent a check for payment knowing either because of a breach of war- that he had no title thereto because ranty or in an action on the ca.=!e in of a forgery, the inference woiild tort for the injury inflicted upon the seem to be a fair one, that he asserts plaintiff by his false, though un- his belief in his right to collect the 144 THE LAW OF QUASI-CONTKACTS. - Many of the cases cited by Mr. Justice Gray in support of the proposition that the cause of action arises immediately on the payment of money, notwithstanding a mutual mistake, it is submitted, do not fairly support the proposition in question. In favor of this proposition the court cited: Bree v. check. But it is submitted that the presentation of the check for pay- ment by the holder cannot be fairly regarded as a representation on his part of anything more than that he is acting in good faith, and believes the instrument to be genuine. In The Cor n Exchange Banlt v. The Nassau Bank, 91 N. Y. 74, the plaintiff sought to recover on the theory of an implied vfarranty from the defendant, to whom he had paid a sum of money under mistake as to the genuineness of the endorsement of a check held by the defendant, not only the amount so paid, but the expenses that he had incurred in defending an action by the drawer of the check to recover from him the amount of money which he claimed as a credit in his account with the drawer, because of his pay- ment to the defendant. This claim was not allowed, the court holding that the defendant's liability was not for a breach of warranty, but was simply an obligation arising from a failure of consideration. It is submitted that this decision is inconsistent with the reasoning of the court in Leather Manufacturers Bank v. The Merchants Bank, and is to be preferred thereto ; for while in The Corn Exchange Bank v. The Nassau Bank, the court distin- guished clearly between the attitude of a party selling a bill of exchange or check and the attitude of one presenting the same for payment, holding that there is a warranty in the former case but not in the hitter, Mr. Justice Gray, in the opinion just quoted, treats the two cases as analogous, saying: " Wherever money is paid upon the representation of the receiver that he has either a cer- tain title in property transferred in consideration of the payment, or a certain authority to receive the money paid, when in fact he has no such title or authority, then . . . there is no consideration for the payment, and the money . . may be recovered back by him without any previous demand as money had and received to his use." It is clear under the authorities that where there is a failure of title, the reason why the money paid by the purchaser can be recovered, is that there is either an expressed or an implied warranty of title , for in the absence thereof, the doctrine of caveat eviplor applies, and there can be no recovery, notwithstanding the failure of title; and when the learned justice treats the cases as analogous, as he does in the paragraph just quoted, he introduces the idea of a warranty of authority or title, and makes the breach of warranty and not mistake the basis of recovery. EECOVEKY OF MONEY PAID UNDER MISTxVKE. 145 Holbech, 2 Doug. 654; Utica Bank «. Van Gicson, 18 Johns. 4Sio; Dill ('. Inhabitants of Wareham, 7 Met. 438; Earle V. Bickford, G Allen, 549; Bletheu v. LoTering, 58 Me. 437; Shmris ('. Preston, 134 Mass. 37:2 ; Com Exchange Bank v. The Xassau Bank, 91 N. Y. 74 ; Bank of the United States i: Daniel, 12 Pet. 32. While it is true that it was held in Bree v. Holbech i that a claim was barred within six years aiter payment, the case was one in which the question of the necessity of a demand or notice before bringing an action was not raised by counsel. The case was presented to the court on a demurrer to a replication to a plea of statute of limitations. The plaintiff contended that the defendant in selling him a mortgage which was a forgery was guilty of fraud, and that in the case of concealed fraud the statute of limitations ran only from the time of the discovery thereof. The case therefore should not be cited to support a prop- osition which was not presented for the consideration of the court, and which, if it had been presented, for all that appears in the case, might have led to a different conclusion. In Utica Bank v. Van Gieson,^ the decision was rested by the court upon two grounds, first, that no demand or notice was necessary ; second, if notice was necessary, sufficient notice had been given. What the court said as to the neces- sity of a demand may, therefore, be characterized as purely obiter dictum with the same propriety as was the statement of the court in South wick v. First National Bank,^ as to the necessity of a demand characterized by Mr. Justice Gray. In each case the court might have reached the same conclusion without considering the question of de- mand. Still if it be assumed that the court decided in Utica Bank v. Van Gieson that no demand was necessary, it seems sufficient to say of the case that at the time it was » 2 Doug. 654. ' 84 N. Y., page 420. 2 18 Johns. 483. 10 146 THE LAW OF QUASI-CONTKACTS. cited in Leather Manufacturers Bank v. Merchants Bank it was not regarded as representing the law of New York, nor is it so regarded to-day.^ While it is true that in Bank of the United States v. Daniel 2 the court said, that "the cause of action arose at the time when the payment was made under mistake, " it is also true that the point was conceded by counsel for the defendant, who addressed himself solely to the question as to whether the facts would warrant the claim that the money had been paid at a certain time. In Dill V. Inhabitants of Wareham,^ the town of Wareham, which had contracted with the plaintiff for the transfer to him of certain rights in oyster beds, subsequently refused to allow the plaintiff to exercise the rights. The plaintiff brought an action against the town to recover damages for a breach of contract. The court held that as the town had no authority to transfer these rights there was no liability on the contract. The plaintiff also sued in a count for money had and received, and to support this count proved that he had deposited foOO with the defendant as security for the ' payment of oysters which he might take during the ensuing year; and it appearing that the defendant had refused to allow him to take any oysters, the court held that in conse- quence of the refusal on the part of the defendant to perform the contract there arose an immediate duty on its part to return the money intended simply as a security for the per- formance of the plaintiff's contract. It would seem that no other result could have been reached. The defendant, on its refusal to perform the contract, was plainly acting inequit- ably in retaining the money which it had received from the plaintiff as security for the performance by the plaintiff of his side of the contract. Since the only object of a demand on the part of the plaintiff would be to make the defendant's 1 See supra, p. 141, n. 1. a 7 Met. 438. 2 12 Pet. 32, 56. EECOVEKV OF .MONF.V PAID \NDEK MISTAKE. 147 retention of the monej- inequitable, sueh a demand was qui unneeessary, tlie defendant being already in the position of retaining money whieh in good conseienee it should have returned to the plaintiff. ^ The statement by Chief Justice Shaw that no special demand is necessary "where there is a debt, or duty to pay money presentl}', not dependent upon any conditions or contingency," it is submitted, cannot be quoted as authority for the proposition that money paid under mutual mistake can be recovered without demand, against the defendant, still ignorant of the mistake. The question in such a case is whether there is a duty to pay money presently "not dependent upon any conditions or contingency." In Earle i\ Bickford,^ the plaintiff sued to recover money which he had paid in the purchase of property from the defendant, which the defendant sold as an assignee in insol- vency of the owner thereof. Subsequent to the sale and re- ceipt of the money by the defendant, his appointment was set aside and another assignee appointed. It was held that the plaintiff could recover the money received by the defendant without first making a demand upon him. The court appar- ently put the case on the ground that he warranted his author- itv as assignee. If he did, there was clearly a breach of warranty, and no demand was necessary, the defendant being already in default as to his warranty. If, however, the case is to be regarded as resting not on a failure of consideration arising out of a breach of warranty, but as involving the question simply of money paid under mistake, still the decision is distinguishahle from The Leather Manufacturers Bank v. Merchants Bank, for the reason that the defend- ant, having received the money as assignee of property which, it had been held, the defendant had no authority to sell, was aware of the fact that he held money which the plaintiff had paid him without consideration under a 1 See infra, p. 152. = 6 Allen, 5t9. 148 THE LAW OF QUASI-CONTRACTS. mistake, and should therefore have returned the same im- mediately to the plaintiff without demand. The case of Blethen v. Lovering,i jt jg submitted, cannot be cited in support of the proposition that money paid under mistalie can be recovered without demand. In that case the plaintiff sought to recover from the defendant not only a sum of money which he had paid the defendant in exchange for a note endorsed by the defendant " without recourse, " but in addition thereto, the cost and expense attending his unsuccessful attempt to collect the same from the maker. The action was brought therefore not simply to recover money which had been paid under mistake, but to recover damages, and was an action, not for money had and received, but in special assumpsit for a breach of warranty. This is clear from the opinion of the court. Said Appleton, C. J. : "On the 14th of September, 1866, the plaintiffs brought this action on the groimd of an implied promise or warranty on the part of the defendant at the time of the transfer, that tlie amount purporting to be due, was due, when in truth nothing was due, the note having been given without consideration. ... If there was a promise or a warranty it was, according to the statement of facts, broken as soon as made. . . . The liability of the defend- ant accruing then, at the time of his endorsement, the statute of limitation constitutes a bar." The case of "rhe^Corn Exchange Bank v. The Nassau Bank ^ is also cited as authority for the proposition that no demand or notice is necessary as a condition of suing to recover money paid and received imder a mistake. Speaking of this case the court says : • — ■ " A bank which has paid a check upon a forged endorsement, supposed by both parties to be genuine, was held entitled to recover the money with interest from the time of payment, necessarily implying that the right of action accrued at that time." It is submitted that the case cannot he cited as an author- 1 58 Me. 437 ^ gj x. Y. 74. RECOVERY OF MONEY TATH UNDER MISTAKE. 149 ity for this proposition.! For all that appears a demand may have been made upon the defendant. In this case the plaintiff, the drawee of a cheelv -who had paid money npon a forged endorsement, recovered from the defendant to whom the money was paid the amount of a judgment which had been recovered against the plaintiff by its depositor, and interest on such judgment, making compound interest, and it was objected that the defendant was not entitled to recover compound interest. The argument of counsel was addressed entirely to that point, and his exception was sustained, the court holding that the plaintiff was not entitled to com- pound interest, but to simple interest only to the time of the rendition of the verdict. It is evident then that the point of the necessity of a demand as a condition of bringing an action was not presented for the consideration of the court; and while if the point had been made that interest could run only from the time when the cause of action arose, the court would have had to decide when the cause of action did arise, or whether they would allow the running of interest before the right of action arose, still that question was not pre- sented by counsel or considered by the court. The attention of counsel and the court was given entirely to considering the question of the defendant's liability to pay compound as distinguished from simple interest. While giving undue weight to the decision in Corn Exchange Bank v. The Xassau Bank, the court seems not to have given the weight to the case of Southwick v. The First National Bank which the case had at that time and still has in Xew York on the question of the necessity of making a demand upon, or giving notice to, a defendant who has re- ceived and innocently holds money paid to him by the plain- tiff.2 It is true that in Southwick o. The First National Bank the court held that the jilaintiff could not recover on the theory 1 See Leach v. Viuing, 18 N. Y. ^ gee inipra, p. 141, n, 1. Sup. 822. 150 THE LAW OF QUASI-CONTKACTS. of mistake, for any one of three or four reasons. But the court considered at length the question, of whether the plaintiff was entitled to recover without making a demand upon the defendant, and in reversing the judgment obtained by the plaintiff distinctly stated the absence of a demand on the part of the plaintiff as one of the grounds for denying a recovery by him. In considering the weight to be attached to the expression of the court on this point it must be remem- bered that it was not the case of a court affirming a judgment, as in Utica Bank v. Van Gieson,i and simply in passing mak- ing a remark which might have been casually dropped, but uttered in a case where the court were reversing a judgment and granting a new trial, and where they considered the ques- tion thoughtfully with a view to fixing the rights of the parties on a possible second trial. After holding that the complaint did not state a cause of action on the theory of mistake and that this fact could not be ignored on appeal by the plaintiff seeking to sustain a judgment entered in his favor, the court said: — " But passing this point, tlie defendant further contends that the plaintiff ought to have proved a demand upon it for the draft, or the money paid thereon hefore commencement of the suit, but that he failed to prove such demand. It is not disputed by the plaintiff that such a demand was necessary unless it was in some way waived by the defendant, or unless it was in some way estopped from insist- ing upon a demand. Whether the action be stated as one for the conversion of the draft, or of the money paid thereon, or for the recovery of money paid by mistake, a demand was a prerequisite to the maintenance of tbe action against the defendant, who lawfully and innocently received the draft and the money paid tliereon. Tlie obligation of a party to refund money voluntarily paid by mistake can arise only after ^tjie notification of the mistake and the demand for payment." The case of Sturgis v. Preston, 2 cited by the court, is in point. The court in that case held that one who had made 1 Supra, p. 145. 2 134 Mass. 372. EECOVERY OF MONEY' PAID UNDER MISTAKE. 151 an overpaymont in the purchase of land, paying for a quantity in excess of what was conveyed, could not recover after the expiration of six years from the date of payment, notwith- standing the fact that he did not discover the mistake until nine years after the payment was made, when he immedi- ately notified the defendant thereof. In support of the decision that no demand was necessary the court cited Dill r. Inhabitants of Wareham,i Earle v. Bick- ford,2 Utica Bank v. Van Gieson,^ — cases which the writer has attempted to show should not be regarded as supporting the proposition in question, — and in addition thereto Haw- ley V. Sage.'' In that case defendant held for the benefit of himself and the plaintiff a draft, payable to his own order, which he was to collect, and having collected, pay one third thereof to the plaintiff. It was held that the defen- dant having collected the draft was under an obligation to pay one third of the proceeds thereof to the plaintiff within a reasonable time ; and that having failed to do so, the plaintiff could sue him without making a demand upon him. It is submitted that this case is not an authority in point. The defendant took upon himself the obligation of paying over to the plaintiff a certain sum of money, and no notice on the part of the plaintiff to the defendant that he had failed to do so, could increase the obligation which the defendant had entcroil into, that obligation being well defined and known to him. The case, instead of presenting the question of suing a defendant who holds money with the consent of the plaintiff and ignorant of any fact which would lead him to suspect that he should return it, presents the ordinary question involved where a defendant is sued in consequence of a failure on his part to perform a legal obligation which he has assumed in favor of a plaintiff. 1 Supra, p. 146. * Supra, p. 145. 2 Supra, p. 147. ^ I'J Conn. 52. 152 THE LAW OF QUASI-CONTRACTS. No demand or Cif jt be assumed that the defendant at the time herec eived notice neces- ^« .^ — ■ saiy where the monev from the plaintiff knew that the moncywasjiaL defendant 1 i . : — , knows of the due, and w as paid by the plaintiff under a mistake, then the defendant acts inequitably and against couscienec in receiv-_ ing the money. In such a case, as the defendan t is alread y holding it against conscience, it is unnecessar y tor tJiepla in-_ tiff to make a demand or to give notice ot the misTake jasjL. condition of suing to recover the money so paid.^) In Sharkey v. Mansfield, ^ the court thus stated this conclusion ; — Running of Btatute of limi- tations. "Where the mistake is mutual, both parties are innocent, and neither is in the wrong. The necessity of a demand does not, therefore, exist in a case where the party receiving the money, instead of acting innocently and under au honest mistake, knows the whole truth, and consciously received what does not belong to him, taking advantage of the mistake or oversight of the other party, and claiming to hold the money thus obtained as his own. In siich case he cannot assume the attitude of bailee or trustee, for he holds the money as his own, and his duty to return it arises at the instant of the wrongful receipt of the overpayment. He is already in the wrong, and it needs no request to put him in that position." The object of a demand or notice being to put the defend- ant in the position of wrongfully retaining the money paid by the plaintiff under a mistake, it seems clear that no demand is necessary where the kiiowlodu'e of the mistake is acquired subsequently to the receipt of the money, though the receipt was not wrongful bscaikse innocent and with the con- sent of the plaintiff'. Tlie retention thereof with knowledge is against conscience, and therefore inequitable.^ The question as to the necessity of making a demand or giving notice as a condition of bringing an action to recover 1 Sharkej v. Mansfield, 90 N. Y. 2 go N. Y. 227. 227 ; Bower v. Thompson, 19 N. Y. » Bishop v. Brown, 51 Vt. 330 Supp. 503. (semble). KECOVEKY OF MONEY PAID UNDER MISTAKK. 153 money paid under a mistake, is important not only because it involves the right of the plaintilf to involve the defendant in litigation and the payment of the costs, but also for the reason that the determination of that question fixes the time when the plaintiff's right is barii'd by the statute of limita- tions. For if the plaintiff's cause of action arises immediately upon the payment of the money, though both the plaintiff and the defendant are acting under a mistake and therefore the defendant is acting innocently, the statute of limitations begins to run immediately, and as a consequence the plain- tiff's claim may be barred before either the plaintiff or the defendant had any reason for supposing that there was any obligation existing on the part of tlie defendant; and it was so held in the Leather Manufacturers Bank v. The Mer- chants Bank.i The result of holding that the statute of limitations begins to run from the time when the plaintiff's right of action accrues, is that where the defendant receives the money with knowledge of the mistake on the part of the plaintiff, or where the defendant, though receiving the money innocently, afterwards becomes aware of the plaintiff's mistake in pay- ing the same, the statute of limitations will in each case Ijegin to run from the time when the defendant first knew of the mistake, and the plaintiff may therefore be barred of his right before he becomes aware of its ever having existed. In jurisdictions, therefore, where it is held that where money is paid under mutual mistake of fact, the plaintiff cannot sue the defendant until the defendant has notice of the mistake, a curious though logical result follows: that a defendant acting fraudulently can claim the benefit of the statute of limitations against a plaintiff ignorant of his rights, while an innocent defendant, because of a rule invoked in his favor, still remains liable to the plaintiff. 1 Supra, p. 142. 154 THE LAW OF QUASI-CONTRACTS. Recovery of interest." It remains to consider the question of the recovery of interest, where money is recovered as paid under mistake. Since the defendant is required to return money so paid, for the reason that having received the money without con- sideration, he should not profit at the expense of the plaintiff because of the plaintiff's mistake, it would seem that unless he is to be allowed to profit in part by such mistake, he should pay the plaintiff for its use, if in fact the money has been used by him. Since, however, interest is recovered in an action of law by the way of damages for a wrong done, it is held that^ere can be no recovery of interest where money has been paid under mistake, except from the time when the defendant c an be said to be in the position of unjustly keeping the money paid to him.M ^ Georgia Railroad Co. v. Smitii, 83 Ga. 626 ; Sibley v. County of Pine, 31 iMinn. 201; Leach i>. Vin- ing, 18 N. Y. Sup. 822; Grim's Estate, 147 Pa. St. 190. The writer has reserved for con- sideration in a note thqfcases arising Bank V. Bank of Albany, 1 Hill, 287). While he can recover money paid on a forged endorsement, he is not allowed to recover money paid upon a bill of exchange on the faith of a forged bill of lading given as se- curity (H offman !•. Bank of Mil- waukee, 12 Wall. 181). While it is held that the drawee from payment of money under mis take as to the geuuinenegg .ol, ne,- gotiable instruments, for the reasop,, of a bill cannot recover money paid that it is impossible to reconcile ' ' ' ' , ., , with the principles that have been -Considered la this cnapter' many^ the results reached. Thus, while it is held that the drawee cannot re- cover money paid under mistake as to the genuineness of the drawer's signature (Price u. Neal, 3 Burr. 1354), unless the mistake was in- duced by the holder of the bill (National Bank of North America under mistake as to the drawer's signature, it has been held that one accepting or paying for the honor of the drawer can recover, if he were requested by the holder to pay ( Wilkinson v. Johnson, 3 B. & C. 428), or if he paid the bill with, out inspecting the same ( Goddard v . The Merchants Bank, 4 Comst. 147). The apparent conflict of decision consequent upon denying a recovery V. Bangs, 106 Mass. 441), he can recover money paid under mistake where the drawer's name is forged", as to the genuineness of the body of and allowing a recovery where an an instrument ( The Bank of Com- endorsement is forged, is avoided by merce !). Union Bank, 3 Comst. 230)'*'' the statemen^l^at one upon whom or of an endorsement thereon (Canal a bill is drawn is~requlred to a^o«r. RECOVERY OF MONEY F.VID L'NDF.R MISTAKF. 155 tain at his peril the genuineness of the drawer s siffuature" rawer ot the m u ]ias no pecuhar kuowiegge as to the endorser s SlR- r.ature, no sucn respo nsibility is put upon turn. ' It has been suggested that the ground upon which the drawee is denied a right of recovery, where tlie drawer's signature has Iwen forged, is that he was guilty of ^ggli- gence in paying the bill But if negligence is to be treated as the ground for denying a recovery, it is an exception to the rule that negli- gence is not a bar to an action brought to recover money paid under mistake. Furthermore, if negligence is the ground for denying relief in such cases, it should follow that where the plaintiff can show the absence of negligence he will be allowed to recover. Such, however, is not the law (Hardy t-. Chesapeake Bank, 51 JNId. 5b2, 565). It has been suggested that the principle upon whicli the drawee is denied a recovery is, that as between parties havinc>3qi fual equities, jone of whom must suffer, the law will leave the loss where it finds it (Ames, The Doctrine of Price u. Neal, 4 Harv. Law Rev. 297, 299). To establish the equality of equities between the parties it is said that from the point of view of natural justice the time of the loss is im- material ; that " if one looks to the fraudulent transaction in its en- tirety, the equalities of the equities between the holder and the drawer is just as obvious as the equality of the equities between the purchaser and the equitable encumbrancer." AncT as an illustration of this pru- position this further case is given. A creditor sells his claim to A and afterwards, concealing this sale, sells the claim to B, who in good faith collects it of the debtor. In the case of the equitable en- cumbrancer and purchaser, it is sub- mitted, that a sufficient ground upon which to rest the decision would be that the purchaser is in fact a holder for value of a legal title, having taken the land as the de- fendant did the money in Ins. Co. i'. Abbott, supra, p. 78, in extin- guishment of his claim against the vendor ; that as the right in per- sonam was extinguished by the tak- ing of the property, to deprive him of the property would be to violate the rule that an equity cannot be asserted against a holder for value. Furthermore, viewed from the point of equal equities the facts establish that each party parted with his money on the faith of the obligor's personal obligation; each party therefore had simply a right ill personam. While the equitable encumbrancer would and should prevail so long as the rights remain in personam, for the reason that as between equal equities the prior equity prevails, an innocent party should not for that reason be de- prived of a right hi. rem in order that the law may confer it upon a party who never had more than a right in personam. The same suggestion is true ot the illustration of the successive assignments of the same chose in ac- tion ; the second assignee by reduc- ing the chose in action to possession acquired, as in the preceding case, a right in rem, while the first assignee 156 THE LAW OF QUASI-CONTRACTS. had only a right m personam against the creditor. This right in personam existed by virtue of a power of at- torney, by which, as against the creditor, either assignee had a right to reduce tlie chose in action into possession. So long as the claim remained in personam the prior claimant would prevail, on the prin- ciple of equal equities. Where money is paid under mis- take as to the signature of the drawer, it is submitted, that the equity of the party making the payment is superior to that of the party receiving payment: unless some other principle than that of equal equities can be invoked the plaintiff should be allowed to re- cover. It seems to the writer a fiction to speak of viewing the fraud- ulent transaction as an entirety. The transactions, it is submitted, are entirely distinct, and foUow each other in point of time, the trans- action between the defendant and the party from whom he purchased being complete in itself, and being followed by an entirely independent transaction between the plaintiff and the defendant, resulting in the pay- ment of the money by the plaintiff. If the transaction is to be viewed as an entirety it ought to follow that if the holder purchase the bill inno- cently, knowledge acquired by him after the purchase, but before the presentment for payment, will not enable the drawee to recover the money paid. By the purchase of the bill, the defendant would have acquired no right against the drawee, even had the bill been genuine ; and his equity is, that he innocently parted with money in the belief that he was ac- quiring a right to call for the pay- ment of a bill of exchange by the drawer, when, in fact, he got no such right because the instrument was forged. If at the time when he purchased the forged bill, he ac- quired no right under the bill against any one, then at the time of pur- chase he suffered a loss ; and to deny a recovery to the drawee who paid the bill, supposing the drawer's signature to be genuine, is in effect to allow the defendant to recoup his loss at the expense of the plaintiff. The loss of the defendant, it is submitted, should be regarded as the consequence of his purchasing a worthless security, which loss must remain with him, unless he is al- lowed to throw the loss upon another innocent party, by receiving from that party, and retaining, money paid under mistake. The maxim that as between equally innocent parties the law will leave the loss where it finds it, it is submitted, should onlj' be applied when parties cannot be placed in statu quo ; and that to determine whether as be- tween the plaintiff and the defendant the defendant can be placed in statu quo, one must look to the time when the plaintiff and the defendant dealt with each other. If a recovery by the plaintiff will result simply in the de- fendant occupying the position which he occupied at the time of payment, then the plaintiff should be allowed to recover, since in such a ease if the defendant suffers a loss, he only in- curs a loss which would have been incurred had the plaintiff not made the payment. EKCOVERY OF MONEY PAID UNDER MISTAKE. 157 Manj- of the cases doubtless where a recovery is denied of money paid under mistake as to the genuineness of tlie draNver's signature could be put simply upon the principles sug- gested in Aiken v. Short, 1 H. & N. 210 ; Cha mbers t . Miller, 13 C. B. X. s. 125; Southwick o. National Bank, SI Nf Y. 420; Merchants Ins. Co. .-. Abbott, 131 Mass. 397, — namely, that where a party having certain rights receives from the plaintifi money iu extinguishment thereof, he is in a position to say that he surrendered value for the money received, and should not therefore be required to return the money so paid. See supra, p. 77. The recognition of this principle, however, would forbid a recovery in cases where a recovery is now allowed, namely, where, owing to the existence of genuine endorse- ments on the bill, the holder had rights thereunder notwithstanding some of the endorsements were forged. The doctrine of equal equities heretofore suggested is fatal to a recovery of money paid under mis- take as to the genuineness of an endorsement. It cannot be and is not contended that in point of equal equities, any distinction can be drawn between the recovery of money paid under mistake as to the genuineness of an endorsement, or of a drawing. But it has been suggested (Atnes. The Doctrine of Piiee r Xeal, 4 Harv. I^aw Rev. 297, 307) that the decisions allow- ing a recovery against one to whom money has been paid under a forged endorsement can be justified on the doctrine of subrogation, for the reason that if the drawee of the bill should subsequently pay the true owner, he would be entitled to be subrogated to his rights against all subsequent holders, and that as against subsequent holders the true owner would have the au- thority to sue either for a conversion of the biU, or to waive the tort and sue for money had and received. The fact that the action is brought at law in the name of the party who made the payment, is fatal to allow- ing a lecovery on the theory of sub- rogation, unless the result is to be regarded as anomalous in point of procedure. Equally fatal to this theory is the fact that the plaintiff is allowed to recover without first pay- ing the true owner. The theory of subrogation, however, is open to the further objection that a recovery would undoubtedly be allowed in cases on the line of reasoning adopted by the courts, where on the theory of subrogation it would have to be denied. Subrogation of course implies a right in another which a party seeks to acquire against the defendant. A party claiming through subroga- tion claims by virtue of a deriva- tive right, and a derivative right necessarily presupposes an original right. If, therefore, for any reason the true owner of the bill could not maintain an action against the holder thereof for a conversion of the bill, or could not sue at law in a count for money had and received to recover the proceeds received in pay- ment thereof, then a drawee depend- ent upon the doctrine of subrogation could not on the theory of subroga- tion recover the money paid by him 158 THE LAW OF QUASI-OONTEACTS. under mistake as to the genuineness of an endorsement. Suppose, for example, that the husband of a wife iu a jurisdiction where a wife is allowed to hold sep- arate property, but where no action is allowed between husband and wife, should, being an innocent holder of negotiable paper on which his wife's endorsement is forged, receive payment thereof from the drawee. The doctrine of subroga- tion could not in such a case assist tne drawee to recover at law in a count for money had and received against the husband, since the wife could maintain no such action; and yet undoubtedly a recovery could be had in a count for money had and received as for money paid under mistake. In conclusion it is submitted that on no theory of quasi-contract can the decisions reached in the cases considered in this note be recon- ciled, or the results reached in many of the cases be justified. "WAIVER OF TOKT. 159 CHAPTER III. WAIVER OF TORT. (If any one in the commission of a tort enriches himself by Waivev of Tort ^, ;; — • is an election taliing or using the property of another, the latter may in of remedies. smnp pfisps, instead of suing in toi't to recover damages for the injui-y done, sue in a) in possession of the pony. If she was in possession at the time when it was seized, she might clearly liave maintained tres- pass afjainst a wrong-doer; and if she might maintain trespass, she may waive the tort and maintain this action." defence that the remedy should be yourself of the money as received in in equity, did not waive his right to any part to your use, except by the set up the statute of limitations with enforcement of the trust. Your the same effect as if the suit were cause of action for the enforcement in equity, and the case stands as if of a trust against the money is the the plaintiii had sued in equity to same that you had for the enforce- enforce a trust against the proceeds raent of a trust against the seat be- of the sale, as he might have done, fore it was sold, and you have lost it The answer to such a suit would by lapse of time.' We are of opinion have been : ' Your right to enforce that the money was not received by a trust against the seat in the hands the defendant to the use of the firm, of the defendant was barred before and that no trust can be enforced the .sale, and the change of the form against it. " of the property does not revive it. i Oughton v. Seppings, 1 B. & The legal title to the money is in Ad. 241. the person who had the legal title 2 1 B. & Ad. 241. to the seat, and you cannot avail obtained. 180 THE LAW OF QUASI-CONTRACTS. Money had f Since one has a right to recover the proceeds of property '"unelo'ro- wrongfully converted and sold, it necessarily follows that lomuusry '^' where the plaintiff's money has been tortiously obtained by the defendant, the tort may be waive ri flnri an action toT money had and received be brought. ^ ') ", in iN'eate v. Harding,^ the defendants entered the house of the plaintiff's mother and wrongfully took money helonging to the plaintiff. This money they, deposited in a bank to their joint account. The plaintiff was allowed to recover against them in a count for money had and received. Martin, B., had some difficulty in allowing the recovery, but favored a recovery for the following reasons : — "If the case had stood simply upon the taking of the money out of the house, I should have had some doubt whether the action for money had and received would lie, for that is an action on a con- tract; and torts and contracts are of a very different nature. I own to me the more sensible rule is, that if there be a contract, the party should bring an action for money had and received; and if there be a trespass, he should bring trespass or trover. But when it was proved, as in this case, that after the money was taken both defendants went and paid it into the bank on their joint account, that makes them both responsible as U{)nn a contract, for they enter into a contract with the bank in respect of the monej'; and therefore 1 think that the action for money had and received is maintainable. I should always be disposed to act upon the prin- ciple laid down in the case of Turner r. Cameron's Coalbrook Steam Coal Company, which treats the case of a tort, as in truth it is, as a tort, and the case of a contract, as a contract." - It is certainly a novelty in the law to establish a contract between a plaintiff and a defendant by proving that the 1 Clarke v. Shee, Cow. 197 ; People u. Wood, 121 N. Y. 522 Neate v. Harding, 6 Ex. 349; Catts Webb v. Fulehire, 3 Ire. (L.), 485 V. Phalen, 2 How. 376; Burton v. Heindill v. White, 34 Vt. 5.58 Driggs, 20 Wall. 125; Dashaway Kiewert v. Rindkopf, 46 Wis. 481 Association v. Rogers, 79 Cal. 211; Western Assurance Co. v. Towle, Jones V. Inness, 32 Kan. 177 ; Cory 65 Wis. 247. V. Freeholders, 47 N. J. L. 181 ; = 6 Ex. 349. WAIVKR OF TOUT. ]^81 defendant tortiously took the plaintiff's money and deposited it ^vith a third party, the deposit with a third party creating a contract between the plaintiff and the defendant, Avhere but for the deposit there would have been no such relation. Qt is of cours_ej io defence to such an action that the monov ii i.ggiitv «o was obtain^^dTn^trom the piaintitf, bat from one to whom th e tltn'},' '" plaintiff intrusted it, and with whom defendant was engaged TeT^iJei^""^ in an illeg al transaction. )For in such a case tbe plaintiff P^.iy^'j'h°e'' claims in his own right and not through his agent, and there- >"««"'''>'• fore the illegality of the transaction is immaterial. Thus, in ClfLTjie,!'. Sheei the plaintiff sued the defendant in a count for money had and received to recover money which had been received by the plaintiff's clerk in the course of the plaintiff's business, and used by the clerk in the purchase of lottery tickets from the defendant in violation of the Lottery Act. It A\-as held that the plaintiff" was entitled to recover. Lord Mansfield, delivering the opinion of the court, said : — "I tliiuk the plaintiff does not sue as standing iu tlie place of AVood, his clerk, fur the money and notes which Wood paid to the defendants are the identical notes and money of the plaintiff. Where money or notes are paid bona fide, and npon a valuable con- sideration, they never shall he brought back hj the true owner; but where they come mnla fide into a person's hands, they are in the nature of specific property ; and if their identity can be traced and ascertained, the party has a right to recover." ( It has also been h eld to be no defence to an action brought Plaintiff's, in- ^■' fention to doan to recover money fra udulen tly obtained , that the plaintiff sup- illegal act im- — ^ •■ ' — * inaierial, jf act pos ed the payment of the money to be called for by an illegal not done and ""■^ — " money ob- contract which he had made with the defendant, if in fact the tained by I r fraud. money was not payable under the contract, but was obtained by the defendan t's fraud .^ ; In Catts v. Phalen ^ the plaintiff 1 Cow. 197. Ire. (L.), 485; Kiewert v. Rind- 2 Catts V. Phalen, 2 How. 376 ; kopf, -Hi Wis. 481. Northwe.stem Ins. Co. .-. Elliott, 7 « ■> How. 376. Sawyer, 17; Webb v. Fulchire, 3 182 THE LAW OF IJUASI-CONTBACTS. sued to recover money paid to the defendant in the belief that the latter was entitled to it under a lottery drawing. The defendant, who was employed to draw the tickets from the wheel, in fact obtained the money by concealing in his sleeve a ticket with a number corresponding to the number of the ticket hold by him, and pretending to draw the ticket from the wheel. He pleaded the. illegalil>L of the- lottery. The court, assuming the . drawing _to .be., illegal, decided for the ])laintiff, Baldwin, J., saying : — "Tn the argument for the plaintiff in error here, it has been contended that this lottery was illegal by the Suppression Act of 1834, which precluded a recovery of the money he received; but as, in our opinion, this case can be decided without an examination of that question, we shall proceed to tlie other points of the case, assuming for present purposes the illegality of the lottery. "Taking, as we must, the evidence adduced by the plaintiffs below to be in all respects true, after verdict, the facts of the case present a scene of a deeply concocted, deliberate, gross, and most wicked fraud, which tiie defendant neither attemj)ted to disprove or to mitigate at the trial, the consequence of which is that he has not and cannot liave any better standing in court than if he had never owned a ticket in the lottery, or it had never been drawn. So far as he is concerned the law annuls the pretended drawing of the prize he claimed ; and in point of law he did not draw the lottery; his fraud avoids not only his acts, but places him in the .same position as if there had been no drawing in fact, and he had claimed and received the money of the plaintiff, by means of any other false jiretence; and he is estojjped from avowing that the lottery was in fact drawn. "Such being the legal position of Catts, the case before us is simply this: Phalen and Morris had in their possession )|12,600, either in their own right or as trustees for others interested in the lottery, no matter which; the legal right to this sum was in them; the defendant claimed and received it by false and fraudulent pre- tences as morally criminal as by larceny, forgery, or perjury; and the only question before us, is whether he can retain it by any principle or rule of law. The transaction between the parties did not originate iii the drawing of an illegal lottery; the money was WAIVEU OF TOUT. 18J not paid on a ticket wliifli was entitled to or drew the prize, — it was paid and received on the false assertion of that fact; the con- tract which the law raises between them is not fonndcd on the drawing of the lottery, but on the obligation to refund the money which has been received by a falsehood and fraud by the assertion of a drawing which never took place." (Since the plaintiff's claim rests upon the fact that the Measm-eof -defendant canuot be allowed in good conscience to keep what amount which he has obta ined, the measure of the plaintiff's recovery is not cannot in con- the entire amount paid by the plaintiff, but the amount which ^""^'"^'^ ^^ it is against cons cience for the defendant to keep.^^ In the Western Assurance Co. v. Towle,''* the defendant by false and fraudulent overstatements as to the amount of a loss got from the plaintiff the amount of the policy as for a total loss. There was a clause in the policy declaring a forfeiture thereof in such an event. The plaintiff having recovered a verdict for the amount of the policy, it was set aside, the court holding that the recovery should have been limited to the money received over and above the actual loss suffered. Taylor, J., said: " . . . The action for money had and received is in some sense an equitable action, and the insurance company having voluntarily paid the money on an alleged loss claimed by the defendants, they can only recover back so much as in equity and good conscience they ought not to have paid. . . . False swearing and false valua tion in proof of loss might have been a good defence to a recovery upon the policy, had the plaintiff refused to jjay the loss; but it cannot be made the basis of a right to recover back money already paid upon the policy. The plaintiff's right to recover depends upon proof establishing the fact that the company has paid more money than covered the loss sustained by the defendants, and that such payment was procured by the false and fraudulent acts of the defendants." l^ince the right to recov rer money which has been stolen, Rigiit of »vi ii.^^i.v^j ____ recovery may f raudulently obtained, or wrongfully conv erted to another^ b™ted j 1 Linden c. Hooper, Cowp. 414 ^ 65 Wis. 247. P"'"-^^- (semble) ; The \Vesteni .Assurance Co. V. Towle, 6.J Wis. 217. 184 THE LAW OF QUASI-CONTKACTS. use, rests on the equitable principle of unjust enrichm ent, the — claim may be asserted, not only against th '' immprliaiR tort feasor, but against any one into whose poss ession the money _ may be traced, unt il it reaches the hands of a holder for Talue without notice. ^ ~\ In Bayne v. The United States,^ the United States sought to recover money received by the defendant in the following circumstances. The Government had given a draft to a pay- master in the army, and the paymaster, after depositing the same in his official capacity in a bank designated as a public depository, drew checks payable to the order of Bayne & Com- pany, who collected the same. It was held that the Govern- ment was entitled to recover from the assignees of Bayne & Company, who had become insolvent, the amount received by Bayne & Company ou said checks. In Atlantic Mills v. Indian Orchard Mills,^ the defendant pleaded by way of set-off against the plaintiff a right to recover from the plaintiff money received by the plaintiff in the following circumstances : The plaintiff and the defendant had been accustomed to lending each other funds by means of checks drawn by the one in favor of the other. One Gray, who was the treasurer of both corporations, in order to make good a deficit to the plaintiff had drawn a check in the usual form in favor of the plaintiff in the name of the defendant, and had cashed the check and used the proceeds thereof in the business of the plaintiff. It was held that the defendant was entitled to recover from the plaintiff the money so received, and could therefore use the same by way of a set-off. C. Allen, J., delivering the opinion of the court, said : — 1 Calland u. Lloyd, 6 M. & W. Beers, 1 Abb. Ap. Dee. 333; Mason 26; Heilbut v. Nevill, L. R. 5 C. P. t. Pendergrast, 120 N. Y. 536; 478; Bayne ,;. United States, 93 Hindemarch v. Hoffman, 127 Pa. U. S. 642; United States Bank v. St. 284. State Bank, 96 U. S, 30; Atlantic 2 93 u. S. 642. Cotton Mills V. Indian Orchard s 147 Mass. 268. Mills, 147 Mass. 268; Causidere v. AVAIVER OF TOKT. am " The grounds on which the plaintiff asserts a right to ret.., the money is, that Gray had emhezzlud its funds as well as the funds of the defendant to a lavL;e amount, and that it is entitled to apply the money thus received from him to reduce his indebtedness for such embezzlements, and treat the same as a payment pro tanto : that from the nature of the transactions, the law stamps it as a payment, and that thus the plaintiff is a holder of the fuuds for a valuable consideration. There is no doubt th.at a thief may use stolen monev, or stolen negotiable securities, before their maturity, to pay his debts ; and in such a case an innocent creditor may retain the payment. But this doctrine is not, appli- cable to the present case, for two reasons : in the first place, under the circumstances disclosed in the auditor's report the plaintiff cannot be considered as an innocent creditor, — that is, a credittir without notice ; and moreover the transaction did not amount to a payment." (.As the claim is maintained only on strict equitable prin- The claim can- ^^: ^^ _ not be asserted ciplcs, it cannot be asserted ao-aiust a holder for value without against an in- ^ ' nocent holder notice.^ ^ fowahie. In State Bank v. The United States,^ the plaintiff sought to recover money received by the defendant in the following- circumstances. One Hartwell, cashier of the Stib-Treasury in Boston, embezzled funds belonging to the Government, and lent the same to Mellen, Ward, k Co. To enable liim to balance his account it was agreed between Mellen, Ward, k Co. and Hartwell that they should pay into the Sub-Treasury a fund sufficient to meet Hartwell's deficit, Hartwell agreeing to return the same the next day. :Mellen, Ward, > In such a case the plaintiff cannot" make out his right, since what was given to the defendant might not have been given to the plaintiff. It is true that but for the tort the defendant could not ha\e received the gratuity, but non. constat that the plaintiff, if the defendant had not conuuitted the tort, would have received it. ^Vliere the defendant entices away the plaintiff's apprentice Right ot re- a nd induces the latter to work for him, the plaintiff is entitled onr^tfcing " t o recover the value of the services received by the defen- pSic"."^' dant^jThe^ opinion of Mansfield, C. J., in Lightly v. Clouston, 1 Taunt. 112, in which this proposition of law was first announced, was as follows ; — "I should have thought it better for the law to have kept its cour>e; hut it has now been long settled that in cases of sale, if the phiintiff choose to sue for the produce of that sale, he may do it. In tlie present ease the defendant wrongfully acquires the labor of the apprentice; and the master may bring his action for the seduc- tion. But he may also waive his right to recover damages for the tort, and may say that he is entitled to the labor of his ajjprentice; that he is eouse([uently entitleil to an equivalent for that labor which has been bestowed in the service of the defendant. It is not competent for the defendant to answer that he obtained that labor, not by contract with the master, but bj^ wrong, and that therefore he will not pay for it. This case approaches as nearly as possible to the case where goods are sold and the money has found its way into the p'jcket of the defendant." In Foster v. Stewart^ the plaintiff's apprentice deserted plaintiffs vessel and seCTBted himself on board the defend- ' Boyter c. Dodsworth, 6 T. R. 274; Stookett u. Watkins' Adm'rs 681. " 2 G. & J. 326. See, however, 2 Lightly V. Clouston, 1 Taunt, contra, Crow v. Boyd, 17 Ala. 51. 112; Fostsi V Stewart, 3 M. & S. ^ 3 M. & S. 191. 191; James v. Le Roy, 6 Johns. 190 THE LAW OF QUASI-CONTEACTS. ant's vessel, not making his presence known until the vessel had sailed. He then worked his passage to Halifax, receiving therefor his food. The defendant was at one time before reaching Halifax within hailing distance of the plaintiff's vessel, but did not communicate with plaintiff. On reaching Halifax the -defendant induced the apprentice to continue in his employ, offering to pay him wages or to supply him with clothes and pocket-money. The apprentice continued in his employ during the voyage, but received no compensation of any kind from the defendant. The plaintiff sued the defend- ant in assumpsit for work and labor, and recovered for the services of the apprentice from Halifax to Shields, the port of discharge, no claim apparently being made for the services rendered on the voyage to Halifax. This case is in principle the same as Lightly v. Clouston, and rests simply on the principle, as does Lightly v. Clouston, that the defendant, having unjustly profited by services to which the plaintiff was entitled, must compensate the plaintiff therefor. This view of the case was fully recognized by Le Blanc and Bay- ley, JJ. Le Blanc, J., in his opinion said : — "Here undoubtedly the plaintiff might have maintained tort for the wrongful detaining of his apprentice; but, inasmuch as the defendant has had a beneficial service of the apprentice, the plain- tiff may waive the tort and require of him the value of the benefit." er'y fo'wrong'^' ^^ °"s is liable to the master for the benefit received from p™i°^ *h^ services of an apprentice whom he has enticed from the property. service of the master, it would seem necessarily to follow that (one who has wrongfully deprived another of his per- sonal property and used it, should be liable in quasi-contract for the benefit derived from the use thereof. Lord Mansfield was clearly of this opinion, the following illustration, used by him in Hambly v. Trott,i being in point: " So if a man take a horse from another and bring him back again, an 1 3 Cowp. 377. WAIVER OF TORT. 191 action of trespass will not lie against bis executor, tliough it would against liim ; but an action for tbe use and bire of the horse will lie against the executor." It has accordingly been held that tbe action will lie to recover tbe value ol personal property wrongfully taken and used.^ Tbe right has also been denied in at least two cases.^ ) The decision in Carson v. River Lumbering Co. is, however, ' much weakened by tbe admission of tbe court that if the tort feasor were dead, the action might be allowed against his executor or administrator. But if not against him, why against bis representative, since the tort feasor, and not the representative, is tbe one who did tbe wrong and derived the benefit ? If it be answered that tbe remedy in tort against tbe tort feasor is adequate, it may be replied that tbe whole doctrine of waiver of tort exists, notwithstanding tbe exist- ence of the remedy in tort. Likewise, the argument by which the plaintiff was defeated in Wynne v. Latham could be used to defeat every plaintiff proceeding on tbe theory of waiver of tort. In that case Ruffin, J., said : " Most actions will only lie on a contract express or implied, and tbe contract here is supposed to be one of the latter kind. But tbe law cannot implv a contract between these parties when it is cleai- from the facts stated that the defendants derived their possession and title from another person, under whom they claimed the slaves adversely to the plaintiff and all tbe world." This is of course treating a fiction as if it were a fact, and apply- ing it, not to further the ends for which it was adopted, but to defeat them. (Logically one who has been dispossessed of his land should c°,"t^,°';^^f„„ beTlb;wedTo""^e the wrongful occupant, in a count for use "^^^.^^HH, i ts rpnfnl vn ^^» " >^-<- it is not feasor. 1 Fai,son .. Linsley, 20 Kan. v. Bassett, 2 Nev. 249, Wyn:ie v. 235 ; Philadelpl>ia Co. v. Park Latham, 6 Jones L. 329 See 2^: Brothers, 138 Pa. St. 346. li£s v. Homfray, 24 Ch. D. 439, 2 Carson Pviver Lumbering Co. 460. 192 THE LAW OF QUASI-CONTRACTS. permitted.! The failure to extend the doctrine to this cl ass of cases is due to purply histni-ic^ il i-pasniTs?) Where the tort was waived at common law, and an action brought to enforce the quasi-contractual obligation, the form of action used was the indebitatus assumpsit counts. But it was a cardinal prin- ciple of the common law that in bringing an action a plaintiff must pursue his highest remedy. Where land was leased and rent reserved, the remedy given by the common law was debt ; and that being regarded as a higher remedy than indebitatus assumpsit, the rent could not be recovered in an indebitatus assumpsit count. It would have been extraor- dinary had the courts given a remedy against a tort feasor which they did not allow on a contract against a tenant And although by statute the scope of indebitatus assumpsit has been extended to cases where the relation of landlord and tenant exists, the courts have not permitted its use in I the absence of a true contract between the parties ; ^ and even in jurisdictions where all forms of action are abolished, ; this doctrine, originating in a distinction drawn between ' different forms of action, is perpetuated.^ As assumpsit will not lie for a wrongful use and occupation, of course the rent received by such an occupant cannot be recovered in a count for money had and received.* RiKht to main- The question of waiving the tort has arisen in a class of tain a count for ° deUvereT""'^ cases Suggested by, and yet differing from, those in which against a tort feasor. ^ i^X"' J°°es, 13 M. & W. 12; 2 gge, however, infra, p. 278. Striiigfellow v. Curry, 76 Ala. 394; s The reader who may be inter- wStockett V. Walker, 2 G. & J. 326; ested in studying the history of this Central Mills Co. ?>. Hart, 124 Mass. doctrine will do well to consult an 123; Lockwood v. Thunder Bay Co., article by Professor Ames, on " As- 42 Mich. 536; Henderson (,. Detroit, sumpsit for Use and Occupation," 61 Mich. 378; Crosby w. Home Co., in 2 Harv. Law Rev. 377. 45 Minn. 249 ; AuU Savings Bank < CJaxaiice.f. Marshall, 2 C. & M. V. Aull, 80 Mo. 199; Dixon v. 495; Lookard v. Barton, 78 Ala. Ahem, 19 Nev. 422; Preston v. 189; King u. Mason, 42 111. 223. Hawley, 101 N". Y. 586; Collyer v. ' i CoUyer, 113 N. Y. 442. / WAIVER OF TORT. 193 the defendant has wrongfully used the plaintiff's .personal property ; namely,, AThere the defendant has converted ths property, but, instead of selling, either keens it or has con- sumed it. Here the decisions are in confiio.t. ~ ) Tn Russell v. Bell,i the plaintiff, as assignee of a bankrupt, sought to recover against the defendant, in a count for goods sold and delivered, the value of goods delivered to the defendant by the bankrupt after he had committed an act of bankruptcy. A motion by the defendant's counsel to enter a non-suit, on the ground that the plaintiff had failed to prove a contract of sale, was denied. Alderson, B., thought the evidence war- ranted the finding of such a contract. Lord Abinger thought that it was not necessary for the plaintiff to prove a contract in order to recover in the count for goods sold and delivered, saying : — "Mr. Crompton says that if you treat this as a sale, you must treat it as a sale with all the circumstances belonging to it. That proposition is true, with this qualification, — if the sale is made by an agent, and properly conducted for the supposed vendor, and the person buying is an honest buyer, the vendor must stand to the sale, and is bound by the contract; but if a stranger takes iny goods, and delivers them to another vian, no doubt a contract may be implied, and I m,ay bring an action either of trover for them, or of assumpsit. This is a declaration fravied on a contract implied by law. When a man gets hold of goods ivithout any actual contract, the latv allows the owner to bring assumpsit, — that is the solution of it, — and gets rid of the whole difficulty .'^ Here the bankrupt took these goods and delivered them to the defendants; on that an implied assumpsit arises that they are to pay the owners the value of the goods." Gurney, B., concurred in the decision of the court, but gave no opinion. On this question the authorities in America are ))retty evenly divided.^ ' 10 M. & W. 340. the following States: California, 2 The italics are the author's. Lehmann v. Schmidt, 87 Cal. 15; * The action has been allowed in Georgia, Newton Manuf. Co. v. 13 194 THE LAW OF QUASI-CONTEACTS. In Jones v. Hoar ^ — a leading case in this country deny- ing the right of waiver of tort in such circumstances — the court seemed to proceed on the short ground that they could not, without greatly extending the doctrine of waiver of tort beyond any of the decided cases, apply to the count for goods sold and delivered the principles which had been applied to the count for money had and received. As against the tort feasor himself, they were not willing to take this step ; though they left the question open as to whether such an action might not be brought against his executor or admin- istrator. But, as the writer has had occasion to remark, how can such an action be maintained against the representative, if not against the tort feasor ? It is the latter, and not the former, who committed the tort, and has directly profited by it. If the action is denied against the tort feasor because of the adequacy of the remedy in tort, then the court, to be con- sistent, should reach the same result in all cases where the defendant can be sued in tort. If one can sue a tort feasor to recover, not the actual money which he has taken from the plaintiff by fraud or force, but its value, — that is, an equiva- ' lent sum, — or to recover the value of services of which the White, 53 Ga. 395; Illinois, T. W. in the following States: Alabama^ W. R. R. Co. V. Chew, 67 111. 378 ; Strother v. Butler, 17 Ala. 733 ; /nriwna, Morford (•. White, 53 Ind. Arkansas, Bowman i. Browning,' 547; ifaasas, Fanson ?;. Linsley, 20 17 Ark. .599; Delaware, Button v. Kan. 325; M;c%an, AldineManuf. Wetherald, 5 Harr. 38; Maine, Co. V. Barnard, 84 Mich. 632 ; Mis- Androscoggin Co. v. Metcalf , 65 sissippi, Evans v. Miller, 58 Miss. Me. 40; Massachusells, Jones v. 120; New York. Goodwin v. Griffis, Hoar, 5 Pick. 285; Missouri, San- 88 N. Y. 629; North Carolina, Logan deen v. Kansas City R. R. Co , 79 V. Wallis, 76 N. C. 416; Tennessee, Mo. 27S; New Hampshire. Smith r Kirkman v. Phillips, 7 Heisk. 222; Smith, 43 N. H. 536 ; Pen^^ia, lexas, Ferrill ,=, Mooney, 33 Tex. Bethlehem Borough v. Perseverance 219; West Virginia, McDonald v. Fire Ins. Co., SI Pa St 445- South Peaoeniaker, 5 W. Va. 439; Wis- Carolina, Schweizer v. Weiber 6 comin. Walker v. Duncan, 68 Wis. Rich. L. 159 ; Vermont, Winchell .. J,, . ^^oyes, 23 Vt. 303. The action has been disallowed i 5 Pick. 285. WAIVER OF TOliT. 195 defendant tortioiisly deprived the plaintiff to his own benefit, then why not allow an action to recover the value of goods which he has tortiously taken ? That you are suing in a count for goods xold and delivered, whereas in fact there is no sale, but a tort, is an objection no more insurmountable in this case than when the same count is used to charge a lunatic for necessaries furnished to him by one who knew him to be insane. In tlie latter instance there is no contract of sale, because the lunatic cannot contract ; and yet, as he has received the plaintiff's goods in circumstances which render it inequitable for him to keep them without making com- pensation, the plaintiff is allowed to recover their value.i If, then, the count can be successfully used in a case where there is no contract of sale because the defendant is incapable of assenting to one, why can it not be used flhere there is no assent because the defendant is a tort feasor ? In truth, the two cases involve a common element, which is universally recognized in the one case, and should be in the other, as furnishing a ground for recovery ; namely, that the defendant has that for which in conscience he should give the plaintiff an equivalent in money. The objection arising out of the form of action should, of course, have no force in jurisdictions where all forms of action have been abolished. It is not to be supposed that the estate of the tort feasor would not be required, when the tort feasor has taken and consumed the plaintiff's goods, to make good their value to the plaintiff ; and yet every ai'gument that can be urged against the tort feasor can be urged against allow- ing it against his representatives, except the argument that an adequate remedy exists in the first case, but not in the second. And this argument, applying with no more force here than elsewhere, has been generally ignored in the law of quasi-contract.^ J In re Rhodes, 44 Ch. D. 94; ^ Whether a plaintiff has a right Sceva V. True, 53 X. H. 627. to waive the tort in a case of this 196 THE LAW OF QUASI-CONTKACTS. Liability of a / If the plaintiff can trace goods into the possession of the third party V~ r .__ ^ \ ■, for goods sold defenda nt which were procured from the former under a and ilelirered . under a con- Contract made with a third person, t he contract being induced by fraud. by fraud in which the defendant co-o perated, it would neces- sarily result, if the principle contended for in the preceding paragraph be granted, that the plaintitt can waive tne tort and sue for goods sold and delivered, the traud entitling him to rescind the contract under which he parted with the goods. .4-nd such is the law.^ ) In Hill v. Perrott,^ where this point was first decided, the plaintiff sold goods to one Dacosta, who was to pay for them by a six-months bill of exchange, to be accepted by the defendant and endorsed by Dacosta. The plaintiff, discovering the transaction to be a swindling scheme to enable Dacosta to pay a debt which he owed to the defend- ant, and finding the goods in the defendant's possession, sued in assumpsit, the declaration containing two counts, — one for goods sold, and one in special assumpsit. He recovered judgment on the count for goods sold. kind, is of great importance in juris- dictions where the statute of limi- tations prescribes a shorter period of time within which actions in tort must be brought than that pre- scribed for the bringing of actions fected, to pay the original owner the value thereof. This is a neces- sary consequence of the right, which the original owner has, to elect whether he will sue for property or its value. During six years his xn assumpsit or contract. Thus, in right for the value is as perfect as Kirkman v. Phillips, 7 Heisk. 222, his right to sue for the property where the plaintiff sued for the within three years, value of goods converted by the not interfered This right is - with by the provi- defendant, the latter pleaded that sions of the Code abolishing the three years -the time allowed by distinctions in the form of actions the Tennessee statute for actions of The statute of limitations applica- nt - had elapsed. This plea was ble to the cause depends upon the held bad, the action sounding, not nature and character of the action m tort, but in quasi-contract. "It and not upon its form." is true," said the court, " as argued, i Hill „. Perrott, 3 Taunt. 274 that the wrong-doer may obtain a Abbotte v. Barry, 2 B & B 369 title to the property by three years' Daning v. Freem'an, 13 Me 90 adverse possession, and yet be liable, Isaacs v. Herman, 49 Miss. 499. for three years after his title is per- " 3 Taunt. 274 WAIVER OF TORT. 197 "While the decision in this case is unquestionably sound, it seems impossible to support the reasoning of the court. The opinion of the court is reported as follows : — "The court held that the law would imply a contract to pay for the goods, from the circumstance of their having been the plaintiff's property, and having come to the defendant's possession, if unac- counted for; and he could not be permitted to account for the possession by setting upthe sale to Dacostaj-'^-lrich he had hiiliself p)rociired by the most nefarious fraud, because no man must take advantage of his own fraud ; therefore indebitatus assumpsit lay for the goods, and the verdict could be supported." To support this reasoning, it must be presumed that if goods are found in the possession of one, which it can be proved were at one time the property of another, this evidence will of itself, without the introduction of further evidence, in the absence of an explanation by the person in whose pos- session they are found, entitle the plaintiff to recover in a count for goods sold. One hazards little in saying that no such case has been or will ever be found. The phrase, " the law would imply a contract," is evidently used to indicate a true contract, or a contract implied in fact, — in other words, an obligation based on the consent of the parties, as distin- guished from an obligation imposed by law ; for if the latter were its meaning, it would not be necessary to estop the defendant from proving the sale to Dacosta, since the short answer to such a plea would be that the sale to Dacosta being rescinded, the plea is irrelevant to an action based on the obligation imposed by law on the defendant because of his unjust enrichment. But if its meaning were that the law would impose an obligation in sucli circumstances, it is equally indefensible ; for surely the fact of the defendant's present possession, coupled with the plaintiff's former owner- ship, does not prove the defendant a tort feasor. In Ferguson v. Carringtoni the plaintiff sued for goods sold 1 9 B. & C. 59. 198 THE LAW OF QUASI-CONTRACTS. r Right of .ecov- and delivered. It appeared that the period of credit given when Sy to'^iid. the goods were sold by the plaintiff to the defendant had not ex- ^T^::;;;^m pired. it was objected that the action was prematurely brought ; ^l!^,.!!;!;^ but the plaintiff contended that as the sale was induced by the fraud of the defendant, he might waive the tort and sue in assumpsit. The plaintiff was non-suited, and a rule for a new trial was refused ; the court holding that by bringing that form of action he had affirmed the contract, and so was bound by its terms, including the time of credit. Parke, J., whose opinion represents that of the other judges, expressed himself as follows : — "As long as the contract existed, the plaintiffs were bound to sue on that contract. They might have treated that contract as void on the ground of fraud, and brought trover. By bringing this action they affirm the contract made between them and the defendant." With all deference to so eminent an authority, it is sub- mitted that this decision cannot be supported. To do so, one must say that the count for goods sold and delivered can only be used to enforce a genuine contract obligation. But this view is not sustained by cither the English or the American courts. 1 If the count can be used where there has been no contractual relation, it must follow that a plaintiff does not in using the count necessarily allege the existence of a con- tract. If he does not, then in a case where he has a right to disregard the contract and sue in tort, why cannot he waive the tort and sue in assumpsit for goods sold and delivered, without affirming a contract which was in fact made, but which he has a right to rescind ? The result of the English authorities, if Lord Abinger's statement in Russell v. Bell '■^ is to be regarded a,s law, is to leave tiie law in an anomalous state. As against a tort leaser whose tort consists in getting your goods by means oi a irauauient contract, you cannot waive the tort and sue in assumpsit for goods sold and deliv- 1 See supra, pp. 20-23. 2 10 M. & W. 340. WAIVER Olf TORT, 199 ered ; but yo u may bring a count for goods sold and delivered agains t a person whose tort consists in procuring your o-oods otherwise than by a fraudulent contract. Ferguson c. Carriugton has been followed in Massachusetts.^ Although it was followed in an early case in Michigan,^ that decision can no longer be regarded as law, it having since been decided in the same State ^ that this count can be used for a taking and retention where there has been no contract whatever, ^n Kentucky,^ in Ne w York,^ and in Georgia,^"^a recovery is allowed in cases like Ferguson v. Carrington. ming the existence ol waiver applies, the question arises A.ssuming the existence of a case where the doctrine of Extent and k^ ^:^ ' ' — .^.— -*».-^*— — *-f ^ nature of lia- -if the tort has b een b iiityuf twoor 'I I'll 1 1 1 ■ '11 U iore joint ■ as to the nature and tort feasors "*~ where tort is committed by two or more persons extent of their liability: Are they jointly, severally, or waived. jointly and severally liable ? ]M ust each answer in solido, or each only for the amount actually or constructively received by him ? 1 Allen u. Ford, 19 Pick. 217. 2 Galloway v. Holmes, 1 Doug. 530. 8 See supra, p. 193, n. 3. * Dietz's Assignee v. Sutcliffe, 80 Ky. 6.)0. 3 Wilson V. Force, 6 Johns. 110; Weigand r. Sichel, 4 Abb. Ap. Dec. 592. The reason given by the court in Wilson v. Force, 6 Johns. 110, is as follows: " The basis of every ■contract is good faith. If the special contract be void on the ground of fraud, the plaintiff may disregard it, and bring assump.sit for the goods sold." Substituting the word "void- able " for " void," this is a concise and accurate statement of the rea- soning by which the result can be reached, and is in striking contrast with the following fanciful statement found in the opinion of the court in Weigand v. Sichel, 4 Abb. App. Dec. 592 '' It is not accurate to say that the plaintiffs sought to avoid the con- tract of sale ; it is the credit only that is sought to be avoided. It was the sale of goods which the plain- tiffs by their action affirmed. It was, however, a sale where the credit was obtained by fraud, and in law amounted to a sale for cash. In stating it in their complaint, there- fore, to be a sale, and for cash, the plaintiffs but stated the contract according to its legal effect. They did not seek to avoid the contract of sale ; they endeavored, merely, by proof of the act of fraud, to re- duce the transaction to a cash sale. The complaint and the proofs were to the same purport." 6 Blalock V. Philhps, 38 Ga. 216. 200 THE LAW OF QUASI-CONTRACTS. In seeking an answer to these questions, it must be borne in mind that the object of the action is not to recover dam- ages, but to make the defendant disgorge. ^ In National Trust Co. V. Gleason,^ Rapallo, J., thus expressed the distinction: "To charge a party in an action of that character, the receipt of the money by him, directly or indirectly, must he established. His complicity in the crime is not the cause of action, but only an item of evidence tending to establish his interest in the proceeds." Although in England the liability in tort of two or more joint tort feasors is held to be joint, ^ while in this country the liability is joint and several,* in all jurisdictions each tort feasor is liable to make good the entire damage done, since the damage is traceable to him as a moving cause. If, however, a wrong-doer is not liable in quasi-contract unless he has received some part of the plaintiff's property in the commission of the wrong, the extent of his liability would seem necessarily to be limited to that which he has received. This proposition, which is not disputed where the defendant is a sole tort feasor, would seem also to determine the extent of the liability where there are joint tort feasors. For if in the case of a sole tort feasor the defendant is only liable in quasi-contract for that which he has received, on what principle can he be made liable in quasi-contract in the case of a joint tort for what has been received ly another for himself, and not for the defendant? Of course it is not necessary that the property come into the physical possession of the defendant ; it is sufficient if it has been received for him by another acting under his authority." And the fact of his agent's having absconded would constitute no defence.^ 77 N. Y. 400. Rutherford, 106 Mass. 1. " 7 r ^l^T^^ "■ ^^'""«°°' '^ K- " National Trust Co. v. Gleason, ' , ;• ^^^- 77 N. Y. 400 {,emUe); New York Lovejoy v. Murray, 3 Wall. 1; Guaranty Co. v. Gleason, 78 N. Y. Elliott V. Hayden, 104 Mass. 180. 503 {semble). '^ National Trust Co. o. Gleason, WAIVER OF TORT. 201 But where that which has in fact been received by another is received only in part for tlie defendant and the action is not in tort, the tort, to use the language of Rapallo, J., in Xational Trust Oo. v. Gleason./ being "only an item of evidence tending to establish his interest in the proceeds," it seems that on principle the extent of his interest in the property should be the limit of the recoverv against him. If this view is correct, th en his liability should be several, and not joint, or joint and several ; for each obligation would depend upon questions differing in one par ticular, namely, the extent of the defendant's enrichment. Opposed to this view, h owever, both as to the liability being several and as to its extent, will be found dicta in the National Trust Co. V. Gleason,^ and in the New York Guaranty and Indemnity Co. V. Gleason,^ — dicta entitled, it must be admitted, to the weight of a decision because of the consideration given to the question. And in accord with the dicta of these cases is the case o f Carew v. Rutherford.^ ) [n all of these cases, how- ever, the argument of counsel seems to have been addressed rather to the fact of liability than to its extent. In City National Bank v. National Park Bank,^ the defend- ant sought to counter-claim against the plaintiff the sum of 82.5,661, loaned by it to one Hardie, a former president of the plaintiff, under the following circumstances. Hardie being indebted to the plaintiff, the latter, although removing him from its management, allowed him to remain as a figure- head, to facilitate his obtaining money with which to pay off his debt ; and for that purpose it conspired with him in securing money on certain worthless securities. In this way he was enabled to borrow from the defendant 125,661, $13,000 of which was applied in payment of his indebted- ness to the plaintiff. The trial judge having refused to 1 77 jj Y. 400. ■* 106 ]Mass. 1. 2 lUd^ 5 32 Hun, 105. a 78 X. Y. 503. 202 THE LAW OF QUASI-CONTRACTS. allow the counter-claim, on the ground that the liability was joint and not several, a. new trial was granted. Davis, P. J., delivering the opinion of the court, said: "But it is insisted, in substance, that such an action on the implied promise would be on a joint and not several contract, and that for that reason, inasmuch as Hardie is not a party to the action as plaintiff or otherwise, the imjjlied contract cannot be set up in this suit as a counter-claim. We think the implied contract in such case which arises upon waiver of an action for tort is joint and several, and not joint alone. Such was the nature of the tort, and each party could have been separately sued upon it ; and the same reason extends to the implied contract. Either conspirator may be sued upon his implied promise, and be made to answer for the whole of the money obtained by the fraud consummated under the conspiracy." It is perfectly clear that the plaintiff should have been held liable to the defendant to the extent of 113,000, the amount which it actually received from Hardie. But it seems impossible in point of principle to support the deci- sion so far as it holds the plaintiff liable for the entire amount received by Hardie from the defendant; nor can one reconcile it with the decision in Natio nal Trust Co. v. Gleason. i Hardie clearly did not borrow the money for the plaintiff, and was therefore not the plaintiff's agent; and while the plaintiff's assisting Hardie in defrauding the defendant would render the plaintiff liable, if sued in tort by the defendant, to make good the damage done by Hardie, that fact should not render it liable to refund either severally or jointly that which had not been received by it. So far as the case holds that the liability is several, it should and would be followed. It does not result from this suggestion that the tort feasor into whose possession the property is actually traced can reduce the amount of his liability by showing that he has transferred the property in ' Sui)rn. p. 160. WAIVER OF TORT. 203 'if hole, or in part, to anotlier, for whom he always held the whole, or a part of it. The moment it actually came into his possession the obligation was imposed upon him of restcir- ing it to the plaintiff; and that obligation he cannot escape by otherwise disposing of the property. There remains to be considered the question of fwhat What amounts * * to an election, )f f what amounts to a conclusive election, and the effect thereof: A and the effect ■T"~T~"'^^^"^T~T'^ . — — ^— "»— — — ^^^^— thereof. person having the right to sue in quasi-contract or in tort may, by his conduct before action brought, lose one or both rights. Thus, for example, yif one having the right to sue another for a conversion, demand and receive from the tort feasor the money received from a sale of the property, he has of course, by the receipt of the mone}', extinguished the claim for money had and received ; and since he should not have both the property and its proceeds, he can no longer sue in tort.i ^If, however, the money is taken, not as the proceeds of the property, but in diminution of damages, such a receipt will not be treated as an election. Unless, how- ever, the facts warrant the inference that the money is received not as the proceeds of the sale or transfer, but in mitigation of damages simply, then by such receipt the plaintiff precludes himself from suing in tort.^ (An unsatisfied demand wil l not preclude the plaintiff from electing between remedies, ^ 'i'hus, in Vaipy v. Sanders,^ the defendant bought goods fr(nn the servant of an abscond- ing tradesman in circumstances rendering him guilty of a conversion as against the plaintiff', afterwards appointed assignee. The plaintiff sent an invoice of the goods to the defendant, demanding payment. The defendant refused to pav, claiming a set-off against the bankrupt. It was held that this demand did not prevent the plaintiff's suing in tort. 1 Brewer v. .Sparrow. 7 B. & C ISO; Bradley v. Brigham, 149 Mass. 310; Smith v. Baker, L. R. 8 C. V. 141. 350 3 5 (^:. B. 887. See alpo ."Morris * Vernon v. Lythgoe, 5 H. & X. c. Robinson, 3 B. & C. 196. 204 THE LAW OF QUASI-CONTEACTS. fAso' .ailng an unsatisfied demand not to preclude one from electin g between the two rights, the question arises as to the effect of an action brought, but not prosecuted to judgment.-^ In Thompson v. Howard,' the defendant was sued in tort tor enticing the plaintiff's minor son into his service. He pleaded in bar that he had been previously sued in assump- sit by the plaintiff seeking to recover the value of his son's services. It was held that notwithstanding the action had been discontinued the plaintiff could not sue in tort after a disagreement of the jury. Graves, C. J., delivering the opinion of the court, said: "A man may not take contradictory positions, and where he has a right to choose one of two modes of redress, and the two are so inconsistent that the assertion of one involves the negation or repudiation of the other, his deliberate and settled choice of one, with knowledge, or the means of knowledge, of such facts as would authorize a resort to each, will preclude him thereafter from going back and electing again. "As there was no evidence or claim that the parties ever actually agreed together at all in regard to the minor's services,"^ it was not possible to refer the assumpsit to any real agreement of a date later than that of the defendant's supposed wrongful enticement, and not possible to infer that the assumpsit rested on a distinct arrangement, and left the original wrong as a ground for a sepa- rate suit. "The first action extended to the minor's services from the beginning; and, when the plaintiff brought it, he thereby virtually affirmed that his son was with defendant in virtue of a contract between the latter and himself, and not by means of conduct which was tortious against him. " His proceeding necessarily implied that defendant had the young man's services during the time with plaintiff's assent, and this was absolutely repugnant to the foundation of this suit, which is that the young man was drawn away and into defendant's service against the plaintiff's assent. "The case is, then, subject to the doctrine before stated, and the election involved in the first suit precluded the plaintiff from maintaining this action for the wrong." 1 31 Mich. 309. 2 The italics are the author's. WAIVER OF TOET. 205 It is respectfully submitted that the doctrine invoked by the court had no application to the case under consideration. Indeed, the court, for the purpose of defeating the plaintiff, assumes as a fact fldiat it knows and states to be- not a fact, namely, the existence of a contract between the plaintiff and the defendant. Having shown that the plaintiif must have made the same state of facts the basis of both actions, since there was really no contract between the plaintiff and the defendant, the court then assumes the existence of a con- tract for the purpose of defeating the plaintiff in the action of tort. The plaintiff in Thompson v. Howard, notwithstanding the discontinuance of his former action, could have brought another action in assumpsit. The defendant, therefore, is not in a position to avail himself of the rule of law expressed in the maxim : JVemo debet bis vexari pro eadem causa ; for there is no more double vexation involved in an action of assumpsit followed by an action in tort, than if the action of assumpsit were followed by another action in the same form. Xor does the court rest the decision on the ground of double vexation, but on the plaintiff's attempting to take contradic- tory positions. Its definition of a contradictory position is the use of remedies " so inconsistent that the assertion of one involves the negation or repudiation of the other. " Now a non-suit in trover would not prevent trespass, nor would a non-suit in account prevent debt. Why then, should assump- sit preclude the bringing of tort ? They are both personal actions and actions on the case, and according to the dicta of the early cases the bringing of the one if not prosecuted to judgment should not preclude one's resorting to the other. 1 The only possible way in which the one can be said to be "the negation or repudiation of the other" is to use, in 1 Holt, C. J., in Lamine u. Dorrell, 2 Ld. Ray. 1216; Hitchins v. Camp- bell, 2 Wm. Bl. 827. 206 THE LAW OF QUASI-GONTEACTS. order to deny a remedy, a fiction adopted solely to give a remedy. 1 The most common illustration of the doctrine misapplied in Thompson v. Howard is the case where a party having a right to rescind a contract because of fraud, repudiates the contract and sues in tort, or with full knowledge of the facts sues on the contract. In such a case the assertion of the two rights would involve the plaintiff, in the language of the court in Thompson v. Howard, in " contradictory positions, " the assertion of the one involving the negation or repudia- tion of the other. Since he must deny the validity of the contract to take advantage of the fraud, having sued for the fraud, he cannot afterwards treat the contract as unobjection- able ; 1 and since he cannot sue on such a contract without 1 Of the cases cited by the court owner effectual and tortious, it is in Thompson u. Howard, none sup- clear that when he retained the pos- port the decision. In Smith v. session and refused to deliver under Hodson, 4 T. R. 211, the court held the bill of sale, the force of the act that a party who sues on a contract done by the co-owner was spent, and which he might have disaffirmed, no independent act of the plaintiff thereby enables the defendant to plead a set-off ; though had the plaintiff sued in trover, he could not have so pleaded. And of the sound- ness of this decision there can be no question. In Rodermund v. Clark, 46 N. Y. 354, it was held that one who retains possession of a vessel, of which he was part owner, refus- ing to deliver it to one to whom the co-owner had sold the whole vessel, could not afterwards by suffering a judgment by default in favor of the purchaser, sue the co-owner as for a — such as suffering a judgment by default — could revive it. And while a dictum of Bovill, C. J., in Smith V. Baker, L. R. 8 C. P. 350, supports the decision in Thompson v. Howard, this is not at all true of the decision . It was simply held that one who had under an order of court received the proceeds of sale could not after- wards bring an action in trover because of such a sale. That is to say, as one is not entitled to both the property and its proceeds, he cannot recover the proceeds, and yet conversion ; although had he suffered complain of the sale which produced the purchaser to take the vessel at the time of the purchase under the bill of sale, he could have main- tained the action. As the surrender of the possession by him was held essential to make the act of the co- the proceeds. In Jewett v. Petit, 4 Mich. .508, it was simply held that one cannot repudiate in part a com- promise induced by fraud. 1 Moller V. Tuska, 87 New York, 166. ■\V.VTVER OF TORT. 207 affirming its validity, it is liiglily proper that he should not be allowed to blow hot and cold, and thereafter to treat the contract as invalid. ^ But in cases of waiver of tort, instead of the tort disap- pearing when the action of assumpsit is brought, the action of assumpsit could not be maintained without proof of the tort. 2 Flow can one be said to occupy " contradictory posi- tions. " in which the agxfrtion of the one involves the nei/atioii, or repudiation of the other, when to recover in either action he must establish that the defendant is a tort feasor ? Where an action is prosecuted to jud gment, the rule, 2remo dehet his vexari pro eadeiu causa, of course applies, and all riii'hts are merited therein. ^ That this maxim mav be invoked, the remedies must, however, have been co-existent.* Thus in Bi-owning v. Bancroft the defendant, who by fraudu- lent representations had obtained from the plaintiff certain goods, and who had sold part of them, pleaded, in bar to an action of replevin for the remainder, the fact that the plain- tiff had recovered in an action for money had and received the proceeds of the goods sold. But the action of replevin was allowed; the remedies were not co-existent. Of course, if in the action for money had and received it had been decided that the defendant was not guilty of the fraud charged, that fact could have been pleaded in bar of the action of replevin, the question being res adjudicata.^ 1 Seavevc. Potter. 121 :\rass. 297; It has been assumed up to this Acer !'. Hotchkiss, n? X. Y. 395. time that the tort is waived either ■-' Huffman i. Hughlett, 11 Lea, by the act of the injured party be- 5^9 fore action brought, or by the bring- 3 Hitchin c Campbell, •_' Wm. ing of an action. The waiver may, BI. 827; Buckland v. .Johnson, 1-5 however, be asserted by counteT' r B. 145 (semhle)\ Bradley u. Brig- claim or set-off. Allen r. United ham 14!) .Afass. 141 ; Boots r. Per- States, 17 Wall. 207 ; Fanson v. guso'n, 46 Hun, 129. Linsley, 20 Kan. 2-35; Challeis v. C. O 4 Browning r. Bancroft, 8 Met. Wylie, 35 Kan. 506 ; Eversole J :Moore, 3 Bush, 49; Gordon v. Bun- 5 Hitchia p. Campbell, 2 Wm. ner, 49 Mo.. -)7(); Andrews u. Artisans' gj 3.27_ Bank, 26 N. Y. 298. See, however, 8. easor. 208 THE LAW OF QUASI-CONTRACTS. jffectof waiver Thus far the effect of waiving the tort has been considered neof two joint on the assumption of there being a sole tort feasor. / The ipon piaintiii's qucstjon naturally arises as to the effect of the waiver in the he othefTon case of joint tort feasors. \ Suppose A and B join in the com- mission of a wrong : what effect has the waiver of tort as to A upon the right to sue B in tort ? Or suppose A to be sued in tort : what effect has the failure to waive the tort as to A upon the right to sue B in quasi-contFa.ct ? In B uckland V. Johnson, 1 the plaintiff, having recovered a judgment in trover against one of two joint tort feasors for a conversion of property by a wrongful sale, and being unable to realize upon the judgment, sued the defendant, the other tort feasor, in a count for money had and received to recover the pro- ceeds of the sale. The money arising from the sale was received by the defendant alone, and not by the tort feasors jointly. It was held that the judgment in trover was a bar to the action. The reasoning by which this conclusion was reached will be found in the following extract from the opinion of Jervis, C. J. : — contra, Rickey v. Bly, llo Ind. 232; promise to pay the value of it; con- Woods V. Ayres, 39 Mich. 345. sequently indebitatus assumpsit might In Eversole v. Moore, 3 Bush, 49, be maintained for that value. And the defendant, being sued as admin- that which the appellant might have istratrix, pleaded as a set-off the recovered in such an action, she may conversion by plaintiff of personal plead as a set-off in this case, as the property of the intestate by the demands of both parties arise from forcible taking thereof. The plea contract, express or implied, to pay was sustained on demurrer, Robert- a certain sum in money (the value of son, J., delivering the opinion of the property, not damage). . . And court, said : " And although tort though the answer shows a tortious cannot be set off against contract, conversion, yet its election to de- yet the trespass in this case may mand only the value of the property be waived, and instead of suing for waived the tort, and relied on im- indeterminate damages arising ex plied contract, which might be en- delicto, an action ex contractu might forced by indebitatus assumpsit." be maintained for the value of the i 15 C. B. 145. property converted on an implied WAIVER OF TORT. 209 •■•The authorities show, and indeed it is not denied, that if Thomas Barber Johnson, the son, had received the money as well as converted the goods, and Buckland had sued him in trover and oljtained a judgment against him, even thouglrit had produced no fruits, that judgment would have been a bar to another action against him for monej- had and received. . . . The whole fallacy of the plaintiff's argument arises from his losing sight of the fact that by the judgment in the action of trover the property in the goods was changed, by relation, from the time of the conversion, and that, consequently, the goods from that moment became the goods of Thomas Barber Johnson, and that when the now defend- ant received the proceeds of the sale, he received his son's money, the property in the goods being then in him." In considering this decision it must be remembered that two of the premises from which the court drew its conclu- sions are not law in this country. The court assumed first that a judgment unsatisfied against one of two joint tort feasors barred an action against the other. This is not true in the United States.^ It was further taken for granted that by the judgment the title was vested in the defendant in the first action as of the time of the conversion. This does not represent the American law.^ If, then, the decision is to be followed here, it cannot be justified on either of the above assumptions. It is true, as stated by the court, that a judgment in trover, though unsatisfied, bars an action against the same defend- ant for money had and received, assuming him to have sold the goods and to have received the proceeds. This is because no one should be subjected to double vexation. But as the doctrine of double vexation is not involved where a plaintiff having an unsatisfied judgment against one of two joint tort feasors seeks to recover against the other, the two cases are not, as the court thought, analogous. Assuming, however, 1 Lovejoy v. Murray, 3 Wall. 1; Atwater v. Tupper, 45 Conn. 144; Elliott y. Hayden, 104 Mass. 180. United Society v. Underwood, 11 2 Dow u. King, 52 Ark. 282 ; Bush, 265. 14 210 THE LAW OF QUASI-CONTRACTS. the correctness of the English doctrine that the liability in tort is joint, and not joint and several, it still seems impos- sible to support the conclusion reached in Buckland v. Johnson. The plaintiff recovered in the first action in tort, and not in the count for money had and received, because it appeared that the money had been received, not by the then defendant, but by the present defendant, whose liability in the count for money had and received was therefore several, and not joint ; yet the court held this several liability to be barred by an unsatisfied judgment obtained against a third party. In Floyd v. Browne ^ the same decision was reached. In Terry v. Hunger ^ it was held that an unsatisfied judg- ment against one of two joint tort feasors obtained on a count for goods sold and delivered, could be pleaded in bar by the other tort feasor when sued in trover for a wrongful conversion of the property. The following extracts from the opinion of Peckham, J., shows the line of reasoning adopted : — "The contract implied is one to pay the value of the property as j if it had been sold ^ to the wrong-doer by the owner. If the trans- action is thus held by the plaintiff as a sale, of course the title to the property passes to the wrong-doer when the plaintiff elects so to treat it. . . . "The plaintiffs having treated the title to the property as having passed in that suit by such sale, can the plaintiffs now maintain an action against another person, who was not a party to that action, to recover damages from him for his alleged con- version of the same property, which conversion is founded upon his participation in the same acts which plaintiffs, in the old suit, have already treated as constituting a sale of the property? We think not. . . . " The proof that an action of that nature had been in fact com- menced, would have been just as conclusive upon the plaintiffs, upon the question of election (proof of knowledge of all the facts 1 1 Rawle, 121. a xhe italics are the author's. 2 121 N. Y. 161. WAIVER OF TORT. 211 at that time being given), as would the judgment have been. It was not necessary that a judgment should follow upon the action thus commenced. . . . " It was their election to treat the transactions as a sale which accomplished that. . . . "If the title really once passed, that would be a fact actually existing, which anybody ought to have the right to prove if it became material in protecting his own rights, unless there were some equitable considerations in such case, which should prevent it. 1 cannot see that they exist here. . . . " If nut, then the fact that the plaintiff sold the property by virtue of the transaction which they now seek to treat as a con- version of it by the defendant, must and ought to operate as a perfect bar to the maintenance of this action. It is upon the principle that the plaintiffs by their own free choice decided to sell the property; and having done so, it necessarily follows that they have no cause of action against the defendant for an alleged conversion of the same property by the same acts \Vhich they have already treated as amounting to a sale. " The plaintiffs having by their former action in effect sold this very property, it must follow that at the time of this one, they had no cause of action for a conversion in existence against the defend- ant herein. The transfer of the title did not depend upon the plaintiff's recovering satisfaction in such action for the purchase price." The writer has endeavored heretofore to show that the fiction of a promise invoked in the cases treated under this title was originally adopted simply for the purpose of plead- ing; the action of assumpsit, which is in form, and originally always was in fact, based on a promise, being the only remedy open to the plaintiff seeking to enforce a quasi- contractual obligation, and that the real ground of liability is the fact that it would be unjust if the defendant were not compelled, at the option of the plaintiff, to pay for value received. If such is the case, then the use of the fiction should cease with the necessity which gave rise to it ; and when used it should be recognized as a fiction, and treated as a fact only for the purpose for which it was invented. 212 THE LAW OF QUASI-CONTRACTS. Having been adopted for the purpose of giving a remedy, under a system in which forms were paramount to substance, it should not be used for the purpose of denying a remedy. And certainly its use for such a purpose cannot be justified in a jurisdiction, as in New York, where forms of action are no longer recognized, the substance being everything and the form nothing. Now, every one knows that where one man tortiously takes the goods of another, there is no sale between those parties ; and yet the highest court in the State of New York gravely asserts that there was. In other words, a fiction to which it is no longer necessary to resort in New York in order to give a remedy is there resorted to to deny a right: and the court says that there is no tort where but for the proof of a tort there could have been no recovery against any one. The decision will probably never be cited as illustrating the maxim, In fictione juris suh- sistit equitas ; and it is certainly at variance with Lord Mansfield's notions of fictions, who said, in Morris v. Pugh,^ "But fictions of law hold only in respect of the ends and purposes for which they were invented : when they are urged to an intent and purpose not within the reason and policy of the fiction, the other party may show the truth. " Opposed to TeiTy v. Munger is the decision in Huffman v. Hughlett. '^ In that case an action was brought to recover the value of lumber which had been converted by one Springer and sold by him to the defendant. The latter pleaded that the plaintiff had previously sued Springer to recover the value of the lumber ; that by the bringing of that action in assump- sit (which had been discontinued) the original tort had been waived ; and that as a consequence the lumber bought by the defendants was the property, not of the plaintiff, but of Springer. This claim was denied by the court. Cooper, J., delivering the opinion, said : — 1 3 Burr. 1243. 2 11 Lea, 549. WAIYKK OF TORT. 213 "If the action be in contract, it is not strictly a waiver of tlie tort, for the tort is tlie very foundation of the action, but, as Nicholson, G. J., has more accurately expressed it, a waiver of the 'damages for the conversion,' and a suing for the value of the property.^ It is simply an election between remedies for an act done, leaving the rights of the injured party against the wrong, doer unimpaired until he has obtained legal satisfaction. If it were otherwise, the suing of any one of a series of tort feasors, even the last, on an implied promise, where there was clearly no contract, would give him a good title and release all the others. Xo authority has been produced sustaining such a conclusion, and we are not inclined to make one." It is respectfully submitted that this decision, which is founded on sound common sense, not only violates no legal principle, but, on the contrary, is a striking illustration of the proper theory underlying the principle involved in the doctrine of waiver of tort generally, and relegates the fiction to its proper province. 1 Kirkman v. Phillips, 7 Heisk. 222, 224. 214 THE LAW OF QUASI-CONTEAOTS. CHAPTER IT- RIGHTS OF A PLAINTIFF IN DEFAULT UNDER A CONTRACT. PiaintifE's right (^There Can be no rec overy upon a contract only partly per - restrupo7 formed unless the conditions thereof have been pe rformed. ^?rn'dpie*s. These conditions may be express, implied in fact, or implied in law . In th e absence of express conditions, or conditions implied in fact, if t he breach occurs after part performance , and does not go to the essence, the plamtitt may, notwith- standing he has failed to perform his side ot tlie contract, recover against the defendant ^n . the contract . It is proposed to consider in this chapter th e right of recov- ery in quasi-contract in those cases, where, because ot a breach of condition, a plaintiff is unable to recover on ths . contrac t itself. '^ ~5s the defendant in such a case is not a tortfeasor, and as ex eoneessu he is not liable on the only contract which he has made, the right, if any exists, is clearly an obligation imposed by law as distinguished from one created by act of the par- ties, and must therefore rest on principles independent of the law of contract. Furthermore, as a defendant who has not received some benefit under a contract is never in the absence of waiver, or of a tortious act on his part, liable to a plaintiff who has failed to perform the conditions thereof, the liability, if there be any, must rest on the equitable principle, that no one shall be allowed to enrich himself unjustly at the expense of another. The obligation is, therefore, an equitable, as dis- tinguished from a legal obligation. (a. plaint iff unable to recover on the contract itself becaus e of his failure to p erform the conditions thereof may seek a recovery in quasi-contract : PLAINTIFF IN DEFAULT UNDER A CONTRACT. 215 1. Where the circumstances would not excuse the non- performance of a promise ; '2. Where tho ugh the faihire to perform is wilful, and in v iolation of his contract, th e plaintiff cannot, because of the sta tuteoffraud s. be sued for a breach thereof ; 3. Where the failu re to perfor m the condition is due to an impossibility of performance, excusing the non-performance of a promise : ■4. Where the plaintiff has repudiated the contract because of the illegali ty thereof, -y SECTION I. WHERE THE PLAIXTIFf's DEFAULT IS WILFUL OR INEXCUSABLE. The failure to perform a condition which affords the defend- ant not only a defence to an action brought on the contract, but which also gives rise to an action for a breach of contract in the event of the plaintiff's having promised to perform, may have been wilful on the part of the plaintiff, or entirely unintentional. ( Subject to the qualification hereinafter stated^ it is generally Right of >C ~ ' ;; "" recovery when held that if a party wilfully refuses to perform the conditions breach is of a contract, he can recover no compensation lor the benelTts c onferred by h im upon the defendant by a part performance thereof.^ \ 1 See infra, p. 227. Jlich. 607; Peterson v. Mayer, 46 - Turnei- v. Robinson, 5 B. & Ad. Minn 468 ; Haslaclc v. Mayers, 2 789; Collins v. Stimson, 11 Q. B. D. Dutch. 284 ; Brown v. Fitch, 33 N. 142; Wright v. Turner, 1 Stew. 29; J. L. 418; Lantry v. Parks, 8 Cow. Hogan V. Titlow, 14 Cal. 2.)5 63; Lawrence ;;. Miller, 86 N. Y. (semble); Eldridge c. Rowe, 7 111. 131; The Empire State Foundry 91; Thrift v. Payne, 71 111. 408; Co. v. Grant, 114 X. Y. 40; Larkin Escott V. White, 10 Bush, 169 i. Buck, 11 Oh. St. 561; Shaw «. (semble) ; Miller v. Goddard, 34 Me. The Turnpike, 3 Pa. 445 ; Bragg 102; Chapman v. Fames, 67 Me. v. Town of Bradford, 33 Vt. 35 452 (semble); Staik v. Parker, 2 (.«em6/e); Patnote u. Sanders, 41 Vt. Pick. 267; Hapgood v. Shaw, 105 66; Malbon i>. Birney, 11 Wis. 107; Mass. 276; Hanley v. Walker, 79 Moritz c. Larsen, 70 Wis. 569. 216 THE LAW OF QUASI-CONTRACTS. Thus in Stark v. Parker,i the plaintiff, who had agreed to work for the defendant for a year, and who had left his service without cause before the expiration thereof, brought an action to recover the value of the services performed by him prior to leaving the defendant's employment. It was held that the plaintiff was not entitled to recover. Lincoln, J., delivering the opinion of the court, said : — " The exceptions present a precise abstract question of law for consideration, namely, whether upon an entire contract for a term of service for a stipulated sum, and a part performance, withput any excuse for neglect, of its completion, the party guilty of the neglect can maintain an action against the party contracted with, for an apportionment of the price, or a quantum meruit for the services actually performed. . . . "It cannot but seem strange to those who are in any degree familiar with the fundamental principles of law that doubts should ever be entertained upon a question of this nature. Courts of jus- tice are eminentlj"- characterized by their obligation and office to enforce the performance of contracts, and to withhold aid and countenance from those who seek through their instrumentality impunity or excuse for the violation of them. And it is no less repugnant to the well-established rules of civil jurisprudence than to the dictates of moral sense that a party who deliberately and understandingly enters into an engagement and voluntarily breaks it, should be permitted to make that very engagement the founda- tion of a claim to compensation to services under it. . . . "The law, indeed, is most reasonable in itself. It denies only to a party an advantage from his own wrong. It requires him to act justly by a faithful performance of his own engagements before he exacts the fulfilment of dependent obligations on the part of others. It will not admit of the monstrous absurdity that a man may voluntarily and without cause violate his agreement, and make the very breach of that agreement the foundation of an action which he could not maintain under it. Any apprehension that this rule may be abused to the purposes of oppression by hold- ing out an inducement to the employer, by unkind treatment near the close of a term of service, to drive the laborer from his engage- 1 2 Pick. 267. PLAIXTIFF IN DEFAULT UNDER A CONTRACT. 217 ment to the sacrifice of his wages, is wholly groundless. It is onlj' in cases where the desertion is voluntarj' and without cause on the part of the laborer, or fault or consent on the part of the employer, that the principle applies." In Lantry v. Parks ^ it was held that the refusal of the defendant to allow the plaintiff, who had wilfully deserted his service, to resume his former employment, did not take the case out of the general rule, and that the plaintiff could not recover on a quantum meruit for services rendered. C lhe rule denying a recover y when the plaintiff has wilfully broken the conditions of a contract, applies equally in the absence of waiver to a case where that fact can be established . liiougli ilie plalnfgf continued to serve the dpfpndant fm- t.li p time specified in the contrac t. Y Thus it was held in Peterson V. Mayer,2 that one who had habitually during his term of service been guilty of embezzling the funds of his employer, could not recover anything for the services rendered by him. In accordance with the principle under consideration it is held that money paid in part performance of a contract ^ cannot be recovered by one wilfully refusing to perform the condi- tions thereof. If, however, the money was not paid in part performance of the contract, but was furnished by the plaintiff simply as secur- ity for his performance thereof, then in the event of a default by him, though tlie default be wilful, the extent of the defend- ant's right as to money so received is to use the same to com- pensate himself for the damage done him by the breach of contract; the surplus, if there be any, must be returned.^ The rule under consideration is curiously illustrated by the case of Haggood v. Shaw.^ In that case Hapgood had agreed to 1 8 Cow. 6.3. See also Tennessee 276; The Empire State Foundry Mfg. Co. V. James, 91 Tenn. 154. Co. v. Grant, 114 N. Y. 40. 2 46 Minn. 468. * Cliaude v. Shepard, 122 N. Y. > Collins V. Stimson, 11 Q. B. D. 397. 142 ; Hapgood v. Shaw, 105 Mass. * 105 Mass. 276. 218 THE LAW OF QU-ASI-CONTEAOTS. purchase from Shaw certain goods, agreeing to receive them on or before June 1st, and had paid to Shaw when he entered into the contract one hundred dollars on account. Shaw had agreed with Hapgood to deliver the goods to him June 1st. Neither party made a tender to the other until June 6th, when Shaw requested Hapgood to receive the goods and to pay the remainder of the purchase-money, which Hapgood refused to do. It was held that, neither could sue the other for a breach of contract for the reason that the conditions in the contract were mutual and concurrent, and neither party had put the other in default by making a tender on June 1st. It was further held that as the defendant was not in default, no tender having been made by the plaintiff, and the contract remained unrescinded, the plaintiff could not recover the money paid on account, though it was no more his duty than the defendant's to take the initiative in the performance of the contract. / 'Although the rule generally prevails that one guilty of a wilful breach of a condition is without r emedy, this rule is not 75niversal. ^ In B ritton v. Turner ^ the plaintiff, who in viola- tion of his agreement to work for the defendant for one year, left the defendant's service without defendant's consent and without cause, was allowed to recover from the defendant the value of the services rendered by him in excess of the damage suffered by the defendant in consequence of his breach of con- tract; and this decision has been followed in some jurisdic- tions.2 In this case the court assumed as a basis of its decision the existence of a rule of law which did not in fact exist at that time, and does not exist to-day, except where Britton v. Turner has been followed, — namely, that one fur- nishing material to be used in the construction of buildings, or 1 6 N. H. 481. 107; Pavcell v. McComber, 11 Neb. 2 Pixler V. Nichols, 8 la. 106; 209; Britton b. Turner, 6 N. H. 481; Wheatly v. Miscal, 5 Ind. 142 Chamblee v. Baker, 95 N. C. 98; (semble); Duncan v. Baker, 21 Kan. Carroll v. Welch, 26 Tex. 147. PLAINTIFF IN DEFAULT UNDER A CONTRACT. 219 furnishing merchandise, could recover for the value of such material or merchandise, notwithstanding his wilful breach of contract, if the same had been used, even though it was used before the plaintiff had refused to further perform the contract. Mr. Justice Parker, assuming this to be the law, thought, and thought properly, that the case of labor furnished under a contract in part performance thereof could not be distinguished from either of the cases supposed. The learned judge also failed to distinguish the case at bar from a case where a defendant knowing that the plaintiff is in default as to the contract, receives from the plaintiff a part performance thereof. In such a case it is held that the party receiving such part performance must pay therefor ; and this is clearly correct, for the reason that, as the defendant need not accept such performance, he should not accept if he is not willing to pay therefor, but should resort to his remedy for breach of contract. But the case supposed is very different from the case of Britton r. Turner. There the defendant at the time when he received the plaintiff's services could not have refused to receive them without rendering himself liable to an action for breach of contract, whereas in the case suggested by the court, the defendant had a perfect right to refuse to receive the part performance ; and having that right it is properly said that if he suffer the plaintiff to perform, it is only equitable that he should compensate the plaintiff for his performance, and if he has suffered damage in consequence of the plaintiff's breach of contract, the plaintiff must make good that damage in an action brought by the defendant. In fact it would seem diffi- cult to put the distinction between the cases more tersely than it was put by the court itself. " In both," says Parker, J., " the parties have assented to receive what is done ; the only difference is that in one case the assent is without a knowl- edge that all may not be performed, in the other it is sub- sequent, with a knowledge that the whole has not been accomplished." 220 THE LAW OF QUASI-CONTRACTS. The case of Britton v. Turner has been so often discussed that it seems proper to refer at length to the arguments urged by the court. The reasons assigned by the court apart from the analogies hereinbefore referred to for allowing a recovery, were two : First, that a plaintiff should be allowed to recover, notwith- standing a wilful breach of contract, for the reason that were he sued by the defendant, the defendant might not be able to recover more than nominal damages, and in such a case to refuse the plaintiff a right of action would be to give the defendant substantial damage ; Second, that the understanding of the community in such a case, is, that a laborer shall receive compensation for the services actually performed by him, and that such under- standing must be taken as a term of the contract of hiring. On the first point, namely, that a plaintiff should recover for the reason that were he sued he would be liable for nomi- nal damages only, Mr. Justice Parker expressed himself as follows : — "A party who contracts to perform certain specified labor, and who breaks the contract in the first instance, can only be made liable to pay the damages which the other party has sustained by reason of such non-performance, which in many instances might be nominal; whereas a party who in good faith has entered upon performance of his contract and nearly completed it, and then abandons the further performance, although the defendant has had the full benefit of all that has been done, and has perhaps sustained no actual damage, is in fact subjected to a loss of all that has been performed, in the nature of damages for the non-fulfilment of the labor done under the technical rule that the contract must be fully performed in order to a recovery of any part of the compensation. "By the operation of this rule, then, the party might be placed in a much worse situation than he who wilfully disregards his con- tract, and the other party may receive much more by the breach of the contract than the injury which he has sustained by such breach, and more than he could be entitled to were he seeking to recover damages by an action." PLAINTIFF IN DEFAULT UNDER A CONTRACT. 221 This statement confuses the question of rights and liabili- ties. If one has in fact violated another's right, that other has a right of action against him ; but as he is entitled simply to indemnity for the invasion of his right if the damage done is small, the recovery will be correspondingly small. But it is a novel suggestion that because the damage wliich one has done another is small, the person who has done the injury has therefore a right agains t Fhe pers on injured. One who fails to iicquire a right against another can in no sense be said to be paying damages. He is a loser not because he is paying damages, but simply because by his conduct he has failed to acquire a right against the defendant ; and it seems difficult to make his right against the defendant rest upon the amount of damages which lie must pay the defendant for the violation by him of the defendant's right. In regard to the second suggestion made by the court, it need only be said that the court contradicts itself on this point. The court says : — " In fact we think the technical reasoning that the performance of the whole labor is a condition precedent, and the right to recover anything dependent upon it; that the contract being entire there can be no apportionment; and that there being an express contract no other can be implied, even upon tlie subsequent performance of service, — is not properly applicable to this species of contract, where a beneficial service has been actually performed ; for we have abundant reason to believe that tlie general understanding of the community is, that the hired laborer shall be entitled to compensa- tion for the service actually performed, though he do not continue the entire term contracted for, and such contracts must be pre- sumed to be made with reference to that understanding, unless an express stipulation shows the contrary. "Where a beneficial service has been performed and received, therefore, under contracts of this kind, the mutual agreements can- not be Considered as going to the whole of the consideration, so as to make them mutual conditions, the one precedent to the other, without a specific proviso to that effect."* 1 Boon V. Eyre, 1 H. Bl. 27.3 n.; v. Atkinson, 10 East. 295; Burn v. Campbell y. Jones, 6 F. 570 ; Ritcliie Miller, A. Taunt. 745. 222 THE LAW OF QUASI-CONTRACTS. If this statement means anything, it means that the plain- tiff is entitled to recover on the contract, and such was in fact the decision in the cases cited by the court. And yet the court says that the plaintiff can recover, not on the conti'act itself, but only upon the obligation imposed by law. If, how- ever, a recovery can be had only upon an obligation imposed by law, then it cannot be a term of the contract under which the service was performed that the plaintiff shall receive com- pensation for the services actually rendered. Ctn Missouri the unique position is taken that while gener- ally one cannot recover for benefits conferred by a part per- formance of a contract, the conditions of which h ave been wilfully broken by him,^ a re covery will be allowed in such circumstances in the case of a building contract.^ ) The case of a wilful breach of condition may be considered from two points of view : First, where the condition is express or implied in f act ; Second, where the condition is one implied in la w. Express and A Condition implied in fact is a true condition, and differs implied ,. . , conditions from an express condition only in the manner in which it is distinguished. . , . , . . ■, , , , proved. An express condition is proved by the language used, and a condition implied in fact by circumstantial evidence; but each rests upon the intention of the parties as manifested in the contract. Whatever is-true of the one, then, must be true of the other, and they can therefore be considered together. It would seem to be a clear usurpation on the part of a court to say that a plaintiff shall recover compensation from a defendant in circumstances in which both the plaintiff and defendant have agreed that the plaintiff should have no compensation, and yet, if a plaintiff who has failed to perform a true condition in tlie contract is allowed to exact compen- sation from the defendant in quasi-contract, when the failure would prevent his recovering on the contract itself, a court is practising such usurpation. 1 Gruetzner v. Aude Furniture ^ Gregg v. Dunn, 38 Mo. App. Co., 28 Mo App. 263. 283. PLAINTIFF IN DEFAULT UNDER A CONTRACT. 223 It would seem, however, that if the condition of a con- tract was clearly not directed to the event which has brought about a breach thereof, a court might well say in the absence of evidence that the parties intended that the plaintiff should receive no compensation on the happening of the event in question, that they are free to deal with it on equitable principles. While proof of this fact could never render the defendant liable in contract because, were the proof ad- mitted in an action on the contract, it would still remain a fact that the defendant had only promised to pay in a certain event, and that event has never happened, and the plaintiff to recover on the contract must prove a breach of the promise as made by the defendant, — still in a suit in quasi-contract the evidence should be admitted, to show that while the parties never expressed an intention that the plaintiff should be compensated on the happening of the event in question, for which reason the defendant is not liable i n contract, still it was never present to their minds that he should not receive compensation, and therefore the court is at liberty to deal with it on equitable principles. Where the plaintiff is unable to recover on the contract because of the breach of a condition implied in law, the con- siderations involved are somewhat different. Until 1773 i a plaintiff, notwithstanding a clear breach of contract on his part, was allowed to recover against a defendant who refused to perform because of the plaintiff's breach of promise, there being until that time no recognition of what is now known as a condition implied in law. If the contract contained neither an express condition nor one implied in fact, each party was compelled to perform the contract, and sue the other for a breach thereof, a breach by the plaintiff not justifying the defendant in refusing to perform. It being however clearly inequitable for a plaintiff who had committed a substantial breach of contract to compel the defendant to perform as if 1 Langdell, Summary of Contracts, 2d ed. p. 183. 224 THE LAW OF QUASI-CONTRACTS. no breach had been committed, Lord Mansfield introduced the doctrine of conditions implied in law. And this doctrine was afterwards extended by courts of law to some cases where the plaintiff's breach of contract, though it did not go to the essence, was in limine. The condition implied in law is that the plaintiff shall not break his contract in limine_ or ajts? part pprfnrTna.nce.,in a particular that goes to the essence. ^^ Although Lord Mansfield treated this innovation as if it had always existed in the law, there was no trace of it until his time. Had Mr. Justice Willes had the disregard for precedent that was shown by Lord Mansfield in this matter, the doctrine of implied conditions as they now exist in the law would have been introduced into the law on a different basis. In Thomas V. Cadwallader,! Willes, J., thus expressed himself : — "But I expressed my dislike of those cases, though they are too many to be now overruled, where it is determined that the breach of one covenant, though plainly relative to the other, cannot be pleaded in bar to an action brought for the breach of the other, but the other party must be left to bring his action for the breach of the other; as where there are two covenants in a deed, the one for repairing and the other for finding timber for the reparations; this notion -plainly tending to make two actions instead of one, and to a circuity of action and multiplying actions, both which the law so much abhors. If, therefore, this were a new point I should be inclined to be of opinion that, though where there are mutual covenants relative to one another in the same deed, a plain- tiff is not obliged, in an action brought for the breach of them, to aver the performance of a covenant which is to be performed on his part, yet that the defendant in such action may in his plea insist on the non-performance of the covenant to be performed on the part of the plaintiff; but this has been so often determined other- wise that it is too late now to alter the law in this respect." It is evident from these remarks of Mr. Justice Willes that had he felt at liberty to break away from the authorities, he I Willes, 496. PLAINTIFF IN DEFAULT UXDER A CONTRACT. 225 would have allowed a breach of contract to have been pleaded as an affirmatiYC or equitable defence. That conditions implied in law are not true conditions is as evident on reflection as that a quasi-contract is not a contract. A true condition is as much dependent upon actual intention as is a true contract, and conditions implied in law are only found where a party to a contract failed to protect himself by the insertion of conditions, express or implied in fact. A condition implied in law being then a creature of the law as distinguished from the creation of the parties to the contract, cannot be properly regarded as a true condition. If tliis be conceded, the argument heretofore suggested in sup- port of the proposition that a court shall not allow a plaintiff to recover who has failed to perform a true condition, — namely, that the court has no right to impose terms differing from and contradicting what has been agreed upon by the parties, — • does not apply to conditions implied in law, as it is the fact that the parties have not indicated an intention on the sub- ject that gives rise to these conditions. And as the law has imposed these conditions upon the plaintiff in favor of the defendant simply for the purpose of reaching equitable re- sults, the court creating this condition should be at liberty, if it is deemed desirable, to create an obligation upon equi- table principles in favor of the plaintiff against the defend- ant, it being one thing to say that the plaintiff shall not recover against the defendant under the contract, and quite another thing to say that he shall not recover in any form whatever. But it would seem that a sound policy would require the courts to establish in the case of a wilful breach of conditions implied in law the same rule as exists in the case of express conditions. To do otherwise would be to put a premium upon a breach of contract. As a matter of law, the results reached in this class of cases have been reached without any recognition of the 15 226 THE LAW OF QUASI-CONTRACTS. difPerence between a true condition and a condition implied in law, both classes being treated alike. In Oxendale v. Wetherell i the plaintiff sued to recover the price of 130 bushels of wheat delivered to the defendant. The jury found that the defendant made an entire contract with the plaintiff for the purchase of 250 bushels of wheat to be delivered within six weeks. It was held that the plaintiff, notwithstanding he had delivered only 130 bushels, could recover for the wheat delivered. The facts of this case are so meagrely reported that it is difficult to determine just what the case decides. If there was to be but one delivery of wheat, and the defendant, having a right to call for 250 bushels, received a smaller quantity, knowing that the plaintiff did not intend to make a further delivery, the decision is unquestionably sound. The defendant, having a right to refuse to accept the wheat tendered, and knowing that the plaintiff did not intend to furnish the remainder, should have refused to receive the wheat tendered, and have relied upon his right to sue for a breach of contract. If, however, it be assumed that the plaintiff had a right to make several deliveries, the mere receipt of one delivery should not render the defendant liable to pay therefor, since he would have been guilty of a breach of contract had he not accepted the wheat tendered.^ Furthermore, if it be assumed that though the contract called for one delivery, the defendant permitted the plaintiff to deliver a smaller quantity than the contract called for, with the understanding that the remainder was to be deliv- ered -within the six weeks, the reasoning suggested cannot be applied, since the defendant could say in such a case that but for the expectation of receiving the remainder, he would not have accepted such part performance. 1 9 B. & C. 386. 2 Champlin o. Kowley, 18 Wend. 187; Catliii v. Tobias, 26 N. Y. 217. PLAINTIFF IN DEFAULT UNDEE A CONTRACT 227 In Shipto n v. Casson ' it was held that if one who has a right to return goods delivered in part performance of a con- tract elects to retain the goods so delivered, he cannot defeat an action to recover the value of the goods by relying upon the plaintiff's failure to perform fully. The liability of the defendant in Oxendale v. Wetherell, as in Shipton v. Casson, seemed to turn upon his retention of the property. But to reconcile the cases, from this point of view, with the English authorities denying a plaintiff a right of recovery who has failed to entitle himself to a recovery under a contract, it must be assumed that the goods were still in the possession of or under the control of the defendant, and could therefore be returned. If the goods could not be returned, then the cases are not distinguishable from the case where a defendant has received services for which it is held he need not pay because of the plaintiff's bi'each of condition,^ or the case where the plaintiff has repaired the defendant's house, or built upon the defendant's land, under a contract which he cannot enforce because of his default,* and where it is held that he cannot recover for value received. If it be assumed that the ground of the defendant's liability is the fact that he is alile to but will not return the goods, such a distinction seems to be questionable. That which the defendant received under the contract became his at the time Avhen it was received. The plaintiff clearly cannot by a breach of his contract re-acquire title thereto, and the fact that the defendant is able to return it does not make the benefit which the defendant has received any greater than if he had used it. If the defendant has used it, and is not therefore in a position to return it, he is to that extent clearly enriched at the expense of the plaintiff; and yet he is not required to 1 5 B. & C. 378. " Munro v. Butt, 8 E. & B. 738; 2 Turner v. Robinson, 5 B. & Ellis.". Hamlen, 3 Taunt. 52. Ad. 789. 228 THE LA.W OF QUASI-CONTRACTS. make him compensation therefor. It would seem to be no more inequitable for him to keep without compensation that which is in esse but which belongs to him, than to refuse to make compensation for that which is not in esse but of which he has received the full benefit. In Bowker v. Hoyt^ it appeared that subsequently to a delivery of corn by the plaintiff to the defendant, a dispute arose as to the quantity which the plaintiff had contracted to sell. The plaintiff, who had delivered 410 bushels, con- tended that he had contracted to deliver 500 bushels only, and offered to complete the delivery of that quantity. The defendant claimed that he was entitled to the delivery of 1000 bushels, and refused to receive any more unless the plaintiff would deliver that quantity. It was held that the acceptance of the 410 bushels of corn was a severance of the entirety of the contract, and that as the sale was a cash transaction, creating an immediate liability, from which the defendant could not be released by any subsequent default of the plaintiff, the plaintiff was entitled to recover. If the plaintiff delivered the corn thinking that his contract only required him to deliver ninety more bushels, and the cir- cumstances were such that the defendant could not demand a further delivery, the case would seem to be correctly decided. But if it is to be regarded as the ordinary case-of a vendor in wilful default, it is submitted that the decision is inconsistent with the Massachusetts decisions hereinbefore referred to,^ holding that a plaintiff in wilful default cannot recover on a quantum meruit. Right of a In the cases heretofore considered, while the plaintiff has plaintiff refus- ing to perform been ui default, the defendant has been ready, able, and willmg a contract „-..,„ /t- . wiiichthe to perform his side of the contract, fit remains to consider cmiid not have the r ight of a plaintiff who, having wiliuUy refused to perform performed. 1 18 Pick. 555. Cailin .,. Tobias, 26 N. Y. 217 ; 2 See supra, p. 215. See also Witherow v. Witherow, 16 Oh. 238. Champlin u. Rowley, 18 Wend. 187; PLAINTIFF IN DEFAULT UNDER A CONTRACT. 229 a contract, afterwards discovers that had he been willino- to perform he ^YOuld have been under no obligation to do so because of the defendant's inability to per form. n^ In Soper v. Arnold ^ the plaintiff sought to recover a deposit of money made by him under a contract for the purchase of real estate. The plaintiff had accepted the title offered by the defendant, and the money paid by him was by the terms of the contract forfeited because of his failure to complete the purchase within the time stated. After the abandon- ment of the contract by the parties it was discovered that the defendant could not have transferred a title to the plain- tiff. It was held that the plaintiff could not recover the money so paid. Cotton, L. J., said : — " The case is not one where the contract is still in fieri, and the vendor or the purchaser is insisting on specific performance ; but one where the vendors had, in consequence of the default of the pur- chaser, put an end to the contract as far as they could, and claimed to retain the deposit. Under those circumstances the purchaser is in the position of a man who has re2:>udiated his contract. . . ■■ Then it is said that here, even if there had been a completion hy conveyance to the plaintiff, he ought, on afterwards discovering the badness of the title, to get the money back again. Cases were quoted to show that the rule ignorantia juris quod quisque tenetur scire neminem excusnt does not appl}' to a case like the jjresent. Assuming that to be so, where is there an authority that after the conveyance taken and the money paid, the purchaser who has taken the conveyance and accepted the title can, merely because he after- wards finds out in consequence of his being ejected that the title is a bad one, recover the purchase money ? In my opinion that is not the law. What is the use of covenants for title, and what is the use of limiting covenants for title, if whenever any pur- chaser who has taken a conveyance is ejected he can come to the vendor and say, 'Take back the estate for what it is worth and give me hack my money ' ? " The soundness of this decision seems to depend upon the form of conveyance that the plaintiff had a right to demand 1 37 Ch. D. 96. 2;!0 THE LAW OF QUASI-CONTRACTS. under the contract. If the defendant could have performed his contract by giving a quit-claim deed, then the contract was in fact not a contract for the purchase of a title to real estate, but a contract for the purchase of the interest, if any, of the defendant; and, therefore, since the plaintiff could not, after the execution of the deed, have recovered the money because of the failure of title, he should not have been allowed to recover the money where, because of his own default, the deed was not executed. If, however, the plaintiff had a right under the contract to call for a deed with covenants, which would have entitled him to indemnity, in the event of a failure of title on the part of the defendant, then since the loss would have fallen upon the defendant had he executed the deed, the plaintiff should have been allowed to recover that which coiild have been recovered had the plaintiff paid to the defendant the remainder of the purchase money and taken a deed of conveyance. The real reason why a plaintiff who is in default under a contract cannot recover money paid thereunder is, that it is because of his default that he has not received from the defendant the subject-matter of the contract. But if it be assumed that the contract on the part of the defendant is to convey a title, and that the plaintiff could have refused to perform the contract on his part had he known the facts, then it cannot be said, even though he is in default, that his failure to obtain performance of the contract is a consequence of his default. To allow a defendant in such circumstances to retain the purchase money that has been paid, is to allow him to profit because of the plaintiff's ignorance of his right to refuse to perform. ( it is held in many jurisdictions,' though there is a conflict ^ Dermott ». Jones, 2 Wall. 1 Church, 55 Conn. 183; White v. (semble); Beha v. Ottenbe)-g. 6 D. Oliver, 36 Me. 92 ; Hayward v. C. 348; Blakeslee v. Holt, 42 Conu. Leonard, 7 Pick. 181; Blood v. Wil- 226; Pinches v. Swedish Lutheran son, 141 Mass. 25 j Atkins v. Barn- PLAINTIFF IN DEFAULT UNDER A CONTRACT. 231 _of authority,^ that a party who lias endeavored in yooH fn.it^^h pio-h> of a to perform a contract can recover on a quantum meruit forl nTn"te^tioaaUy the benefits conferred by a part performance, notwithstanding '" '^*'**""' his inability to recover on the contract itself because of his failure to perform the conditions thereof. ^ In this class of cases, as in the cases where the breach of condition has been wilful, the courts that have adopted this rule have drawn apparently no distinction between tnie condi- tions and conditions implied in law. Where the conditions are expressed or implied in fact it seems difficult in many cases to allow a recovery, since the condition was inserted to secure performance by the plaintiff, where performance is possible, and not simply to guard against a wilful breach of contract. Where the condition is not expressed, but implied in law, if the equitable nature of the condition were recog- nized a court could, consistently with a denial of the right of the plaintiff to recover in the case of the express condition, allow a recovery in the case of the condition implied in law. To allow a recovery in such cases is equitable, and not against public policy, as the burden is on the plaintiff to show that the breach was not wilful, and that he endeavored in good faith to perform the contract.^ SECTION II. WHERE THE PLAINTIFF RELIES UPON THE STATUTE OF FRAUDS, (In con sidering the rights of a plaintiff who has wilfully Effect of statute r ' . ^, . , , J. of frauds upon refused to perform a contract, relymg upon the statute or contracts. stable, 97 Mass. 428 ; Gove v. Island Bozarth v. Dudley, 44 N. J. L. 304 City Co, 19 Ore. 36.3; Parker v. (semble); C hamplin v. Rowley, 18 Steed, 1 Lea, 206; Bragg w. Brad- Wend. 187; Catlin v. Tobias, 26 N. ford, 33 Vt. 35 ; Taylor v. Williams, Y. 217. 6 Wis. 363. ^ See, as to measure of recovery 1 Ellis V. Hamlen, 3 Taunt. 52; in cases under this section, infra, Munro v. Butt, 8 E. & B. 738; p. 313, n. 2. 232 THE LAW OF QUASI-CONTRACTS. Generally a plaintiff in default has no rights in quasi-contract. frauds, it will be assumed that but for the statute he would have no right to recover compensation for the benefit con- ferred upon the defendant by his part performance. It is important in this connection to consider the effect of the statute of frauds. There are three views taken by the courts as to the effect of a failure to comply with the statute of frauds : 1. That the statute affects not the contract, but simply the remedy for a breach thereof ; ^ 2. That the effect thereof is to make the contract a nullity , ^ 3. That the effect thereof is to enable either party to rescind the contract.^ ^ It is nowhere contended that the contract is illegal because of the failure to comply with the statute of frauds. There is, therefore, no objection in law to either or both parties per- forming the contract. (^ Either party being at liberty to perform t he contract, and it not being the policy of the statute to discourage the per- formance of such contracts, it is generally held that there can be "no recovery against a defendant not in default for benefits received. ) Thus it is held that money paid in per- formance in whole or in part of an oral contract for the purchase of land, cannot be recovered if the vendor is willing to convey the property on the performance of the conditions by the plaintiff.* 1 Leroux v. Brown, 12 C. B. 801; Kleeraan v. Collins, 9 Bush. 460, Townsend v. Hargraves, 118 Mass. 325. ^ Wilkinson v, Heavenrich, 58 Mich. 574; Crawford w. Parsons, 18 N. H. 293 ; Koch v. Williams, 82 Wis 186. = Winters v. Elliott, 1 Lea, 676; Brakefield v. Anderson, 87 Tenn. 206 {semble). « Thomas o. Brown, 1 Q B. D 714 ; Hoskins v. Mitcheson, 14 U. C. Q. B 551; Mitchell v. McNab, 1 111. App. 297, Gray v. Gray, 2 J. J. M 21 ; Plummer v. Bucknam, 55 Me. 105 ; Sennett v. Shehan, 27 Minn. 328 ; McKinney v. Harvie, 38 Minn. 18 ; Lane v. Shackford, 5 N. H. 130; Ketchumu. Evertson, 13 Johns. 359 ; Abbott v. Draper, 4 Den. 51; Collier v. Coates, 17 Barb. 471. See, however, infra, pp. 236- 240. PLAINTIFF IN DEFAULT UNDER A CONTRACT. 233 In Collier v. Coates ^ the reason for reaching this result was thus stated by Johnson, J. : — " The contract here upon which the money was paid, although it was so far void that the law would lend no aid in enforcing it, was not contrary to law. It was neither immoral nor illegal. It was one which the parties had a right to make and carry out. There/ was no fraud or mistake. The money was voluntarily paid hy the plaintiff upon a promise made by the defendant. The former knew at the time he could not oblige the latter to perform, but which promise, nevertheless, he agreed to accept as a sufficient consider- ation for the money. The money was not received by the defend- ant as a loan but as a pa3'ment. It was not received for the plaintiff's use, and as long as the defendant is willing to do what he agrees to do in consideration of the payment, the law will not presume any promise to repay it, hut will leave the parties to stand where they voluntarily placed themselves by their arrangement until the defendant refuses to carry it out." For the same reason one who has refused to execute a con- veyance of premises cannot recover for use and occupation against the vendee, who has occupied the same under an oral agreement for the purchase thereof, and who was ready to perform the contract.^ For the same reason it is held that one who has paid money or rendered services under a contract, not to be performed within a year, and who refuses to perform further on his side because of the statute of frauds, cannot recover for the benefit conferred upon a defendant who is not in default.^ In Philbrook v. Belknap,* Phelps, J., delivering the opinion of the court, said : — "It is argued, however, that the contract is void, by force of the statute of frauds. Admitting that this contract is within the term 1 17 Barb. 471. v. Prentice, 45 N. Y. 162; Abbott 2 Greton v. Smith, 33 N. Y. 245. v. Inskip, 29 Oh. St. 59 ; Philbrook 8 Claik V Terry, 25 Conn. 395, v. Belknap, 6 Vt. 383. Kriger v. Leppel, 42 Minn 6 ; Lock- « 6 Vt. 383. wood V. Barnes, 3 Hill, 128 ; Galvin 234 THE LAW OF QUASI-CONTEACTS. of the statute, yet it may be well to inquire, what is the effect of the statute upon it ? Although it is common to speak of a contract as void by the statute of frauds, yet, strictly speaking, the statute does not make the contract yoid, except for the purpose of sustain- ing an action upon it to enforce it. The statute provides that no action shall be sustained upon certain contracts unless they are evidenced by writing. It operates therefore upon the contract only while it is executory. Itjdoes not make the performance of such a contract unlawful ; but if the parties choose to perform it, the con- tract remains in full force notwithstanding the statute, so far as relates to the legal effect and consequences of what has been done under it. . . . This very case affords an illustration of the effect of the statute. If the defendant had sued the plaintiff for not per- forming the contract, in not serving the full period, the case would be open to a defence under that statute; the contract being to the purposes of such a suit executor}', and the attempt being to sustain an action on it as such. But in this case the contract, so far as the service has been performed, is executed and is relied on as regulat- ing and determining the right of the plaintiff to compensation for what has been done under it. We are here concerned only with what has been done. The question is what the plaintiff is entitled to for his labor ; and this depends upon the terms of th e contract under which he performed the^rvioe. Had the whole service been performed, the rate oTcompensation would, without doubt, be regu- lated by the terms of the contract. No court would discard the contract and resort to a quantum meruit. The principle is the same as to a performance in part. The defendant may be without remedy for the desertion of the plaintiff, but he may certainly pro- tect himself as to what has been done." ( In King_^. Welcome ^ the plaintiff, who had contracted to _s^rve the defendant for a year from a future date, and whn left the defendant's employ during the year without cause, was allowed to recover against the defendant to the extent of the benefit conferred upon the defen dant by part perform- ance ) T he court admitted that the case was not within the lette?of the statute, the statute enacting that " no action shall 1 5 Gray, 41. See, to same effect, Bernier u Cabot Mis. Co , 71 Me. 506. PLAINTfo IN DEFAULT UXnKR A CONTRA ACT. be brought unless the promise, contract, or agreement upon which such action is brought shall be in \vriting, signed by the party to be charged therewith ; " but contended that if the plaintiff were not allowed to recover, the defendant was in fact '' charging the plaintiff therewith." It is submitted that the defendant in such a case is not " charging the plaintiff therewith " within the spirit even of the statute, it not being possible to charge one with^a n agree- ment_ within either the letter or the spirit of the statute, unless a judgment be given for a plaintiff against a defendant plead- ing the statute of frauds. The statute says that no action shall be brought on the contract to charge one therewith. The statute was intended to prevent actions being brought upon certain agreement s, the phrase, " to charge therewith,' meaning that one should not be liable for the breach of ..guch an agreement. But it is one thing to hold one liable for the breach of a contract, and quite another to confer rights on him, notwithstanding his failure to perform the contract. It often, for example, happens that the law, because of the impos- sibility of the performance of a contract, excuses the non-per- formance thereof, and relieves a party from any liability for a breach thereof, where it refuses .because he has not per- formed the conditions of a contract^to allow him to sue thereon. It does not seem to have occurred to the courts that in defeating a recovery by him, tliey were charging him with a performance of the contract. Thus, in Poussard v. Spiers,^ where a recovery was denied the plaintiff, notwith- standing his failure to perform the conditions of the contract was caused by illness, Blackburn, J., distinguished between a liability for a breach of contract and a right of action thereon. He said : — '' This inability having been occasioned by sickness, was not any breach of contract by the plaintiff, and no action can lie against him for the failure thus occasioned. But the damage to the defend- 1 1 Q B. D 410. 236 THE LAW OF QUASI-CONTRACTS. ants and consequent failure of consideration is just as much as if it had been occasioned by the plaintiff's fault, instead of by his wife's misfortune. The analogy is complete between this case and that of a charter party in ordinary terms, where a ship is to proceed in ballast (the act of God, etc., excepted), to a port and there unload a cargo. If the delay is occasioned by expected perils, the ship-owner (plaintiff) is excused; but if it is so great as to go to the root of the matter, it frees the charterer (defendant) from his obligation to furnish a cargo." In King V. Welcome, it was not the defendant but the plaintiff who relied upon the statute of frauds. The statute being intended, however, to afford a defence where one is sued for a breach of contract, should be used as a shield and not as a sword. It is a strange result to reach that a statute enacted to give a defence, where but for the statute the party would be liable for breach of contract, not only gives a defence, but also confers upon tlie party guilty of a breach of contract a right against the party not in default. If the defendant, in the absence of the statute, as is gene- rally held, is doing nothing inequitable in refusing to compen- sate a plaintiff for a part performance of the contract, who wilfully refuses to perform the conditions thereof, it seems difficult to see upon what principles such a plaintiff can charge the defendant, by simply showing that although he broke his contract he cannot be sued therefor. Indeed, the concessions made by the court in King v. "Wel- come furnish the strongest possible argument against the decision. The court admits that if the plaintiff instead of rendering services had paid the purchase money under an oral contract for the purchase of land, he could not recover back his money if the defendant stood ready to convey the land. Thomas, J., delivering the opinion of the court, said : " So where money has been paid upon a parol contract for the sale of the land, it cannot be recovered back if the vendor is willing to fulfil the contract on his part. This was settled in the recent case of PLAINTIFF IN DEFAUL'^ UNDER A CONTRACT. 237 Cougbliii ;-. Knowles (7 Met. 57/, a case which certainly resembles the one at bar, but which may be clearly distinguished from it. That action rests upon an implied assumpsit. The implied prom- ise arises only upon failure of the consideration upon which the money was paid. The plaintiff fails to show any failure of consid- eration. He shows money paid under a contract not void, and which the defendant is readj- to perform. . . . ' ' In the case of the' money paid upon a contract for a sale of land, the action fails because no failure is shown of the considera- tion from which the implied promise springs. •• In the case at bar the defendant fails because the contract upon which the defendant relies is not evidenced as the statute requires for its verification and enforcement. For it is the whole con- tract of which the defendant seeks to avail himself. His defence is not that as to so much as is executed, as to so much time as the plaintiff has labored, he labored under the contract, and the price stipulated is to govern. But he relies upon the contract not only so far as executed, but so far as it is still executory. He seeks first to establish the parol agreement as a valid subsisting contract, and then to charge the plaintiff with a breach of it." The distinction suggested in King v. Welcome has led in Massachusetts to this queer result, — that one who refuses to perform an oral contract to which the statute of frauds applies, is more favored by the courts than one who performs such a contract. Thus in Riley v. Williams ^ it was held that the plaintiff, who had performed a contract not enforceable because of the statute of frauds, could not recover on a quantum meruit, the defendant being ready and willing to pay in land and labor according to the terms of the con- tract. In other words, the court disregards the terms of the contract in favor of a party only partly performing it, but enforces the terms thereof against one fully performing. A distmction leading to such a questionable result should be carefully considered before it is accepted. The statute of frauds aside, the case where a plaintiff seeks to recover money paid under a contract of which the 1 123 Mass. 506. 238 THE LAW OF QUASI-CONTKACTS. defendant tenders iull performance, or the case where a plain- tiff seeks to recover on a quantum meruit for work done under a contract for which the defendant offers to pay according to the terms of the contract is quite distinguishable from Kingw. Welcome. In Kmg w. Welcome, the defendant, while willing to perform his contract, was not willing to pay the plaintiff for what he had received from the plaintiff in part perform- ance thereof; whereas, in the cases suggested, tlie curious spectacle is presented of a plaintiff complaining of a defend- ant who is ready to give what the plaintiff agreed to accept as an equivalent of, and in exchange for, that which the defendant received. But however extraordinary such a claim may be, it is a claim which should be allowed under the statute of frauds, as that statute is treated in King v. Welcome. Of course, but for the statute of frauds, it would be held the world over that a defendant who tenders to the plaintiff what the plaintiff contracted for, and who has not performed his contract simply because the plaintiff would not allow him to perform it, cannot be charged by the plaintiff in entire dis- gard of the terms of the contract. But since no distinction is made in Massachusetts, in the absence of the statute of frauds, between such cases and cases like King v. Welcome, if a dif- ferent result is reached because of the statute of frauds, it must be for the reason that to defeat the plaintiff in the one case would be to charge him with the statute of frauds, while defeating him in the other case does not so charge him. It is submitted that when it is held that the statute applies to cases other than where one seeks to recover on the con- tract for a breach thereof, the real suggestion is that you are compelling a party who, because of the statute of frauds, is not liable for a breach of contract, to perform the contract as if the statute of frauds did not apply, under the penalty of losing what he has performed thereunder if he repudiates it. In this sense the plaintiff, in the case where the court refuses. PLAINTIFF IN DEFAULT UNDER A CONTRACT. 239 to allow him to recover the purchase money, which he has paid in performance of an oral contract for the purchase and sale of property, the vendor being ready and willing to con- vey, is charged equally, as is the plaintiff in the case where you refuse to allow him to recover for services rendered. In nei- ther case can it be properly said that the plaintiff is charged with the contract. But in both cases the fact of refusing to allow him rights in violation of the terms of the contract, is to compel him, in order to avoid a loss, to treat the contract as if the statute of frauds had no application. And when the court holds, as it did in Riley v. Williams,^ that one who has fully performed his side of the contract cannot recover except according to the terms thereof, the effect is certainly to com- pel him, if he wishes to avoid a loss, to treat the contract as if the statute of frauds did not apply. So far as the statute of frauds is concerned it is submitted that the same question is presented in tlie three cases, and that the cases should have been decided without regard to the statute of frauds. /If it be assumed that the statute, while not rendering the Effect of hoid- ' ^ ^ — ' ' ' ing that statute contract illegal, does render it void, still it would seem that of fiauds ren- ° — ' — ^— ^^^^^^^■^— ^— ^^-^^— ^— ^^^— — ^^^ ders contract the plaintiff should not be allowed to recover against a defend- void. ant not in default. "^ While under this interpretation of tlie statute there cannot be said to be a contract existing between the parties, it can be said that so long as the defendant stands ready to compensate the plaintiff in the only event in which the plaintiff expected compensation, — namely, in the event of the plaintiff doing certain things, — there can be no failure of consideratipn. In such a case the defendant seeks to defeat a recovery by the plaintiff, not because of a contract existing between them, but because that which was given to him, it was understood, should not be paid for, except in a certain event ; and, there- fore, to allow a recovery would be to defeat the intention of the parties as expressed between them. If the contract between the parties is void, then if the statute declaring the contract I 123 Mass. 506. 240 THE LAW OF QUASI-CONTRACTS. a nullity does not in terms direct or authorize a recovery for benefits conferred under such a contract, a court is at liberty to deal with the question on purely equitable principles. ( In some jurisdiction s, however ,i it has been hel d that if a contract is to be regarded as void under the statute of frauds, a plaintiff should be allowed to recover in quasi-contract in disregard of the terms of the contract. > In Koch V. Williams'' the court went so far as to hold that a plaintiff who had entirely performed an oral contract whereby it was agreed that for the services rendered there- under by him, the defendant should convey to him certain land, could refuse to accept a conveyance of the land and recover the value of his services on a quantum meruit. As the statute conferred no rights upon the plaintiff, and as the defendant stood ready to give to the plaintiff all that the one expected to receive or the other to give in exchange for- the services, it is submitted that there is no principle of law or equity either requiring or justifying the result reached in this case. '^Within the principle heretofore referred to,''monev received Recovery of ^ ^ 7 . money given as by a defendant under a contract, unenforceable because of the security for the performance of statute ot trauds, not in pertormance oi tne contract, btit as a contract. ^ ^ security for its performance, should be recoverable by a plain- tiff refusing to pertor m. ^" Effect of hold- Where the statute of frauds is regarded as giving either ing that statute ° ° _ ° of frauds gives party a right t o rescina a contract-,, k n!j,l'l,v t^Xtil'l'.lHlTitf aiiAh a right of re- ' ' — '■ ■' ... scission. r ight should be allowed t o recover money paid or other bene- fits conferred ther eunder,^ since the right of rescission im- plies the right to demand restitution. > ' *™'— — — ^ f 1 Swift V. Swift, 46 Cal. 266; » Supra, p. 217. See, also, Scott Scott V. Bush, 26 Mich. 418, 29 v. Bush, 29 Mich. 523. Mich. 523; Crawford v. Parsons, 18 * Winters v. Elliott, 1 Lea, 676, N. H. 293; Koch v. Williams, 82 Brakefieldi;. Anderson, 87 Tenn. 206 Wis. 186. (semble). As to the measure of re- ^ 82 Wis. 186. See also Scotten covery in cases under this section, V. Brown, 4 Harr. 324. see infra, p. 313, n. 2. PLAINTIFF IN DEFAULT UNDER A CONTRACT. 241 SECTION III. PEKFOEMAXCE BY PLAINTIFF IMPOSSIBLE. (Assuming a plaintiff's failui'e to perforin a condition neces- sary to entitle him to recover on the contract to be due to the f act that the performance of the condition was impossible, and that such impossibility excuses a breach of contract on his par t in the event of his having promised to perform, the question arises as to the obhgation ot the detendaat to make co mpensation to the plaiiitit l to the extent that he has been-benefited by a part performance of the contract. Before considering this question, however, it is important Distinction be- o -^ ■> ' f tweencondi- to consider the reason why the plaintiff should not be allowed tion8 express and implied iu to recover on the contract itself ; and the consideration of this fact, question involves the consideration of the subject of condi- tions in contracts. The conditions which the plaintiff has failed to perform may have been inserted by the parties them- selves, or may have been imposed by law upon the plaintiff in favor of the defendant, the defendant having failed to protect himself by the insertion of a condition exempting him against liability in the event which has happened. If the condition was inserted by the defendant, it is either an express condi- tion or one implied in fact, — an express condition, if it is found in the language used by the parties ; a condition implied in fact, if it is to be gathered from the circumstances of the transaction, not that such would have been the defendant's intention, had the contingency been present to his mind, but that although the defendant has not expressed his intention in words, a reasonable interpretation of the contract in the light of surrounding circumstances, requires the court to say that the parties had in mind the event which has happened, and did regard as a condition of the contract that which is now insisted upon as such. 16 242 THE LAW OF QUASI-CONTRACTS. Distinction be- jf ^-jjg (.q^.^ jg unable to say that this contingency was- :ween g^enuine '^ ;onditions imd pj-esent to the minds of the parties, and can only say that, londitions iin- ^ :>iied m law. ^g^^ ^his Contingency been present to their minds, the parties would have provided for it by inserthig a condition in favor of the defendant, then in truth there is no real or true condition ; but the defendant having failed to protect himself by the terms of his contract, the court raises a bar to a recovery by the plaintiff, because it would be inequitable for the plaintiff to sue the defendant, mpovtance of The Consideration of the question of whether in a given iftothe'iiature case a plaintiff seeking to recover on a contract has been )f a condition, g^jj^^y gf ^ brcacli of a condition thereof, may involve, there- fore, a consideration of pi'inciples of law differing entirely in their nature, depending upon whether the condition was cre- ated by the parties or was simply a creature of the law. But in either case the object soug ht to be accomplished by the con- dition should be ascertained, and havmg been ascert ainea, tE e ques tion should be asked, would the recovery by the plaintiff in quasi-contract defeat the obiect for which the conditions were inserted ? To allow a plaintiff who has failed to per- form a condition expressed, or implied in fact, to recover on the contract, would be to convert a conditional promise into an absolute promise ; for if a recovery is to be had upon a con- tract, a recovery must be had upon the promise which was made, and the only promise which was made was ex concessu a conditional promise. But a court can never regard a con- ditional promise as an absolute promise unless the defendant has waived the condition and is therefore not in a position to avail himself of it as a defence. This is true even though the parties would have, had the event which has happened been present to their minds, made provision in the contract by which tlie plaintiff would have been given contract rights. The fact that the parties would have provided for the contin- gency in question had it been present to their minds, does not establish that they did provide for it, and therefore docs not PL.MXTIFF IX UEFArLT UXDEU A CUXrK.U.T. :243 establish that the defendant has made a promise other than the conditional promise found in the contract. The plaintiff cannot therefore recover on the contract, because he has not performed, and the defendant has,. not vaived, the condition thereof. But if the plaintiff is seeking to recover, •JToT'Sif^ie contract, but in gnnsi-cnntrnct^ Ibi^ question should be, assumino- a rocovery to be enuitablo. would it violate any principle of Dublic policy, or yi nlcfo fim intention which the parties had when the contract was entered into, to allow a re covery ? If a recovery would be ao'ainst public policy, or would defeat the intention of the parties, then, of course, there should be no recovery in quasi-contract. But if it is found that, though there cannot be a recovery on the contract, for tlie reasons stated, yet a recovery in quasi-con- tract will not violate the intention entertained by the parties when the contract was made, a recovery should, if the prin- ciples of equity and justice require it, be allowed in quasi- contract. .An inquiry therefore should be instituted in every case as to why the condition was inser tedbv_ the parties. beca use it is onlv by ascertaining the object for which the condition was inserted, that one can ascertain whether a recovery in quasi-contract would violate the intention which the parties had at the time when the contract was made. In the ease of conditions implied in law, however, as the condition is imposed by law upon the plaintiff in favor of the defendant on equitable principles, the court is not trammelled by the intention of the parties to the contract. Why should not the law therefore impose an equitable obligation upon the defendant in favor of the plaintiff? To say that a plaintiff who has not performed his contract should not recover against the defendant as if he, the plaintiff, had in fact performed it, is far from saying that a plaintiff should have no rights whatever. Neither in England nor in the United States, in considering the plaintiff's right to sue in quasi-contract, nas tnere Deen any" 244 THE LAW OF QUASI-CONTRACTS. distinction taken between true conditions and conditions im- plied in law ; nor has there been in England any consideration apparently given to the question of why the express condition was inserted in the contract, the English courts apparently holding that if the plaintiff cannot recover on the contract because of a failure to perfor m a condition, it necessarily fol- lows that he has no rights in quasi-contract. While in the United States there has been no distinction taken between express conditions and conditions implied in law, still the American courts seem to have considered in some cases the object to secure which the condition was inserted, allowing a recovery in quasi-contract if a recovery i s consistent with that object. X Right of re- AccOTuinglv, it is held in this country that where a contract :overy where . full perform- is uot f ully Completed because of sickness or death there can ince is pre- .'enteci bj-sick- be a recovery in quasi-contract for the benefits conferred by less, death, or i ,-v i aw. part performance.! On the same prmciple, if complete per- formance is prevented by law a recovery is allowed for benefits conferred by part performance.^ It has been held, however, that there can be no recovery where the sickness should have been foreseen.^ > Cutter V. Powell * is usually cited as establishing the propo- sition in English law that a plaintiff failing to perform a con- dition because of impossibility has no rights in quasi-contract. Though the doctrine is established by other English cases, that point was not involved in the decision there rendered. In Cutter v. Powell the plaintiff's intestate had shipped with the defendant as second mate from Jamaica to Liverpool, under a contract by which the defendant contracted to pay him thirty guineas on the arrival of the vessel at Liverpool, the intestate performing the duties of second mate from 1 Lakeman v. Pollard, 43 Me. 2 Jones v. Judd, 4 Comst. 412. 463 ; Wolfe w. Howes, 20 N. Y. 197 ; 8 Jennings v. Lyons, 39 Wis. Green u. Gilbert, 21 Wis. 395. See, 553. also, Ryan 0. Dayton, 25 Conn. 188. * 6 T. R. 320. PLAINTIFF IX DEFAULT UNDER A CONTKACT. 245 Jamaica to Liverpool. The intestate having died on the voy- age before reaching Liverpool, the defendant refused to make any compensation for the services rendered by the intestate as second mate, and it was held that the plaintiff could not recover. The case, however, was put distinctly on the ground that it was the understanding of the parties that the intestate was to receive no compensation unless he completed the entire voyage, and that in consideration of the risk assumed by him his compensation in the event of his completing the voyage was to be larger tiian it would have been but for this under- standing. Lord Kenyon said in his opinion : — "But it seems to me at present that the decision of this case may proceed on the particular words uf this contract, and the precise facts here stated, without touching marine contracts in general; that where the parties have come to an express contract, none can be implied. Here the defendant expressly promised to pay the intestate thirty guineas, provided he proceeded, continued, and did his duties as second mate in the ship from Jamaica to Liverpool; and the accompanying circumstances disclosed in the case are, that the common rate of wages is four pounds per inonth, when the partj'' is paid in proportion to the time he serves; and that this voyage is generally performed in two months. . . . He stipulated to receive the larger sum if the whole duty were performed, and notliing unless the whole duty was performed. It was a kind of insurance." Assuming that the facts warranted this interpretation of the contract, there should be no question as to the correctness of the decision, since from this point of view it is the ordinary case of parties competent to contract, agreeing that the plain- tiff shall receive no compensation for his services except in a certain event. To say that notwithstanding such a contract the plaintiff shall be allowed to recover in disregard of the agreement, is to say that the law will give to a party rights which he has stipulated in advance he should not have, and will impose upon a defendant an obligation which it was agreed he should not assume. Such in fact seems to be the 246 THE LAW OF QUASI-CONTKACTS. effect of the decision in the Manhattan Life Insurance Co. v. Buck.i In that case the plaintiff, who had taken out a life- insurance policy, was prevented because of war from paying the premium to the company. The policy taken by the plain- tiff contained this clause : " That in case the assured shall not pay the said premium on or before the several days here- inbefore mentioned for the payment thereof, then and in every such case the said company shall not be liable to the payment of the sum insured or in any part thereof, and this policy shall cease and determine." It was further provided in the policy that in every case where the policy should cease and deter- mine, all previous payments thereon should be forfeited to the company. The court held that while there could be no recov- ery on the policy itself because of the condition prohibiting such a recovery, yet, as it was inequitable for the defendant to keep money received from the plaintiff without giving the plaintiff an equivalent therefor, that the plaintiff could recover from the defendant so much of the premiums paid by him as exceeded the value of the insurance he had I'eceived from the company. Mr. Justice Bradley, delivering the opinion of the court, said : — "We are of the opinion that an action cannot be maintained for the amount assured on a policy of life insurance by payment of the premiuip, even though the payment was prevented by the existence of the war. The question theu arises, must the insured lose all the money which has been paid for premiums on their respective policies ? If they must they will sustain an equal injustice to that which the companies would sustain by reviving tlie policies. At the very first blush, it seems manifest that jus- tice requires that there should be some compensation or return for the money already paid, otherwise the companies would be the gainers from their loss; and that from a cause for which neither party is to blame. . . . "And so in the present case whilst the insurance company has a right to insist on the materiality of time in the condition of pay- 1 93 U. S. 24. PLAINTIFF IN DEFAULT UNDER A CONTRACT. 247 uifiit of premiums, and to hold the contract ended by reason of non-payment, they cannot intiist upon the condition, as it recpires the forfeiture of the premiums already paid; that would be clearly unjust and inequitable. The insured has an equitable right to have this amount restored to him, subject to a deduction for the value of the assurance enjoyed by him whilst the policy was in existence ; in other words, he is fairly entitled to have the equitable value of his policy. ... To forfeit this excess which fairly belongs to the assured and is fairly due from the company, and which the latter actually has in its coffers, and to do this for a cause beyond individual control, would be rank injustice. It would be taking away from the assured that which had become substantially his property. It would be contrary to the maxim that no one shall be made rich by making another poor." Now it is submitted that no distinction can be drawn between Cutter v. Powell and the Manhattan Life Insurance Co. v. Buck. In each case there was an express condition to the effect that in the event in question the plaintiff should have no claim upon the defendant ; in each case it is conceded that the plaintiff had no rights against the defendant on the con- tract itself. But by the terms of the contract, which provided that the plaintiff should have no rights on the contract in the event which has happened, it was distinctly stated in the case of Manhattan Life Insurance Co. v. Buck that the plaintiff was to have no rights of any kind against the defendant. If, then, the case of the Manhattan Life Insurance Co. v. Buck is to be supported, it must be put upon the ground that the court/ will relieve against a forfeiture, and will therefore disregard a'^ clause of the kind found in the policy. But if the court will disregard such a clause in favor of a plaintiff who had paid money, the same court should certainly disregard the clause in favor of a plaintiff who has rendered services, since in the one case as much as in the other the defendant has received from the plaintiff that for which he has not given the plaintiff an equivalent. In each case the relation, if any, the defendant bears to the plaintiff, by virtue of which the plaintiff has a 248 THE LAW OF QUASI-CONTRACTS. claim against the defendant, must be that of an equitable debtor, and not that of a trustee, for in neither case has the defendant anything belonging to the plaintiff. This, of course, is clear in a case lilie Cutter v. Powell, where the basis of the plaintiff's claim is the service rendered by the plaintiff for the defendant ; but it is equally true in a case where a plaintiff has paid money to a defendant in performance of a contract. The moment the money is paid to the defendant the money ceases to be the plaintiff's, and becomes the property of the defendant. It is a figure of speech then to say that the defendant has in his possession money belonging to the plain- tiff. He has in each case received value from the plaintiff, and if in the event which has happened he is required in the one case to return an equivalent, he should be required to do so in the other. If he is not required to do so in the one case^ he should not be required to do so in the other. The only way in which relief can be given in either case is to say that a court will in such a case impose an obligation in favor of the plaintiff, notwithstanding the fact that the plaintiff agreed that unless he, the plaintiff, did certain things, which it is conceded lie has not done, the defendant should be under no obligation in any form of action. It is true that a court of law in laying down such a rule would be doing no more than the court of equity did in relieving a mortgagor from the effect of a failure to per- form the condition of the mortgage. It is fair to assume, however, that the courts of law are not prepared to take this step. mce'of aTn- ^^^^^ i* ^cems difficult to Support on principle the decision lifnecesTariiy ''^ *^'« Manhattan Life Insurance Co. v. Buck, for the reason :rnceoVwaiver' ^^""^ ^^^ '^O'^^* coui&v% upon the plaintiff a right which by the Zl^l\^\. agreement of the, parties it was understood that he should not have, still Ahe English decisions seem to have gone to th& other extreme in holding that the finding of a condition neces- sarily nreclu des the plaintiff from suing in quasi-contrac t.-) overy in quasi- ontract. PLAINTIFF m DEFAULT UNDER A CONTRACT. 249 Thus it was held in A^jjlcbv r. Dodds ^ that a vessel on which a seaman shipped having been lost on her return voyage, the plaintiff, who had assisted in navigating the vessel from the time of her departure from the home port until her loss, could not recover for services rendered to the time of the loss, for the reason that it was stipulated in the contract that no wages should be payable until the vessel had reached her home port. Lord EUenborough, C. J., said : — "And though the reason of this stipulation was no doubt to oblige the mariner to return home with the ship and not to desert her in the "West Indies, yet the terms of it are general and include the present case; and we cannot say against the express contract of the parties that the seaman shall recover pro rata, although the ship did not reach her port of discharge named." It is submitted that this decision is not to be supported. The reason why the law will not impose an obligation in violation of the terms of a contract is, that when a party has agreed to the terms of a contract, the court has no right to impose obli- gations upon the defendant which not only the defendant but the plaintiff has said should not be created. But /where it can be shown, as was assumed by Lord EUenborough in Appleby V. Dodds, that the object of inserting the condition was to guard against a contingency other than that which has hap- pened, there does not appear to be any reason why a court should not impose an obligation on the defendant to compen- sate the plaintiff for value received, notwithstanding the fact that the plaintiff cannot recover on the contract. To have allowed the plaintiff in Appleby v. Dodds to recover on the contract itself would have been equivalent to saying that a defendant who in fact had only promised to pay the plaintiff a sum of money on the arrival of a vessel in London had promised to pay though the vessel did not arrive. But as neither the plaintiff' nor the defendant ever intended that the plaintiff should give to the defendant the services which he had 1 8 East. 300. 250 THE LAW OF QUASI-CONTRACTS. rendered, if without any fault on the part of the plaintiff the vessel did not reach the port of London, it would seem that the existence of the contract should not have prevented a recovery in quasi-contract. While th e terms of the contract did not establish an intention to make compensation m the event that happened, neither did they establish an intention that no compensation sho uld be made. The court, it is sub- mitted, was at li berty therefore to deal with the question upo n equitable principles. But tne question may arise as to wheth er you can intro- duce evidence to show that a condition inserted in a contract was inserted to meet a contingency which h as not arisen. Whether this evidence should be allowed or not would seem to depend upon the purpose for which it is offered. If it is offered for the purpose of varying the terms of a contract, and to enable the plaintiff to recover on the contract itself, the evidence should not be admitted, for the reason that it would convert what is in form a conditional promise into an absolute promise. ^But when the plaintiff con cedes that tlie promise is a condit ional promise, and tnat therefore he can- not recover upon that prom ise, and oft'ers the evidence, not for the purpose of claimin g rights under the contract, but for the purpose of showing that a recovery by bim would not, vio- late any intention that existed in t he mind of either himseli: or the defendant a t the time when the contract was made, such evidence it is submiited is not open to th e objection of varying a written i nstrument by parol evidence :^ The contract between the plaintiff and the defendant is conceded by the plaintiff to be just what it was before he introduced the evidence, namely, a conditional contract, and it is the fact that he admits the promise to be conditional that compels him to sue in quasi- contract, and not on the contract itself. Had this principle been recognized, a different result might have been reached in a line of decisions which have produced great hardship.^ While the fact that a hardship results from PI.AIXTIFK IX DEFAULT UNDEK A CONTRACT. 2ol a given decision should not be taken as conclusive, or even as evidence in itself of its unsoundness, still a decision vio- lating the commonly accepted ideas of justice and honesty should never be reached until all possible grounds of decision have been examined. It is held that a plaintiff who undertakes the carriage of goods, the freight to be paid on the right delivery thereof, is not entitled, the vessel being lost or the voyage becoming impossible of performance by some vis major, to freight pro rata, unless it can be shown that the plaintiff would have completed the carriage of the goods, had not the defendant relieved him from such obligation by taking the goods at some intermediate point. Thus in Hopper v. Burness,^ the plaintiff had contracted to carry for the defendant a cargo of coals from Cadiff to Point de Galle at a freight of twenty- one shillings per ton on the delivery of the cargo at the latter place. The defendant duly shipped the cargo of coals. On her voyage the ship, becoming unseaworthy in consequence of bad weather, put into the Cape of Good Hope for repairs, and the captain, having no funds with which to make the repairs, sold in the exercise of the right conferred upon him by maritime law a portion of the defendant's cargo of coals, and with the proceeds repaired the vessel, treating the pro- ceeds as a loan from the defendant to himself. The coal sold for a price in excess of that which it would have brought had it been carried to its destination. The plaintiff having repaid to the defendant the forced loan, claimed from the defendant freight pro rata for the goods carried as far as the Cape of Good Hope and sold there in the circumstances stated. It was held that as he had not completed the voyage as to these coals and that as the defendant had not relieved him from the performance of the voyage, he was not entitled to freight pro rata. Brett, J., said: — 1 L. R. 1 C. P. D. 137. 252 THE LAW OF QUASI-CONTRACTS. " The coals so sold fetched more at the Cape of Good Hope than they would have done at Point de Galle, and the suggestion is that under these circumstances the plaintiff is entitled not only to freight on the cargo actually delivered at the port of destination, but also to freight in respect to the coals sold at the Cape of Good Hope. Now it is obvious that the only freight expressed to be payable is the freight of twenty-one shillings per ton for a cargo delivered at Point de Galle, so that this freight now claimed is not the charter freight. I know not how freight can become due under such a charter as this is, in respect of goods not carried to the port of destination, otherwise than with reference to the doctrine of freight fro rata. It is only payable when there is a mutual agree- ment between the charterer and the ship-owner, whereby the latter being willing and able to carry on the cargo to the port of destina- tion, but the former desiring to have the goods delivered to him at some intermediate port, it is agreed that they should be so deliv- ered, and the law then implies a contract to pay freight fro rata itineris. Do the present circumstances come within that prin- ciple? The captain here is not willing and able to carry the coals on. It is said by Mr. Compton that the charterer has an option. I agree that he has, but I do not think that an}- implication of a promise to pay freight 2>^'o rata can be drawn from it. He has, I think, an option to treat the proceeds of the sale as a loan, or he may say, ' You have sold my goods against my will, and though by the maritime law that is not a wrongful sale, still I am entitled to and claim an indemnity against any loss occasioned by the sale.' What is there to give rise to an implication that freight ^ro rata is payable ? If he thinks that the goods have fetched more at the intermediate port, then why maj' he not treat the transaction as a loan at once, and sue for the amount before the ship arrives at her destination ? " If the proper construction of the charter party in Hopper V. Burness was that the plaintiff was to have no compensation whatever unless the goods were delivered at Point de Galle, then, notwithstanding the apparent hardship involved, the plaintiff should not have recovered. Unless, however, the reason for inserting the condition in the contract required such interpretation, it is submitted that the mere existence of the condition does not justify the decision. PLAINTIFF IN DEFAULT UNDER A CONTRACT. 253 Since in qiiasi-contracts the benefit received by the No recovery J J, unless a benefit aeiendant, and not the detriment incurred by the plaintiff, is has been con- the basis of the defendant's liability, ''a plaintiif should not be allowed to recover from a defendan t unless it be shown that the defendant has received some benefit from the part performance bv the plaint iff."^ This fact seems to have been lost sight of by Lord Mansfield in an early case ^ in which he, contrary to the present English law, allowed a plaintiff to recover fi-eight pro rata itineris, the vessel hav- ing been captured by an enemy. Lord Mansfield held that the plaintiff, who had performed J^ parts of a voyage when the vessel was captured, could recover freight pro rata from the owner, notwithstanding the fact that the freight from Biddef ord — at which place there was no market for the goods, and where the vessel, which had been retaken, was aban- doned by the plaintiff — to Lisbon, the point to which the goods were originally shipped, was higher than from New- foundland, the point from which the goods were originally shipped by the defendant. Had the defendant reshipped the goods from Biddeford to Lisbon, it would have been clearly erroneous to compel him to pay the plaintiff freight pro rata itineris, for the reason that he could have derived no benefit from the service rendered by the plaintiff. The freight from Biddeford to Lisbon exceeded the freight which the defend- ant would have paid for the carriage of the goods from New foundland to Lisbon. It is true that the defendant did not ship the goods to Lisbon, but shipped them to Bilboa, Spain. But how can that fact, even assuming the freight paid by him from Biddeford to Bilboa to have been less than he would have paid for the carriage of the goods from New- foundland to Lisbon, entitle the plaintiff to freight pro rata itineris ? If we assume Bilboa to have been as good a mar- ket to ship to from Newfoundland as Lisbon, then the only possible benefit conferred by the plaintiff's part performance ' Luke '•. Lyde, 2 Buir. 882. 254 THE LAW OF QUASI-CONTRACTS. was the difference in the freight, if any, which he contracted to pay the plaintiff on the delivery of the goods in Lisbon, and the freight which he had to pay for their delivery at Bilboa. For the same reason it seems impossible to support the decision in Qkiuiy v. Sohier,i where the plaintiff was allowed to recover against the defendant for work and labor done imdera contract to lathe and plaster a building, which was destroyed by fire without the fault of either party when the plaintiff had only put on the first coat of plaster. As the plaintiff had not completed his contract, and as the defend- ant was deriving no benefit from the work done by the plain- tiff, the house being in the course of erection, it seems impossible to support the decision except on the theory of the New York decisions, — namely, that in such a case the defendant in fact agrees to keep the building in existence. ^ If this suggestion is sound, the plaintiff is entitled to recover not on the theory of quasi-contract, but on the theory of a special contract, and for a breach thereof, and he should recover from the defendant not simply the value received by him, but the damage done the plaintiff. In Cleary v. Sohier, the court gives no reason for the conclusion reached, simply stating that the plaintiff is- entitled to recover, and citing the cases of Lord v. Wheeler,* and Welles i). Calnan.* But in Welles v. Calnan the defend- ant was sued for damages because of his refusal to accept a conveyance of land, the buildings on which had been destroyed by fire after the making of the contract, and before the time for the performance thereof. And the question which the court had to consider was whether the tender of a deed of a house as well as of land was a condition to the defendant's- obligation to accept the transfer, and pay the purchase money, 1 120 Mass. 210. See, also, HoUis « 1 Gray, 282. V. Chapman, 36 Tex. 1. « 107 Mass. 514. 2 See infra, p. 256. PLAINTIFF IX DEFAULT UNDER A CONTRACT. 255 and the court held that it was, and that the phiiutiff, not being in a position to perform the condition, could not sue the defendant for a breach of contract. In Lord v. Wheeler the plaintiff sued to recover the value of repairs made by him on a house, the house having been destroyed by fire before the completion of the repairs, but after the defend- ant had entered into the use and occupation thereof. The court held that as the defendant had by occupying the house enjoyed the labor and materials furnished by the plaintiff, such enjoyment was a severance of the contract and an acceptance pro tanto by the defendant of the work done. Thomas, J., delivering the opinion of the court, said: "It by no means follows that if the work is partially done when the casualty occurs, a part}' having contracted to do the entire work for a specific sum can recover for the partial performance. It may well be that both must lose, the one his labor and the other the thing on which it has been expended. And the precise ground on which the plaintiff can recover in this case is, that when the repair;- upon the house were substantiallj'' done, and before the fire, the defendant by his tenant entered into and occupied it, and so used and eujoj'ed the labor and material of the plaintiff, and that such use and enjoyment were a severance of the contract, and an acceptance jyro tanto by the defendant. And the instruction by the presiding judge, not as stating the abstract provisions of law without reference to the evidence, but as giving a practical rule for the guidance of the jury upon the facts before them, was correct. For the partial performance upon the facts in this case, the plain- tiff might recover." The ground therefore upon which the court decided in favor of the plaintiff in Lord v. Wheeler cannot be used to support the decision of the court in Cleary v . Sohier, since the defendant had not enjoyed the work done by the plaintiff by using and occupying the premises. It seems, however, difficult to support the decision of Lord V. Wheeler upon the reasoning of the court. When the court speaks of the occupation of the house by the defendant causing 256 THE LAW OF QUASI-CONTRACTS. a severance of the contract and an acceptance pro tanto by the defendant, the court must mean one of two things : either that by this act on his part the defendant thereby rendered him- self liable to the plaintiff for the work done, even though the plaintiff had immediately ceased without cause to work upon the premises ; or that the defendant must make compensation to the plaintiff for the work done, because he had enjoyed the plaintiff's labor. It would seem impossible to contend that the defendant by using his own property rendered him- self liable in contract to the plaintiff, unless his user of the property was such as to prevent the plaintiff performing his contract ; he was simply exercising a right incident to owner- ship. It would seem that a defendant, so long as he does no act to interfere with the performance by a plaintiff of his contract, and is not under a contract to surrender exclusive possession of his property while repairs are being made, should be allowed, if he is willing to undergo the inconve- nience consequent upon living in a house which is being repaired, to live therein without being held to waive the conditions of the contract. If the meaning of the court is that as the defendant has in fact received some benefit from the plaintiff's services he must pay the plaintiff therefor, then it is submitted that the measure of the plaintiff's recovery should not have been the expense incurred and the time spent by the plaintiff in doing the work, but the value received by the defendant from the work. 1 In Niblo V. Binsse ^ the plaintiff, who had only partly per- formed a contract for the repair of a building, was allowed to recover for the reason that the defendant was under a contract to keep the building in existence. Johnson, J., delivering the opinion of the court, said: — ' As to the measure of recovery * 3 Abb. App. Dec. 375. in cases under this section, see infra, p. 313, n. 2. PLAINTIFF IN DEFAULT UNDER A GONTEACT. 257 " I rest the right of the plaintiff to maintain his action distinctly \ipon the ground that his assignor was prevented from performing his contract by the default of the other party in failing to keep on hand and in readiness the building in which the work was to be done, and that the other party was clearly in default whether the building was destroyed with or without fault on his part." ^ In this case, the action was brought not for a^braach of contract, but for the value of services rendered and materials furnished by the plaintiff ; and if we assume for argument's sake the theory of the court to be correct, — namely, that the defendant contracted to keep the building in existence, — it seems difficult to support the decision. That the amount of damage suffered by the plaintiff would be at least equivalent to the market value of services rendered by the plaintiff, is no reason for saying that the defendant received a correspond- ing benefit ; and when a defendant is sued in quasi-contract, the measure of the plaintiff's recovery should be, not the damage that the plaintiff would have recovered had he sued in special assumpsit, but the benefit which has been conferred by the plaintiff upon the defendant. ^ Furthermore, as has been before suggested, on the theory of Niblo v. Binsse, a plaintiff would be able to recover from a defendant not only an amount corresponding to the market-value of the services rendered or material furnished by him, but also any damage following as a natural result from the house having been destroved by fire, though without fault on the defendant's part. Any profit which a plaintiff would have made had the house been kept in existence should therefore be taken into consideration, should a plaintiff, the property being destroyed, choose to avail himself of the contract made by the defend- ant, and seek to recover damages for a breach thereof. But 1 See to same effect, Haynes v. ^ See, however, Gilbert & Basher Baptist Church, 12 Mo. App. 536 ; Co. ». Butler, 146 Mass. 82. Wheelan v. Ansonia Clock Co., 97 N. Y. 293. 17 258 THE LAW OF QUASI-CONTRACTS. in Niblo v. Binsse the action was not to recover damages for a breach of this contract, but to recover the value of work, labor, and material furnished. And while the theory of the court established that an actionable wrong had been done the plaintiff, it did not show the amount of benefit received by the defendant. While these decisions must be taken as representing the American 1 as distinguished from the English law,^ (the American doctrine seems to be subject to the important limitation that to recover against a defendant who has not in fact received a benefit from the part performance, the impossibility of performance must not have been brought about by the fault of the plaintiff.''") If in a case of the kind under consideration it should appear that the defendant had in fact received a benefit, as, for example, by insuring the property and collecting the insurance money,* there should be a recovery to the extent that he has thereby profited by the plaintiff's services.* SECTION IV. CONTRACT ILLEGAL. ight of re- fit Is proposed to consider in this sec tion the rights of a rdLffirm- plaintiff to recover for benefits conferred by him under a ice of contract, contract, upon which, if the contract were legal, he could not maintain an action for the reason that the def endant is not in default, and under which he would have no rights ' See, however, Brumby i). Smith, distinguished carefully from the 3 Ala. 123. cases where it is held that if one I Appleby v. Myers, L. R. 2 C. agrees, not to repair, but to build a] '°^- house, the destruction of a house/ 3 Parker v. Scott, 82 la. 266. which was nearly completed will! * Cook V. McCabe, 53 Wis. 250. afford no defence to an action for J = The class of cases that have breach of contract in refusing to re? been considered in the text are to be build. P PLAIXTTFF IX DEFAULT UNDER A CONTRACT. 259 if the defendant were in default, because of the illegality thereof. These cases are to be distinguished from the cases where a plainti ff seeks to recover tor benetits conferred nudoi- an illegal contract which the defendant has abandoned. For while in the l atter class of cases the defendant seeks to ius- tify the act of abando nment by pleading tbe illegality of the contract, in the cases under consideration it is t he plaintiff' who seeks to justify an abandonment of the contract and brings his action in quasi-contract in disaffirmance thereof.'^ The fact which renders a contract illegal may be a fact importance o . . , J. distinguishioi which is regarded in law as malum in se, or it may be a fact between an a .. ,.,.. PI 1 11 wi'zZwni in se, which but for some positive prohibition of the law would and an act not be open to the objection of illegality, and is therefore uutum. malum prohibitum merely. The distinction is an important one, for the reason that,^ even though the plaintiff sue in disaffirmance of a contract, he is not allowed to maintain an action if the fact rendering the contract illegal is malum in se ; ^ while if the illegality is malum prohibitum merely, the plaintiff can, so l ong as the contract remains executory, disaffirm the co ntract and recover money paid or property delivered thereunder. ^ That the parties are m var i dplir.fo is immaterial.'^ ) In White v. Franklin Bank,* it was held that while the plaintiff, who had deposited money with the defendant under 1 Tappenden <■. Randall, 2 B & ^ Taylor v. Bowers, 1 Q. B. D. P. 467 (semble) ; Spring Co. v. 291; Spring Co. v. Knowlton, 103 Knowlton, 103 U. S. 49 {semble); U. S. 49; White u. Franklin Bank, rracv V. Talmage, 14 N. Y. 162 22 Pick. 181. (semble); White c. Franklin Bank, Apparently in Massachusetts if 22 Pick. 181 (semble). the plaintiff is acting in disaffirm- 2 Walker v. Chapman, Lofft, 342 ; ance, that fact of itself prevents his Taylor r. Bowers, 1 Q. B. D. 291 ; being in pari deliclo. Morgan c. Spring Co. v. Knowlton, 103 U. S. Beaumont, 121 Mass. 7. 49; White u. Franklin Bank, 22 See further on this point, jh/''") Pick. 181 ; Morgan v. Beaumont, p. 273. 121 Mass. 7. See, however, Knowlton * 22 Pick. 181. V. Congress Spring Co., .57 N. Y. .518. 260 THE LAW OF QUASI-CONTKACTS. Recovery of all agreement that the money should remain on deposit for a ."nSniifegal stated time, could not recover on the contract itself because '°°"'''"'' the contract was made in violation of a statute prohibiting a bank from contracting for the payment of money at a fixed future time, he could nevertheless recover in a count for money had and received brought before the expiration of the time named in the agreement, and brought in disaffirmance of the contract. In Keasley v. Thomson i the plaintiff sought to recover money paid by him to the defendant in consideration of the defendant undertaking not to appear at the examination of the plaintiff as a bankrupt, and not to oppose his discharge. The defendant did not appear at the examination, and before the plaintiff made an application for his discharge in bank- ruptcy he demanded a return of the money so paid. It was held that he was not entitled to recover. Lord Justice Fry, who was inclined to repudiate the entire doctrine of allowing a recovery after complete performance by the plaintiff, said : "But even assuming the exception to exist, does it apply to the present case ? What is the condition of things if the illegal pur- pose has been carried into effect in a material part, but remains unperformed in another material part ? As I have ah-eady pointed out in the present case, the contract was that the defendants should not appear at the public examination of the banljrupt, or at the application for an order of discharge. It was performed as regards the first, but the other application has not yet been made. Can it be contended that if the illegal contract has been partly carried into effect and partly remains unperformed, the money can still be recovered ? In my judgment, it cannot be so contended with -; success. Let me put an iHustration of the doctrine contended for, which was that partial performance did not prevent the recovery of the money. Suppose a payment of £100 by A to B on a contract that the latter shall murder C and D. He has murdered C, but not D. Can the money be recovered back ? In my opinion it cannot be. I think that case illustrates and determines the present one." 1 24 Q. B. D. 742. TLAIXTIFF IX DEFAULT UXDEK A CONTRACT. 261 The illustration used by the learned lord justice, of a party who has paid money on a contract having for its object the commission of murder, is not in point, for the reason that such a contract would fall within the rule that money paid on a contract main in in »e can in no event be recovered. Since the plaintiff is acting in disaffirmance of the con- Right of re- covery agai tract, money deposited with a stakeholder on an illegal astakehoid wager can be recovered before payment over, or after pay ment over if the stakeholder paid the money to the winner after notice not to do so.i That the plaintiff did not signify an intention to disaffirm the contract until the determination of the wager against him has been held to be immaterial. ^ It is also held 3 that money paid by a stakeholder after notice from the plaintiff not to pay the same, can be recov- ered even where the plaintiff, instead of demanding a return simply of the money paid by himself, demands the entire sum as the winner thereof. These decisions seem open to question, if a stakeholder is to be regarded as anything more than an agent. Clearly one who demands the stakes as a winner is affirming, and not disaffirming, a contract. Love V. Harvey was decided on the authority of McKee v. Maurice.* That case was, however, the ordinary case of payment over by a stakeholder, after the plaintiff had demanded not the stakes, but a return of the money which he had paid. If a stakeholder is to be treated as agent simply, there seems to be great force in the suggestion of Parke, J., the dissenting judge in Hale v. Sherwood,^ that in many cases where the whole sum might be claimed, the facts would not justify the inference of a revocation of authority because of the illegality of the contract, since the plaintiff, had he 1 Cotton V. Thurland, 5 T.R. 405 Corson v. Neatheny, 9 Col. 212 Hale V. Sherwood, 40 Conn. 332 Love V. Harvey, 114 Mass. 80 Deaver v. Bennett, 29 Neb. 812 2 Ibid. ^ Hastelow v. Jackson, 8 B. & C. 221 ; Hale v. Sherwood, 40 Conn. 332; Love v. Harvey, 114 Mass. 80. * 11 Cush. 3.57. McGrath v. Kennedy, 15 R. I. 208. « 40 Conn. 332. 262 THE LAW OF QUASI-CONTRACTS. regarded the defendant as the winner thereof, would have treated the suggestion of his disaffirming the contract because of illegality as an insult. Ri^ht of le- On the principle of the disaffirmance of an illegal contract viceYren'der'ed while it remains executory /a recovery should be allowed for contract! "''^^' scrvjces rendered or goods delivered by a plaintiff who repu- diates the contract because oi illegality h^tm-e he hns fully 3erformed his side, nnd l.pfnre he is entitled tn nnvmpnt ^der the ^-^i-'-i^s "^ ^tie conti-nct to the extent that he has per - formed, ^n such a case he should recover from the defend- ant the 'equivalent in money of what the defendant received under the contract. A recovery on this principle and to this extent can be no more objectionable than a recovery of money lent or paid in such circumstances, since what the plaintiff recovers in such a case is not the identical money which he paid, but its equivalent.' It would seem, however, that Af a recovery is had agains t a defendant after full performtnce by the plaintiff, such recovery should be restricted to cases where the ettect of the recovery is simply to reinstate him to his former position, as distinguished from' the position which he would have occu- pied had the illegal contract been performed by the defendant. For example, if a plaintiff is allowed to recover property delivered under an illegal contract, in effect treating the con- tract as if it were rescinded, he cannot be said in any sense to get the benefit of the contract. If, however, he reclaims, not the return of money paid b y him or its equiva- lent, or the return of property delivered by him, but com- pensation for services rendered , if the contract was a fair one, the recovery by him would seem to be as objectionable in point of public policy as a recovery on the contract, since in quasi-contract he would recover the value of his services, which in the ordinary case would be the sum stated in the contract. * See, however, Arnot v. Pittston Coal Co., 68 N. Y. 558. PLAIXTIFF IX DEFAULT UNDER A CONTRACT. 263 [ It has been held that •where a contract is performable b y instalments, a plaintiff cannot by disaffirming the contract as to the future performance thereof recover for part per formances as to which the defendant has by the terms of the contract become a debtor. To that extent the contract is treated as an executed, and not an executory contract to Right (it re- covery where contract is per- formable in instalments. which the doctrine of disaffirmance has no application.^ j (If parties innocently enter into a contract which proves tq ptights arising be illegal, and on the discovery thereof mutually agree to j meg?fcontrac°t. rescind, money paid thereunder prior to such rescission can be ) recovered.^ ( Wher e the contract has been fully performed on bothi No recovery V ' < ' s 1 I I ILJL a 1 where contract sides,^ there can be no recovery by the plamtirt, for not only ihas been fully ' -^ , fcerformed on has he by performing and accepting performance affirmed the |)oth sides. c ontract, but in many cases to allow a recovery would be unjust to the defendant.^ In Herman v. Jeuchner* the plaintiff sought to recover money which he had paid to the defendant to indemnify him ao-ainst liabilitv on a bond on which the plaintiff desired the defendant to become his surety in a criminal proceeding brought against the plaintiff. While the bond was still in force, the plaintiff sued to recover the money so paid. It was held that the contract between the parties was executed by the payment of the money on the part of the plaintiff and by the execution of the bond by the defendant, and that there could be no recovery of the money so paid. Brett, M. R., said : — 1 Peck V. Burr, 10 N. Y. 294 ; Arnot V. Pittston Coal Co., 68 N. Y. 5.58. 2 Skinner v. Henderson, 10 Mo. 205. 3 Herman v. Jeuchner, 15 Q. B. T>. 561; White v. Barber, 12.3 U. S. 392; Clark v. United States, 102 U. S. 322; Jefi v. Wade, 4 Bibb, 322 ; Wyman v. Fiske. 3 Allen, 238 ; Lusk V. Patton, 70 N. C. 701. It has been held, however, that a sura received in excess of the amount still due according to the terras of the contract can be recovered. Shaw V. Gardner, 30 Iowa, 111. " 15 Q. B. D. 561. 264 THE LAW OF QUASI-CONTRACTS, "It was first argued that the action is brought too soon, because it is brought before the expiration of the two years. If the contract were legal, the action would have been brought too soon ; and in this point of view the action can be maintained only if the contract is illegal. Tor the defendant it may be said that the illegal object itself would be sufficient to prevent the plaintiff from recovering ; and further, that if it is necessary in order to defeat the action that the illegal contract should be performed, the illegal contract has in this case been performed. I will not stop to say whether in order to defeat the plaintiff in an action like this, the defendant must be able to prove that the illegal object is performed, or whether it is sufficient that the contract itself shall be tainted with illegality ; for if the contract 'is illegal and has been performed, then the person vouching the illegality cannot recover. In this case the illegal purpose has been wholly performed, and therefore the plain- tiff cannot recover. We differ from Stephen, J., only in this, that we think that the contract was fully concluded ; Stephen, J., thought that the contract was not fully concluded. We think that it was fully performed, for this reason : that the defendant did not contract with the plaintiff to pay the amount of the recognizance. The payment of that amount was not part of the illegal purpose existing between the plaintiff and the defendant; it was an obligar tion imposed by the law upon the defendant. The illegal purpose was fully completed when the defendant became surety. The time for returning the money has not as yet arrived ; but when it does, I cannot think that the plaintiff will be in any better position than he is now. I cannot agree with the view of Stephen, J., or with his decision." In Spring Co. v. Knowlton ^ the defendant, a corporation, acting on the suggestion and advice of the plaintiff, a trustee and vice-president, had voted in violation of law to increase its capital stock. The plaintiff subscribed for some of the- stock, and paid to the corporation a part of his subscription. By the terms of the subscription the money paid was to be forfeited unless the remainder was paid within a given time ; the plaintiff failing to complete his subscription within the ^ 103 U. S. 49. See, however, Knowlton v. Congress Spring Co.,. 57 N. Y. 518. PLAINTIFF IN DEFAULT UNDER A CONTRACT. 265 time named, the money paid by him was forfeited to the company ; thereafter the company rescinded its resolution authorizing tlie increase of stock, and issued bonds to sub- scribers for the stock in settlement of their claims against the company; bonds were not demanded by or tendered to the plaintiff, who sued to recover the subscription paid by him. It was held that the plaintiff was entitled to recovei'. Mr. Justice Woods said : — ' • So that all that was done amounted only to a proposition by the company, on the one hand, to increase its stock, and an agree- ment by Knowlton to take certain shares of the new stock when issued, and the payment by him of an instalment of twenty per cent thereon. There was no performance of the contract whatever by the company, and only a part performance by Knowlton. "It is to be observed that the making of the illegal contract was malum prohibitum, and not -malum, in se. There is no moral turpitude in such a contract, nor is it of itself fraudulent, however much it may afford facilities for fraud. "The question presented is, therefore, whether, conceding the contract to be illegal, money paid by one of the parties to it in performance can be recovered, the other party not having performed the contract or any part of it, and both parties having abandoned the illegal agreement before it was consummated. " AYe think the authorities sustain the affirmative of this proposition." The case differs in one particular from any other case known to the writer, and must for that reason he regarded as an extension of the doctrine that an action can be maintained to recover money paid under an illegal contract by a plaintiff in default as to the performance thereof. In Spring Co. v. Knowlton, at the time when the plaintiff claimed a right to abandon the contract and recover the money paid by him, there was no contract for him to aban- don. He had refiised to pay his subscription for reasons other than the illegality of the contract. The company in the exercise of a right conferred upon it by the contract had 266 THE LAW OF QUASI-CONTRACTS. declared the contract forfeited. Therefore by the terms of the contract the company was under no obligation to the plaintiff. The cases where the doctrine has been applied that a contract could be abandoned by the plaintiff, have been cases where either the plaintiff had not fully performed his side, or where by the terms of the contract some obliga- tion existed on the part of the defendant in favor of the plaintiff at the time when the plaintiff sought a recovery of that which he had paid or given under the contract. It seems difficult to allow on the theory of disaffirmance a recovery where a plaintiff has refused to perform a contract for reasons not connected with the illegality thereof, and where in consequence of such refusal the defendant has exercised the right conferred upon it by the, plaintiff of abandoning the contract and forfeiting the payment made by the plaintiff. Necessity of Where a plaintiff disaffirms a contract because of tlie faofdisafikm illegality thereof, and seeks to recover in quasi-contract,^ tract."* °°"' would scem only equitable to require him as a condition o f suing; to give notice to the defendant of his disaffirmance of .- " '^ 1 1 I I • I I i j i — the co ntract, and of his claim in quasi-contract. It must be remembered, that though the contract is illegal, the defendant has not refused to perform it. Why should one who has not refused to do that which the plaintiff stipulated for, be liable to an action for not doing something else which he has had no reason to suppose the plaintiff desired him to do ? It was held, however, in White v. Franklin National Bank,^ that no ' ' y ' ■ II I I ' demand was necessary. \ 1 Supra, p. 259. See, also, Jones v. Cavanaugh, 149 Mass. 124. DEFENDANT IN DEFAULT UNDEK A CONTRACT. 267 CHAPTER V. OBLIGATION OP A DEFENDANT IN DEFAULT UNDER A CONTRACT. It is proposed to consider in this chapter the / g^uasi-con - tractual rights of a plaintiff who has conferred a benefit upon a defendant under a contract wliich the defendant has failed to perform. A plaintiff may seek a recovery for bene- fits so conferred: 1. Where he has no contractual rights because of the illegality of the contract under which the benefit was conferred ; 2. Where the benefit was conferred ui>der a contract unen- forceable because of the statute of frauds ; 3. Where the non-performance by the defendant of the contract which has been performed in w hole or in part by the plainti ff is excused because of the impossibility of performance ; 4. Where the defendant's failure to perform the contract ' / J....... - / - .. ^_ ^^ j^ ■ - > is wilful or inexcusable. \ SECTIOK I. CONTRACT t^NENFORCEABLE BECAUSE OF ILLEGALITY. The cases to be considered in this section differ from the cases considered in the last chapter in that the defendant, and not the plaintiff, is in default under the contract. iAssuming the contract as to which a defendant is in default to be illegal and therefore unenforceable, the question arises 268 THE LAW OF QUASI-CONTRACTS. No recovery where the parties are in pari delicto. as to the rights of a plaintiff who, notwithstanding the ille- gality, performed the same in whole or in part, and thereby conferred a benefit on the d efendant. "^ In Jaques v. Golightly,^ a defendant who refused to per- form a contract, relying on the illegality thereof, and yet insisted on ' retaining the money received thereunder, was made to refund to the plaintiff the money so received. De Grey, Chief Justice, apparently allowed the plaintiff to recover on the broad ground that the law would compel one who had conscientious scruples against the performance of an illegal contract to be equally scrupulous in regard to the retention of ill-gotten gains. He said : — "This is an application for favor by a man knowingly trans- gressing. He says, and says rightly, that the insurance contract was null and void. He has therefore a scruple in conscience not to pay the money won by the plaintiff, because the play was illegal , but lie has no scruple to receive and retain the consideration money. I think the verdict right." Blackstone, J., however, thought the plaintiff was enti- tled to recover because the parties were not in pari delicto. "These Lottery Acts," said he, "differ from the Stockjobbing Act of the 7 Geo. 2, c. 8, because there both parties are made crimi- nal and subject to penalties, but the losing party is indemnified from those penalties in case he sues and recovers back the money lost from the winner. It was therefore necessary in the preceding clause to give the loser a power to maintain such an action. But here (on the part of the insured) the contract on which he has paid his money is not criminal, but merely void ; and therefore, having advanced his premium without any consideration, he is entitled to recover it back." It is only on this latter suggestion, that the case can be supported at the present time. (Subject to the limitation hereinafter stated, ^ — if the parties to an illegal contract are in pari delicto the plaintiff will not be allowed to recover » 2 Wm. Bl. 1073. Tnfra, p. 273. DEFENDANT IN DEFAULT UNDER A CONTRACT. 269 for a benefit confer red thereunder upon a defendant refusing to perform.^ -^ Thus it is "field that money paid under an illegal contract cannot be recovered, the parties being in pari delicto, on the defendant's refusal to perforin the contract. ^ On the same principle it is held that when the parties are in pari delicto, a defendant who has refused to perform the contract is not liable in quasi-contract for the value of the services rendered by the plaintiff under the contract.^ Nor can an action be maintained in similar circumstances for goods sold and de- livered.* For the same reason, if the contract is illegal, an action cannot be maintained against a defendant in default under a lease for use and occupation.^ In Morgan v. Groff ^ the plaintiff sued to recover money which he had delivered to the defendant with directions that it l>e bet on the result of an election. The defendant did not make the bet in question, and the plaintiff on learning that fact demanded a return of the money. It was held that there could be no recovery. The principle under consideration seems to have been lost sight of in Douville w. Merrick," where it was held that not- 1 Vandyck v. Hewitt, 1 East 96; v. City of Richmond, 12 Wall. 349 Morck V. Abel, 3 B. & P. 35; Simp- Pucket v. Roquemore, 55 Ga. 235 son r. Nichols, 3 M. & W. 240 ; Shaffner v. Pinchback, 133 111. 410 Thomas v. City of Richmond, 12 Morgan ?;. Gioff, 5 Den. 364; Hooker AVall. 349 ; Gibbs v. Baltimore Gas i^. De Palos, 28 Oh. St. 2.j1 ; Troe- Light Co., 130 U. S. 396; Pucket wert d. Decker, 51 Wis. 46. c. Roquemore, 55Ga.235; Shaffner ^ Gibbs v. Baltimore Gas Light V. Pinchback, 133 111. 410 ; Harvey Co., 130 U. S. 396; Harvey v. Mer- V. :Merrill. 150 Mass. 1; Ashbrook rill, 150 Mass. 1. r. Dale, 27 Mo. App. 649; Thomp- * SiniE§.an v. Nichols, 3 M. & W. son u. Williams, 58 N. H. 248; 240 ; Arnot u. Pittstou Coal Co. , 68 Morgan . . Groif , 5 Den. 364 ; Arnot N. Y. 558; Thompson u. Williams, ,-. Pittston Coal Co., 68 N. Y. 558; 58 N. H. 248. Hooker v. De Palos, 28 Oh. St. 251; ^ Ashbrook v. Dale, 27 Mo. App. Troewert c. Decker. 51 Wis. 46. 649. 2 Browning v. Morris, Cowp. 790, « 5 Den. 364. Vandyck r. Hewitt, 1 East. 96 ; ' 25 Wis. 688. Morck l: Abel. :) B. & P. 35, Thomas- 270 THE LAW OF QUASI-CONTRACTS. withstanding the illegality of the contract, money deposited by the plaintiff with the defendant, an attorney at law, to procure him a divorce from his wife, the defendant agreeing to procure the divorce within thirty days, could be recovered, the defendant having refused to begin the proceedings, and having converted the money to his own use. Dixon, C. J., said : — "The consideration for whicli the plaintiff deposited with or paid the money to the defendant, has entirely failed, or rather there was never any consideration; and he is entitled to have it restored to him. The idea that the defendant can retain the money upon the void or illegal agreement between the plaintiff and his wife for procuring a judgment of divorce, and which the defendant, as their attorney, advised,- is not to be tolerated." To have allowed the defendant to retain the money in the circumstances established in Douville v. Merrick, would have been to allow him to profit by his dishonesty. Had the court allowed this to be done, it would have allowed no more than is allowed in any case where a defendant in default, having no other defence, successfully pleads the illegality of the contract as a defence to an action brought to recover the value of the benefits received by him under the contract. The principle under consideration is strikingly illustrated by the decision in Thompson v. "Williams. i The plaintiff sued the defendant in assumpsit for the price of two cows, sold to the defendant on Sunday. Some time after the delivery of the cows to the defendant, the plaintifp had taken the cows from the defendant because of his refusal to pay for them. Thereupon the defendant sued the plaintiff in an action of trespass and recovered judgment (which he after- wards collected) for the value of the cows, the jury assessing the damages at the contract price agreed upon between the plaintiff and the defendant when the cows were purchased. 1 58 N. H. 248. HEFENDANT IN DEFAULT UXDER A CONTKACT. 271 It was held that the plaintiff, notwithstanding this assertion of title on the part of the defendant, could not recover in an action of assumpsit. Smith, J., delivering the opinion of the court, said : — ■ • The defendant is not estopped 1\y the judgment in the trespass suit from setting up the Sunday law as a defence. The maxim in 2>art delicto, etc., was not established for the benefit of one party or of the other. The law does not leave the •\\'eaker at the mercy of the stronger, nor give the vendor a remedy by allowing him to retake the property illegally sold. It leaves the parties where their illegal contract left them; when executed, it will not assist the party who has parted with his money or property to recover it back; when executory, it will not compel performance. It would not leave the parties where their illegal contract left them if it did not maintain the title acquired hy the contract. Williams was in possession of the cows, as of his own property, by the assent of Thompson. When the latter retook them, Williams was enabled to maintain trespass because Thompson could not be heard to con- trovert his title. (Smith v. Bean, 15 IST. H. 579; Coburn v. Odell, 30 X. H. 540, 552.) The verdict must be set aside." ^ [Although a recovery cannot be had on a contract laecause Right of re-' of the illegality thereof, if the parties are not in pari delicto thJpiainti'ffTs a plaintiff will be allowed to recover in quasi-contract tor MilZf" benefits conferred.^ N In Tracy v. Talmage ^ it was held that ^ Probably no better illustration stances. But when the vendor can be found in our law of the im- sought to recover in assumpsit portance of distinguishing between against the vendee for the value of a right in rem and a right in per- the property sold, he was seeking sonam than is afforded by the case the aid of the court to reduce a of Thoinpson v. WilUams. The chose in action into possession, and plaintiff in the action of trespass to acquire as a result of such re- succeeded because having acquired duction a right in rem. a title by the purchase of the prop- ' Smith v . Bromley, 2 Doug. 696; erty the source of his title was im- Gray c. Roberts, 2 A. K. Marsh, 208; material. The vendor, by inter- Morville ;-. American Tract Society, fering with the possession of the 123 Mass. 129 ; Tracy v. Talmage, vendee, to whom the title had passed, 14X. Y. 162; Duval k. Wellman, was a tort feasor, as any stranger 124 N. Y, 156. would have been in similar circum- ^ 14 N. Y. 162. 272 THE LAW OF QUASI-CONTRACTS. although a banking association could not be sued on certifi- cates issued ultra vires and contrary to an act prohibiting such issue, yet since the parties were not in pari delicto, the penalties being imposed exclusively upon corporations and their officers, the plaintiff could recover in quasi-contract for the value received by the defendant. Selden, J. , said : — "The illegal contract itself is of course void, and no part of it can be enforced. It is impossible, I think, to sustain the reason- ing adopted in the Utica Insurance cases, by which that part of the contract which embraces the loan (in this case the sale) is separated from the portion relating to the security, and upheld as a distinct and valid contract. The contract there, as here, was entire; and it is contrarj' to all the rules which have been applied-, to illegal contracts to discriminate between their different parts, and hold one portion valid and the other void. Recoveries are not had in such cases upon the basis of the express contract, which is tainted with illegality, but upon an implied contract, founded upon the moral obligation resting upon the defendant to account for the money or property received." ^ 1 Although it is beyond the scope which is ultra vires, in the proper of the present work to enter into a sense, that is to say, outside the ob- discussion of the nature of corporate ject of its creation as defined in the powers, and the liabilities dependent law of its organization, and there- thereon, it is submitted that the fore beyond the powers conferred liability of a corporation for benefits upon it by the legislature, is not received under a contract which is voidable only, but wholly void, and regarded as illegal and void must of no effect. ... No performance rest on quasi-contract, and viot on on either side can give the unlawful the theory of contract, as is so often contract any validity or be the stated. This was the view taken by foundation of any right of action Mr. Justice Gray in Central Trans- upon it. . . portation Company v. Pullman's Car " A contract ultra vires being un. Company, 139 U. S. 24, 59. "The lawful and void, not because it is in view," said the learned justice, itself immoral, but because the cor- " which this court has taken of the poration, by the law of its creation, question presented by this branch is incapable of making it, the courts, of the case, and the only view which while refusing to maintain any ac- appears to us consistent with legal tion upon the unlawful contract, principles, is as follows : — have always striven to do justice be: " A contract of a corporation, tween the parties, so far as could be DEFENDANT IN DEFAULT UNDER A CONTRACT. 273 (The doctrine that there can be no recovery in quasi-contract Right of 'e- ^ ^ ^ I r ovory where where a contract is illegal, and the parties are in pari delicto, illegality un- ' kntiwn to the IS sub]ect to the limitation that if the illegality of the con- parties. tract is due to a fac t not known to either party, and with knowled ge of whictT neither party can be charged, then, though the contract cannot be enforced, a recovery can be hadin quasi-contract. ^ "N The right to recover against a defendant in default under an illegal contract being confined to cases where the parties are not in pari delicto, it is necessary to consider the tests to be adopted in determining this question. When the illegality arise s from the violation of a statut e Piaintiti' acting *" '^ in violation ot which ha s for its object the protection of a class to which a statute en- ^^^— T . . .^. , -, ^T— ^■^— acted for his the plaintiff belong s, against a class to which the defendant protection is belongs, the parties are not regarded as in pan delicto.^ ) delicto. Thus in Smith v. Bromlej-,^ it appeared that the plaintiff, whose brother had committed an act of bankruptcy, and against whom the defendant, a creditor, had taken out a com- mission, had paid to the defendant the money demanded by him as a condition of signing a certificate consenting to the bankrupt's obtaining his discharge. It was held that as the statute declaring this transaction illegal was enacted to pro- tect delitors and their families from the extortion of creditors, the parties were not in pari delicto, and the plaintiff could recover. Where an act is prohibited by statute, a nd a penalty for a ^,!j,*r«,^P«J^;^ on the defend- ant only for a done consistently with adherence to of the defendant to return, or failing viokdon^o^f a law, by permitting property or to do that, to make compensation plaintiff is not money, parted with on the faith of for, property or money which it has «» P<"-i delicto. the unlawful contract, to be re- no right to retain." covered back, or compensation to i Hentig v. Staniforth, 5 M. & be made for it. S. 122. " In such case, however, the ac- '^ Cjark. v. Shee, Cowp. 197 tion is not maintained upon the (semble) ; Smith v. Bromley, 2 Doug, unlawful contract, nor according to 696. its terms, but on an implied contract * 2 Doug. 696. 18 274 THE LAW OF QUASI-CONTRACTS. YJolation of the statute is imposed upon one of the partie s only, the parties are not in pari delicto^ ) When debtor (^ Where a creditor makes compliance with his illegal i^n^afdemrid demands a condition o f his doing acts necessary for the notinpaH relief of an embarrassed debtor, the parties are not in pari delicto. ^ ji , I) ' delicto.'^ ■, If illegality de^ pit tEe" illegality depends upon the existence of facts Lets known tb unknow n to the plaintiff but known to the d efendant, the unknown to the parties are not in pari delicto.^ •) Thus where the validity of parties are 'not Certain bonds depended upon the date of issue, and the in pan e ic o. ^^^^^^^^^ falsely dated them, so that they appeared to have been legally issued, it was held that notwithstanding the bonds were invalid because of illegality, the plaintiff' could recover the money loaned thereon, as the parties were not in pari delicto.^ On this principle it was held in Bloxsorn ej>. Williams,^ that the Sunday law only forbidding the following of a voca- tion on Sunday, the plaintiff, who was ignorant that the defendant was following his vocation and not an avocation, could recover money paid by him as on a consideration that had failed. Equaii(,y of Ot has been suggested that a plaintiff is necessarily in pari not depend delicto if, in ordcr to establish his claim, he must introduce upon order of ' ' proof. evidence of the illegal contract.^ In Taylor v. Chester/ Mellor, J., said : — ' Williams v. Hedley, 8 East. 376 ; s Bloxsome v. Williams, 3 B. & Thomas v. City of Richmond, 12 C. 232 ; Louisiana v. Wood, 102 U. Wall. 349 (semble); Grayu. Rohensj..S. 294. 2 A. K. Marsh. 208; Smart v. Hyle/^ « Louisiana u. Wood, 102 U. S. 7.4 Me. 332; White v. Franklin 294. Bank, 22 Pick. 181 ; Curtis v. Leavitt, ^ 3 g & q 032. 15 N. Y. 9 ; Tracy v. Talmage, ^ Taylor v. Chester, L. R. 4 Q. B. supra, p. 271. 309; Hefiner v. Lewis, 73 Pa. St. 2 SmillL i). Cuff, 6 M. & S. 160 ; 302. Atkinson 0. Denby, 6 H. & N. 778. ' L. R. 4 Q. B. 309, 314. See for a discussion of these cases, infra p. 435. ^7 DEFENDANT IX DEFAULT UNDKK A CONTRACT. 275 "Tlio true test for detcnuiniug wlietlicr or not the plaintiff and the defendant were in pur! delicto is by considering whetlier the plaintiff could make out Iiis case otherwise than through the medium and by the aid of the illegal transaction to which he was himself a party (Simpson v. Bloss, 7 Taunt. 246; Frivaz v. Nichols, 2 C. B. oOl)." It is submitted that the test s ii ggested is artificial, making the questiou depend not upon substance, but upon form, namely, the order of proof. Furthermore , it would seem that such a test would practically eliminate this class of cases from the law, since it is necessary for the plaintiff to show a failure of consideration, and this he can do only by showing that the defendant has failed to perform a contract in exchange for which the benefit was conferred by the plaintiff. But to estab- lish the def endant's default or failure to perform, he must necessarily e stablish the terms of the contrac t, and these when established would usually show the illegality, if any existed. \ This test was rejected in Sampson v. Shaw,i where Wells, J., said : — "It is argued on the plaintiff's behalf that the claim which he makes is for money had and received, traced distinctly to Thaxter's- hands, and held by a contract tainted with no illegality; that the' defendant in order to resist the claim is obliged to set up an illegal agreement, and rely upon it, and that this necessity is the test as to' the equality of the delict. However ingenious this suggestion maj'' be, it can hardly prevent the court from taking the whole transaction together and considering what it is in substance and effect. The application of the maxim in pari delicto, etc., does not depend upon any technical rule as to which party is the first to urge it upon tlie court in the pleadings." In Duyal v. Wellman^ the plaintiff sought a recovery of money paid in the following circumstances : the plaintiff's ' 101 Mass. 145, 151. Ap. 89; s. c. sub nora. Smith c. 2 124 N. Y. 156 (Second Division Bruning, 2 Vern. 392. But see of the Court of Appeal) ; see also White c. Equitable Nuptial Benefit Goldsmith v. Brunhig, 1 Eq Cas. Union, 76 Ala. 251. 276 THE LAW OF QUASI-CONTRACTS. assignor, a widow, paid to defendant, the proprietor of a matrimonial bureau, a sum of money in exchange for a prom- ise on his part to find her a satisfactory husband, or, in the event of his failing to do so, to refund the money. Although a number of matrimonial candidates were submitted to the widow for inspection and approval, she failed to find a con- genial companion, and demanded a return of the money. It was held that though the contract was illegal, the parties were not in pari delicto, and the plaintiff was entitled to re- cover. Brown, J., delivering the opinion of the court, said: "The question in this and kindred cases, therefore, must always be whether the parties are equal in guilt. . . . But where a party carries on a business of promoting marriage, as the defendant appears to have done, it is plain to be seen that the natural ten- dency of such a business is immoral, and it would be so clearly the policy of the law to suppress it, and public interest would be so greatly promoted by its suppression, that there would be no hesita- tion upon the part of the courts to aid the party who had patron- ized such a business by relieving him or her from all contracts made, and grant restitution of any money paid or property trans- ferred. In that way only could the policy of the law be enforced and public interests promoted. "Contracts of this sort are considered as fraudulent in their character, and parties who pay money for the purpose of procuring a husband or a wife will be regarded as under a species of imposi- tion or undue influence. . . . "It is true there is no evidence of actual over-persuasion or undue influence. "But at most the inferences to be drawn from these facts were for the jury. "The prominent fact in the case is that such a place as the defendant maintained, existed in the community, with its evil sur- roundings and immoral tendencies. "What influence was exerted upon the mind of the widow by the mere fact of the existence of such a place to which resort could be had, cannot of course appear except by inference. But if the evi- dence was not sufficien% -strong to authoHSe thT court to hold as a question of law tliat the parties were not hi pari delicto, it at least presented a question of mixed fact and law for the jury. DEFENDANT I_\ DEFAULT UNDEU A CONTRACT. 277 "Our opinion is that tlie same reasons that have induced courts to dechire contracts for the promotion of marriage void dictate with etiual force that tliey should he set aside and the parties restored to their original position. To decide that money could not be recovered back would be to establish the rules by which the defendant and others of the same ilk could ply their trade and secure themselves in the fruits of their illegal transactions." Ill the foregoing quotation the court suggests three possible grounds of decision : 1, that the parties should not be treated as in pari delicto because the defendant's vocation was illegal ; 2, that the transaction was a fraudulent one ; 3, that the defendant exerted an undue influence by conduct- ing the resort in question. While the writer is not prepared to say that it would not be well to adopt as a I'ule the first ground suggested, namely, that public policy is best served by compelling one following as a vocation an illegal business to make restitution to individ- uals not so engaged, the cases do not seem to support such a discrimination in favor of the amateur against the prof essional. The suggestion of fraud seems hardly supported by the facts of the case. To allow a recovery on the ground that the defendant, by inviting the public to such a resort, exerted an undue in- fluence over the plaintiff, would, if adopted, have rather a far- reaching influence, unless a discrimination should be made between a resort such as was illegally conducted by the defendant and others of an equally immoral and illegal character. SECTIOIS^ II. CONTEACT UNENFORCEABLE BECAUSE OF THS STATUTE OF FRAUDS. /in considering the rights of a plaintiff against a defendant A defendant *^ n ■ .." ' " ■■ ""'j""C on sUit- who refuses to perform a contract to which t he . statute of ute of frauds is ■ f : ; ■ , ,, , . liable for beiie- frauds applies, after havmg received a beneht from the plain- nts received. 278 THE LAW OF QUASI-CONTKACTS. tiff's performance t hereof, it •yyill be assumed that because of the statute of frauds the plaintiff is not able to recover on the contract itself. The contract not being illegal, however, and there being no objection in law to the performance thereof by the defendant, a defendant who has received a benefit from the perfor mance by a plaintiff of such a contract, either in whole or in part, must compensate the plaintiff for the benefi t so conferred. "N Recovery of On this principle, payments made under an oral contract monev paid ' r ; r j under" an oral for the purchase of land or an interest therein, which the contract for the sale of land, vcudor cannot or will not perform, can be recovered. Although a recovery in this class of cases was first allowed in equity,^ a remedy to recover money paid in these circumstances is now given at law.^ Recovery for On the Same principle it is held that one who has rendered scrvicGS rGH" dered under an scrviccs On the faith of an Oral promise to convey, while not or;i] contract iij. -i,* ,• .,n for iiie convey- aolc to niamtain an action on the contract itself, can maintain ante of land. j.- ■ • , , , , , „ , an action in quasi-contract to recover the value of the ser- vices rendered, the defendant refusing to perform the oral contract.^ Recoverj' for So a lessee or vendee * in default under an oral contract use and occupa- tion under an lor the lease or purchase of land and who has been in posses- oral contract. . '^ sion under such contract, will be compelled in an action for use and occupation to make compensation to the lessor or vendor for the use of the land. s^erviceJren-' ^°'' ^^'^ ^^"^^ ^^^^^^^ ^ plaintiff who has rendered services oraTcontoct'" ""'^®'' "" coutract to which the statute of fraud applies, because wui?rn*7ear.'' *''° Contract is not performable within a year, can recover for ' Anonymous, Freeman, 48G. Mass. 478; Ellis v. Gary, 74 Wis. ^ P^1^2S.k "■ Lawes, 1 Q. B. D. 176. 284; Wiley v. Bradley, 60 Ind. 62 ; ' Little v. Martin, 3 Wend. 219 ; Jaboe V. Severin, 8.5 Ind. 496; Smith p. Wooding, 20 Ala. 324' Segars v. Segars, 71 Me. 530 ; Cook Gould u. Thompson, 4 Met 224 •' «. Doggett, 2 Allen,439; Herricky. Clough v. Hosford, 6 N H 231 Newell, 49 Minn. 198. (^semhle). See, however, contra, Dowlrng V. McKenney, 124 Smith v. Stewart, 6 Johns. 46. DEFEXDAXT IX DEFAULT UNDER A CONTRACT. 279 the value of the services so rendered if the defendant refuse to perform the contract. ^ ^ is no t, however, sufficient to enable a plaintiff to recover ''!''f "fjupt en- •< r 1 ? 1 richment ot de- for him to prove that he has suffered damage in consequence fendant, not '■ o .1 damaK'f to the of the defendant's breach of contract. He must show that the plaintiff, the ^ ^ basis ot re- defendant will, if he is not compelled to pay the plaintiff for covery. that which he has received from the plaintiff, unjustly enrich himself at the plaintiff's expense. ') Th us in Bowling v. McKenney ^ the plaintiff and the defendant agreed for the purchase of land by the plaintiff from the defendant on the following terms ; the plaintiff was to pay the defendant $200 and to complete a partly finished monument which he had on hand, of the value of $200, in exchange for which the defend- ant agreed orally to convey to the plaintiff a piece of land. The monument when completed was to be put upon a burial plot belonging to the defendant, the plaintiff to prepare the plot for tlie reception of the monument. The defendant, after the plaintiff had prepared the burial plot, but before the plaintiff had finished the monument, notified the plaintiff that she would not convey the land. The plaintiff thereupon brought an action to recover for work and labor. It was held that if the jury found as a fact that the defendant had been benefited by the labor done upon defendant's land by plaintiff, the plaintiff was entitled to recover from the defendant for work and labor. But that as the defendant had received noth- ing of value from the labor done by the plaintiff on the monu- ment, the monument being the property, not of the defendant, but of the plaintiff, there could be no recovery by the plaintiff for the labor expended on the monument. Endicott, J., deliv- ering the opinion of the court, said : — "But the plaintiff contends that he may, under his third count, recover for his labor in completing the monument. It is true that 1 Wonsettler v. Lee, 40 Kan. 367; = 124 Mass. 478. Montague v. Garnet, 3 Bush, 297 ; Cadman v. Markle, 76 Mich. 448. 280 THE LAW OF QUASI-CONTRACTS. when a person pays money, or renders service, or makes a convey- ance, under an agreement vi^ithin the prohibition of the statute of frauds, and the other party refuses to perform it, an action will lie to recover the money so paid, or the value of the services rendered or the property conveyed; but it is on the ground that a party who has received a benefit under an agreement which he has repudiated, shall be held to pay upon an implied assumpsit for that which he has received. Dix v. Marcy, 116 Mass. 416, and cases cited. In the case at bar, the defendant received no benefit from the labor performed in completing the monument, although the plaintiff may have suffered a loss because he is unable to enforce his contract, and no recovery can be had for the labor on the monument, as charged in the account annexed to the third count. " But this rule does not apply to the item for services performed by the plaintiff in preparing the land and foundation. If this refers to the lot of the defendant where the monument was to stand, and the work was done upon it, we cannot say as a matter of law that it was not of benefit to the defendant. That is a question of fact to be determined by a jury." This principle seems to have been lost sight of in Parker V. Tainter.' In that case the defendant, a lessee of land, agreed orally with the plaintiff to lease to the plaintiff for a term of years the land occupied by him as lessee, and the plaintiff under this agreement went into possession and erected a building on the land. Before the execution of the lease, the defendant's landlord in the exercise of a right under a clause of the lease under which the defendant held, terminated the lease and compelled both the plaintiff and defendant to surrender the premises, notifying the plaintiff to remove the building therefrom. This the plaintiff failed to do, and the defendant's landlord removed the building. The plaintiff then brought an action against the defendant for the value of the building erected on the land, and was allowed to recover. Grey, C. J., delivering the opinion of the court, said : " The defendants had an estate though not an absolute title, in fee in the land. If the plaintiffs in consideration of an agree- 1 12.3 Mass. 185. DEFENDANT IN DEFAULT I'NPEK A CONTRACT. 281 ment which is within the statute of frauds, and which the defendants declined to carry out, expended money in building upon his land, they niiglit maintain an action to recover the cost of such buildina;." It is respectfully submitted that if a plaintiff who in the performance of a contract confers no benefit upon a defendant cannot recover because of the absence of a benefit, the extent of a plaintiff's recovery who does confer a benefit upon a defendant should be determined by the extent of the benefit received ; and it would seem, therefore, that the plaintiff's recovery in Park er p. Tainter was excessive, for if there was any benefit conferred it could be nothing more than the value of the building to be removed from the premises, and whether this benefit was in fact conferred upon the defendant would depend upon whether the defendant had the right to remove the building. The case of Dix ;'. Marcy ' cited by the court shows clearly that the cost to the plaintiff is not the criterion by which the defendant's liability is to be fixed ; and if that is not the criterion, then the benefit to the defendant must be the criterion, and in Parker v. Tainter the cost of the building was not the benefit which was received by the defendant. As a matter of fact, the defendant received no benefit whatever, since the building, the plaintiffs refusing to move the same, was removed not by the defendant, but by the defendant's landlord, though if the defendant possessed the right to remove the building, his neglect to exercise that right would be imma- terial, and the measure of recovery would be the value of tlie building in such circumstances. (As the plaintiff's right of recovery rests upon the defend- Right of de- ** , ■ . ,„ fendant to a ant's uni ust enrichment, the plamtiff must credit the defend- credit for value " ; III received. ant with e verythmg he has received in exchange tor that tor which he seeks a recovery from the aetenaant. >^ If he has received from the defendant the value of that which he gave the defendant, then he will have no right 1 116 Mass 416. 282 THE LAW OF QUASI-CONTRACTS. of action against the defendant, notwithstanding, had the defendant performed his contract, the plaintiff would have received much more* than the value of that which the defen- dant received from him.^ The fact that the plaintiff would have received more than the value bestowed by him upon the defendant, had the defendant performed his contract, shows that the plaintiff has been damaged by the defendant's refusal, but it does not establish the benefit which the plain- tiff has conferred upon the defendant. Thus in Pay i'- N. Y. C. R. R. Co.,^ the plaintiff conveyed land and a right of way to the defendant, and agreed to build certain sheds on his own land to house live stock, to be delivered to him by the defendant. The defendant agreed to give the plaintiff the temporary keep and feed of certain stock brought over its road. After performing the contract in part, the defendant refused to perform further. It was held that if the plaintiff had received from the defendant the value of the land, he had no cause of action against the defendant, notwithstand- ing the performance of the contract by the defendant would have given to the plaintiff a sum of money largely in excess of the value of the land. While in such a case the plaintiff would be entitled to recover if the performance by the defend- ant did not equal in value the land conveyed by the plaintiff, the plaintiff's recovery should be limited to the difference between the value of the part performance and the actual value of the land. In delivering the opinion of the court in Day V. The R. R. Co., Earl, C, said : — "Here the plaintiff was to receive for his land one dollar and the stock business at his yards. The one dollar may be regarded as merely nominal, and the other must be held to he the substantial consideration. The plaintiff expected to get the value of his land m the profits which he should make out of the business which the defendant should give him. This business the defendant gave to • the plaintiff for one year at least, just as it agreed to, and out of it 1 Day V. N. Y. C. R. R. Co., 51 a 51 N. Y. 583 N. Y. 583. DEFENPANT IN DEFAULT UXHEE A CONTKACT. 283 tlie plaintiff appears to have made profits iiiuoli greater than the U\Tul conveyed. These profits were the consideration contemplated h}' tlie parties for the conveyance of the land, and to the extent that the plaintiff has had the business and profits, he has had the very consideration he contracted for. Suppose the defendant had agreed to pay plaintiff $100 and also to give him the stock business, could the plaintiff in this action after receiving the $100 recover the whole value of the land, entirely ignoring the money payment ? Suppose instead of giving the defendant land, the plaintiff had paid it money for the same consideration; could he, under the cir- cumstances of this case, recover back all the money paid in an action for money had and received '.' Clearly not. The very basis upon which the action rests forbids it. It would be against both equity and good conscience to allow the plaintiff in the case sup- posed to recover all the consideration which he had paid, when he had already received a part of the benefit and consideration which he had contracted for. . . . Within the principles laid down in the cases cited he would be permitted to recover the balance only of the money paid by him after deducting the value of so much of the consideration as he had received, and if it could be shown in such case by the defendant that plaintiff had actually received from the defendant ujiou the agreement more than he had paid, there would be no basis of law or equity for the action to stand on. The same principles of justice and equity should be applied to this case. The plaintiff's equities can be no greater that he paid in land rather than in money. The agreement cannot be enforced. Neither partv can in this action be allowed any benefit from it or aay damage for its breach. The defendant having repudiated the agreement, the plaintiff can recover for his land as if there had been no agreement as to the amount of the consideration, but he must allow so much of the consideration as has been paid; and if he has received more in the profits of the business which the defend- ant brought to him under the agreement than the value of his land, he can recover nothing. If the profits are less than the value of the land, then lie can recover the. balance." ( Should a p laintiff who has been in possession of land under an oral c ontract for the purchase thereot, wnicn the venaor \ has refused to perform, be required to creait tne aeienuant'~ with tlie value of the use and occupation in an action brought bv him to recover the purchase money .' 284 THE LAW OF QUASI-CONTKACTS. In Richards v. Allen,' it was held that a plaintiff who had been in possession of land for some years, under an oral con- tract for the purchase thereof, which the defendant refused to perform, should deduct from the purchase money paid by him the value of the use and occupation of the land. This case suggests an extension of the doctrine of 'Q^v. N. Y. C. R. R. Co.2 In that case the credit which was allowed the defendant in an action brought, by the plaintiff was the amount that the defendant had paid the plaintiff under the contract in exchange for the land. If it can be fairly said in Richards v. Allen that the use and occupation of the land was given to the plaintiff in part performance by the defendant of the contract, and in ex- change for the money received by the defendant from the plaintiff, a correct result was reached, since a defendant in default should not be made to restore that for which he has given the plaintiff an equivalent, as provided by the contract. If, however, the payment by the plaintiff had no reference to the possession of the land, and was given and received solely with reference to the execution of a deed of conveyance by the defendant, then to allow the defendant to defeat a recovery pro tanto by the plaintiff, would be to allow the defendant, when sued by the plaintiff, to obtain compensation for benefits conferred by him under a contract, as to which he is in default, where he would have no standing in court as a plaintiff. If, however, the principle is adopted that a plaintiff, although the money was not paid with any reference to the use and occupation, must allow for the value received by him in consequence of such use and occupation, it is clear that he in turn should be allowed interest on the money paid by him, or value given to the defendant, from the time when such payment was made or value given, since he is as much entitled to compensation for the use of the money by the defendant, 1 17 Me. 296 "- Supra, p. 282. DEFENDANT IX DEFAULT UNDER A CONTRACT. 285 as the defendant is entitled to compensation for the use of the hind by the plaintiff. Furthermore, it would seem that no allo^Yance should be made for the use and occupation of the land if in fact the plaintiff has suffered damages in consequence of the defendant's breach of contract, equal to or in excess of the rental value of the land. If the damage suffered is not equal to rental value, the defend- ant should only be allowed the difference between the value of such use and occupation and the damage suffered by the plaintiff in consequence of the defendant's breach of contract. This suggestion, it is submitted, is not in conflict with the rule that a party refusing to perform a contract relying upon the statute of frauds, is not liable to pay damages for a breach thereof. The defendant does not come into court in tlie atti- tude of one counter-claiming against tlie plaintiff' ; he simply claims that to allow the plaintiff to recover from him the entire sum paid, without regard to benefits received, would be to allow the plaintiff to unjustly enrich himself at the expense of the defendant. The plaintiff, to meet this contention, shows that he has in fact suffered damage in consequence of the breach of contract. The object of such evidence is simply to meet the prima facie case made by the defendant of the plaintiff's being unjustly enriched if he is given the recovery which he seeks. In Hawley v. Moody ' the defendant agreed orally to ex- ecute a lease to the plaintiff of certain premises, the plaintiff agreeing to accept the lease and to pay therefor $600, and he paid the defendant at the time •ii'lOO in a gold watch, which the defendant received as a payment of $100 towards the rent. The defendant subsequently refused to execute the lease and tendered the watch back to the plaintiff, but the plaintiff refused to receive it. The watch was afterwards attached in the hands of the defendant by one of the plaintiff's creditors, 1 24 Vt. 603. 286 THE LA.W OF QUASI-CONTRACTS. and sold to satisfy an execution issued against the plaintiff. The plaintiff then brought an action of assumpsit against the defendant to recover 1100, and was allowed to recover. The court was of the opinion that the statute of frauds did not invalidate a contract, except for the purpose of maintaining an action for a breach thereof, or render a contract rescind- able at the instance of either party, and that to defeat the plaintiff would be to hold that the defendant had a right to rescind the contract. The obligation This case raises the question as to the nature of the obli- of tlie defend- ant is to make gation imposed upon a defendant who refuses to perform a contract which the plaintiff has performed on his side. It is submitted that the true nature of the obligation is that of restitution, the law compelling the party who is not willing or able to make specific restitution, to make restitution in value, a court of law, as distinguished from a court of equity, having no means by which to compel the defendant to make specific restitution. The true nature of this obligation be- comes more apparent if we consider a case where, because of the subject-matter of the contract, a court of equity will take jurisdiction. Take the case of a defendant receiving from a plaintiff a conveyance of land, in exchange for which he agrees orally to convey to the plaintiff another piece of land. If he refuses to convey this land the obligation which a court of equity will impose upon him is to restore specifi- cally to the plaintiff that which he received from him, the court treating him for this purpose as a constructive trustee of the land conveyed to him. The obligation of specific res- titution is imposed upon him for the reason that it is the nnjust detention of that piece of property which enriches him at the expense of the plaintiff, and therefore renders his con- duct inequitable and against conscience. Now, the fact that in a given case the subject-matter of a contract is such that a court of equity will not take jurisdiction, should not change the character of the obligation when a court of law adopting PEFENDANT IN DEFAULT UNDER A CONTRACT. 287 equitable principles attempts to give to a plaintiff at law such relief as its machinery enables it to give. If the plaintiff has paid the defendant money instead of conveying to him a house, it is the unjust retention of the money in the one case, as much as the unjust retention of the house in the other, that constitutes the unjust enrichment, and makes the defend- ant's conduct inequitable ; and the fact that .the one court is able to make him do specifically what he ought to do, and can thei'efore compel him to make specific reparation for his misconduct, while the other court can only compel him to make pecuniary reparation, furnishes no reason for a court of law imposing a primary obligation differing from that imposed by a court of equity. If a defendant, on refusing to convey land which he had orally agreed to convey in exchange for real estate received from the plaintiff, should tender, and the plaintiff should refuse to accept, a reconveyance thereof, should a court of equity, if the property were subsequently destroyed without fault on the part of the defendant, throw the loss on him ? Is the defendant doing anything inequitable in holding subject to the order of the plaintiff' that which the plaintiff will not allow the defendant to give him ? In other words, should the court, because the defendant was prevented by the plaintiff from performing the obligation which the court, at tlie request of the plaintiff, would have compelled him to perform, throw a loss upon him which he would not have suffered had the plaintiff allowed him to perform the obligation imposed upon him by the court of equity ? And yet, if a court of equity should not in such a case throw the loss upon the defendant, why should a court of law compel a defendant to restore in value to the plaintiff, at a time when to do so will throw a loss upon him, that which he would have restored specifically had not the plaintiff refused to re- ceive it ? The defendant in pleading the statute of frauds simply avails himself of his statutory right and does nothing inequitable, that is, nothing that a court can say is inequit- able. His inequital)le conduct consists in his attempting to 288 THE LAW OF QUASI-CONTKACTS. enrich himself at the plaintiff's expense, not simply in plead- ing the statute of frauds. And if, when he avails himself of the statute of frauds, he offers to return to the plaintiff all that he has received under the contract, what unjust act has he done by which he is enriching himself at the plaintiff's expense ? It would seem that if, in Hawley v. Moody, the watch is to be treated as a watch, and not as money, the defendant sliould have been regarded, after his offer to return it, as holding the watch as a constructive trustee for the plaintiff. And though the result thus reached would be the same as would have been reached on the theory of the defendant's having the right to rescind, this fact is simply a coincidence ; for the recognition of a right to rescind would give a party to a con- tt-acl' unenforceable because of the statute of frauds the right to demand aTeturh ofwEiial'Tie 'had" giveiTTitiereuiider",' oh re- turning what he had receivedt "And the effecfofTEirwouTd" be that the statute could 15e"used^Trot'''silnply~a^3r'd"eMi'c^, but as conferring a right of action. If, indeed, the walch'' is to be regarded as received by the defendant as money, that is to say, if the transaction is to be treated as if the defendant had received 1100 from the plaintiff and then had paid him back the $100 in purchase of the watch, the obliga- tion on the part of the defendant was of course to return, not the watch, but 1100,^ and the decision should be supported. It is only on the principle that a defendant who refuses to perform a contract because of the statute of frauds is under an obligation to make restitution, that the decision in Smith V. Hatch 2 can be supported. In that case it was held that a 1 Kneeland v. Puller, 51 Me. 518. plies is, "that a vendor, unable or * 46 N. H. 146. unwilling to perform his special In Jarboe v. Severin, 85 Ind. 496, agreement, will return whatever he 499, it was said that the promise has received thereunder or its value, which the law implies against a as being held by him upon a con. vendor in default under a contract sideration which has failed." to which the statute of frauds ap- DEFENDANT IN DEFAULT UXDEE A CONTRACT. 289 plaintiff who had conveyed land to the defendant in consid- eration of an oral promise on the part of the defendant to convey certain land to the plaintiff, could recover, in a count for money had and received, the proceeds of a sale by the defendant of the land so conveyed to him, the defendant haviug refused to perform the contract. It remains to consider the amount which the plaintiff A'aiue received. not mnn-act should recover for the benefits conferred bv him upon the price, the mea- _ " . sure ot recov- defendant. Since the recovery in this class of cases is not erj-.N upon the contract, the contract price cannot be recovered as such ; and if the contract price exceeds the value of the ser- vices rendered, the value of the services as found, and not the contract price, will be the measure of the plaintiff's recovery.^ Suppose, however, that the benefit conferred by the plaintiff on the defendant in default is in excess of the contract price,, shall the plaintiff be allowed to rg,cover the .real value of his services, or shaunis recovery be limited to the contract price ? It is submitted that in such a case the contract pi'ice should not be the measure of the plaintiff's recovery. The defendant should not be allowed to blow hot and cold, — to use the statute of frauds for the purpose of escaping the bur- dens of the contract, and then to use the contract itself for the purpose of availing himself of the benefits thereof. Furthermore, if the obligation imposed upon the defendant is to make restitution of value received, the contract price, in the case supposed, cannot constitute the measure of re- coverv, since the payment thereof would not mean restitution. Accordingly it is held that the plaintiff's recovery should be m easured by the extent of the value received by the defendant^ and not the contract price . ^ It does not follow, however, that the defendant can make use of contract ..... . as evidence of no use of the contract. Although the authorities are in con- value. 1 Graham i-. Graham's Executors, v. Atkinson, 68 111- 421 ; Emery o. 34 Pa. St. 475. Smith, 46 N. H. 151 ; ErbeD v. 2 William Butcher Steel Works Lorillard, 19 N. Y. 299. 19 290 THE LA.W OF QUASI-CONTRACTS. flict,^ it seems clear on principle, that while the price named in the contract cannot determine the amount of the plaintiff's recovery, yet as the contract has stated in terms the valuar tion put by each party on the service rendered, the contract should be admitted as containing evidence legally relevant on the question of the actual val ue of the plaintiff's services, and for that purpose either party should be allowed to use it as an. admission against interest. Should a plaintiff or a detendant make a statement to a third party, as to the value of the plaintiff's services, such statement could be introduced in evidence as an admission against interest. Should the fact that the statement is found in an instrument purporting in terms to be a contract render it the less relevant as to the value which either party put upon' the services rendered ? It is submitted that in the decisions holding that the con- tract cannot be used for the purposes of proving the value of the plaintiff's services, the fact is lost sight of that one and the same instrument may be used for several purposes, and that an instrument invalid or unenforceable as a contract ■ may be used in evidence, not as a contract but as an admis- sion against interest, without re ference to th e fact that the instrument is in terms also a contract. N The objection that to allow evidence"4o be given of the con- tract price in an action on a quantum meruit is to hold the defendant on the contract, was thus disposed of by Kelly,. C. B., in Scarisbrick v. Parkinson: ^ — "The only question," said the learned chief baron, "is whether or not the agreement which could not be recovered on by reason of » See holding that the contract v. Nibbelink, 40 Mich. 646; Sutton can be as evidence of value, Soaris- v. Rowley, 44 Mich. 112 ; Evben v. brick V. Parkinson, 20 L. J. n. s. Lorillard, 19 X. Y. 299. (See, how- 175; Ham II. Goodrich, 37 N. H. 185 ever, Galvin^ v. Prentice, 45 N. Y. (semUe) ; but see contra Fuller v. 162.) ^ Reed, 38 Cal. 99 (conf. Reynolds v. -^ 20 L. J. n. s. 175, 177. Jourdan, 6 Cal. 108); HiUebrands DEFENDANT IX DEFAULT UNDEK A CONTKACT. 291 its coming within the prohibition of the statute of frauds could he referred to on the trial of the action for any other purpose. It was contended hy the counsel for the defendant that it could not; for that to do so was to eharge the defendant by means of it. But I do not think that is the case. Suppose, for instance, that an agreement to precisely the same effect as the one in the present case had been made between the defendant and a third person, — another person altogether than the plaintiff, but a young man of the same age and position, — it is quite clear that the plaintiff could not have recovered in the present action upon that agreement ; but can it be said that he could not have referred to it for the purpose of showing the value which the defendant had put upon his ser- vices, and so of enabling the jury to estimate such services ? Surely not." The weight to be given to this evidence, when admitted, would, as in other cases where evidence is admitted on the principle of an admission against interest, be a question for the jury, and would depend on the circumstances of each case. The circumstances might be such that the contract price would not be even prima facie evidence of the amount which a plain- tiff should recover on a quantum meruit. Thus in Galvin v. Prentice ^ it appeared that the plaintiff, who sued to recover the value of services rendered under a contract unenforceable because of the statute of frauds, had contracted to serve the- defendant as an apprentice in a certain business, for three years, for wages varying with the term of service. It was held that, as the contract price was fixed with reference to a continuous service, during which the value of the work done by the plaintiff for the defendant varied, it was error to charge the jury that the contract price was prima facie e\'i- dence of the value of the' plaintiff's services. It is submitted, with all deference, that to allow evidence to be admitted showing that an unenforceable contract was made between the parties, under which the plaintiff conferred the benefit for which he seeks a recovery, as must be done 1 45 N. Y. 162. 292 THE LAW OF QUASI-CONTRACTS. where a recovery is sought in such circumstances, whether the plaintiff or the defendant is in default, and yet to refuse to allow the contract to be used as evidence of value, is to strain at a gnat and swallow a camel. SECTION III. Defendant liable for bene- fits received wiien failure of considera- tion total or apportionable. CONTRACT UNENFORCEABLE BECAUSE OF THE IMPOSSIBILITY OF PEEFOEMANCE. The fact that a contract has become impossible of per- formance by the defendant in circumstances excusing him from answering in damages for a breach thereof, is no reason for allowing him to enrich himself at the expense of the other party to the contract. To say that a defendant in certain cases shall not respond in damages for a failure to do that which could not be done, is to announce a proposition entirely different from the statement that in such an event he need not make restitution of, or compensation for, benefits received by him, and conferred by the plaintiff, in expectation of the performance of the contract by him. f Accordingly a defendant who has failed to perform a con- tract because of the impossibility of peii'ormance, must, if the failure of consideration r esulting therefrom is total, or if par- tial only, is apportionable, compensate the plaintiff for benefits received. "\ It is on this principle held in jurisdictions where a vendor is required to bear the loss consequent upon the destruction of property which he has contracted to sell, but which is destroyed before the time arrives for the performance of the contract, that the purchase money paid in such circumstances by the vendee to the vendor can be recovered.^ ' Thompson {semble). V. Gould, 20 Pick. 134 ; Kelly v. Bliss, 54 Wis. 187 DEFENDANT IN DKFAULT TNDER A CONTRACT. 1^93 /It is ou the same principle held in this country that freight paid in advance of the completi on of a voyage can be recovere d in the event of the vnyno;^ hoino- vt>..,qo.-Qr) i-rv.p^q- -Sible of performance.^ In Grigsis v. Austin the reason for reaching this result was thus stated by Parlier, C. J., : — "It is certainly a clear principle of the conimoii law, that when money is paid or a promise made by one party in contemplation of some act to be done by the other, which is the sole consideration of the payment or promise, aiul the thing stipulated to be done is not performed, the money can be recovered back, or the promise founded on such consideration may be avoided between the parties to the contract. This general principle is the foundation of perhaps the largest class of cases which have been sustained under the action for money had and received. Exceptions may be made by a stipu- lation of the parties, but without such exceptions the rule seems to be universal. While the opposite result has been reached in this particu- lar class of cases in England,^ the English doctrine wa s s ustained in By rne v. Schiller by Cockburn, C. J., with great reluctance.^ \ i'de grouna upon which these cases were decided seems to have been that as freight is not in the absence of express stipulations payable until earned, and is therefore not pay- able until the completion of the voyage, the parties by ^ Griggs V. Austin, 3 Pick. 20. becoming payable. I regret that 2 De Silvale «i'eof failure of consideration. Tlip hrpnp.b mnsf, hs n hi-pofli ar. materially affecting the essence of the contract as-tabe,-eauiv- alent to a repudiation thereof. jThu s it was held in Ehren- sperger v. Anderson,° tliat a mere failure of the defendant to remit a bill of exchange did not entitle the plaintiff to sue 1 Terry v. Allis, 16 Wis. 478. See, also, Leslie v. Keepers, 68 Wis. 2 Potter V. Taggart, 54 Wis. 395. 123. 3 Wright 'i,. Colls, 8 C. B.' 150. ' ^ 3 E. D. S. 218. s 3 Ex. 148. 304 THE LAW OF QUASI-CONTEACTS. for money had and received, the defendant's failure not indi- cating an intention on his part to abandon the contract. On this point Parke, B., said : — "In order to constitute a title to recover for money had and received, the contract on the one side must not only not be per- formed or neglected to be performed, but there must have been something equivalent to saying, 'Irescind this contract,' . . . a total refusal to perform it, or something equivalent to that, which would enable the plaintiff on his side to say, ' If you rescind the contract on your part, I will rescind it on mine.' " To this principle must be referred the cases holding that one who has failed to give a bill of exchange or promissory note as required by the contract under which goods were sold to him, cannot be sued in indebitatus assumpsit until the expiration of the period of credit originally contemplated.^ Accordingly it was held in Bartholomew v. Markwich ^ that as the defendant who had refused to allow the plaintiff to com- plete the delivery of goods which he had contracted to pur- chase, and for which he was to pay one half cash, and one half by bill of exchange payable in six months, could be treated as having entirely abandoned the contract, the plaintiff could maintain an action for goods sold and delivered notwithstand- ing the period of credit had not expired. For the same reason it is also held that after the time of credit has expired, an action of indebitatus assumpsit can be maintained.^ ^•y wheVfai'^' ( if; howevcr, the failure of consideration is only partial, and eStion'partui the moucy paid by the plaintiff under the contract is not by aDDortionabie *'^'® terms of the contract apportionable with reference to the perform ance of the defendant, there can be no recovery in the count for money had and received.* yi'hus, tor example, ' Mussen v. Price, 4 East. 147 ; » Brooke v. White, 1 N. R. 330; Button V. Solomonsou, 3 B. & P. Helps v. Wiuterbottom, 2 B. & Ad. 582; Manton v. Gammon, 7.111. 431. App. 201 i Hanna v. Mills, 21 ^ Towers.!;. Barrett, 1 T. R. 133; Wend. 90. Hunt v. Silk, 5 East. 449 ; Stevens 2 15 C. B. N. 8. 711. V. Gushing, 1 N. H. 17; Way v. DEFENDANT IN DEFAULT UNDER A CONTKACT. 305 it is held in jurisdictions where a breach of warranty does not entitle a vendee to rescind the contract, that the remedy of a vendee, where there has been a breach of warranty leading to a partial failure of consideration only, is an action to recover damages for a breach of contract, and not an action for money had and received.^ On the same principle, it was held in Hunt i\ Silk '^ that the plaintiff, who had been in occupa- tion of premises under an agreement with the defendant, whereby the defendant agreed to malie certain repairs, and on the completion thereof to execute a lease to the plaintiff, could not recover from the defendant, who failed to perform the contract, what he had paid thereunder, as his occupancy of the premises made the failure of consideration partial only. That the plaintiff who has received a benefit under a con- tract should not recover from the defendant as if there had been an entire failure of consideration is only equitable. Any other rule would be manifestly unjust.^ But it is not so clear why, in an action for monej' had and received, he should not recover to the extent that the money paid to the defendant exceeds in value the benefits received from the defendant. The statement found in most of the decisions, that unless the failure of consideration is total or is appor- tioned by the contract, the plaintiff's claim is not for restitu- tion, but to recover damages, is the statement of a rule, and not the reason therefor. To say, as was said in Stevens v Cushing,* that where the defendant fails to perform any part of the contract on his side, the law presumes his assent Cntting, 17 X. H. 4.50; Simmons for a consideration, then the remedy V. Putnam, 11 "Wis 193. See, also, of the plaintiff is to sue in special Handforth U.Jackson, 1.50 Mass. 149. assumpsit for a breach thereof. If 1 Towers ) •■ Barrett, 1 T. R. 133. the promise is without consideration, The fact that the defendant pro- then the promise is of no value, mised after the breach of warranty PajBS-"- Whale, 7 East. 274. to return the money will not aid the ^ 5 East. +49. plaintiff in action for money had and « Beed^u. Blanford, 2 Y. & J. 278. received. If the promise was given ^ 1 N. H. 17. 18. 20 306 THE LAW OF QUASI-CONTEACTS. to a dissolution of the contract, and thereupon raises a promise to repay the money so received without considera- tion, is to resort to a fiction to justify a result.^ jSTor is it a satisfactory explanation to say that a recovery cannot be had in the count for money had and received because it is impossible to apportion the consideration. If it is impossible to apportion the consideration, how can a jury assess damages in many of the cases where the plaintiff sues in special assumpsit to recover damages for the breach of contract ? If, for example, a pair of horses five years old should be sold with a warranty that they were only four years old, the difference in value between the horses four and the horses five years old would, in an action to recover damages for breach of warranty, constitute the measure of the plaintiff's recovery.^ But if a jury can determine this question in an action to recover damages, they can determine it as easily in an action to compel restitution. Furthermore, if the reason for refusing a recovery in quasi- contract in this class of cases is the impossibility of deter- mining the amount to which the plaintiff is entitled, then it would follow that if for any reason — for example, the stat- ute of frauds — the defendant could not be sued in special assumpsit, the plaintiff would be remediless. In such a case, however, it is held that the remedy in quasi-contract can be maintained.^ The true explanation would seem to be that fthe creation of a right in quasi-contrac t in the cases considered in this section, where an adequate remedy exists tor a breach of contract is to be regar ded as anomalous, and the courts Jiave refused to extend the ano maly so as to allow a recovery in cases of par tial failure of consideration. ^ ' See infra, p. 310, n. 1. (semhle) ; Watkins v. Rush, 2 Lans. 2 Tower s v. Barrett, 1 T. R. 1.33, 234 (tremble). See, however, Spiller 136, per BuUen, J. v. Cass, 58 N. IT. 489. And see on 5 Richards u. Allen, 17 Me. 296; the general question, AVright ;•. Jellison v. Jordan, 68 Me. 373 ; Dickinson, 67 Mich. 590. Way V. Cutting, 17 N. H. 450 DEFEXOAXT IN" DEFAULT UXDEU A CONTKAGT. 307 ''Since the action iii quasi-contract is to prevent an unjust indebitatus as- enncliment of the delendant, and not to recover damag-es i'or n™fio'iiiX-ss a breach of contract, a plaintiff cannot maintain an action in received." "~ uasi-contract bv showiuii' that thouffh he has not in fact perf ormed the contract, he is ent itled to recover from the defendant a sum equivalent to t hat to which he would have hepn p ntitled had he performed the contract.^ '^ Thus, in Fewings v. Tisdal - the plaintiff claimed to recover from the defendant ou an indehittttii^ count for ^York and labor, one month's wages. It appeared on the trial that the defendant had, in violation of a custom, discharged the plaintiff without giving her a month's notice, and that in such circumstances the person was entitled to demand a month's wages. The action was dismissed, the court holding that special and not indebitatus assumpsit should have been brought, yl t has been held" that to ent itle a plaintiff to sue a defen- Eight to sue ii> V . iudebitatu?; as- dant in a count for goods sold and delivered, the contract sumpsit v-here " ' defendant must have been one for the sale of soods and not one ot agreed to pay ' I r I 1 1 '^ I r I I I f ii ii _ ill propertv or barter ; that a contract ot barter cannot be , changed into a labor. contract to^mv monev in the absence o f an agreement bv the parties to that effect. .On the same princ iple it bns Iwon — held that i ndebitatus assumpsjt cannot be maintained for scr- vices rendered. against a defendant in default who promised, ..J .0.. ■ .1 . JT . - . I I I not to iiav m.onev fof .the services rendere d hnt to hpHvpi- — goods in exchang^e tlierefor.^ \ 1 Fewings v. Tisdal, 1 Ex. 295; 61 Mich. 90. See, however, Sullivan Allen 1-. Jarvis.^ii Conn. :5S; Moove c. Boley, lU Fla. 501; Stone c. r. Xa• Markwich, l.o C. B. 623; McManus v. Cassidy, 66 Pa. N. s. 711 ; Carroll v. Giddings, 58 St. 260. N. H. 333. Derby v. Johnson, 21 Vt. 17. DEFEXDAXT IX DEFAITLT UNDER A CONTRACT. 309 ■svho has paid money is seeking restitution in value, but that a plaintiff who has rendered services or has sold property is not seeking restitution, but is simply seeking to charge the defendant with the debt created by the contract, then of course the cases can be distinguished, and the rule of law requiring the plaintiff to pursue his highest remedy is applicable to the one case and not to the other, as that rule only applies where the theory of recovery is the same. Assuming a plaintiff to have a right to sue in quasi-contract When cause of because of the defendant's breach of contract, the question contract arises, arises/ as to the time when the cause of action is complete. If the xheory heretofore suggested, that the law imposes upon a defendant in default the obligation to make restitution, is the explanation of the cases treated in this section, it should follow that the obligation arises immediately upon the default of the defendant. On this th eory the plaintiff co uld main tain an action without first making a demand upon the defendant and it has been so held.' For the same reason, the reraedv in quasi-contract will be barred by the statute of limitations at the same time that t he remedy in special assumpsit for breach of contract is so barred.^ ^ ( Assumino- the existence of a case where the plaintiff has a ^^f.' "f /» V " ^ election to sue right to sue either in contract, or in quasi-contract, the inquasi-cgn- ^ ^ tract. question arises as to the effect of pursuing one right rathe r than the other. It is held t hat a pursuit of either remedy to judgment bars t he right to pursue the other remed3^ '■) Tbis doctrine is strikingly illustrated in Goodman v. Pocock,^ where it was held that one who had sued in special assumpsit for a wrong- ful dismissal, could not afterwards sue in indebitatus assump- sit for work and labor, the fact being that at the time when he was dismissed, no sum had become ]iayable inider the con- 1 Trinkle c. Reeves, 25 111. 214 ; ^ ^\^^f.\^ ,.. Parker, 49 N. Y. 1. Raymond v. Bearnard, 12 Johns. '* 15 Q. B. 576. 274. 310 THE LAW OF QUASI-CONTRACTS. tract, and, therefore, the jury in assessing damages should have considered not only its effect upon the plaintiff's employ- ment in the future, but also the fact that the plaintiff had worked up to the time of dismissal without receiving compen- sation. This result was reached notwithstanding the fact that in the trial of the action in special assumpsit, the trial judge had erroneously charged the jury that in estimating the dam- ages suffered by the plaintiff, they were not to take into consideration the fact that the plaintiff had rendered work and labor under the contract up to the time of his discharge. In delivering the opinion of the court, Lord Campbell, C. J., said : — "I am extremely sorry if the plaintiff has sustained any hard- ship in consequence of the course which this litigation has taken; but we must decide this case according to the princijsles of law , and according to those principles, I have not the slightest doubt that this action must fail as to the claim now in question. The plain- tiff was hired for a year at wages payable quarterly, and in the middle of a quarter he was wrongfully dismissed. He might then have rescinded the contract, and have recovered pro rata on a quantum meruit. ^ But he did not do this ; lie sued on the special contract, and recovered damages for a breach of it. By this course he treated the contract as subsisting, and he recovered damages on that footing. It is said that he recovered in that action in respect of no services except those of the past quarters. I receive with profound respect the opinion which the illustrious judge who tried the former action is said to have expressed; but I have a clear opinion, and I must act upon it, that the jury in assessing damages for the wrongful dismissal ought to have taken into account the plaintiff's salary up to the time of his dismissal. It is said that there is now no plea to raise the point. The plea of non assumpsit is quite sufficient ; it obliges the plaintiff to show a debt due ; and that could be only by showing that work was done for wdrich pay- ment could be claimed under the common count.'' ^ In truth there is no rescission A fallacy may possibly lurk in the by the plaintiff, but a repudiation use of the woi-d "rescission." It is by the defendant which entitled the perfectly true that a contract, as it plaintiff to disregard the contract, is made by the joint will of the two DEFKXDANT IN DEFAULT I'XIiER A COXTRACT. )n If. however, by the terms of the contract the benefit con- ferred by the plaintiff has made the defendant a debtor pro taxto. then this claim exists entirely separate and apart from any other claim, and could not be taken into considera- tion in an action chaiging the defendant with a subsequent default. In such a case, therefore, the fact of an action having been brought in special assumpsit to recover damages for a wrongful discharge subsequent to the creation of the debt, would not affect the plaintiff's right to sue in indebitatus assumpsit, since the jury in the action in special assumpsit could not take into consideration the value of the services which had resulted in a debt. In tliis particular Hartley v. Harman ^ where, the service being for a broken quarter, no debt was created, differs from Goodman v. Pocock. CTVhile it has been held that a plaintiff who has completely Measure of re- ^ , ^ . - II I I 1 I coverv where performed a contract cannot recove r an amount ni excess o f phunfiff has the contract price, a plaintiff' who lias partly performed, but formed'the who has been prevented by the defendant fr om completely performing, is not necessarily restricted to the contract price The question is simply one of just compensation for value received. Thus in Derbv v. Johnson- the plaintiff, who was prevented by the defendant from further performing the con- tract after he had done a small part of the work contracted for. was allowed to recover an amount in excess of the con- tract price. Hall, J., delivering the opinion of the court, said on this point . — parties, can only be rescinded by the joint will of the two parties: but we are dealing here not with the rijht of one party to rescind the contract, but with his right to treat a wrongful repudiation of the contract by the other party .IS a complete renunciation of it. Per Bowen, L. J., in Mersey Steel & Iron Co. i: Xaylor, 9 Q. B. D. 64S, 671. o Cases of this kind are to be care- fully distinguished fioin cases of genuine rescission, where the rights of tlie parties as to benefits conferred prior to the contract ol rescission are determined by that contract. McCreery v. Day, iin X. Y. 1. 1 11 .A.. &E. 79S. 2 21 Vt. 17. ■'^ei'. also, Clark v. New York, 4 X. Y. ooS. 312 THE LAW OF QUASI-CONTRACTS. "Treating the plaintiffs as having been prevented from execut- ing their part of the contract by the act of the defendants, we think the plaintiffs are entitled to recover as upon a quantum meruit the value of the services they had performed under it, without reference to the rate of compensation specifled in the contract. They might doubtless have claimed the stipulated compensation and have introduced the contract as evidence of the defendant's admission of the value of the services. And they might, in addi- tion, in another form of action, have recovered their damages for being prevented from completing the whole work. . . . But we think the plaintiffs, upon the facts stated in the report of the auditor, were at liberty to consider the contract as having been rescinded from the beginning, and to claim for the services they had performed, without reference to its terms. "The defendants by their voluntary act put a stop to the execu- tion of the work, when but a fractional part of that which had been contracted for has been done, and while a large portion of that which had been entered upon was in such an unfinished condition as to be incapable of being measured, and its price ascertained by the rate specified in the contract. Under these circum- stances we think the defendants have no right to say, that the contract, which they have thus repudiated, shall still subsist for the purpose of defeating a recovery by the plaintiffs of the actual amount of labor and materials they have expended. . . . "The claim now made in behalf of the defendants, that the rate of compensation sjDeoified in the contract should be the only rule of recovery, would, if sustained, impose upon the plaintiffs a contract which they never made. They did, indeed, agree to do all the work of a certain description on three miles of road, at a certain rate of compensation per cubic yard; but they did not agree to make all their preparations and do but a sixteenth part of the work at that rate. And it is not to be j)resumed they would have made any such agreement. We are not therefore disposed to enforce any such agreement against them." wherrTaSiff ( if, however, uiidei- the terms of the contract, the plaintiff has been paid Ts'as to be paid for the work as it progressed, and has in fact according to ^ r o :■ the terms of the been paid theretor, tne lact of the ^§fiK!f5hts subsequently contract for the ' — ' ■* "^ benefits con- refiisinff to allow the plaintiff to further pertorm cannot change the fact that he has been paid tor the part done ac- cording to tne terms of thti cmiLract. — If hu Imb suffexed -ar DEFEXDAXT IN DEFAULT UNDER A CONTRACT. 313 l oss in consequence of the defendant putting an end to the contract at the time he did, whereas, in tact, he would have made a profit had the defendant permitted him to perform the contract, he has established a right to recover damages in an action for breacli of contract, for refusing to allow him to fully perform the contract. B^iit the fact is not changed that he has received in extinguishment of the aeiendant's liability that which it was agreed before the work was begun should be paid by the defendant. ^ Accordingly it was held in Doolittle V. McCullough,! that the plaintiff, who had contracted to make excavations at eleven cents per cubic yard, and who had made certain excavations, and been paid therefor accord- ing to the terms of the contract, could not, on the defendant's repudiating the contract, maintain an action to recover addi- tional compensation for said work, the court holding that he had been paid for the services rendered, and that if he had suffered a loss in consequence of the defendant's breach of contract, that question could only arise in an action against the defendant for the breach thereof.^ 1 12 Oh. St. 360. ^ In considering the amount of the recovery that should be allowed in quasi-contract where a benefit has been conferred under a contract, it is important to distinguish between cases where the defendant is in de- fault, and where he has been ready and willing to perform but the plaintiff has not performed suffi- ciently to entitle him to recover on the contract. While the reason for the plaintiff's failure to perform is important in determining his right to sue in quasi-contract, it should be considered absolutely immaterial where the question involved is not his right to recover, but the mea- sure thereof. f While it is held in certain cases, where the defendant is in default, that the plaintiff shall be allowed to recover a sum in excess of the contract price, it is clear that in all cases where the plaintitt is in default the contract price snould be ttie limit of his recovery, since to hold o therwise would be to allow th e plaintiff to profit by his failure to fully pertorm ttiecontra ct.'^.t'LU-tner- more, as he has not performed the contract sufficiently to entitle him- self to a recovery thereon, it would seem that the contract, while operat- ing as the limit of his recovery, should not constitute the measure thereof. It is submitted that assum- ing a plaintiff in default to be entitled to recover in quasi-contract, the measure of his recovery should 314 THE LAW OF QUASI-CONTRACTS. be the actual benefit conferred on the defendant, not exceeding the contract price. ^ In Havward v. Leonard, 7 Pick. 181, it was held that the amount of the plaintitt's re - covery who contracted to build a house for the defendant, should be ascertained by deducting so mucli from the contract price as the hous e was worth less, on acco unt of the . plaintiff's failure to.perform accord - ing to the contra ct. In other words, the plaintiff was allowed to recover the contract price less the damage suffered by the defendant in con- sequence of the plaintiff's breach of contract. Consequently, if the con- tract price was an excessive one, the plaintiff, although not entitled to recover on the contract, was given the benefit thereof. In Atkins v. County of Barnstable, 97 Mass 428, the trial judge charged that the plaintiff was entitled to recover what his services were " reasonably worth, not exceeding, however, the contract price " This charge was upheld, and the decision in Hayward v. Leonard cited in support thereof. The two cases do not, however, suggest the same measure of recov- ery While under the i-ule suggested in Atkins v. Barnstable the plain- tiff, though no damage had been done the defendant, would have re- covered less than the contract price, had the jury been of the opinion that the contract price was in excess of the value of the plaintiff's services even had he fully performed the contract, under the decision in Hay- ward u. Leonard the question for the jury in this class of cases would be, how much should be deducted from the contract price because of the plaintift''s failure to perform fully. Under the rule suggested in Hayward v. Leonard, if a plaintiff should contract to build for $10,000 a house worth in fact only $9,000, and should, because of the breach of an express condition causing the defendant no damage, be unable to recover on the contract itself, he would, if allowed to recover in quasi- contract, recover $10,000. Under the rule suggested in Atkins v. Barn- stable he would recover $9,000 only. In Blood V. Wilson, 141 Mass. 25, the rule suggested by the trial judge in Atkins ii. Barnstable was, however, adopted by the court, and Hayward c. Leonard was cited in support thereof. The language of the rule i n Hay- ward V. Leonard has been "adopted in a number of jurisdictions in this counti-y. X finches v. Swedish Luth- eran Chufch, 55 Conn. 183 ; Aetna Iron Works v. Kossuth County, 79 Iowa, 40 ; White v Oliver, 36 Me. 92. See, however, Coe v. Smith, 4 Ind. 79. EECOVEKY fOR BKXEFITS COXFEREED AT BEQUEST. 315 CHAPTER VI. RECOVERY FOR BENEFITS CONFERRED AT REQUEST, BUT IN THE ABSENCE OP CONTRACT. One -n-ho has conferred a benefit upon another at his request, but in the absence of contract, may seek a recovery : 1. Where the plaintiff, with full k nowledge ot all material facts, intended "fb'''m'aE"e"a.^^-ift of the service rendered; 2. Where,"Tirou^h "there was no intention to charge for the ser vices rendered, the servi ces were rendered under mistake ^ ■ II I i » ■ I I 1 1 1 M I I 11 as to a material f act ; 3. Where the plaintiff supposed tlrnt he had acquired con- I [ I w i I 1^ 1 I I H I ' ' tract rights. SECTION I. BEXEFITS COXFEEEED AS A GEATUITY WITH KXOWLEDGE OP ALL MATEEIAL TACTS. ^If the plaintiff, at the ti me when he conferred the benefit, N o recovery in ^ k ' quasi-contract intended, with full knowledge of all the facts, to make a gift for benefits ' conferred by thereof to the defendant, he cannot afterwards clami com- way of gift. pensation for the benefit ,so conferred.^ ^ In D oyle v. Trinity Church,^ the defendant, believing that the plaintiff was under an obhgation to repair certain work that he had done, refused to pay him therefor unless he made the repairs at his own expense. The plaintiff agieed to make the repairis, although he was in fact under no obligation to do so, having properly 1 Osborn !■. Guy's Hospital, 2 Stv. Kerr, 1.5 Barli. 44i ; Doyle v. Trinity 728 ; Wyiey v. Bull, 41 Kan. 206 : Church, 130 N. Y, :j72. See, also, Cicotte r. St. Anne's Church, 60 oases infra, p. 317 n. 3. Mich. 562; Disbrow /•. Durand, 24 ^ 133 >^\ y. 372. Atl. Kep. 54.5 (X. J. 1892) , Dye v. 316 THE LAW OF QUASI-CONTRACTS. done the work which the defendant insisted on his repairing. It was held that he could not charge for the repairs so made, as he intended when he made the repairs to make a gift thereof to the defendant, and acted voluntarily in making them. TThat the benefit was conferred as a gift because of some ulterior motive is immaterial ; disappointed expec- tations will not constitute a ground for recovery. ^ A Thus, in Osborn v. Governors of Guy's Hospital,''* where t-Ke plain- tiff sought to recover for services rendered, it appeared that at the time he rendered the service he did not intend to charge therefor, hoping that the party upon whom he be- stowed the service would remember him in his will. It was held that the fact that he was disappointed in his expecta- tions did not entitle him to charge for services which were rendered with no expectation of compensation. It was on this principle, held in Brown v. Tuttle,^ that a plaintiff, who had rendered services for the defendant in keeping house for him while the two were living together under a mutual agreement to live together as man and wife, though not in fact married, could not recover for the services so rendered after she was abandoned by the defendant, there being no intention on her part at the time the services were rendered to charge therefor, and the fact that they were rendered under a contract which the defendant had subse- quently failed to perform could confer upon her no rights, since that contract was illegal and in violation of public policy. In Collyer v. CoUyer * the plaintiff sought to recover from the defendant for board and lodging furnished the defendant's intestate. It having been found as a fact that at the time when the board and lodging was furnished there was no intention on the part of the plaintiff to charge therefor, the 1 Osborn v. Guy's Hospital, 2 Str. 2 2 Str. 728. 728 ; Robeson v. Niles, 18 Dist. « 80 Me. 182. Col. 182. i 113 N. Y. 442. KECOVERY FOR BENEFITS CONFERRED AT REQUEST. 317 services being rendered as a matter of kindness and liberality to the intestate, his sister, it was held that there could be no recoveiy. '•It is undoubtedly true," said Earl, J., delivering the opinion of the court, '-that the plaintiff showed great kindness and liber- ality to his sister; hut no one can read this evidence and draw therefrom any inference that he expected any reward from his sister during her lifetime. He knew that she was to the utmost degree penurious and miserly, and that she would hoard her pelf and cling to her property so long as she lived, but doubtless expected that by his kindness to her she would be induced to make a favorable dis- position of her property in his favor at her death. The fact that his expectation has been disap[>oiuted furnishes no ground for now stamping what at the time were acts of kindness and generosity with the mercenary features of contract and compensation." On this principle it .is held that a child who has rendered services for a parent, not expecting compensation at the time when the services were rendered, cannot recover against the estate for the services so rendered, the parent failing to make satisfactory provision for the child by his will.^ (It IS important, however, to distinguish between a case where there was no intention to charge, as in Osborn v. Governors of Guy's Hospital, and a case where the plaintiff intended at the time when the service was rendered to charge therefor, but withheld his claim for the time being, in the hope that he might be remembered in the will of the person for whom the service was rendered.^ Thus, in Baxter V. Gray,- it was held that tne piamtm, a surgeon and apothe- cary, who had attended the testatrix of the defendant during an illness, intending to charge therefor, but who had refrained from rendering a bill in the hope that the testatrix would leave him a legacy, could nevertheless recover for the services rendered.^ ' Hoack's Executors v. Houck, ' In this class of cases an im- 99 Pa. St. 552. portant question involved is up on 2 4 Scott X. R. 374. whom the burden rests ol establish- 318 THE LAW OF QUASI-CONTRACTS. SECTION II. Kight of recov- ery for services rendered under mistake as to a material fact. SERVICES EEISTDEEED GRATUITOUSLY UNDER MISTAKE AS TO A MATERIAL FACT. (AlthoTigh there was no intention on the part of the plain- tiff to charge for the services at the time when he rendered jng the existence or absence of an services a inte ntion to charge for the rendered. It would seem that party seeking to recover for services rendered should have the burden of establishing upon the whole evidence the fact that the circumstances are such that the defendant should pay tlierefor ; and therefore, if on all the evidence the jury are not able to say that there was ari intention to charge, judgment should be given for the defendant. In the ordinary case, where there is no relationship existing between the party render- ing the service and the party for whom the service was rendered, proof that the service was rendered at the request and with the consent of such party would establish a prima facie case for the plaintiif, and therefore in the absence of other evidence the jury would be required to find a verdict for the plaintiff. But when elements of relationship are introduced, then the presump- tion, which is nothing more than a logical inference of fact, that there was an intention to charge for such services, would seem to be unwar- ranted ; and it should be for the jury to say in view of all the circumstances of the case what was the under- standing of the parties at the time when the services were rendered. In Guild. .'. Guild, 15 Pick. 129, where a daughter who continued to reside in her father's family after arriving at the age of tweuty-oue, rendering the services customary for a daughter to perform, and receiving from her father the support usually given, sued to recover the value of the services so rendered, the trial judge charged the jury that she was entitled to recover compensation, unless it should appear that the un- derstanding of the parties was that the services were rendered gratui- tously, and that the burden of proof was on the defendant to establish that fact. The jury having rendered a verdict for the plaintiff, the charge of the judge was affirmed, because of an egu al division of_the court as to its correctness. In Hosteller' s Appeal, 30 Pa. St. 473, however, an auditor's report allowing a claim for services ren- dered by a son was disallowed, be- cause the son failed to show that it was the undei-standing of the parties that he should be paid for his ser- vices, and this view seems to be supported by the weight of author- ity. Hogg V. Laster, 19 S. W. Rep. 975 (Ark. 1892); Hill t,. Hill, 121 Ind. 255; Bundy v. Hyde, 50 X. H. 116; Disbrow r Purand, 24 Atl. Rep. 545 (N. J. 1892) ; Dye c. Kerr, EECOVEUY FOR BENEFITS COXFEKKED AT REQUEST. 319 them, the services may ha\e mistake as to a material fact. 1-5 Barb. 44-1, Carpeutei- v. AVeller, 15 Hun, loi. This rule does not depend, as is often stated, npon the relationship of parent and child, but upon the household relatiouship existing be- tween the parties. In Disbrow i. Durand, 24 Atl. Rep. o4.5 (X. J. 1S92) where the phiintili' sought to recover against the estate of her deceased brother for services ren- dered as his housekeeper, it was held that there could be no recov- ery in the absence of proof of a contract on the part of the brother to pay therefor. !McGilI, Chancellor, said: " Ordinarily, ■where seivices are rendered and voluntarily ac- cepted, the law will imply a promise upon the part of the recipient to pay for them; but where the services are rendered by members of a family, living as one household, to each other, there will be no such impli- cation from the mere rendition and acceptance of the services. In order to recover for the services, the plain- tiff must alErmatively show either that an expies-i contract foi' the re- muneration existed, or that the circumstances under which the ser- vices were rendered were such as to exhibit a reasonable and proper expectation that there would be compensation. The reason of this exception to the ordinary rule is that the household family lelation- ship is presumed to abound in re- ciprocal acts of kindness and good will, which tend to the mutual com- fort and convenience of members of the family, aud are gratuitously per- becii rciidered by him under formed ; and where that relatiouship appears, the ordinary implication of a promise to pay for services does not ari.se because the presumption which supports such implication is nullified by the presumption that between members of a household services are gratuitously rendered." See, to same effect. Carpenter c. Weller, 15 Hun, 134 ; Bundy l. Hyde, 5U ^'. II. 116. In Hogg ,-. Laster, 19 S. W. Rep. 97o (Ark. 1S92), the plaintiff, who when left an orphan without means of support was taken by the defend- ant into his family, though not re- lated to the defendant, was held to have the burden of establishing a contract on the part of the defendant to pay her for services rendered by her in his household. In speaking of the existence of a presumption in this class of cases, Shaw, C. J., said, in Guild r. Guild: " The conclusion that the question is of less practical importance than might at fii'st appear, is fotmded upon the obvious consideration that it is scarcely possible that a case can be left to stand upon the mere naked presumption arising from the fact of the prolonged residence of a daughter in the family of her father, and the performance of ser. vices. There must of necessity be a great diversity of circumstances, distinguishing one case essentially from another." It is true that it is scarcely possi- ble that any case will have to be de- cided upon the bare presumption existing in favor of or against the 320 THE LAW OF QUASI-CONTRACTS. In Alfred v. Marquis of Fitz James,i it was held that the plaintiff, who went from the Island of Martinique, where he was a slave of the defendant's wife, to England, could not recover for services rendered to the defendant in England prior to a promise on the part of the defendant to pay there- for. The facts of this case are so meagrely reported that it is difficult to say just what the case should be regarded as holding. If it is to be assumed as a fact that the plaintiff, at the time he rendered the services, knew that he was not a slave, and yet expected no compensation, then, of course, there should have been no recovery. If the plaintiff, because of his ignorance of law, expected no compensation, and that fact was not known to the defen- dant, a recovery might have been denied.^ If, however, the defendant was guilty of fraud, it is sub- mitted that the fact that the fraud related to a matter of law should not enable the defendant to defeat the plaintiff, since the plaintiff would not have rendered the services in question had he known that the defendant had no right thereto.^ (The reason why a man who does not intend to charge for services rendered is not allowed to recover compensation therefor, is because the gift of a thing is inconsistent with a sale or barter existence of an intention or under- that the burden is on the defendant standing to charge for services ren- of disproving an intention to charge dered. But it is important that the and pay for services rendered, where court should correctly charge as to the the party rendering the service ren- burden of establishing an intention, dered the service while living in the since the jury are entitled to know family as a member thereof, and who shall have the benefit of a doubt received from the party for whom in their minds upon this point. the services were rendered the care The statement in the form of and assistance which was given to a rule of law of a logical inference him before he became of age. of fact which exists in the ordi- i 3 Esp. 3. nary case that where services are ^ ggg Burrows v. Ward, 15 R. I. requested there is an intention 346. to charge and to pay therefor, ac- » Hiokam v. Hickam, 46 Mo. counts for, but does not warrant, App. 496. See also Boardman v. the statement made by some courts Ward, 40 Minn. 399. RECOVERY FOR BENEFITS CONFERRED AT REQUEST. 321 thereof, and , thei'efore, one to vliom a thing has been given, is not doing anything inequitable in relusina; to pay tnereior. The principle therefore clearly has no application to a case Avhere the pLaintm nas oeen inducea oy trauct to give services to the defendant, which the defendant knew he had no right to claim, and which ho also knew would not have been ren- dered but for the belief of the plaintiff in the defendant's riglit thereto. ) It is submitted that for these reasons the decision in Franklin r. Waters ^ cannot be supported, unless on the ground that the action involved the question qi the plaintiff's right to freedom ; to try which the Maryland statutes gave a remedy exclusive of the count for work and labor. In that case it was held that the defendant was not liable for services rendered his intestate by the plaintiff under the impression that he was his slave, the intestate concealing the fact that the plaintiff had been manumitted by the intestate's father. Opposed to the decision in Franklin v. Waters are the cases of Peter v. Steel,- Kinney v. Cook,^ and Hickam v. Hickam.* The plaintiff being in fact not a slave but a free man, the defendant was clearly guilty of fraud, and could be sued there- for in tort. Since the defendant in the commission of the tort not only, injured the plaintiff but unjustly enriched him- self, the plaintiff should have been allowed to waive the tort and recover from the defendant the amount of the unjust enrichment. If the defendant provided for the plaintiff, because of his occupying the supposed position of slave, that which would not have been given to him had he been serving in the capacity of a hired man, the jury should of course have taken that fact into consideration in determining the amount of plaintiff's recovery. In Cooper I'- Cooper 5 the plaintiff sued to recover for 1 8 Gill. 322. * 46 Mo. App. 496. 2 13 Yeates, 250. ^ 147 Mass. 370. « 4 ni. 232. 21 322 THE LAW OF QUASI-CONTRACTS. services rendered the defendant's intestate in the following circumstances : The plaintiff and the intestate intermarried in the year 1869, and lived together as husband and wife until his death in 1885. After his death the plaintiff learned that the former wife, from whom he had not been divorced, was living, and brought the action against his administrator to recover for services rendered as housekeeper while living with the intestate. It was held that the plaintiff could not recover. Allen, J., delivering the opinion of the court, said : — "The legal relations of the parties did not forbid an express- contract between them; but their actual relations, and the circum- stances under which the work was performed, negatived any impli- cation of an agreement or promise that it should be paid for (Bob- bins V. Potter, 11 Allen, 688; s. c. 98 Mass. 532). " The case at bar cannot be distinguished from that cited, unless upon the grounds that the plaintiff believed that her marriage was legal, and that the intestate induced her to marry him by falsely representing that he had been divorced from his former wife. But the fact that the plaintiff was led by mistake or deceit into assuming . the relation of a wife has no tendency to show that she did not act in that relation ; and the fact that she believed herself to be a wife excludes the inference that the society and assistance of a wife which she gave to her supposed husband were for hire. It shows that her intention in keeping his house was to act as a wife and mistress of a family, and not as a hired servant. There was clearly no obligation to pay wages arising from contract ; and the plaintiff's case is rested on the ground that there was an obligation or duty imposed by law, from which the law raises a promise to pay money, upon which the action can be sustained. "The plaintiff's remedy was by an action of tort for the deceit in inducing her to marry him by false representations, or by a false promise. (Blossom v. Barrett, 37 IST. Y. 434.) The injury which was sustained by her was in being led by the promise, or the deceit, to give the fellowship and assistance of a wife to one who was not her husband, and to assume and act in a relation and condition that proved to be false and ignominious. The duty which the intestate owed to her was to make recompense for the wrong which RECOVERY FOR LiKXEFITS COXFEKKED AT REQUEST. 3'23 lie bad done lier. It is said that from this duty the law raised a promise to pay lier money for the work performed hy her in house- keeping. The ohlig-ation to make compensation for the breach of contract could he enforced only in an action upon the contract. The obligation to make recompense for the injury done by the tort was imposed by law, and could be enforced only in an action of tort; it was not a debt or dutj- upon which the law raised a promise which would support an action of contract. The same act or transaction may constitute a cause of action both in con- tract and in tort, and a party may have an election to pursue either remedy. In that sense he maj- be said to waive the tort and sue in contract. But a right of action in contract cannot be created by waiving a tort, and the duty to pay damages for a tort does not imply a promise to pay them, upon which assumpsit can be maintained. "But the objection to maintaining the plaintiff's action lies deeper. The work and labor never constituted a cause of action in tort. The plaintiff could have maintained no action of tort against the intestate for withholding payment for the work and labor in housekeeping, or for by false representations inducing her to perform the work without pay. The particular acts which she performed as a wife were not induced by the deceit, so that each would con- stitute a substantive cause of action, but by the position which she was deceived into assuming, and would be elements of damage in an action for that deceit. Labor in housekeeping was a small incident to a great \^Tong, and the intestate owed no duty, and had no right to single that out and offer payment for it alone j and the offer to do so might well have been deemed an aggravation of the injury to the plaintiff." It is submitted -with all deference that a different result should have been reached in this case.' It is true that the intestate's accepting the plaintiff's services was an incident of a previous wrong, and not an independent tort. But it is also true that the intestate, by accepting the services, wa-ong- fullj enriched himself at the plaintilT's expense ; and while if he had received nothing of value from the plaintiff, the ^ In Fox V. Dawson, 8 Martin, 493, a result opposed to the decision 94 ; and Higgins r. McXally, 9 Mo. in Cooper c. Cooper was reached. 324 THE LAW OF QUASI-CONTRACTS. plaintiff could only have sued for breach of promise to marry, or in tort for deceit, yet it is submitted that when he be- cause of his tort enriched himself, the plaintiff, if she saw fit to sue, not for damages, but simply for compensation to the extent that the defendant had profited by his wrong, should hare been allowed to do so. The writer has attempted to show that the reason why there can be no claim to compensation when it was not the intention of the party to charge therefor, is that the defend- ant should not be required to pay for that which he had every reason to suppose the plaintiff intended to give and not to sell, and that therefore it would be unfair to require a defendant who has received a thing because it was given to him to pay a plaintiff who intentionally gave the seiwice in question, not desiring any reward therefor. But in the case under consideration it could not be said that the defend- ant would be harshly or unjustly treated if in fact he were required to pay the plaintiff for the services rendered. When he received the services he knew that the plaintiff, if she were acquainted with the real facts, would not render the services. And it was the defendant's fraud that caused the plaintiff to be ignorant of the true state of facts. That the intestate would have had no right to single out the item of housekeeping, ignoring the wrong done the plaintiff, and to offer payment for it alone, goes without saying ; since a defendant who has committed a tort has imposed upon him by law the obligation to indemnify the plaintiff for the injury done. But it does not follow, because the defendant could not deprive the plaintiff of a right to sue in tort, that the intestate had the right to insist on being sued in tort. In no case where the plaintiff is allowed to waive a tort would the defendant be allowed to say that a plaintiff must waive the tort and sue for value received. If instead of receiving the services of the plaintiff, the defendant had in the exercise of his supposed common-law RECOVERY FOR BENEFITS COXFERRED AT REQUEST. ;]25 marital rights reduced to possession choses in action belonging to the plaintiff, it hardly seems possible that a court would hold that as the right to sue in tort had been lost by the death of the intestate, the plaintiff could not recover against his estate the money received in extinguishment of choses in action, which in fact belonged to the plaintiff, and which the defendant unlawfully appropriated to his own use. Had the plaintiff in this case surrendered to the defendant money or other chattels to which the defendant asserted a right be- cause of his marital rights as husband, it does not seem possible that a court would hold that because of the loss of the right to sue in tort by the death of the intestate, no claim could be asserted against his estate for the value so received by him. And yet in point of principle it is submitted that it is impossible to distinguish between the receipt of money or other property by the defendant and the receipt of services. The plaintiff, whether she conferred a benefit on the intestate by rendering services or by delivering to him money or other personal property, in either case parted with a right in rem under a mistaken supposition, induced by the fraud of the defendant, that the defendant was entitled thereto. At one time it seemed to the writer that it might be pos- sible to support the decision on the ground that, as the parties had lived together as man and wife, the intestate treating the plaintiff as his wife and conferring upon her benefits which would not have been conferred upon her as a housekeeper, the case was one where it would be impossible for a jury to estimate the value of the plaintiff's services over and above the benefits received from the defendant ; but on further consideration this position docs not seem tenable. It must be true, as was stated by the court in this case, that had the plaintiff sued the intestate in tort to recover damages for the deceit practised upon her, the jury, in estimating the damages, would have had to take into consideration the fact that the plaintiff had during the continuance of the supposed relation 326 THE LAW OF QUASI-CONTEACTS. of husband and wife rendered to the intestate services of a character ordinarily rendered by a housekeeper ; and if the jury would be required in such a case to place a valuation upon such services, they could as easily make the valuation in a case, where that was the only question involved. SECTIOK III. BENEFITS CONFERRED UNDER MISTAKE AS TO THE EXISTENCE OF A CONTRACT. Eight of recov- In Van Deusen v. Blum { the plaintiff furnished labor and erv where con- ~ form. .(th( tiict is not material under a sealed contract binding, as he supposed, the binding be- 1 . cause of its defendants, who were engaged m business as co-partners. It was held that altho ugh the plaintiff could not recover on the contract against the firm, for the reason that the member of the firm executing the contract had no authority to bind the firm by an instrument under seal, he was nevertheless entitled to recover indepen dently ot the contract tne vame ot the s ervices rendered and material furnished. ^ On tliis point, Morton, J., delivering the opinion of the colirt, said : — "The services never were rendered either in conformity to or under such an agreement. The plaintiffs undertook to execute a contract between themselves and the company. But there being no such contract in existence, they are left to resort to their equit- able claim for their labor and materials. So far as these benefited the company, the plaintiffs are entitled to recover against them." On a similar state of facts in Bond v. Aitkin,^ the plaintiff, who had lent money to a firm, sought to recover against the firm for money lent. The court not only refused, because of the want of authority on the part of the partner executing the instrument to bind the firm by a sealed instrument, to allow a recovery on the contract, but also held that as the 1 18 Pick. 229. 2 e W. & S. 165. KECOVERY FOR BEXEFITS CONFERRED AT REQUEST. 327 instrument under . seal bound one member of the firm, the plaintiff could not ignore the instrument, and recover against tlie members of the firm jointly on the count for money lent. Waiving for a moment the form of count used by the plaintiff, it seems impossible to reconcile this decision with the decision in Vim_Deusen v. Blum. That the plaintiff in the one case sued for work, labor, and material furnished, and in the other oaso for money lent, must be entirely immaterial, since the basis of recovery in either case, is that the defendant has received value from the plaintiff in exchange for which he ought in good conscience to return an equivalent. Why should the plaintiff be denied a right in quasi-contract because of the right existing under the law to sue one of a firm, not as a member of the firm, but as an individual, on a contract which was intended by both parties to be a firm contract only, bind- ing the firm as such, and constituting the plaintiff not an individual but a firm creditor? Clearly, as to the plaintiff there has been a failure of consideration, in that he has not received that for which he paid his money. The plaintiff intended to receive from the defendants against whom he brought an action a contract giving him a right to call upon them for an equivalent for that which both in fact received from him. The plaintiff having delivered to the defendants what they desired, why should the defendants, because the plaintiff received a contract unauthorized in form, be allowed to keep without compensation that for which they expected lo pay, when they received it. The plaintiff did not intend to treat with the acting partner as an individual simply ; and when the plaintiff received a contract which both parties supposed bound the firm, but which in fact did not bind tlie firm, the fact that the partner signing the firm name is held in law to have made an individual contract, does not change the fact that the plaintiff has not received the obligation for which he contracted, und has not therefore received the equivalent which he in- tended to exact and thought he was receiving. If the instru- 328 THE LAW OF QUASI-CONTRACTS. ment delivered to the plaintiff bound no one, then without ques- tion the plaintiff would be allowed to recover in quasi-contract against the firm. Why should the fact that the law gives to him a right which he did not wish to obtain, and of which he does not desire to avail himself, lead to a denial of a similar right in the case under consideration? Unless some positive rule of law requires such a result to be reached it is sub- mitted that a decision bringing about such an inequitable result should not be followed. The mistake on the part of the plaintiff in such case may be a mistake of fact or a mistake of law. If the mistake on his part is due to the fact that he supposed that the partner by virtue of being a partner had a right to bind the firm by an instrument under seal, then the mistake would be one of law. If he supposed, however, that the partner had had con- ferred upon him, for that particular transaction, authority in the proper form for executing the contract under seal, when in fact no such authority had been given, then the mistake would be one of fact. No such distinction has been taken in the cases however, and where the right to recover has been denied, it has been denied on the ground that as an express contract existed as to one, there could be no other obligation imposed by law. It is submitted that this is an entirely false application of the rule that the law will not imply a contract where there is an existing contract. That rule presupposes the existence of contract rights such as the parties con- templated, and the meaning of the rule is that a plaintiff will not be allowed to recover against a defendant in violation of the terms of a contract made between them. Thus if A should make a contract with B by which it was agreed that he should serve B for a given period of time, B to pay a certain sum of money at the end of that time, and A not to receive any compensation unless he served the whole time, the courts, applying the rule just stated, would, if A deliber- ately left the service of B before the end of the period in KECOVERY FOR BENEFITS CONFERRED AT REQUEST. 329 question, and attempted to recover for services rendered by him, refuse him any relief. This result is reached simply upon the principle that where parties agree upon certain rights and liabilities, there is not only no reason why the law should not impose an obligation involving liabilities, against the possibility of which the parties have, if they are per- mitted to do so by law, guarded ; but every reason why the law should not impose such an obligation if any regard what- ever is to be paid to the declared intention of the parties. But in a case like Bond v. Aitkin this principle cannot be invoked, because the plaintiff is only seeking to compel the defendants to do what they expected to do at the time when the plaintiff lent 'the money, and what the plaintiff ex- pected they would do. Had the court compelled the defen- dants to pay for value received it would have compelled the parties to do exactly what all the parties thought they had obligated themselves to do, and instead of defeating, would have carried out the intentiou of the parties. It is possible, although the point was not taken in Bond V. Aitkin, to support the result reached on a point of pleading. It would seem that in a case like Rmid v. Aitkin the count should have been a count for money had and received rather than a count for money lent. While it is true that the plaintiff did in fact lend money to the firm, he did not receive from the firm a contract to repay the sura, the only contract which was made between the parties being the con- tract which did not bind the firm because it was put under seal. The real basis of the liability would seem to be that as the loan failed because of a failure to obtain a firm obligation, it was inequitable for the defendants to retain the money received from the plaintiffs ; and therefore if they refused to ratify the contract so made, the money should be returned to the plaintiff. The obligation imposed in such a case is to make restitution in value, and the count for money had and received would seem to be the proper count. 330 THE LAW OF QUASI-CONTRACTS. Recover}' for services ren- dered under mistake as to the terms of a contract. agent to bo r- row. The case of "^umsj- v. "Webster ^ affords a good illustration of a failure of consideration arising from mistake, and the rights resulting therefrom. In that case Ahe plaintiff ren- dered services for the defendant under a misun de rstanding as to the terms of the defendant's off er, the offer being ambigu- ous on its face. The defendant not having agreed to what the plaintiff regarded as the contract price, the plaintiff was not entitled to recover that s um. As the plaintiff had not agreed to accept the p rice which the defendant had intended t o pay, the court held that the defendant could not insist upon that sum as the limit of the plaintiff's compensation, and held that as there was no contract between the parties, the plaintiff should recover from the defendant the reasonable value of his services. \ Brewer, J., delivering the opinion of the court, said : — -^ "Here Webster never assented to a contract to work for $1.50 per day. He agreed to do certain work, and did it; but his under- standing was that he was to receive $3 per day. Turner and Otis employed liim to do that work, and knew that he did it, but their understanding was that they were to pay $1.60 per day. In other w'ords the minds of the parties met upon everything but the com- pensation, and as to that there was no aggregatio mentium. What, then, should result? Should he receive nothing because there was no mutual assent to the compensation ? That were manifest injustice. Should his understanding bind both parties ? That were a wrong to them. Should theirs control ? That were an equal wrong to him. The law, disregarding both, says, a reasonable com- pensation must be paid. . . . Justice is done to all parties by ignor- ing any promise or understanding as to compensation, and giving to the laborer compensation for the work done, and requiring the party receiving the benefit of such work to pay a just and reasonable price therefor." In Kelley v. Lindsey ^ the plaintiff had cashed a check di-awn by one Coffin in the name of the defendant. It appeared that 1 24 Kan. 38. See also Tucker 2 7 Gray, 287. V. Preston, 60 Vt. 473. though Coffin obtained the money for the use of the defendant and applied it for the defendant's benefit in the defendant's business, he was not authorized to borrow the money or to give a check therefor. The phxintiff failing to recover on the clieck, resorted to the coinits for money lent, and for money had and received. But tlie court held that although the money had been borrowed for use in the defendant's business, and had been actually expended therein, thei'e could be no "recovery. If it be assumed that the plaintiff could not hold the defend- ant on the contract, and tliat the agent never made the money in fact a part of the funds of the defendant by mingling it thex'ewith, the action for money had and received should not have been allowed, because the money being received in fact by one who, at most, was nothing more than an agent, was not either in fact or in legal contemplation received by the defendant. Xor would tlie count for money lent lie, as- suming the money to have been applied by the agent, in extinguishment of claims existing against the defendant, since the application of the money by the agent could not convert its unauthorized receipt into an authorized loan. Assuming the money never to have reached his hands, or to have become part of his funds, the case would seem to have been a proper case, however, for the application of the doctrine of subrogation, since the plaintiff, having paid his money on the supposition that the agent had in fact authority to borrow, could not be regarded as an officious volunteer. And as subrogation would not harm the defend- ant, but would simply put the parties where the plaintiff and the defendant were prior to the borrowing of the money hy the defendant's agent, justice would seem to demand that the plaintiff be subrogated to the rights of the party or parties whose claims were in fact extinguished by the money ob- tained from the plaintiff. It would seem also that in such a case the count for money paid to the use of the defendant 332 THE LAW OF QUASI-CONTRACTS. should be allowed, since the defendant has clearly had the benefit thereof. In the First B aptist Church v. Caughey^ the plaintiff brought an action against the defendant to recover money which had been borrowed by the trustees for the defendant on a promissory note executed by the trustees. It was held that though the plaintiff could not recover on the note be- cause the trustees had no authority to execute it, yet as they had authority to borrow money needed for the legitimatelise of the corporation, he was entitled to recover on a common count. The trial judge in his charge to the jury made the plain- tiff's right of recovery depend upon the fact that the money had in fact been used for the benefit of the defendant, and the verdict for the plaintiff was supported on appeal on that ground. If the money in this case was borrowed by the trustees as trustees, in the exercise of a power conferred upon them by the corporation to borrow money, there seems to be no reason why the plaintiff's right to recover should depend upon the proper application of the money by the trustees. If the trustees had authority to borrow, and did in fact borrow the money not as individuals but as trustees, the moment the money was received by the trustees it was received by the corporation, and at that moment an obligation was created against the corporation in favor of the plaintiff. Since there was no excess of authority on the part of the trustees in borrowing money, there seems to be no reason why the loss in the event of a misappropriation should be thrown upon the plaintiff, simply because the trustees, when they borrowed the money, attempted to give the plaintiff a form of obli- gation which they had not the power to issue. Had the trustees, in the exercise of their authority, simply borrowed the money, and orally bound tlie corporation to pay the same, it would not be contended that the plaintiff should look to I 85 Pa. St. 271. EECOVEEY FOE BENEFITS COXFEERED AT EEQUEST. 333 the applicatiou of the money ; why then should he be required to look to its application simply because he has failed to re- ceive the obligation which he expected ? If the facts are to be regarded as establishing that the trustees received the money not as trustees, but as individ- uals, and that the money was never received as such by the corporation, then the suggestions hereinbefore made with ref- erence to Kelley v. Lindsey i are applicable, and the plaintiff's only right would be a right to be subrogated to the rights of the parties in extinguishment of whose claims the trustees had used the money, unless the count for money paid to the use of the defendant should be allowed. If the note given in this case is to be regarded not as the note of the corporation, but as the note of the trustees as individuals, then, even though the money was in fact received by the corporation, it is difficult to reconcile the decision with the decision of the same court in Bond v. Aitken.^ In Billings v. Monmouth ^ it was held that a plaintiff, who had lent money to the town through its ti'easurer on the faith of promissory notes issued by him, could recover against the town in a count for money had and received, even though the treasurer exceeded his authority in issuing negotiable paper. The plaintiff's right of recovery was made to turn upon the fact that the town had in fact received the benefit of the money borrowed from the plaintiff, because of its application by the treasurer in extinguishment of claims existing against the town. If it be assumed that the treas- urer had authority to borrow the money, and simply exceeded his authority in issuing the instrument which the plaintiff required in exchange for the money, then, for the reasons heretofore stated, it seems to the writer that the use made of the money by the treasurer is entirely immaterial in dis- cussing the plaintiff's right of recovery. If, however, it be 1 Supra, p. 330. ' 72 Me. 174. •■* Supra, p. 326. 334 THE LAW OF QUASI-CONTRACTS. assumed that the treasurer having no authority to borrow, did in fact borrow the money for the town, and did make the money a part of the funds of the town, still it would seem that the misuse thereof by the treasurer would have been a defence to an action brought by the plaintiff. For while the town, because of receiving the plaintiff's money, should be put under an obligation to make restitution, that obli- gation resting on the fact of an unjust enrichment on the part of the town, a loss arising from a misuse of the money, without any fault on the part of the town, should, it is sub- mitted, fall on the plaintiff. On this assumption it would be a case where the plaintiff loaned the money to the treasurer, when the treasurer had no authority to borrow, and when the facts did not authorize the assumption that the treasurer had such authority. It would be unjust, therefore, to hold the town responsible for money put into its treasury without its authority and without its knowledge, and from which it had derived no benefit. In Smout V. Ilbery \the plaintiff who sue d the d efendant to recover the value of food supplied on the credit of her hus- band, after his death, but while both the plaintiff and the defendant supposed him to be alive was not allowed to re- cover. )It was properly lield tliat she had not warranted her authority as agent, and that she had not contracted person- ally to pay for the supplies. But the writer is of the opinion that the plaintiff should have been allowed to recover, on the theory that as there was a failure of consideration, owing to the plaintiff's failure to acquire a contract right against the party whom both the plaintiff and defendant regarded as a principal, the deleMant, who had in fact received the benefit of the consideration which the plaintiff supposed he was giving in exchange for an obligation, should in equity and good conscience pay therefor. It is true that there is no suggestion in the case of any theory independently of the 1 10 M. & W. 1. EECOVERY FOR BENEFITS CONFERKED AT REQUEST. ooo doctrines of agency by which the plaintiff might be entitled to recover from the defendant the value of the necessities received by her. In point of justice, however, it is submitted that there is no good reason why, in eases of this kind, a re- covery should not be allowed against a defendant who has profited by the plaintiff's mistake. Why should the defendant, who would, had she known of her husband's death, have been imder the necessity of supplying herself at her own expense with the necessaries of life, be permitted, because of her igno- rance, to supply herself at the expense of the plaintiff ? The case differs from the ordinaiy case where goods are supplied to a person on the credit of another. If, for example, A supplies goods to C on the sole credit of B, and at the time of supplying the goods gets in fact an obligation by which B is bound to pay for the goods supplied to C, there would seem to be not only no reason why A should be allowed to look to C since when he got the obligation of B he got all that he expected, but to charge C. in such a case would be manifestly unjust. If in the case of Smout v. Ilbery it could be assumed that the facts warranted the in- ference that the understanding of the parties was that the plaintiff was in no" event to charge the defendant, then of course it would be the ordinary case of a man taking his chances, and the chance proving worthless. For example, if it could be assumed that the defendant and the plaintiff dealt with each other on the nnderstajiding that the plaintiff should have a right to charge the husband if alive, and should charge no one if the husband was dead, then of com-se it would be manifestly unjust to compel the defendant to pay, because in such a case the court would be violating the positive in- tention of the parties, that in no case should the defendant be liable. It would seem, however, to be a fair assumption, that the defendant, since she was equally in need of the neces- saries of life, whether she were a wife or a widow, would have agreed personally, had it been necessary for her to do so in 336 THE LAW OF QUASI-CONTRACTS. order to obtain these necessaries, to pay for them. The court therefore, if this assumption is warranted, would not have violated any positive intention of the parties, had it imposed an obligation upon her. It would have created a liability which the defendant would readily have assumed had the necessity therefor occurred to the plaintiff. The result of the actual decision in Smout v. Ilbery was that the plaintiff contributed to the support of the defendant during the time that her widowhood was an unknown, and therefore an imdisclosed fact. Had the court allowed a recovery by the plaintiff on the principles of quasi-contract, the plaintiff would have lost nothing, and the defendant would have been simply put in the position of not being able to profit in consequence of her ignorance of her husband's death. In Kneil v. Egleston ^ the plaintiff brought an action against the estate of a deceased husband, to recover money which had been lent by the plaintiff's testatrix to her husband on his promise to return it, or a like sum to her in a short time. It was held that the action would not lie. Said Devens, J., delivering the opinion of the court • — "We do not perceive how, consistently with well-settled prin- ciples, the plaintiff in this case can recover. While, by statute, the wife may make contracts in the same manner as if she were sole, no autlioritj'- has been given by which husband and wife may make contracts, each with the other. Their legal incapacity thus to contract remains as at common law. . . . " In the case at bar, the fact that the wife survived the husband could not make that a good contract which was originally a nullity. . . . "It has indeed been held that, where one renders service or conveys property as the stipulated consideration of a contract within the statute of frauds, if the other party refuses to perform, and sets up the statute, the value of such service or property may be recovered. The obligation which would arise from the receipt or retention of value, to return or pay for the same, is not overridden, because the words of a form of a contract which did not bind the party repudiat- 1 140 Mass. 202. RECOVERY FOK BEXEFITS COXFEREED AT REQUEST. 337 iiig it were uttered at the time. (Bacon i: Parker, 137 Mass. 809.) Between parties competent to contract, it is reasonable to infer that the party failing to perform that which he had agreed to do, and yet which he might lawfully do, promised that, if he availed himself of his right of rescission, he would return that which he received; and that the value received or retained by him was so received only on these terms. In Bacon r. Parker, the parties were compe- tent to contract with each other; but the inference that, if one contract was repudiated, another must be inferred, could not arise where parties were not competent to make any contract." Before considering the decision in Kneil v. Egleston it is necessary to consider the rights and liabilities of a husband and wife in a court of equit3^ Where the wife has lent money, as in Kneil_z'. Egleston, to the husband on the under- standing that the money is to be repaid by him, it seems clear that in equity the wife has an enforceable claim aga.inst the husband. Thus in Woodward v. Wopdward ^ it was held that a widow should be allowed to recover against the estate of the husband for money advanced to the husband, Lord Chancellor Westbury saying : — " Wisely or unwisely this court has established the independent personality of a, feme covert with respect to property settled to her separate use. It is a remarkable instance of legislation b}' judicial decision whereby the old common law has been entirely abrogated and the power of the wife to contract with her husband has been established. I do not go so far as to say that in the bare case of a sum of money, a part of the income of her separate estate, being handed over by her to her husband, this court would of necessity raise an assumpsit for the repayment of the money so handed over. But it is quite clear that if money, part of the income of her separate estate, be handed over by her to her Irusband upon a contract of loan, she may sue her husband upon that contract." Such a claim being enforceable in equity, it is held that a payment thereof by the husband to the wife if not made with 1 3 DeG. J. & S. 672. 22 338 THE LAW OF QUASI-CONTEACTS. a view of hindering, delaying, or defrauding creditors is valid as against creditors.^ It is true that at common law there could be no loan of money by a wife to a husband, and this was true for two reasons : 1, The merger of the wife's personality into that of the husband's ; 2, The right of the husband to the wife's personal property. But in equity there could be a loan from the wife to the husband, equity recognizing the independent personality of the wife and her right to a separate estate. It is also true at common law that the wife because of the merger of her personality could not sue the husband at law, and this rule has continued to exist in many jurisdictions ■where the wife's right to a separate legal estate has been declared by statute. This being the rule in Massachusetts at the time when the loan was made by the wife to the husband in K neil v. Egleston, it is plain that the wife could not have sued the husband at law to recover the money so loaned ; but on the death of the husband the objection in point of pro- cedure to the wife becoming a plaintiff ceased to exist, there being no objection in law to a widow suing tlie personal representative of the estate of the deceased husband.^ Had the plaintiff in Kneil v. Egleston sued only in the count for money lent, it would seem that judgment should have been rendered for the defendant for the reason that the count for money lent would presuppose a contract, and that contract not with the defendant in the action, but with the intestate, with whom the plaintiff could not contract, because of the relation of husband and wife. But the count for money had and received having been used, it is submitted that the plaintiff should have been allowed to recover on ' Medsker u. Bonebrake, 108 U. = Dougherty v. Snyder, 15 S. & S. 66; Atlantic National Bank v. K. 84. Tavener, 130 Mass. 407 ; Jaycox v. Caldwell, 51 N. Y. 395. KECOVERY FOR BENEFITS CONFERRED AT REQUEST. 339 that count. "While the court was clearly right in saying that the evidence did not establish any intention on the part of the husband to make himself a trustee for the plaintiff, the evi- dence did establish an equitable obligation, in favor of the plaintiii against the husband, which had not been performed, and the estate was therefore under an obligation to refund to the plaintiff the money paid in expectation of performance of the obligation. It being clearly a case where a court of equity would have compelled the repayment of the money on equitable principles, and the count for money had and received being a count to recover at law money equitably due, it would seem useless to compel a plaintiff to file a bill in equity. That the equitable character of the obligation furnishes no objection to a recovery in the count for money had and received is evident, not only from the general use made of the count for money had and received, but it is- strikingly shown by the fact that generally in this country the count can be used by a cestui que trust against a trustee,. where the only duty resting upon the trustee is to pay to the- cestui que trust a liquidated sum of money. It was apparently urged in Kneil v. Egleston that the plaintiff should be allowed to recover on tlie authority of the cases holding that one who renders service or con- vevs property under a contract which the defendant has; refused to perform, relying upon the statute of frauds, can recover the value of such service or property in an action of assumpsit. It is submitted that the distinction which the court at- tempted to draw between the two cases is not well founded ; that in point of principle the two cases are the same, each resting upon the equitable obligation imposed on the defen- dant to prevent an unjust enrichment at the expense of the plaintiff. The suggestion made in Kneil v. Egleston that where a recovery is allowed for services rendered under a contract within the statute of frauds, the theory thereof is 340 THE LAW OF QUASI-CONTRACTS. that between parties competent to contract it is reasonable to infer that the defendant promised if he availed himself of the statute to return that which was received, it is submitted with all deference is purely fanciful, and not recognized as the basis of the obligation.^ * See supra, p. 277. KECOVEKY FOR BENEFITS COXFEKRED WITHOUT REQUEST. 341 CHAPTER VII. EECOVEEY FOR BENEFITS INTENTIONALLY CONFERRED WITHOUT REQUEST. / A PLAINTIFF seeking to recover for services rendered without the consent of the defendant has the burden of takino- himsel f out of the well-established rule that no one has a right to force himself upon another as his creditor. The service for which the plaintiff seeks a recovery nna.v Imvp hppn vonrioTOf^ in a case where, thou gh the defendant did not assent thereto, he expressed no dis s ent, or in a case where he not only did not assent, but actually dissented. Agaia, the a ct done by the plaintiff may have been one which the defendant was under no obligation to perform, or one whi ch he was under an obligation to pertorni because ot an obligation imposed by law, or because of a personal obliga- tion assumed by himself. The service rendered may have been one in the performance of which the public had an interest, or a matter of no public concern .^ rWhere an obligation is imposed by law upon a person to Recovery of V —. i n t money paid in do an act, because of the interest which t he public has in its discharge of an ^ ' obligation im- performance, it would seem that on the defendant's failure to posed by law * ^ II- "" *''^ defend- perform, a person performing the same with the expectation ant in the in- of receiving compensation should be allowed to i-ecover public. against the defendant. In accordance with these principles it has been held, in a number of cases, that a plaintiff rendering services in such circumstances can recover from the defen dant, upon whom t he law imposed the obligation in question. Thus in Jenkins V. Tucker ^ it was held that the plaintiff could recover from the 1 1 H. Bl. 90. .342 THE LAW OF QUASI-CONTRACTS. defendant, for money paid to the use of the defendant, in the following circumstances : The defendant, who was possessed of a large estate in Jamaica, left his wife in England, out of health and much in want of money. During his absence she died, and funeral expenses, suitable to the defendant's fortune and station, were paid by the plaintiff, her father. Lord Loughborough, in his opinion, said : — "I think there was a sufficient consideration to support this action for the funeral expenses, though there was neither request or assent on the part of the defendant, for the plaintiff acted in discharge of a duty which the defendant was under a strict legal necessity of himself performing, and which common decency required at his hands ; the money, therefore, which the plaintiff paid on this account was paid to the use of the defendant. A father also seems to he the proper person to interfere in giving directions for his daugliter's funeral, in the absence of her husband." In Ambrose v. Kerrison^ the defendant and his wife had separated. On the death of the wife, the plaintiff, who was distantly connected with the deceased, defrayed the funeral expenses, not knowing where the husband resided. In an action brought to recover money paid to the defendant's use, it was objected that the plaintiff could not recover because he was a volunteer. It was held, however, that he was entitled to recover the money so paid, Jarvis, 0. J., saying : — "The point for our consideration is simply this, whether the husband, living apart from his wife, is liable to a third person for expenses incurred by him for the decent and suitable interment of his wife. There can be no question that an undertaker who performs a funeral may recover from the executor of the deceased (having assets) the reasonable and necessary expenses of such funeral with- out any specific contract. That liability in the executor is founded upon the duty which is imposed upon him by the character he fills, and a proper regard to decency and to the comfort of others. And I think that the same reasons which call upon the executor to per- form that duty cast at least an equal responsibility on the husband 1 10 C. B. 776. EECOA'ERY FOK BENEFITS COXFEKEED WITHOUT REQUEST. 343 •of a deceased wife, and, \Yitliout any express authority or request on his part, compel him to recoup one who has performed the funeral. I see no difference in principle between the case of an undertaker, and that of a third person who takes upon himself to employ and pay the undertaker." In Bradshaw v. Beard. ^ the defendant and his wife had sepa- rated, the wife leaving the defendant in consequence of a quarrel, and going to the house of the plaintiff, her brother, about a mile distant from her husband's home, which he still continued to occupy. She continued to reside with her brother until her death. On her death the plaintiff, her brother, without communicating with the defendant, employed an undertaker to bury her. Although the plaintiff did not communicate with the defendant, the defendant knew of his wife's death and did not in any way interfere. It was held that the plaintiff could recover the money so expended, as money paid to the use of the defendant. Willes, J., said : '•Where the deceased has a husband, the performance of that last act of piety and charity devolves upon him. The law makes that a legal duty, which the law of nature and society make a moral -dutv. And upon his default the law obliges him to recoup the reasonable expenses of the person who performs it for him. I am not, therefore, surprised to find that there are two authorities in this court (Jenkins r. Tucker, 1 H. Bl. 91, Ambrose v. Kerrison, 10 C. B. 776) which support this view; and 1 feel no alarm that -this doctrine may induce a stranger to thrust himself in between hTisband and wife for the mere purpose of preventing the husband from performing that duty himself. Generally speaking, parties are not allowed to claim in respect of moneys expended for others without request. If the plaintiff here had been shown to liave been guilty of any fraud in concealing: from the husband the fact of his wife's death, and so preventing him from performing the last duty to her remains, the case would have presented a very different aspect. But I see no reason for imputing any such misconduct to the plaintiff. Therefore I think the plaintiff is entitled to recover 1 12 C. B. N. s. 311. 344 ■ THE LAW OF QUASI-CONTEACTS. the reasonable expenses incurred by him in the performance of that duty, which the defendant ought to have discharged, but has failed to discharge." An executor or administrator being under an obligation to bury the deceased, any one performing that act in circum - stances justifying the act on his part, can recover from the executor or administrator for the services so rendered.^ In Patterson v. Patterson,^ Folger, J., delivering the opinion of the court, after speaking of the duty of the executor or ad- ministrator to bury the deceased testator or intestate, said : "From this duty springs a legal obligation, and from the obliga- tion the law implies a promise to him, who in the absence or neglect of the executor, not officiously, but in the necessity of the case, directs a burial and incurs and pays such expenses thereof as is reasonable." In Force v. Haines ^ a plaintiff sued the defendant to recover for services rendered in the following circumstances : The defendant had let a slave to the plaintiff. At the expira- tion of the period of hiring, the plaintiff tendered the slave to the defendant, who refused either to receive the slave or to be accountable for her maintenance. The slave not being able to care for herself, because of her physical infirmities, the plaintiff received aud maintained her for a number of years. It was held that, notwithstanding the law imposed upon the defendant an obligation to maintain his slave, the plaintiff could not recover for the services so rendered. The ground upon which this decision was placed seems to have been that there was no urgent necessity requiring the plaintiff to act in the premises, for the reason that the overseer of the poor would, upon application, have compelled the defendant to discharge this duty. Thus Ford, J., in his opinion said : 1 Rogers v. Price, 3 Y. & J. 28; ^ 59 x. Y. 574. Patterson v. Patterson, 59 N. Y. 574. ' 2 Harr. 385. EECOTERY FOE BENEFITS CONFEERED WITHOUT REQUEST. 345 '' The situation of Elizabeth Haines cannot be relieved without upholding this action for maintenance of a slave against the owner's will, without his request or any promise to pay for it, and in a case of no emergency, which would legalize interference with the private business of others, in a manner subversive of law and mischievous to society. She ought not to have harbored the slave; but, if actuated by pity towards an old servant, should have notified the overseer of the poor, who would have found a ready mode of compelling the owner to do his dutj-." Dayton, J., in his opinion said : — " Minna being the slave of Force, he was morally and legally bound to support her, knowing, us he did, her destitute condition. Does this raise an implied assumpsit in favor of jMrs. Haines? And here let it be remembered, that there is nothing which gives to Mrs. Haines any peculiar rights in this ease, other than would have been common to any other citizen, who, from motives of bene- volence or otherwise, had supported the black woman as Mrs. Haines did. And if we sanction the recoveiT in this case, we must adopt the general principle, and extend a right of recovery under like circumstances, to all such as shall take upon themselves to give support to anothers slave, when it may be needed. " This will be to supersede all necessity of application to the overseers of the iioor, and constitute everj- man the keeper, at his option, of this class of poor of his neighborhood, — nay, indeed, of all classes and cases where the statute creates a legal liability on one man or set of men, to maintain another, if they neglect their dutj^; for the implied assumpsit, it must be remem'bered, springs, if at all, not from the moral, but the legal obligation. The former, it is well settled, is a good consideration as a general rule, for an express promise ; the latter alone will raise an implied one. With- out referring to the numerous cases to be found in the books, I shall ground my opinion upon general principles extracted from them, referring to specific cases only for the purpose of better illustrating my meaning. This case stands entirely clear of those authorities which hold the master liable for necessaries found his servant or slave on an emergency, as on a sudden injurj^ or hurt on the highway or elsewhere, or a distance from home, and where the master is not accessible. These cases constitute a class of themselves, and the rule of law which applies to them, and the 346 THE LAW OF QUASI-CONTRACTS. reason of that rule, has no application to the present question. Here, there was no immediate necessity, but a long-continued sup- port of the black woman by Mrs. Haines, for which she was no more liable, either legally or morally, directly or indirectly, than any other citizen. . . . "There was still another ground assumed on the argument, which at the time appeared to me more plausible than either of the preceding, hut I think equally unsound. The liability of the master to support his slave was likened to that of a husband to support his wife, or a parent his child; for whose necessary maintenance he is liable under certain circumstances, though rendered against his express orders. But these cases I apprehend have always stood upon their own foot, regulated not by general principles, but such rather as have their origin in the legal character and relationship subsisting between the parties. They constitute rather an excep- tion to general principles than a rule. " Assuming that the plaintiff at the time she rendered the service, rendered the service with the expectation and inten- tion of getting compensation from the defendant for the services so rendered, it is submitted that the case is not to be distinguished from the case of the liability of a husband for necessaries furnished to a wife or the liability of a father for necessaries furnished to a child, cases where it is con- ceded by the court that a plaintiff furnishing necessaries would have a right to recover against the husband or father refusing to supply the same. It will not do to say that one furnishing necessaries to a wife or child can recover because it would be humiliating to the wife or child to have to apply to the overseer of the poor for support. The ground upon which the decision allowing such a recovery must be placed is the broad principle that the defendant, having failed to discharge an obligation imposed upon hi m by law, and in the performance of which the public has an interest, a plain- tiff supplying the aid which the defendant has refused to supply, is not acting officiously, and can, therefore, though a volunteer, recover. ) RECOVERY FOE BENEFITS COXFEKRED WITHOUT I;EQl'E8T. 347 It is respectfully submitted that this view docs not violate any principle of public policy. The only possible public pol- icy which it might apparently violate would be that allowing such a claim might result in the vexation and annoyance of members of the community by persons claiming to have ren- dered such services. But when it is borne in mind tliat'the_ burden i s on the perso n making such a claim to establisli a necessity therefor, and tliat the act done by him should have been performed by the defendan t, ^nd that while a failure to establish these facts means expense to the plaintiff, their suc- cessful establishment will involve him in expense which in the ordinary case will not be compensated by the recovery obtained, this objection would seem not to be well founded. In Everts v. Adams ^ the plaintiff, a physician, sought to re- cover from the defendants, overseers of the poor, for medicine and attendance furnished a pauper. Under the statutes then in force the overseers of the poor were not allowed to make advances for the relief of a pauper, except on an order from a justice of the peace, authorizing such advances. An order had been made by two justices, authorizing the overseers to furnish the pauper with necessaries, and also with medical attendance, if needed, by a physician named in the order. There was no evidence that the physician named in the order had ever attended upon the paupei-, and the plaintiff sought to recover for services rendered the pauper. It was held that the plaintiff could not recover. This decision is clearly sound. Any other decision would have been in violation of the statute. The statute requiring the overseers to obtain an order authorizing them to make an ex- penditure, there was clearly no obligation resting upon the overseers in the absence of the order. As the order made did not authorize the employment of the plaintiff, it seems diffi- cult to see how the plaintiff could avail himself of the fact had an order been made. Furthermore, there is no evidence in 1 12 Johns. :3.V2. 348 THE LAW OF QUASI-CONTKACTS. the case that the overseers had been derelict in discharging their duty, and no reason given why the plaintiff rendered the service in question without the sanction of the overseers. The case then can be supported on either of two grounds : 1, That there was no duty imposed upon the defendants by law corresponding to that which was performed by the plain- tiff ; 2, That the plaintiff failed to show any reason why the service in question should have been rendered by him in the absence of assent on the part of the defendant. In Dunbar v. Williams ^ the plaintiff sought to recover for services rendered in attendance as a physician upon a slave belonging to the defendant. It appeared that the slave con- cealed from the defendant, his master, the fact that he was ill, and applied to the plaintiff, who cured him. As the defendant did not know of the illness of his slave, the services were of course rendered without the consent of the defendant. Furthermore, the sickness was not of a character requiring the slave to apply to the plaintiff without first consulting the wishes of his master. It was held, and properly, that the plaintiff could not recover. The court, denying the plaintiff's right to recover, said : — " But the case of the slave in the present instance was not one that required instant and indispensable assistance. "We are to presume that the master was accessible, and both able and willing to grant the request for aid. The service was voluntary on the part of the defendant below. It was not a case in extremis; and if the plaintiff did not choose to apply to the master, or to take care that his assent was obtained, the service must be deemed gratuitous. It would be dangerous to the rights of owners of slaves to allow them to charge their masters with legal assistance, when the case was not so urgent as to prevent a previous application to the master for his direction." - • ""The only exception that can be taken to this statement_of " the law is, the statement that the services must be deemeii_to 1 10 Johns. 249. EECOVEKY FOR BENEFITS COXFERKED WITHOUT REQUEST. 349 have been rendered gratuitously, because of the fact that there was no urgent necessity calling for the i-endition of tlie services without first consulting the master. That tlie plaintiff rendered services for which there was no urgent necessity without first consulting the defendant, is indeed a suihcient reason in law for saying that he was an officious voluntei'r, and should not be allowed to recover, but hardly a reason for saying that he in fact did not intend to charge for the ser- vices so rendered. The case in this particular differs from Cunningham v. Reardon,^ where it was held that the plaintiff, who buried the wife of the defendant, who had been compelled to leave him because of his cruelty, and whom he had refused to support, could recover from the defendant the expenses incurred by him in the burial of the wife, though he gave no notice to the defendant of the wife's death, notwithstanding the fact that such notice could easily have been given. Hoar, J., deliv- ering the opinion of the court, said : — ■ • Xor is any notice to him requisite in order to charge him for lier funeral expenses, any more thau for necessaries to sustain life. The burden is on the plaintiff in either case, to prove the existence of the necessity, and that the husband has failed to make provision for it. But when this is established, nothing more is needed to create the liability; and it would seem to be an idle ceremonj- to give notice of his wife's death to a man who had refused her the means of sustaining life. The responsibility for funeral expenses is nut a new and distinct cause of action, differing in kind, or in the rules by which it is created, but an incident to the obligation to furnish bodily support." yTo charge a defendant for services rendered in the dis- No recovery ° -— ^-^ — imless act was irge of an obligation which he, the defendant, should have necessary. lierformed. the plaintiff' must establish a necessity for his, the ilaintiff's. action. In a case where the reason for the appeal t o the plaintiff is the fact that the defendant has failed in his 1 OS Mass. 538. 350 THE LAW OF QUASI-CONTRACTS. Service must have been ren- dered with the expectati on ot cnarginstne' defendant luereior. No recovery where service was rendered officiouslv. obliga tion, then no notice is necessary. If, however, the defendant has not refused to discharge his obligation, and his failure to act has been due to ni^ w ant Of 6|)^ortunity, he must, if he is in a position to act, be given the opportunity before any one will be justified in acting in his stead.' ^ In the cases that have been heretofore considered in this connection, it has appeared that the plaintiff rendered the service with the expectation of compensation, and in addition thereto it has appeared that the service was not rendered upon the credit of any person other than the defendant. In this class of cases, if the service at the time it was rendered, though rendered with a view of obtaining compensation there- for, was rendered on the credit of a person other than the defendant, then, notwithstanding the act was one which the defendant was under an obligation in law to perform, still, since the plaintiff has acquired all the rights which he ex- pected at the time when he rendered the services, namely, a right to sue a person other than the defendant, there is no reason why he should be given a claim against the defendant. The claim against the defendant, if any exists in such a case, exists not in favor of the plaintiff, but in favor of the person upon whose credit he in fact rendered-the -services. -Thus it was held in Quin v. Hilli that the plaintiff could not recover against the defendant for burying the body of his deceased wife, it appearing that the deceased was buried at the request of her mother, and upon her mother's credit. Furthermore/i n order that a party may recover for services so rendered, he must not have acted officiously.') Thus in Quin V. HilP where it appeared that the plaintiff, in the pres- ence of the husband of the deceased, assumed- entire control of the arrangements of the burial, entirely ignoring the hus- band, who was living under the same roof with her, it was held that she acted officiously, and thereby relieved the hus- band from any obligation in regard to the burial of his wife. 1 4 Dem. 69. RECOVERY FOE BENEFITS CONFERRED WITHOUT REQUEST, ool ( ^'here remains to be considered a class of eases -^vherc.in SigMofa the absence of an ohljo -ation imposed hv law, the defen.^nnf J!m'ti"ff*on?" has taken upon himself bv_co ntract t l ie duty of supportiuo - fenZntran!" another, whom the plai ntiff snpp(^rt-s on the refusal of the p .'/"^ '° '"P" defendant to perform his coiitrne.t,. Slmll the plaintiff be allowed in such circumstances to recover for service ren- dei'ed ? This class of cases differs from the case of a purely private nature, in which only the parties to the contract are interested, in that the public has an interest in the proper sustenance of all members of the community. The case also differs from the cases hereinbefore considered in this partic- ular, that while the public is interested in the performance of the obligation by the defendant which he has fallen upon himself, the defendant does not occupy a position in conse- quence of which tlie law would have imposed the obligation upon him, and therefore, in the absence of a contract obliga- tion on his part, it would have been necessary for the public, and not the defendant, to render the service in question. It seems difficult to saj- in this class of cases tliat a plaintiff, because of a defendant's def.inlt. shn11 liave a right to render a service assumed by tlie defendant, and charge him in auasi-c9ntpct tliPrAfnr The defendant's contract, it is conceded, confers no rights upon the plaintiff, and in the ab- sence of contract the defendant would have been under no obligation. How then can the plaintiff charge the defendant, because of a contract obligation, when that contract obligation confers no rights on the plaintiff ? ^ It would seem proper for a court of e quit y to subrogate the plaintiff to the rights of the party to the contra ct, for the plaintiff, though a volunteer, has acted in discharge of a. social duty, and in the interest of t he public. It was held, however, in Forsvth ;-. Ganson,^ that the de - fendant, who had contracted with his father to support his 1 See Savage v. McCorkle, 17 ^ 5 -Wend. 558. Ore. 42. 352 THE LAW OF QUASI-CONTEACTS. stepmother, the father's second wife, was liable to the plain- tifC, her son, for her support and maintenance . '^ISuther^ land, J., delivering the opinion of the court, said : — "The remaining inquiry is (admitting the intestate to have been legally bound to support Mrs. Ganson) whether this action can be maintained in the name of the present plaintiff ? I am of opinion that it can. It appears to me analogous to the case of necessaries furnished to a wife, or infant child, for whom the husband, or father, improperly neglects or refuses to provide. . . . "The intestate in this case being legally bound to provide for Mrs. Ganson, the service and supplies afforded to her by the plain- tiff were advantageous to the defendant, and may well be considered as having been rendered at his request." So in Rundell v. Bentley ^ it was held that the defendant, who had promised, in consideration of the conveyance of her property to him, to support the promisee for life, and who had failed to provide for her in an emergency, was liable to the defendant for necessaries furnished. Ingalls, J., deliv- ering the opinion of the court, said : — " It seems very clear that the defendant omitted the performance of his agreement at a time when, considering the inclemency of the weather, and the destitute condition of Mrs. George, and the state of her health, he was called upon to exercise more than ordinary care and attention in administering to her necessities, and in per- forming the requirements of the contract on his part. We think the jury were justified by the facts and circumstances in concluding that the defendant was informed that the plaintiff was furnishing the provisions and caring for Mrs. George at the time, and did not object thereto. Under the circumstances, the neglect of the de- fendant was almost criminal." Conceding the act of the defendant to have been almost criminal, the premise would seem to fail to support the con- clusion that, therefore, the plaintiff could recover against the defendant. The defendant did not contract with the plain- 1 53 Hun, 272. Cf. Savage v. McCorkle, 17 Ore. i2i EECOVEUY FOE BENEFITS COXFEKRED WITHOUT REQUEST. 353 tiff nor for his benefit, and if he was guilty of a bi-each of contract, the cause of action arising from such breach vested not in the plaintiff, but in the promisee. .'There remains for consideration a class of cases where the No recovery fov * ■ „ . '\" t'^* preserva- plamtin rendered services in tne preservation oi tne aeieu- tion of property dant's property. If the service is rendered against the de- fSTof tiie"^"" fendant's p rotest, where he is under no obligation to preserve the property, there can be no recovery. ^ Tlius, in Jjjarle v. Coburn.i the plaintiff sued the defendant to recover for the board and stabling of the defendant's horse. The plaintiff had exchanged the horse for the defendant's wagon. In conse- quence of a controversy that arose between them, the defen- dant left the horse upon the plaintiff's premises, repudiating all title thereto, and brought an action to recover the wagon. In that action he was unsuccessful, the court holding that an indefeasible title to the wagon had passed to the defendant in that action, the plaintiff' in the case at bar. At the time the defendant left the horse at the plaintiff's stable, the plain- tiff informed him that if he left the horse it would be on his own responsibihty and at his own expense. It was held that the plaintiff could not recover for the board and stabling. Lord, J., delivering the opinion of the court, said : — " There may be cases where the law will imply a promise to pay, by a party who protests that he will not pay; but those are cases in which the law creates a duty to perform that for which it implies a promise to pay, notwithstanding the party owing the duty absolutely refuses to enter into an obligation to perform it. The law promises in his stead and in his behalf. If a man absolutely refuses to furnish food and clothing to his wife and minor children, there may be circumstances under which the law will compel him to perform his obligations, and will of its own force imply a promise against his protestation. But such promise will never be implied against his protest, except in cases where the law itself imposes a duty; and this duty must be a legal duty. The argument of the plaintiff rests upon the ground that a moral duty is sufBcient to raise an implied 1 130 Mass. 596. 23 354 THE LAW OF QUASI-CONTRACTS. promise, as well as a legal duty. He cites no authority for this proposition, and probably no authority can be found for it. The common law deals with and defines legal duties, not moral. Moral duties are defined and enforced in a different forum. Under the particular circumstances of this case, it would be futile to inquire what moral duties were involved, or upon whom they devolved. It is sufficient to say that no such legal duty devolved upon the de- fendant as to require him to pay for that for which he refused to become indebted." Eecoveryfor (The Service may be rendered, however, without the defen- the preserva- '_ ■' ' ' tion of property Want's knowledge, and without any dissent theretore on his without the _ knowledge of part. In tliis class of cases it is, in the tirst place, of great the owner. ^ , , 7 importance to distinguish between cases where the plaintiff expected remuneration at the time when the service was ren- dered, and cases in which he rendered the service simply as an act of benevolence and generosity. When the se rvices are not rendered witli the intention ot receiving compensation therefor, as the plaintiff had a right to give his services, and intended to give them at the time they were rendered, there can of course be no recovery. , - — ■ '' If, however, when the service was rendered, it was the intention of the p laintiff to refceivte 'compen^&tfiSnr/H^'the ser- vice rendered , it would seem that the plaintiff 'could, in no sense, be said to be an officious volunteer in charging the defendant for the preservation of property which would have been destroyed but for his interventio n. It must b e admitted, however, that the right of recovery is deni ed by the weight o f authority. ^In Ba£tholoraeffi. v. Jackson ^ the plaintiff sought to recover for work and labor rendered in the following cir- cumstances : It appeared that the plaintiff owned a field, in which the defendant had a stack of wheat, which he had promised to remove in season to allow the plaintiff to prepare the ground for the fall crop. The time for removal having arrived, the plaintiff sent a messenger to the defendant 1 20 Johns. 28, KECOYEEY FOR BEXEFITS CONFERRED WITHOUT REQUEST. 355 requesting him to remove the wheat, as he wished to burn the stubble on the next day. This message was delivered, in the absence of the defendant, to his son, who answered that they would remove the wheat by ten o'clock of the next day. Plaintiff waited until that hour, and then set fire to the stubble in a remote part of the field ; the wheat not having been removed, the plaintiff, to save the same from destruction, the fire spreading more rapidly than he had ex- pected, removed it himself. It was held that the plaintiff was not entitled to recovery. Piatt, J., delivering the opinion of the court, said : — ■ " The plaintiff performed the service without the privitj' or con- sent of the defendant; and there was, in fact, no promise, express or implied. If a man humanely bestows his labor, and even risks liis life, in voluntarily attempting to preserve his neighbor's house from destruction by fire, the law considers the service rendered as gratuitous, and it, therefore, forms no ground of action." If this decision is to be taken as holding as a rule of law that no recovery can be had in this class of cases, regardless of the intention of the plaintiff at the time when he rendered the services, then it is submitted that the decision goes too far. It is true that our law gives each individual, as a general proposition, a right to select his own creditor, and declares that no one shall be allowed to thrust his services upon another ; but the courts have held, and properly, that this rule has no application to a case where, because of the public interest involved, the law imposes upon a man an obli- gation to maintain life. It is because of the interest of the public in the preservation of life that tlie obligation is im- posed at all, and because of the relation of the defendant to the life in question that the obligation is iinposed upon the particular defendant. While it is true that at common law the defendant is under no obligation to preserve his property, and clearly, therefore, a party who insisted upon preserving the defendant's property against his consent, should not be 356 THE LAW OF QUASI-CONTRACTS. allowed to recover for services so rendered, yet it is also true, that as a rule men are willing to preserve property because of the advantage derived from such preservation. Therefore, in a case like Bartholomew v. Jackson, the plain- tiff certainly did no act which he had any right to suppose would not be acceptable to the defendant. He did an act which in fact benefited the defendant, an act beneficial in its nature to the public. Why then should the courts apply to a plaintiff in such circumstances, if it can be shown that he intended to receive compensation for the services rendered, the doctrine applicable to cases of ofKcious volunteers ? If the court in Bartholomew v. Jackson is to be regarded as holding simply that the plaintiff in that and similar cases should be regarded, in the absence of other evidence, as doing simply a neighborly act, with no expectation of receiving compensation therefor, then the decision is not open to criticism. In Chas e v. Corcoran ^ the plaintiff, while engaged with his own boats, found the defendant's boat adrift, badly damaged, and in danger of being destroyed. The plaintiff secured the boat, and advertised the finding of it, but receiving no inquiries for it, housed it for a long period, and made repairs necessary for its preservation. The defendant afterwards claimed the boat, and the plaintiff refusing to surrender it without receiv- ing compensation for the expenses which he had incurred, the defendant recovered the same in an action of replevin. The plaintiff then sued to recover his expenses. It was held that he could recover. Gray, J., delivering the opinion of the court, said : — ' ' His claim is for the reasonable expenses of keeping and repair- ing the boat after he had brought it ashore ; and the single question is whether a promise is to be implied by law from the owner of a boat, upon taking it from a person who has found it adrift on tide water and brought it ashore, to pay him for the necessary expenses 1 106 Mass. 286. KECOVEKY FOR BEXEFITS CONFEKKEB WITHOUT KEQUEST. 357 of preserving the boat while in his possession. We are of opinion that such a promise is to be implied. The plaintiff, as the finder of the boat, had the lawful possession of it, and the right to do what was necessary for its preservation. Whatever might have been the liability of the owner if he had chosen to let the finder retain the boat, by taking it from him he made himself liable to pay the reasonable expenses incurred in keeping and repairing it." It will be noticed that the court does not luidertake to decide what would have been the liability of the defendant, had the defendant not taken the boat from the possession of the plamtiff. That the plaintiff, in the case under considera- tion, never intended to give his labor to the defendant seems clear. But the plaintiff when he repaired the boat, after fail- ing to find the owner, clearly proceeded upon the theory that he would either have the property, in which event the owner- ship thereof would compensate him for the expense incurred, or that he would have a charge against the owner upon his claim- ing his property. Suppose the property had been destroyed, without fault upon the part of the plaintiff; should he have had a claim upon the defendant for the services rendered by him up to the time of the destruction ? It would seem not. j it would seem that the plaintiff, in order to recover agains t a defendant in this class of cases, must prove that the d efendant has, in fact, derived a benefit from the service rendered. ' NFor this reason, as well as for the additional reason, that the plaintiff thought at the time when he re- paired the boat, that the boat itself would probably be the only compensation which he would receive for his labor, it would seem that the defendant in Chase v. Corcoran could have escaped liability by simply renouncmg his interest in the property, and letting the plaintiff retain the same. /There remains to be considered a class of cases where, Recovery for I _ —»— wenents of a though the plaintiff has done an act which has resulted in a pm-ei.v priv-nte " * I ■ natuie con- benefit which the defendant desired, th e defendant did not ferred without '— "*— — ' t T"^*"*' ■'^luest or con- request the plaintiff to act, or may have even notified him sent. 358 THE LAW OF QUASI-CONTRACTS. not to act.") In Boulton v. Jones ^ the plaintiff sued the de^ fendant in' a count for goods sold and delivered, to recover for goods delivered in the following circumstances : The defendant sent to one Brocklehurst an order in writing for certain goods, not knowing that Brocklehurst had transferred his business to the plaintiff. The goods were sent by the plaintiff to the defendant, who consumed the same, ignorant of the fact that the plaintiff, and not Brocklehurst, had furnished them. The defendant had a set-off against Brockle- hurst. It was held that the plaintiff could not recover. Pollock, C. B., said ; — "Xowthe rule of law is clear, that if you propose to make a contract with A, then B cannot substitute himself for A without your consent and to your disadvantage, securing to himself all the benefit of the contract, the case being, that if B sued, the de- fendant would have the benefit of a set-off by which he is deprived by A's suing. If B sued, the defendant could plead his set-off; as B does not sue but another party, with whom the defendant did not contract, all that he can do is to deny that he ever was indebted to the plaintiff." Bramwell, B., said : — "It is an admitted fact, that the defendant supposed he was dealing with Brocklehurst, and the plaintiff misled him by ex- ecuting the order unknown to him. It is clear also, that if the plaintiff were at liberty to sue, it would be a prejudice to the de- fendant, because it would deprive him of a set-off, which he would have had if the action liad been -brought by the party with whom he supposed he was dealing, and upon that my judgment pro- ceeds. . . . The defendant has it is true had the goods; but it is also true that he has consumed them, and cannot return them. And that is no reason why he should pay the money to the plaintiff which he never contracted to pay, but upon some contract which he never made, and the substitution of that for which he did make would be to his prejudice, and involve a pecuniary loss by depriving him of a set-off." » 27 L. J. R. 117 ; s. c. 2 H. & N. 564. RECOVERY FOE BENEFITS COXFERRED WITHOUT REQUEST. 359 Chaunell, B., said : — "Without saying that the phiintiff might not have had a right of action on an implied contract if the goods had been ia existence, here the defendant had no notice of the plaintiff's claim until the invoice was sent to him, wliich was not until after he had consumed the goods, and when he could not of course have returned them." That there was no contract existing between the plaintiff and the defendant in Bonlton v. Jones is clear. That a defendant who ordered goods with an understanding that he would pay for them in cash in part only, should not be compelled to pay their full value in cash, seems also clear. That the plaintiff could not get the full value for his goods in 5uch a case would be due to the fact that the defendant has not contracted with him to pay for them, and the law should impose no obligation upon the defendant, which the defendant would not have been willing to assume in ordering the goods. But that a plaintiff should not be allowed, if he were willing, to take a judgment, not for the value of his goods, but for the amount which the defendant would have been compelled to pay in cash, had the order been filled by the one to whom it was sent, does not seem so clear. In Boulton v. Jones the plaintiff, it is submitted, did what would be ordinarily done in "the same circumstances if the plaintiff was satisfied with the credit of the person sending the order. The plaintiff had been in the employ of Brocklehurst, knew the defendant as a customer of Brocklehurst, and had in stock exactly the goods which the defendant desired ; and the case would hardly seem to call for the application of the rule applied to parties acting officiously. Since the act was not authorized by the defend- ant, the plaintiff should act at his peril to this extent, that the defendant should not be prejudiced tliereby. But that a proper regard for the right of a man to select his creditor requires that he shall profit at the expense of the plaintiff in such a case seems hardly necessary. The suggestion has been made that the plaintiff in this case might have recovered 360 THE LAW OF QUASI-CONTRACTS. against the defendant by bringing an action in the name of Brocklehurst and invoking the doctrine of undisclosed prin- cipal. But this does not seem tenable. Where the doctrine of undisclosed principal is invoked, the party who claimed to act as agent did, in fact, intend to act on behalf of the person who claims to have been the principal in the transaction. In Bou lton V. Jones the plaintiff intended to act for himself, and not for Brocklehurst; and, therefore, the contract was not even on the doctrine of undisclosed principal made by Brocklehurst, nor could Brocklehurst, as Boulton did not intend to act for him, become a party to the contract by ratification. In the Boston Ice Company v. Potter ^ the plaintiff sought to recover for ice furnished the defendant in the following circumstances : The defendant, becoming dissatisfied with the plaintiff, terminated his contract with the plaintiff and con- tracted with another company for the supply of ice. This latter company sold its business to the plaintiff with the privilege of supplying ice to its customers. The plaintiff then supplied ice to the defendant, which the defendant used, not knowing of any change in the business, and having, as the jury found, a right to suppose that he was furnished by tlie plaintiff's assignor. It was held that the plaintiff could not recover for the ice furnished. This case differs from the case of Boulton v. Jones in that the plaintiff knew that the defendant did not desire to deal with him, and was, therefore, officious in supplying him with ice without notifying him of that fact ; whereas in Boulton v.. Jones, unless the fact that the order was addressed to Brockle- hurst was a reason for the plaintiff's supposing that the de- fendant would not desire to deal with him, the plaintiff had no reason for supposing that the defendant would not be per- fectly willing to have the order filled by him, the plaintiff. To have allowed a recovery by the plaintiff in the Boston Ice- 1 123 Mass. 28. KECOYEEY FOR BENEFITS CONFEKRED WITHOUT REQUEST. 361 Company v. Potter would have been, to use the hmguage of Lord Mansfield in Stokes v. Lewis,i to have allowed a recovery against the defendant " in spite of his teeth," and would have been entirely destructive of the doctrine that a man has a right to select his creditor. (If a plaintiff has in fact received the equivalent which he No recovery — . 1 . , , for incidental expected m exchange lor an act done by him, the fact th at benefits, incidentally some one else has also derived a benefit should .not give him a cause of action. In such a case it cannot properly be said that there is an unjust enrichment on the part of the defendant at ins expense, since he has received an equivalent which h e regarded as ample when he did the act."^ On this short ground might have been rested the decision in United States v. Pacific Railroad Co."^ In that case the government sought to recover from the Pacific Railroad, by way of counter-claim, compensation for bridges built by the government over the line of road of the railway company. The government built the bridges for the purpose of trans- porting troops — a delay having been caused in the transpor- tation of troops by the destruction of the bridges owned by the company. It was held that the government had no claim for the bridges so constructed. Mr. Justice Field, delivering the opinion of the court, said : — '•TThile the government cannot he charged for injuries to, or destruction of, private property caused by military operations of armies in the field, or measures taken for their safety and efficiency, the converse of the doctrine is equally true, that private parties cannot be charged for works constructed on their lands by the government to further the operations of jte- armies. ililitaiy necessity will justify the destruction of pruperty, but will not compel private parties to erect on their own lands work needed by the government, or to pay for such works when erected by the government. The cost of building and repairins; roads and bridges to facilitate the movement of trooi>s, or the transportation of supplies and munitions oi war, must, therefore, be borne by the government. 1 1 T. R. 20. 2 120 U. S. 227. 362 THE LAW OF QUASI-CONTRACTS. "It is true that in some instances the works thus constructed may afterwards be used by the owner; a house built for a barrack, or for the storage of supplies, or for a temporary fortification, might be converted to some purposes afterwards by the owner of the land, but the circumstances would impose no liability upon him. (" Vyhen - ever a structure is permanently affixed to real property belonging to an individual without his consent or request, lie cannot be held responsible because of its subsequent use. it becomes his by being annexed to the soil; and. lie is not obliged to remove it to escape liability. He is not deemed to have accepted it so as to incur an oblig ation to pay lor it, merely because he has not chosen to tear it down, but has seen ht to use it.\ (^z^ottman v. San J^'rancisco, '2b Dal. 96, 107.) Where structures are placed on the property of another, or repairs are made to them, he is supposed to have the right to determine the manner, form, and time in which the structures shall be built, or the repairs be made, and the materials to be used; but upon none of these matters was the company consulted in the case before us. The government regarded the interests only of the army; the needs or wishes of the company were not considered. No liability, therefore, could be fastened upon it for work thus done." IMPROVEMENTS MADE UPON LAND WITHOUT REQUEST. 363 CHAPTER VIII. BECOYERY FOR IMPROVEMENTS MADE UPON THE LAND OP ANOTHER WITHOUT REQUEST. It is proposed to consider iu tliis cliapter the rights and liabilities of parties , arising from benefits conferred witliout request, in the follownig circumstances : 1. ^Vhere a vendee in possession of land, under an oral contract for the purchase thereof, has improved the propert}' in the expectation of the performance of the contract by the vendor, and the vendor has refused to perform the contract, relying on the statute of frauds ; 2. Where the vendee, having taken possession of land under an oral contract for the purchase thereof and having improved the same, has refused to accept a conveyance thereof, relying on the s tatute of frauds ; 3. Where benefits hav e been conferred under a mistake as to the ownership of property. SECTION I. RECOVERT FOE TMPEOVEMENTS MADE WHILE IN POSSESSION OF LAND rXDER A^• ORAL COXTEACT WHICH THE VEXDOE HAS EEFUSED TO TEKFORM. A vendee is allowed to recover in equity for the value of Right of recov- "■■• in equity. improvements made by him while in possession of land under an oral contract for the purchase thereof which the vendor has refused to perform. '\ The basis of the liability is that otherwise the vendor would unjustly enrich himself at the 264 THE LAW OF QUASI-CONTKACTS. expense of the vendee. In Albea v. Griffin ^ it was held that while the plaintiff who had built a house upon land in which he was in possession as vendee under an oral contract of sale, could not get specific performance of the contract, he could recover for the improvements made by him while in posses- sion of the premises. The ground of liability was thus stated by the court : — • ' ' The plaintiff's labor and money have been expended on im- proving property which the ancestor of the defendants encouraged him to expect should become his own, and by the act of God, or by the caprice of the defendants, this expectation has been frustrated. The consequence is a loss to Mtk and a gain to them. It is against ■conscience that they should be enriched by gains thus acquired to his injury." ^ Measure of re- The liability resting on the doctrine of unjust enrichment, the f increased value of the land to the o\yner, an d not the expense of the improvement to tlie vendee, constitutes the measure of recovery.' ' -^ in MathejES.^- I'avis,'' wnere tne plam- tiff sought to recover for improvements made upon land of which he was in possession under an oral contract which the defendant refused to perform, the trial judge charged the jury that the criterion of damages would be, not the increased value of the land to the owner, but the value of the improve- ments put upon it, deducting from the value of the improve- ments the value of the use of the land and improvements during the time the plaintiff occupied tlie same. On appeal it was held that the value of the improvements to the owner should have constituted the measure of the recovery, and not the expense incurred by the plaintiff in making them. In delivering the opinion of the court, Green, J., said : — "If the party agreeing to purchase perform labor and make improvements which will benefit the owner of the land, we have 1 2 Dev. & Bat. Eq. 9. 324; Vaughan v. Cravens, 1 Head, * The italics are the author's. 108. » Mathews v. Davis, 6 Humph. < 6 Humph. 324. IMPROVEMENTS MADE UPOX LAND WITHOUT REQUEST. 365 <:aiil he has an equitable right to compensation. But if his work and lalxn- and materials are of a cluu-aotor that will not benefit the owner of the estate, upon what principle of equity can it be assumed that he ought to be paid ? It matters not how much labor he has employed, nor what amount he may have expended for materials ; if the estate is not benefited he has uo claim to compensation from the owner of the land. To allow him to recover, in such a case, would be to reward him for volunteering his labor on another man's laud, and to punish the owner of the soil for permitting him to do it. This cannot be done. His honor, the judge of the Circuit Court, erred, therefore, when he told the jury that the plaintiff was entitled to the value of his improvements, whether thej- enhanced the value of the estate or not." Furthermoi'e, since tlie plaintiff's right to recover depends A plaintiff in ,-, I'l -Tt, • ' t possession can upon the tact that otherwise there would be an unjust enrich- not recover fm ment of the defendant at the expense of the plaintiff /it mus t made by iiim! appear to entitle a plaintiff to recover, that the vendor's con- duct has been such as to interfere with Ins enjoyment ot the land and th e improvements made thereon. If, therefore , notwithstanding the refusal of the vendor to perform the contract, the plaintiff still remains in possession, he will not be allowed to recover for the improvements made by him. In Yates v. Bachley ^ the plaintiff', who had purchased land of one ^'olcott, who had orally agreed to give to the defend- ant a seven years' lease thereof, and had refused to do so, sued the defendant for rent. The defendant sought to counter-claim against the plaintiff for improvements made upon the premises. It appeared that after Wolcott's refusal to e.xecute a lease of the premises to the defendant, the defendant vacated the premises, and sold the improvements made by him to a person who, at the defendanfs request, was accepted by the plaintiff as a tenant of the land in his place. At the trial the jury were charged as follows ■ — '■ If you find that there was an agreement for a lease for a term of years ; that the defendant -Went into possession under 1 3:3 Wis. 185. 366 THE LAW OF QUASI-CONTRACTS. it; that the plaintiff refused to carry it out; and that the defendant made improvements on the premises at the request of the plaintiff, or while so occupying the premises made improvements or did work by reason of such agreement, beyond what a tenant on such premises is bound to make or to do, then you must determine what, if anything, such im- provements were reasonably worth, and give the defendant the benefit of it in making your verdict." An exception to this charge was sustained on appeal. Lyon, J., said: — "This instruction is erroneous in that it makes the plaintiff, Mrs. Yates, liable to pay for the improvements made by the defend- ant because she refused to execute a lease for seven years, regard- less of the question whether the defendant was or was not evicted from the premises. The defendant was not so evicted. It is prob- able that had he surrendered possession on the intimation of Colonel Yates that he intended to occupy the premises the next year, this would have been equivalent to an eviction. But be did not do so. On the contrary he retained possession until he sold the house, and then procured the consent of the plaintiff to accept the purchaser thereof as tenant of the premises in his place. There was no inter- ference with the possession of the defendant. ( No case is cited in which a landlord has been held liable to pay for i m provemeTits Tna.fle hy " t enant under an agreement for a lease, merely becausft the In.nfUorfl li as refused to execute the lease, where the possession of the tenant has not be en disturbed." ) On this principle it was held in Miller v. Tobie ^ that the plaintiff could not recover from the defendant the value of improvements made upon the land which the defendant had orally agreed to sell to the plaintiff, but had refused to con- vey, since it did not appear but that the plaintiff was still in possession of the land. M)ve*°a/kw f ^^though the plaintiff's right to recover i n equity is rec- ognized, a recovery at law in the action of assumpsit is 1 41 N. H. 84. IMPEOVEMENTS :\IADE UPON LAND WITHOVT REQUEST. 367 denied. ^ In Shreve v. Grimes ^ the plaintiff sought to re- cover in an action of assumpsit for improvements made by him -n-hile in possession of land, whicli the defendant had orally contracted to sell to him, and which he had refused to convey, relying on the statutes of frauds. On the trial of the case the jury were instructed that, if they found that the plaintiff made the improvements while in possession of the property under an oral contract for the purchase thereof, which the defendant had refused to perform, they should give a verdict for the plaintitf for the value of the improve- ments, so far as the same were necessary and valuable to the owner of the land. A judgment entered upon the verdict in favor of the plaintiff was reversed on appeal, the court holding that there was no liability at law on the part of the defendant for the improvements so made. The opinion of the court on this point was as follows : — "If we take this case on a still broader ground, we should be at a loss to perceive the principle on which an action of assumpsit could be maintained. In the case of money or propertj' paid to the vendor, for the land itself, when he had only given his promise to convey, and should refuse to fulfil it, as such promise is of no avail in law, the price may be recovered back, on the principle that the consideration on which it was paid happens to fail. But, with regard to ameliorations made under such circumstances, they ar e not designed for the use of the seller. He is not instrumental in causing them to be made, as he is in case of payment of th e price. They may or ma}- not be made, at the election of the pui>~ chaser ; and in searching the principles over for which an implied assumpsit will lie, we discover not one which would support the action. If the seller can be nf all made liable for them, it must be on the principle of equity that he ought not, when the improve' ments are delivered over to him, to be enriched by another's loss." ••It is true, an implied assumpsit will lie for work and labor done for the defendant upon his request and assent, without any fixed price or any express promise to pay; but the labor must be 1 See, however, Clark u. David- " 4 Litt. 220- son, 53 Wis. 317. ' The italics are the author's. 368 THE LAW OF QUASI-CONTKACTS. his, and the work be done for him, and not for another, and the work afterwards happen to become his, before the action can be sustained." In Cook V. Doggetti the plaintiff sued to recover for the value of services rendered in cutting from the land, of which he was in possession under an oral contract for the purchase thereof, and storing in the defendant's barn, a crop of hay, of which it was admitted the defendant had had the benefit. It also appeared that the defendant had refused to perform the contract, relying upon the statutes of frauds. It was held that there could be no recovery for the services rendered. Said the court: — "The judge also correctly instructed the jury that the plaintiff could not recover for the expenses of cutting the hay, as it was not cut at the defendant's request. There was no express or implied undertaking by the defendant to pay for cutting the hay. The work was done or caused to be done by the plaintiff for his own benefit, on the faith that the defendant would convey the land agreeable to his oral agreement, which the plaintiff must be sup- posed to have known he could not by law enforce." In Welsh v. Welsh '•^ the plaintiff sued to recover for improvements made upon land which the defendant had orally contracted to sell to him, using the counts for work and labor, money paid, and for money had and received. It appeared that the plaintiff and the defendant had agreed orally that the defendant should sell or lease as they might thereafter determine to the plaintiff certain land, which the plaintiff was desirous of using for certain business purposes. The plaintiff took possession of the land and made improve- ments thereon, with the knowledge and consent of the defendant. The defendant not only refused to execute a lease or conveyance thereof, but afterwards sold the prop- erty, including the buildings put thereon by the plaintiff, and appropriated the entire proceeds. It was held that 1 2 AUen, 439, = 5 Ohio, 425. IMPEOVE.MEXTS MADE UPOX LAND WITHOUT REQUEST. 369 there could be no recoTery at law for the improvements so made. The court denied the right to recover in the count for work, labor, and materials in the following language : "This action is founded upon the supposition that there was a contract which the plaintiff had a right to rescind in consequence of tlie conduct of the defendant. . . . "In the present case, tlie object is not however to recover for anything which was paid under the contract, for nothing was paid. It is to recover for work and labor done b_v the plaintiff for his own use and benefit, while he was in possession of the property. A payment made to a vendor is for his benefit. But when this labor was performed, it was not for the benefit of the vendor, nor supposed to be for his benefit. It was done with his knowledge and approba- tion, but intended alone for the use of the plaintiff. Although done with the knowledge of the vendor, it was not done even at his request. I cannot see then upon what reason the principle which authorizes a vendee to recover back money paid upon a contract which is afterwards rescinded, can be applied to this case. It seems clear that it is an effort to extend this principle to a new class of cases.'' It is respectfully submitted that none of these cases fur- nish a sufficient reason for denying the plaintiff's right to recover at law for the improvements made in the circum- stances under consideration. While it is true that the plaintiff did not intend to benefit the defendant, the fact is that he did. That the defendant should not take the benefit without compensation to the extent that he has been benefited is admitted. Why then should not the plaintiff be allowed to sue in assumpsit instead of being compelled to file a bill in equity? It is said that the case differs from the case where the plaintiff is allowed to recover against the defend- ant, relying upon the statute of frauds, the value of that which he gave as a consideration for the defendant's promise or in the performance of his, the plaintiff's, side of the contract, in that in such a case there is a failure of consid- eration, that constitutes the basis of recovery; whereas in 24 370 THE LAW OF QUASI-CONTRACTS. the case at bar there can be no failure of consideration, for the reason that the plaintiff did not expect compensation from the defendant, having made the improvements for his own and not for the defendant's benefit. That there is a technical failure of consideration in the one case and not in the other must be admitted; but it is submitted that this fact does not justify a different decision being reached in the two cases. The reason why a failure of consideration establishes a right in the plaintiff is because of the unjust enrichment which would result therefrom if the plaintiff were not allowed to recover. As a plaintiff proves failure of consideration simply to establish an unjust enrichment, it should follow that in any case where the plaintiff estab- lishes an unjust enrichment on the part of the defendant, and a court of law has the machinery by which it can give the plaintiff the relief which he asks, he should not be com- pelled to resort to a court of equity. The objection raised by the court in Welsh v. Welsh to- allowing a recovery by the plaintiff in the count for money had and received was in substance this: that the defendant' had not deprived the plaintiff of his equity, since the legal estate only was in the defendant, and as the purchaser took with notice of the plaintiff's rights, the plaintiff had not therefore lost anything, since the equity could be enforced against the purchaser. It is respectfully submitted that this^ is not a valid objection to maintaining the count for money had and received. In the same sense and with equal force could it be urged that one from whom property has been stolen cannot maintain a count for money had and received against a thief who has sold the stolen property, since the real owner can recover the property from the party to whom it was sold ; but this as we have seen is not true, the owner of the property being allowed in such a case to waive the tort and sue in the count for money had and received. ^ 1 See supra, p. 180. IMPKOYEMEXTS MADE UTON LAND WITHOUT RKyl'EST. 371 (Jii Mathews r. Davis ^jtjvassiiggested that a court of law should iiol lakt' lurlsSdlction iu this class of cases lor two reasons : 1. The incompete ncy of the jury to determine the ques- tion of ameliorations ; 2. The fact that the amount of the plaintiff's recovery should be, not the value of the services or property to him, but the enhanced value of the land to the defendant ; whereas if a recovery were allowed in a court of law, the former and not the latter would necessarily be the measure of recovery. The first objection raised by the court is intelligible, and f urnishes a satisfactory i^round for a court of law to x'efuse to take jurisdiction over this class of cases. \ While ordina- rily the value of property or services to the plaintifi' is the measure of recovery in an action against a defendant, there seems, however, to be no good reason whj-, if no other objec- tion existed to a court of law giving relief in this class of cases, the court should not charge the jury that the bene- fit conferred upon the defendant and not the value to the plaintiff of what he pai-ted with should govern them in deter- mining the amount of the plaintiff's recovery. (Shall a defendant who has refused to perform an oral ^ 'f''c,.°j]7'fo°' contract be allowed to reduce the amount of the vendee's "seandoccu- pation. recove ry for improvem ents made, by making a claim for the use and occupation of the premises by the plaintiff ? The jury were charged in Mathews v. Djivis^ that the defendant should be allowed for the value of the use and occupation of the land bv the plaintiff. It is submitted that this claim should not be allowed if i ts allowance would cause the plaintiff to suffer a loss. Although the defendant cannot be sued for a breach of con- tract, yet if his breach of contract has in fact injured the 1 6 Humph. 324. same effect Reynolds u. Johnston, 13 -6 Humph. 324. See to the Tex. 214. 572 THE LAW OF QUASI-CONTEACTS. Bight of elec- tion between specific per- lormance of contract and compensatioa for improve- ments. plaintiff, he shou ld not be allo wed in equity a recovery so long as the plaintiff cannot be put in statu quo. >. To so hold is not to award damages, but to refuse to extend to a party in default the aid of a court of equity. In Rucker u. Abell ^ the plaintiff, who had entered upon land relying upon a declaration of his father that he would convey the same to him, made improvements thereon. At the time when the son went into possession of the property the father was solvent. Subsequently the father became insolvent, and while insolvent conveyed the premises to the plaintiff. It was held that while the deed must be set aside in favor of creditors, the plaintiff was entitled to reimburse- ment to the extent that the improvements made by him had enhanced the value of the land, — subject, however, to a deduction for the use and occupation of the land. This limitation upon the plaintiff's recovery does not seem justifiable. At the time when the father delivered possession to the plaintiff, he not only had a right to give him possession, but could also have given an indefeasible title to the premises. While he did not give a title thereto, he did give possession ; and if a conveyance made at that time could not have been set aside by the creditors, it seems diffi- cult to hold that the plaintiff must pay for the use and occupation of premises when it was not intended to charge him therefor. Possession can be as much the subject-matter of a gift as title ; therefore it seems clear that until it could be said that the possession of the son was in fraud of the rights of creditors and at their expense, no charge should be made therefor. r in jurisdictions where the improvement of lan d is held to entitle a vendee to specific performance of the contract, the question arises as to the effect of this right' upon his right to demand compensation for the improvements so made. It was held in Reyn olds v. Johnston ^ that one who was 1 8 B. Mon. 566. ^ 13 ^ex. 214. IMPROVEMENTS MADE UPOX LAND WITHOUT KF.QUEsT. ;J73 entitled to specific performance could not elect to lecovor compensation from the defendant. The result of this deci- sion is, of course, that one who has refused to convey prop- erty, relying upon the statute of frauds, can come into court after such refusal, and say to the plaintiff, "You must allow me to do what at one time you desiiN?d me to do and what I refused to do. If I must either pay }ou for the improved value of the land or convey to you the property, I prefer to convey the property, and it is I, and not you, who in these circumstances ought in good conscience to be allowed to make the election.'' The writer is unable to see the justice in, or the necessity for, such a decision. In Smith v. Hatch ^ it was held that, assuming the plain- tiff's performance of the contract which the defendant had refused to perform, relying upon the statute of frauds, to be such a performance as would entitle him to specific per- formance, still it was for him to elect whether he would have a decree for specific performance or sue to recover the c onsideration which n ad been pant by bun. ) The fact that in Smith v. Hatch the plaintiff was suing to recover the consideration given by him, while in Reynolds V. Johnston the plaintiff was seekiug a recovery, not of the consideration, but of value received by the defendant, would not seem to be a fact distinguishing the cases in point of principle. SECTIOX II. KECOVERT BY A VEXBEE FOR IJIPRO-\'EMi;XTS MADE fXDER AX 0K.4X COXTRACT WHICH HE HAS REFUSED TO PERFORM. Qlt seems clear that a vendee who has made improvements N o recovery •^ lor improve- against the consent and advice of the owner ot the la nd, and mentsmade . ° I — r~ m '' after default after a default on his part in the payment ol t he purchase- aiida);niiist ihe ■ ' » — >Mi*iBdvice of Hic vendor. • 46 N. H. 146. 374 THE LAW OF QUASI-CONTRACTS. money, should not be allowed to recover because of the enhanced value of the land.^ ") Right of re- . r Shall, however, a vendee who has refused to perform a ?mpnLments contract rely ing upon the statute ot Irauds, but wno m ex- dTfaiiitf^*"'^ pectation of performan ce made improvements enhancing the value of the land, be allowed to recover tor tJie improve- ments so maae r"^ ~~ There should, of course, be no recovery for the value of improvements so made in jurisdictions where one who has refused to perform a contract, relying upon the statute of frauds, is not allowed to recover the money paid or the value of the services rendered thereunder. The right to recover for improvements made by the vendee for his own benefit, without the co-operation of the vendor, cannot possibly be stronger than the right of a plaintiff to recover money paid or the value of services rendered or property delivered under a contract where the defendant co-operated with the plaintiff and where the money was paid or the service rendered in the expectation of the defendant paying therefor. In Guthrie v. Holt ^ the defendant when sued for the use and occupation of premises of which he had been in posses- sion under an oral contract for the purchase thereof, which he refused to perform, attempted to reduce the amount of the plaintiff's recovery, to the extent that improvements made by him on the land had enhanced the value thereof. It was held that as the vendor was willing at all times to perform the contract, the defendant was not entitled to com- pensation for the improvements made by him. In Farnam v. Davis ^ the plaintiff made an oral agreement with the defendants, as selectmen of a town, for the purchase of a house, of which he notified them he wanted immediate 1 Rainer u. Huddleston, 4 Heist, ing at the presenttime in Tennessee 223. as to the effect of the statute of 2 9 Bax. 527. See, however, su- frauds. pra, p. 232 n. 3, for the view pvevail- 3 32 jf. H. 302. IMPROVEMEXTS JIADE UPON LAND WITHOUT REQUEST. 375 possession, in order to repair the same. While in posses- sion and making repairs, he was advised by one of the defendants "not to proceed any farther." He thereupon vacated the premises and moved into and fitted up another house. Subsequently he refused to accept a conveyance of the house. It was held that he was not entitled to recover compensation for the improvements made by him. Sawyer, J., said: — "The question for consideration is, whether, upon the facts proved, the action can be maintained. The repairs which are the subject of the suit under one of the counts were not made for the defendants, not upon their account, nor for their benefit. There is no pretence of an express promise to pay for them, and we can perceive no ground upon which the law will imply such promise. They were made by the plaintiff, under the expectation founded on the agreement of the defendants, acting in behalf of the town, for the sale of the house, that they would enure to his benefit as the future owner of the house; and if he has not derived from them the benefit expected, it is not because of the want of authority in the defendants to make the agreement in behalf of the town, but because, having 'changed his plans,' he preferred to relinquish all the advantage which a fulfilment of the agreement would have secured, and therefore refused on his part to fulfil it." The correctness of this decision would seem to depend upon whether the plaintiff was justified in acting upon the suggestion that he make no further repairs. If that sugges- tion was given to him in circumstances justifying his acting thereon, it would seem that the subsequent tender of a convey- ance to him, after he had changed his position and purchased elsewhere, should not have defeated a recovery by him. Even in jurisdictions where the plaintiff is allowed to recover the money or the value of the services rendered under a contract which he has repudiated because of the statute of frauds, it could be consistently held that there should be no recoverv for improvements made by a vendee in possession who has refused to complete the contract, relying upon the 376 THE LAW OF QUASI-CONTRACTS. statute of frauds. Where a plaintiff is allowed to recover for money paid or services rendered under a contract which he has refused to perform, relying upon the statute of frauds, the recovery is put on one of two grounds, — that to deny a recovery would be to charge the plaintiif with the perform- ance of the contract; or that the statute of frauds enables either party to rescind, and that where a contract is rescinded, money which has been paid or services which have been rendered under the contract, without the receipt of an equivalent, should be returned to the plaintiff in value. But where improvements have been made, not at the request of the defendant or in pursuance of a contract, they cannot on the rescission of the contract be referred thereto as hav- ing been received by the defendant from the plaintiff without consideration. This distinction was recognized in Gillet v. Maynard,' where, while the plaintiff was allowed to recover money which he had paid under a contract, it was held that he could not recover for improvements made upon the prop- erty. Thompson, J., delivering the opinion of the court, said : — ' "If the contract be considered as rescinded, no doubt can b& entertained but that the plaintiff is entitled to recover back the money paid by the intestate. The case of Towers v. Barrett (1 T. R. 133) fully establishes the principle, that assumpsit for money had and received lies to recover back money paid on a contract which is put an end to, either where, by the terms of the contract, it is left in the plaintiff's power to rescind it, by any act, and he does it, or where the defendant afterwards assents to its being rescinded. I see no ground, therefore, upon which the defendant can resist a reimbursement of the sums he has received as a pay- ment upon the contract which he has himself put an end to. The plaintiff, however, ought not tb have recovered any compensation for the improvements. There was no express or implied under- taking by the defendant to pay for them. Whe^i the work was done by the intestate, it was for his own beneiit; and if he volun- ' 5 Johns. 85. IMPEOVEMEXTS MADE UPON L.VXD WITHOUT KEQUEST. 377 tarily abandoned his contract, ^Yithont any stipulation as to tlic improveuientti, he must he deemed to have waived all claim to any compensation for them." If the improvements made by the plaintiff are made after he has disabled himself from performing the contract, it seems clear that he should not be allowed to claim against the vendor for the improvements so made.^ SECTION III. K ECOVERY FOR IMPROVEaiEJfTS MADE UXDER MISTAIvE AS TO THE OWXERSHIP OF LAXD." It is conceded that a court of equity will, if a pi nintifft Relief m seek relief in equity against a defendant as to land which! the defendant has in good faith improved under the impres-\ sion that he was the owner thereof, grant relief only on condition that the defendant be reimbursed to the extent that his expenditures have enhanced the value of the land." The measure of recovery in such cases is the enhanced value of the land, not exceeding the cost to the defendant, at the time when the plaintiff took possession, less the rental value of the land without the improvements during the time that the defendant was in possession thereof.^ Xot only will a court decree compensation for improve- 1 French t. Seely, 7 Watts, 231 . elation i'. Morrison, 39 Md. 281; - In many jurisdictions the ques- Smith r. Drake, 8 C. E. Gr. 302; tions considered in this section are Haggerty r. McQanna, 10 C. E. Gr. regulated by statutes known as 48 ; Freichnecht r. Meyer, 39 N. J. "Betterment Acts," but it is be- Eq. .lol ; Thomas v. Evans, 105 yond the scope of this work to con- ^. Y. 601 ; Preston v. Brown, 35 sider them. Oh. St IS. ' Williams r. Gibbes, 20 How. ■* Smith r. Drake, 8 C. E. Gr. 535 ; Thomas u. Thomas' Executor, 302 ; Preston v. Brown, 35 Oh. St. 16 B. Mon. 420 ; Hawkins v. Brown, 18. 80 Ky. ISO ; The Union Hall Asso- S78 THE LAW OF QUASI-CONTRACTS. ments made in good faith by the defendant, and which have enhanced the value of the land, but it will also compel the plaintiff, as a condition of obtaining relief, to reimburse the defendant for taxes paid,^ and for expenses incurred in making necessary and useful repairs. ^ That the mistake made by the defendant was one of law is material.^ Should, however, relief be given only by way of limitation upon the rights of the true owner in equity, and as a condi- tion of giving him equitable relief, if this is to be regarded as the extent of the rights of one innocently improving land under mistake as to the ownership thereof, it follows, that if the owner of the land is not compelled to invoke the aid of a court of equity, he will be able to enjoy the benefits arising from such improvements or expenditures without making compensation therefor. The fact that the taking of an account is usual in this class of cases, would seem to justify a court of law in refus- ing to give relief in an action of assumpsit. But since the reason why a plaintiff seeking to recover land which has been improved by a defendant in good faith under mistake is granted conditional relief only, is that to allow an uncon- ditional recovery would enable the plaintiff to unjustly enrich himself, it seems that a court of equity should give affirma- tive relief on a bill filed by the party making the improve- ments or expenditures in question. While it is true that a court of equity will often refuse a complainant relief unless he will recognize certain rights asserted by the defendant, when in fact it would not grant relief to the defendant as a plaintiff, yet it is believed that in all such cases there will ' 1 gaakius.''. Brown, 80 Ky. 186; = Smith v. Drake, 8 C. E. Gr. Sguih V. Drake, 8 C. E. Gr. 302; 302; Freichnecht r. Meyer, 39 N. J. Haggerty v. McCanna, 10 C. E. Gr. Eq. 5.51. 48; Frsifiljnecht v. Meyer, 39 N. J a Freichnecht v. Meyer, 39 N. J. Eq. 5.51. Eq. 551. IMPEOVEMEXTS MADE UPOX LAXD WITHOUT KEQUEST. 379 be found some positive rale of law or equity which would be violated were the court to entertain a bill. But in the cases under consideration, unless the mistake is one of law, there seems to be no rule of equity which would be violated by the courts maintaining a bill filed by the party who incurred the expenses. In a few cases the right of a party so situated to file a bill has been recognized. ^ In Brigh t v. Boyd 2 the plaintiff, who had improved land by building thereon, supposing that he had acquired title thereto, when he in fact had not, and against whom a judg- ment in ejectment had been obtained, was, on a bill filed by him as complainant, given a decree, making his claim, to the extent that his expenditures had enhanced the value of the property, a lien thereon, and directing a sale thereof in the event of the defendant's refusin to reimburse him for the expenditures so made.'' 1 Bright V. Boyd, 1 Story, 478. ■2 Storv. 608. The Union Hall Association u. Morrison, 30 ^Id. 281. In Haggerty !■. McCanna. 10 C. E. Gr. 43, the right of the plaintiff to file such a bill was denied because the mistake made by him was due to his negligence. ' 1 Story. 47S. ' Mr. Justice Story, who recog- nized that the decree made by him was without precedent, expressed himself in his opinion referring the case to a master, as follows: — '■ The other question, as to the right of the purchaser, ioiia fide and for a valuable consideration, to compensation for permanent im- provements made upon the estate which have greatly enhanced its value, under a title which turns out defective, he having no notice of the defect, is one upon which, looking to the authorities, I should lie in- clined to pausa Upon the general principles of courts of equity, acting ex cequo el bono, I own that there does not seem to me any just ground to doubt that compensation, under such circumstances, ought to be allowed to the full amount of the enhanced value, upon the maxim of the com- mon law. Nemo debet locupletari ex alterius incommodo ; or, as it is still more exactly expressed in the Di- gest, /ure naturtB cequum est, neminem cum alterius detrimento el injuria fieri locupletiorem. I am aware that the doctrine has not as yet been carried to such an extent in our courts of equity. In cases where the true owner of an estate, after a recovery thereof at law from a bona fide pos-_ sessor for a valuable conside ration without notic e, seeks an account in equity as plaintiff, against such pos- sessor, for the rents and profits, it is the constant hiibit oE courts of 380 THE LAW OF QUASI-CONTEACTS. In Goodnow v. Moulton^ the plaintiff, who had paid taxes levied upon land of which he supposed he was the owner, equity to allow such possessor (as defendant) to deduct therefrom the full amount of all the meliorations and improvements which he has beneficially made upon the estate; and thus to recoup them from the rents and profits. So, if the true owner of an estate holds only an equitable title thereto, and seeks the aid of a court of equity to en- force that title, the court will ad- minister that aid only upon the terms of making compensation to such bona fide possessor for the amount of his meliorations and im- provements of the estate, beneficial to the true owner. In each of these cases the court acts upon an old and established maxim in its jurispru- dence, that he who seeks equity must do equity. But it has been supposed that courts of equity do not, and ought not, to go further, and to grant active relief in favor of such a bona fide possessor making per- manent meliorations and improve- ments, by sustaining a bill brought by him therefor against the true owner after he has recovered the premises at law. I find that Mr. Chancellor Walworth, in Putnam v. Ritchie (6 Paige, 390), entertained this opinion, admitting at the same time that he could find no case in England or America where the point had been expressed or decided either way. Now, if there be no authority against the doctrine, I confess that I should be most reluctant to be the first judge to lead to such a decision. It appears to me, speaking with all deference to other opinions, that the denial of all compensation to such a bona fide purchaser in such a case, where he has manifestly added to the permanent value of an estate by his meliorations and improvements, without the slightest suspicion of any infirmity in his own title, is contrary to the first principles of equity. Take the case of a vacant lot in a city, where a bona fide pur- chaser builds a house thereon, en- hancing the value of the estate to ten times the original value of the land, under a title apparently perfect and complete; is it reasonable or just that in such a case the true owner should recover and possess the whole with- out any compensation whatever to the bona fide purchaser? To me it seems manifestly unjust and in- equitable thus to appropriate to one man the property and money of an- other, who is in no default. jThe^ argument, I am aware, is thafthe moment the house is built it belongs to the owner ot Utfe land by mere opei'ation of law j ahd that ne may certainly possess and enjoy his own. But this is merely stating the tech- nical rule of law by which the true owner seeks to hold what, in a just sense, he never had the slightest title to, that is, the house. It is not answering the objection, but merely and dryly stating that the law so holds. But then, admitting this to 1 51 la. Wall. 153. 555. See, however, Homestead Co. v. Valley Co., 17 IMPROVEMKXTS MADE UPON LAXI) WITHOUT EEQUEST. 381 when ill fact it belonged to the defendant, was given a lien in equity for the taxes so paid. be so, does it not furnish a strotig ground v,'hj equity should interpose and giant relief V " I have ventured to suggest that the claim of the bona fide purchaser under such circumstances is founded in equity. I tliinkit founded in the highest equity ; and in this view of the matter I am supported by the positive dictates of the Roman law. The passage already cited shows it to be founded in the clearest natural equity. Jure nalura mquum tst. And the Roman law treats the claim of the true owner, without making any compensation under such circum- stances, as a, case of fraud or ill faith. . . It is a grave mistake, sometimes made, that the Roman law merely confined its equity or remedial justice on this subject to a mere reduction from the amount of the rents and profits of the land. The general doctrine is fully ex- pounded and supported in the Digest, where it is applied, not to all expenditures upon the estate, but to such expenditures only as have enhanced the value of the estate (qiintenii^ prelinsior res facta est), and beyond what he has been re- imbursed by the rents and profits. The like principle has been adopted into the law of the modern nations which have derived their jurispru- dence from the Roman law ; and it is especially recognized in France and enforced by Pothier, with his accustomed strong sense of equity, and general justice, and urgent rea- soning. Indeed, some jurists, and among them Cujacius, insist, con- trary to the Roman law, that even a mala fide possessor ought to have an allowance of all expenses which have enhanced the value of the estate, so far as the increased value exists. '' The law of Scotland has allowed the like recompense to bona fide possessors making valuable and per- manent improvements ; and some of the jurists of that country have ex- tended the benefit to mala fide pos- sessors to a limited extent. The law of Spain affords the like pro- tection and recompense to bona fide possessors, as founded in natural justice and equity. Grotius, Puffen- dorf, and Rutherforth all affirm the same doctrine, as founded in the truest principles ex cequo et bono." On the confirmation of the :Master"s (2 Story, 60S), report Mr. Justice Story expressed himself as follows: — " I have reflected a good deal upon the present subject; and the views, expressed by me at the former hearing of this case, reported in 1 Story, R. 478, el seg., remain un- changed ; or rather, to express myself more accurately, have been thereby strengthened and confirmed. j\Iy judgment is, that the plaintifi is entitled to the full value of all the improvements and meliorations which he has made upon the estate, to the extent of the additional value which they have conferred upon the land. It appears by the ^Master's report, that the present value of the 382 THE LAW OF QUASI-CONTEACTS. In O'Connor v. Hurley ^ it appeared that the plaintiff had suggested to his sister, one of the defendants, she being obliged to move from the house which she had been occupying, that she build the house for herself and her fam- ily. On her statement that she had no money with which to build the house, he agreed to furnish the money if he t pould have the land and the house as security. The plaintiff thereupon built the house. Both the plaintiff and his sister at the time when he built the house supposed the land belonged in fee to her. The other defendants were daugh- ters of the plaintiff's sister, and although they knew that the plaintiff was building the house for their mother, to be occupied by the mother and themselves, they also supposed that the mother owned the property in fee. The mother iu fact had only a dower interest, the fee being in the daugh- ters, subject to that interest. The plaintiff's sister having failed to pay the note which she had given for the building of the house, the plaintiff foreclosed the mortgage given as security for the note. The foreclosure sale not having real- land with the improvements and muneration, and that such increase meliorations is $1,000; and that the of value is a lien and charge on the present value of the land without estate, which the absolute owner is these improvements and meliora- bound to discharge, before he is to tions is but $25 ; so that in fact the be restored to his original rights in value of the land is increased thereby the land. This is the clear result $975. This latter sum, in my judg- of the Roman law ; and it has the ment, the plaintiff is entitled to, as most persuasive equity, and, I may a lien and charge on the land in its add, common sense and common present condition. I wish, in coming justice, for its foundation. The to this conclusion, to be distinctly Betterment Acts (as they are com- understood as affirming and main- monly called) of the States of Mas- taining the broad doctrine, as a sachusetts and Maine, and of some doctrine of equity, that, so far as an other States, are founded upon the innocent purchaser for a valuable like equity, and were manifestly consideration, without notice of any intended to support it, even in infirmity in his title, has, by his suits at law for the recovery of the improvements and meliorations, estate." added to the permanent value of the * 147 Mass. 145. estate, he is entitled to a full re- IMPKOYEMENTS -MADE UPON LAND AVITHOUT BEQUEST. 383 ized the amount of expenses incurred by the plaintiff, he sued the mother and daughters, alleging that they requested him to build the house, and promised to pay therefor. Although it was admitted that the expenditures made by him had correspondingly increased the value of the prop- erty, it -(vas held that he could not recorer. The decision in this case can be supported, it would seem, upon a point of pleading, namely, that the parties did not enter into a joint obligation to pay the plaintiff for the build- ing of the house. The mother made an express and several contract, and there was. therefore, no joint liability on the part of the mother and daughters. Waiving this point, the case seems to involve the principle heretofore considei-ed, where it was held that equity would give relief for improve- ments made under mistake. The fact that the plaintiff did not consider himself the owner of the property, if in fact he made the improvements thinking that the property be- longed to another, who would therefore have a right to mort- gage the same to him as security, does not distinguish the cases. It is the fact that a party has made improvements in good faith, that have enhanced the value of land, and not the fact that he supposed himself to be the owner of the property, it is submitted, that should constitute the basis of recovery. That the work was done because of a contractual liability assumed by the mother, it is submitted, should not defeat the plaintiff. It is evident from the facts that what the plaintiff looked to for compensation, was not the credit of the mother, but the security of the land. Furthermore, under the decisions heretofore considered, had the mother paid the plaintiff for the improvements so made, she would clearly have had a right to reimhursement had it been necessary for the daughters to assert their claim in equity. And under the decision in ^xighi *'• Boyd, unless the mistake was one of law, she would have had a right to file a 384 THE LAW OF QUASI-CONTRACTS. bill in equity for relief. That the daughters had not occupied the building seems to be immaterial, since their interest was an interest by way of remainder, and the value of their remainder was increased because of the improvements made by the plaintiff. The fact that the daughters had only an interest by way of remainder, subject to a life interest in the mother, would, of course, be material in considering the value of the improvements to the daughters. It is respectfully submitted that the suggestion made by the court in O'Conner v. Hurley, that it did not appear that they had objected to a removal of the house by the plaintiff, is not of itself conclusive as to the existence or non-exist- ence of a liability on their part. If the plaintiff could not reimburse himself by a removal of the house, and yet the house distinctly enhanced the value of the property, it would hardly seem that in such a case a defendant should be allowed to escape liability by giving a plaintiff permission to remove or tear down the structure which had been erected by him. ' It is further submitted that the case of Wells v. Banister ^ while authorizing the statement of the court, that one can- not merely by erecting a house on land, compel another to pay therefor, cannot be said to support the decision in O'Conner v. Hurley. In Wells V. Banister it appeared that the defendant's son had erected a house upon land belonging to the defendant, under a license given him by the defendant to do so; the defendant not obligating himself either to convey the land to the son or to pay him for the improvements so made. Since the son knew that the land belonged not to himself but to 1 In McCrackea u. McCracken, of , could not recover against the de- 88 N. C. 272, it was held that one fendant, who had refused to convey who had erected buildings and made the land, but who had offered to allow other improvements on land of him to remove the improvements which he was in possession under an made by him. oral contract for the purchase there- ^ 4 Mass. 514. IMPROVEMENTS MADE UPON LAND WITHOUT REQUEST. 385 his father, and made the improveuients on the land, not intending to charge the fatlier therefor, and knowing that the father did not intend to assume any obligation in refer- ence thereto, it was properly held that the father could not be charged for the improvements. To have held otherwise would have defeated the intention of the parties, in that it would have given the son rights which, with a full knowl- edge of all the facts, he did not expect. But in 0' Conner v. Hurley, had the plaintiff known the facts, he would not have made the improvements in question without securing rights agaiust the interest which the daughters had in the land. Hn the Isle _Royale Mining Company v. Hertin^it appeared that the plaintiff, owning a tract of land adjoining that of the defend ant, in consequence of a mist ake as to the boun- daries, went upon the defen dant's land and cut a quantity of wood, which he hauled some distance with a view to s.elling it. The defendant took possession of and disposed of it. It was held that the plaintiff was not eniitled to recover for the beneTit thereby conferred on the defendant. \ If it be assumed that the trees were worth more to the defendant when standing than when cut, then, of course, the plaintiff should not have recovered.- It would be impossible in that event to predicate an unjust enrichment on the part of the defendant ; but if it be assumed that the defendant would itself have cut the trees for the purpose of disposing thereof in the market, or for the purpose of using the same as fuel, it is submitted that a different result should have been reached. It seems difficult to distinguish in principle this case from the cases heretofore considered, where it has been held that compensation should be made to one enhan- cing in value, in good faith but under mistake, the property of another. In the case under consideration nearly two thirds of the value of the wood was due to the work of the plaintiff, and the facts were such, that a court of law was as 1 37 Mich. 332. ^ Kemble v. Dresser, 1 Met. 271. 25 386 THE LAW OF QUASI-CONTRACTS. competent to do full justice between the parties as a court of equity. Had the defendant sued the plaintiff in trover for a con- version of the property, because of the refusal of the plaintiff to deliver the same to him upon demand, the limit of the defendant's recovery in many jurisdictions would have been the value of the wood, less the value added thereto by the plaintiff. In other words, in assessing the damages in an action for the conversion of goods, the fact that the defend- ant in the action is innocent of wrong-doing is taken into consideration, and he is in effect allowed a credit for his- labor and services. In the Isle Royale Mining Com.pany v. Hertin, one of the grounds for denying a plaintiff a recovery was that it would encourage carelessness ; yet the principle recognized in the assessment of damages against an innocent defendant would seem to be equally productive of carelessness. In " Walker v. Mathews^ it was held that one who had purchased in good faith in market overt cows from a thief, could not recover from the owner, who had retaken them under a statute allowing a retaking after the prosecution of the thief, the expenses incurred by him for their keep, ^ although he had accounted to the owner for the value of the milk yielded by the cows while in his possession. No opinion was given by thie court in deciding against the plain- tiff, but Lopes, J. , suggested during the argument of counsel, " that he was keeping his own property, and could not in the absence of any contract with the plaintiff, claim from him the costs of keep." It is submitted that the case of Walker v. Mathews is not to be distinguished in point of principle from Bright v Boyd ; and that one should not be denied a right of reim- bursement who has conferred a benefit because he was technically the owner of property at the time when the 1 8 Q. B. D. 109. IMPROVEMEXTS MADE UPON LAXD WITHOUT REQUEST. 387 expenditures were made, if in fact he would have been enti- tled to reimbursement had he not been technically the owner but supposed himself to be. The basis of the recovery in such cases is not, that the party intended to benefit not him- self but some one else, but that he has in fact conferred a benefit on another in circumstances where, as between tne two parties, it should not be at his expense. 388 THE LAW OF QUASI-CONTEACTS. CHAPTER IX. BECOVERY OP MONEY PAID TO THE USE OP THE DEPENDANT. ( No one officiously paying; the debt of another can maintain an action either at la w or in equity to recover from the debtor the money so paid. *) To hold otherwise would be to hold that a person has a right to thrust himself officiously upon another as his creditor. If, however, the payment made, though made without request, is not regarded in law as having been officiously made, the party so paying is entitled to be reim- bursed by the debtor to the extent that the debt as between the debtor and himself should in equity and good conscience have been paid by the debtor. It is proposed to consider in this chapter the rights of a plaintiff who has paid the debt ot a detenaant to prevem a sale of his own property, or who nas paid a ciaim wmcn, as between the defendant and himselt, should in equity and good conscience liave been paid by the defendant. \ SECTION" I. KECOVERY OF MONET PAID TO PREVENT A SALE OF PROPERTY. Recovery of Qt Js held that if without fault on the part of the plaintiff. t *re?ease prop^ itjs necessarv for him to pay the debt of another in order to distress'for prevent a sale of his own property, he can recover from the ""*■ debtor the payments so made. "^ The leading case upon thi^ point is the case of Exall v. Partridge et aU In that case the three defendants were " 8 T. R. 308. MOXEY PAID TO THE USE OF THE DEFENDANT. 389 lessees of certain in-emises. The defendant, Partridge, had, to the knowledge of the plaintiff, secured from the other defendants an assignment of their interest. None of the lessees, however, were released by the landlord from the obli- gation originally assumed by them to pay the rent. After this assigmr.ent the plaintiff left his cariiagc upon the prem- ises, under the care of the defendant. Partridge, a coach- maker. The carriage having been distrained by the landlord for rent due under the lease, the plaintiff, in order to recover his property, paid the rent, taking from the landlord a receipt stating that the rent ^vas paid by the plaintiff for the benefit of the defendants. It was held that the plaintiff could recover from the three defendants the money so paid. The opinion of Grose. J., representing the grounds upon which the case was decided by the court, was as follows : — "The question is, whetlier the payment made by the plaintiff under tliese circumstances were such an one from Avhicli the law will imply a promise hy tlie three defendants to repay; I think it was. All the three defendants were originally liable to the land- lord for the rent; there was an express covenant by all, from which neither of them \\"as released; one of the defendants only being in the occupation nf these premises, the plaintiff put his goods there, which the landlord distrained for rent, as he had a right to do; then for the purpose of getting back his goods he paid the rent to the landlord which all the tliree defendants were bound to pay. The plaintiff could not h.ave relieved himself from the distress without paying the rent; it was not tlierefore a voluntary but a compulsory paj-ment; under tliese circumstances the law implies a promise by the three defendants to repay tlie plaintiff. And on this short ground I am of opinion that the action may be main- tained." On this principle it was held in Wells v. Porter i that the plaintiff who had purchased his own property at a sale thereof under a distress for rent, which was charged upon property 1 7 Wend. 119. 390 THE LAW OF QUASI-CONTKACTS. of the defendant, could i*ecover the money so paid in a count for money paid to the use of the defendant. So in Graliam v. Dunigan ^ it was held that a life tenant, who had been compelled, in order to protect her interest, to pay taxes which should have been paid by the defendant, could recover from him the money so paid. In England 'v- Marsden,^ the plaintiff, a mortgagee of per- sonal property, took possession of the property after default upon the part of the defendant, the debtor, but left the same on premises, of which the debtor's wife and family were occupants. The goods having been distrained for rent by the landlord, the plaintiff paid the rent to release the goods from the distraint. It was held that as it did not appear that the goods were left on the premises with the defendant's express authority, there could be no recovery. Erie, C. J., attempted to distinguish the case from Exall v. Partridge, saying : "There is, however, one great distinction between that case and this. There, Partridge was a coachmaker, and Exall, at his request, bailed his carriage with him. The landlord distrained it for rent, and Exall cleared it from that burthen bj- paying the sum claimed; and it was held that the action lay because the carriage was left upon the defendant's premises at the defendant's request and for his benefit. Here, however, the plaintiff's goods were upon the defendant's premises for the benefit of the owner of the goods, and without any request of the defendant. The plaintiff having seized the goods under the bill of sale, they were his absolute property. He had a right to take them away. He probably left them on the premises for his own purposes, in order that he might sell them to more advantage. At all events they were not left there at the request or for the benefit of the defendant. It is to my mind pre- cisely the same as if he had placed the goods upon the defendant's premises without the defendant's leave, and the landlord had come in and distrained them." It is submitted that it is impossible to support the decision in this case. That the plaintiff's goods were lawfully on the 1 2 Bosw. 516. !! L. R. 1 C. P. 529. -MOXEY PAID TO THE USE OF THE DEFENDANT. 391 defendant's premises was not questioned ; that they were law- fully seized for the defendant's debt was not questioned ; that the payment by the plaintiff of the rent resulted in the payment of the defendant's debt by the plaintiff was not questioned. If then the plaintiff was not acting as an officious volunteer, either in leaving the goods on the defendant's premises, or in paying the defendant's debt to avoid losing his goods, why should he not be allowed to recover ? The fact that in Exall v. Partridge the property was left on the premises by the express consent of the defendant Partridge, it is submitted, does not warrant a different result in the two cases. Furthermore, the distinc- tion suggested does not reconcile the two decisions, for the reason that while in Exall v. Partridge the three defendants were held liable, it did not appear that more than one of the three defendants charged knew of the carriage being left on the premises, and it certainly -was a fact that only one of them requested the carriage to be left. The decision in England v. Marsden has been severely criti- cised, and can hardly be regarded as law, since the decision in Edmunds v. Wallingford,^ where Lord Justice Lindley, speaking of that decision, said, " This appears to us a very questionable decision. The evidence did not show that the plaintiff's goods were left in the defendant's house against his consent; and although it is true that the plaintiff only had himself to blame for exposing his goods to seizure, we fail to see how he thereby prejudiced the defendant, or why, having paid the defendant's debt, in order to redeem his own goods from unlawful seizure, the plaintiff was not entitled to be reimbursed by the defendant." In Edmunds v. Wallingford, the plaintiff sought to recover,' Right of recnv - money paid in the following circumstances : The defendant SlaiiftiFlpron- , ,.-,. 1 1 • r j^ c T • J. • er tv IS sold to purchased m his own name, but m tact lor his son, a certain sSistV a iudg - , . .1.1-1- 1 i* j_i • ment obtamed business, taking also in his own name a lease of the premises ^pinst de- ' on which the business was conducted. The defendant assisted ^^""^ 3 1 14 Q. B. D. 811. 392 THE LAW OF QUASI-CONTRACTS. from time to time in and about the management of the busi- ness, and his family occupied the premises on which the business was conducted. The goods having been seized and sold to satisfy a judgment debt of the defendant, and it hav- ing been held that the son was estopped from denying the defendant's title thereto, the plaintiff sued, as receiver in banlcruptcy of the son, to recover as for money paid to the use of the defendant. It was held that he was entitled to recover. Lindley, L. J., delivering the opinion of the court^ said : — "The first guestion is the liability incurred by the defendant to his sons by reason of the seizure of what he has deliberately asserted to be their goods, for his debt. That, as between the father and the sons, the goods were theirs, we consider established by the father's own statements. Speaking generally, and exclud- ing exceptional cases, where a person's goods are lawfully seized for another's debt, the owner of the goods is entitled to redeem them, and in the event of the goods being sold to satisfy the debt, the owner is entitled to recover the value of them from the debtor. . . . "In order to bring the present case within the general principle alluded to above, it is necessary that the goods seized shall have been lawfully seized ; and it was contended before us that the sons' goods were in this case wrongfully seized, and that the defendant, therefore, was not bound to indemnify them. But when it is said that the goods must be lawfully seized, all that is meant is that as between the owner of the goods and the person seizing them, the latter shall have been entitled to take them. It is plain that the principle has no application, except where the owner of the goods is in a position to say to the debtor that the seizure ought not to have taken place; it is because as between them the wrong goods have been seized that any question arises. Now in this case it has been decided between the owners of the goods seized (i. e., the sons) and the sheriff seizing them, that the goods were rightfully seized ; and although the defendant is not estopped by this decision, and is at liberty, if he can, to show that the seizure was one which the sheriff was not justified in making, he has not done so. Indeed, the defendant's connection with his sons' business was such as to- justify the inference that the sheriff had a right to seize the goods- MONEY I'AID TO THE USE OF THE DEFENDANT. 393 for the defendant's debt, and if, in truth, any mistake was made by the sheriff, the defendant had only himself to thank for it. His own conduct led to the seizure, and although he did not in fact request it to be made, he brought the seizure about, and has wholly failed to show that the seizure was wrongful on the part of the sheriff. •'The case, therefore, stands thus: goods which the defendant has admitted in writing to be his sons", have, owing to his conduct, been legally- taken in execution for his debt, and the proceeds of sale have been impounded as a security for what is due from him to the execution creditors. The defendant, therefore, was liable to repaj" to his sons the amount realized by the sale of the goods." In Johnson i: Roval Mail Steam Packet Co.,i the plaint iff (Recovery of • ' javments matt e sued to recover monev paid in the following circumstances ; Tu'niiiiUjy uruij. " _ . erlv IrOffl Srt Vessels, of which the plaintiffs were mortgagees, were with attacnmenr. the plaintiffs' consent chartered to the defendants, the defen- dants undertaking the management thereof. In consequence of the failure of the defendants to pay the sailors their wages, the vessels were libeled, and to release the vessels from seiz- ure, the plaintiffs were compelled to pay the claims. It was held that the plaintiff could recover from the defendant th e money so paid.") Willes, J., delivering the opinion of the court, said : — ' • Xow the mortgagees having had to pay sums of money for which the Eoyal ^Nlail Company were liable in the first instance, which they ought, according to maritime usage, and by their con- tract with the European and Australian Con:pany, to have forth- with paid; what answer is set up by the Royal Mail Company against reimbursing the mortgagees who have paid their debt? Of course there is, upon the surface, that by the law of this country, differing, it is said, in that respect from the civil law, nobody can make himself the creditor of another by paying the other's debt against his will or without his consent; that is expressed by the common formula of the count for money paid for the defendant's use, at his request. That is the general rule, undoubtedly ; but it is subject to this modification, that money paid to discharge the 1 L. R. 3 C. P. 38. 394 THE LAW OF QUASI-CONTRACTS. debt of another cannot be recovered, unless it was paid at his re- quest, or under compulsion, or in respect of a liability imposed upon that other. This is the modification of the rule relied upon by the plaintiff, and the question is, within which branch of the rule the present case falls ? '• This is a case which we have been compelled to consider very miich upon its own circumstances, which are very peculiar, and may be diflScult to be made a precedent, perhaps, in any future case. Perhaps the nearest case that could be put by way of illus- tration would be this. A lends B his horse for a limited period, which would imply that he must pay the expense of the horse's keep during the time he retains it. B goes to an inn and runs up a bill, which he does not pay, and the innkeeper detains the horse. In the mean time A has sold the horse out-and-out for its full price to C, and C is informed that the horse is at the inn ; he proceeds there, to take him away, but is told he cannot take him until he pays the bill, and he pays the bill accordingly and gets his horse; can C, who in order to get his horse is obliged to pay the debt of another, sue that other in an action for money paid ? We are clearly of opinion that he could, and without heaping up authori- ties where it has been held, independent of contract, that a person occupying a property in respect of which there is a claim that ought to have been discharged by another, being compelled to pay, is entitled to reimbursement, we think that this is a case in which the mortgagees, by compulsion of law, have paid a debt for which the Koyal Mail Company were liable, — a ready money debt which they ought to have provided for on the arrival of the vessel at Sydney, — and that, therefore, in respect to the claim for wages the plaintiffs are entitled to recover as on the count for money paid." Eight of re- f The dictum found in m any of the cases, that to enable a covery where >-^^ ~ ' —^ — — ^ seizure of prop- plaintiff to recover f or money paid to the u se of the defend-" ertv was un- : — '— — ^— — ^— — ^-^^— — .».^_ lawful. ant, the seizure of his property must have been lawful, was ■ followed in Myers v. Smith,^ where, though the plaintiff established a payment in consequence of the seizure of his . property for the debt of the defendant, he failed to show the lawfulness of such seizure. 1 27 Md. 91. MONEY PAID TO TIIK VSE OF THK IIF.FK XOAXT. o95 If it be assumed that the debt was in fact due, and that the plaintiff paid the debt in good faith to release his goods from a seizure which he regarded as lawful, the plaintiff certainly ought not to be regarded as an officious volunteer, and it is difficult to see how the ends of justice are furthered by deny- ing a right ol recovery agamst t he debtor, because ot the unlawfuhiess of the seizure, yt is true thai lii ijLKih jj ca.se the plaintiff can recover the money so paid from the party to whom it was paid to release his goods from the seizure,^ but the result of compelling him to pursue this remedy to the exclusion of a right against the debtor in a count for money paid to the debtor, is productive of circuity and multiplicity of action, since the creditor when compelled to refund the money received by him will again assert his claim against the debtor. SECTION II. BIGHT OF A PLAIXTIFF WHO HAS PAID A CLAIM WHICH AS BETWEEX THE PLAIXTIFF AXD THE DEFEyPAXT SHOULD HAVE BEEX PAID EITHER IX WHOLE OB ly PART BV THE DEFEXDAXT. r rhe cases arising for consideration in this section are usually cases where the payment made by the plaintiff was made in extinguishment of a clai m pviaHnn; i"n fnr'f njai'vc-f the plaintiff. The claim may have been-^ne Avhich could also have been asserted in whole or in pnrt, ncrningf tViP flAfprirlanf by the party to whom the plaintiff made the payment^ or \t may be that the claim could ^nt bavp hppn pnfnrpprl pif)^Qi- at law or in equity ag-ainst the defendant by fhp pm-fy rppsiv, ing payment from the plaintiff. The principle involved in this section is not, however, con- fined to such cases, and may be invoked by a plaintiff wlio 1 See infra, p. 426. 396 THE LAW OF QUASI-CONTRACTS. Recovery by has paid a debt without request, and under no compulsion. \ pjaiatiff pu~ , • , / chasing propT Thus the qucstion arose in McGhee v. Ellis,' which was a ^ erty under an execution sale" suit in equity, as to the right of a plaintiff who had purchased .10 wnicn ]uag - . i • i ^i • t ment deptor property Under an execution sale, to which the judgment had no title. ' debtor had no title, to recover the money so paid from the judgment debtor as paid in extinguishment of his debt. It was held that the plaintiff was entitled to such relief. The same result has been reached in other jurisdictions.^ Though . it has been doubted whether an action at law would lie against the judgment debtor,^ there would seem to be no objection to allowing the action at law as readily as in equity. That the defendant did not request the payment to be made should be no objection, as the basis of the recovery, whether at law or in equity, is the unjust enrichment that would result if the defendant were not compelled to reimburse the plaintiff. That the element of compulsion generally found to exist in the cases considered in this section is wanting, is immaterial unless it can be said that a party acts officiously who purchases at a sheriff's sale. Eight of re- fThc question of allowing a plaintiff to recover from a covery where ' ^ : ; . — the claim defendant for the payment of a claim existing in fact against existed against ^^-~^^^-«-— ~^— .aaM-nMi— ^^^^^— ^^^— ^— ^^— ^^-^— — .— i.-.^-^^— ^p-*^^^^^.-^— the plaintiff, himself, may arisd-Oin a case where the plaintiff and the defendan t sustained to each other the relationship of princi- pal and surety, oifflhat of co-sureties, o^^lt may arise where the parties a re strangers to each other with reference to the transaction in question .'^ It may be stated as a general proposition that /a plaintiff can_recover ag ainst a defendant as for money paid to his use to the extent that the claim paid by the plaintiff should Jiave been paid by the defendant.^ (T hus it was held in ^rown v. Hodgson ^ that the plaintiffs, cdmmon carriers, who by mis- 1 4 Litt. 244. J' 3 McGhee v. Ellis, 4 Litt.. 244 ; ^ Preston v. Harrison, 9 Ind. 1 ; Hawkins v. Miller, 26 Ind. 175. Short V. Sears, 93 Ind. 505 (semble); * See Aspinwall v. Sacchi, 57 Reed v. Crosthwait, 6 la. 406. N. Y. 331. 6 4 Taunt. 189. MOXEY PAID TO THE USE OF THE DEFENDANT. 397 take delivered to the defendant goods consigned to another, could recover from the defendant the amount of money which they were compelled to pay the consignee of the goods in con- sequence of the defendant having appropriated the goods to his own use. Mansfield, C. J., said : — "The plaintiffs pay Payne on account of these goods being wrongfully detained by Hodgson. They paid the value to the person to whom both they and Payne were bound to pay; and this, therefore, is not the case of a man officiously and without reason paying money for another; and therefore the action may be supported." In Hales f. Freeman ^ it was held that the plaintiff, who as executor of an estate paid a legacy without retaining the legacy duty, and who was by statute made a debtor to the crown for the amount of such duty, could, on paying the duty recover the amount thereof from the legatee. Park, J., said : — "The executor here is only made liable for the benefit of the government, pHhpTiot on his own account; he has not paid the money voluntiarily, but upon compulsion. He pays not on his own account, but upon that of the legatee. The executor is no more than surety for the legatee, and this case falls within the prin- ciples applied to the case of sureties." In Bleadeji v. Charles^ it was held that the plaintiff could recover the amount of a bill of exchange which he had been compelled to pay because of the defendant's wrongful endorse- ment thereof. The bill had been given by the plaintiff for the accommodation of the defendant's debtor, and the defend- ant refused to surrender the bill on the payment of his debt, and endorsed the same to an innocent purchaser. In S|.i encer r. Parry ^ it was held that a plaintiff who had paid taxes charged upon land of which he was the owner, and for the payment of which he only was liable under the 1 1 B. & 15. 391. 3 3 A. & E. 331. - 7 Bing. 246. 398 THE LAW OF QUASI-CONTEACTS. statute, could not, because of an agreement by the defendant, the lessee of the land, to pay the taxes, recover from the defendant the money so paid, as money paid to his use, since the payment did not discharge a debt or claim existing against the defendant, but only a claim existing against the plaintiff. It is submitted that if in good conscience the defendant should have paid the money which was in fact paid by the plaintiff, the plaintiff should have been allowed to charge him with the money so paid.^ Such is the principle of the de- cision in Brittain v. Lloyd,^ and in The Great Northern Rail- way Co. V. Swaffield.^ In Brittain v. Lloyd, the plaintiff, as auctioneer, paid the duty imposed upon him by a statute in respect of a sale which he conducted for the defendant at the defendant's request, and it was held that though the statute imposed a liability upon the plaintiff only, the plaintiff could recover from the defendant the money so paid. It is true that the court said that Spencer v. Parry was distinguishable for the reason that in Brittain v. Lloyd the defendant impli- edly requested the plaintiff to pay the taxes, in that he had requested him to act in a capacity which resulted in the obli- gation imposed upon him by the statute. But this fact does not distinguish the cases, since it would only establish that the defendant had agreed with the plaintiff that, if he would become the plaintiff's agent, she, the defendant, would indem- nify him against any liability as her agent ; that is to say, in Britton v. Lloyd the court finds an implied contract of indemnity. But in Spencer v. Parry there was an express con- tract of indemnity on the part of the defendant, that if the plaintiff would enter into the relation of lessor with her, she, the plaintiff, would indemnify him against any liability as to taxes. It is true that in Spencer v. Parry the liability ex- isted, regardless of any act of the defendant; whereas in ' See Sageman v. Kloppenburg, ^ 14 M. & W. 762. 2 E. D. S. 126. 3 L. R. 9 Ex. 1.32. MONEY PAID TO THE t'SE OF THE PEFENDAXT. 399 Brittain ;'. Lloyd the liability -was incurred because of defend- ant's act. But in each case there was a contract of indem- nity, and in neither case was there any liability on the part of the defendant to the party to whom the money was paid. In the Great Northern Railway Co. v. Swaffield ^ it was held that the plaintiff, a common carrier, who had sent the defendant's horse to a livery stable, after the defendant's wrongful refusal to receive him, could recover from the defendant the money paid by him for the keep of the horse, although there was no pretence that any obligation existed in favor of the stable-keeper against the defendant. The court put the case on the short ground that, as the plaintiff had acted reasonably and in discharge of a duty, the defendant should pay to the plaintiff the amount which the plaintiff had expended. In Moule v. Garrett ^ it was held that the plaintiff, the original lessee of certain premises, was entitled to recover from the defendants, assignees of the term, a sum of money which he had been compelled to pay in consequence of dilapi- dations which had occurred during the tenancy of the defend- ants. Cockburn, C. J., said: — "Whether the liability is put on the ground of an implied contract, or of an obligation imposed by law, is a matter of differ- ence. It is such a duty as the law will enforce. The lessee has been compelled to make good an omission to repair, which has arisen entirely from the default of the defendants, and the defend- ants are therefore liable to reimburse him." To the same principle may be referred the decision iu Van San ten v. The Standard Oil Co. ,3 where it was held that the master of a vessel who had issued a bill of lading for a quan- tity of oil in excess of that received on board his vessel, on the representation of the defendant that the quantity named in the bill of lading had been in fact delivered, and who had 1 L. R. 9 Ex. 132. » 81 N. Y. 171. "- L. R. 7 Ex. 101. 400 THE LAW OF QUASI-CONTRACTS. been compelled to make good the deficiency to the purchaser of the bill of lading, could recover from the defendant the money so paid. Nature of (iVlthourfi at the present time the right of a surety to surety's claim " ' ' against debtor, indemnity from the debtor can be worked out on the theory of a contract implied in fact, where no express contract has been made, the right hrst obtamed recogni tion in our law on the principles just stated.^"^ In Toussaint v. Martinnant, BuUer, J., speaks of the doctrine having been first introduced into the law by Gould, J., upon equitable principles. While Mr. Justice Buller was probably mistaken as to the first case in which the surety's rights were recognized at law, Gould, J., not having gone on the bench until 1763, and the surety's right having been recognized by Lord Mansfield in 1757, in Decker v. Pope,^ yet the decision was rested by Lord Mansfield' not upon a genuine contract existing between the surety and the debtor, but upon an obligation imposed by law. fA. surety, howeve r, who enters into a special contract with the debtor at the time when he becomes a surety, canno t 1 Toussaint v. Martinnant, 2 T. in love with a part of the juvisdic- R. 100; Norton v. Coons, 6 N. Y. tion of chancery, and substituted 33; Tobias v. Rogers, 13 N. Y. 59; the equitable remedy of an action Johnson v. Harvey, 84 N. Y. 363 ; of assumpsit upon the common Oldham v. Broon, 28 Oh. St. 41; mouey counts, for the more dilatory Aldrich v. Aldrich, 56 Vt. 324. and expensive proceeding by a bill " Again, it is an equitable prin- in equity in certain cases, they per- ciple of very general application mitted the person thus standing in that where one person is in the posi- the situation of surety, who had tion of a mere surety for another, been compelled to pay money for the whether he became so by actual con- principal debtor, to recover it back tract, or by operation of law, if he again from the person who ought to is compelled to pay the debt which have paid it, in this equitable action the other in equity and justice ought of assumpsit as for money paid, laid to have paid, he is entitled to relief out, and expended for his use and against the other, who was in fact benefit." Per Walworth, Ch., in the principal debtor. And, when Hunt v. Amidon, 4 Hill, 345, 348. courts of law, a long time since, fell ^ i ggi jf p_ 2^3 g^_ gj^^ MOXEY PAID TO THE USE OF THE DEFENDANT. 401 claim iiidependentU- of the contract, in the count for money paid, to the use of the defendant.^ ~) The law not only imposes on a defendant who as between Nature of himself and the plaintiff should have paid a claim, an obliga- agahfs't'co-™ tion to indemnify the plaintiff, but also requires a defendant, ^"'^'^'' who, as between himself and the plaintiff, should have paid, not the whole, but a portion of a claim, to indemnify the plaintiff to that extent. Were the law otherwise, the defend- ant would be allowed to unjustly enrich himself at the expense of the plaintiff. It is on this broad principle, and Independently of any theory of contract, that the right of a surety against his co-surety should rest, and such was in fact the theory upon which the surety's right of contribution was put in Peering v. the Earl of Winchelsea.^ In that case the plaintiff and the defendant were sureties on separate bonds for the faithful discharge of his duties by one Thomas Deering. A judgment having been obtained against the plaintiff for the balance due from Thomas Deering to the crown, because of a default by him, the plaintiff filed his bill on the equity side of the exchequer for contribution from the defendants as co-sureties. And it was held, that / notwithstanding the plaintiff and .defendant had become sureties on separate instruments, and for all that appeared wer e strangers to each other, still, since the right of contribution rested not upon contract, but upon the equitable principle that parties equally bound for a certain act should equally bear the burden, the plaintiff was entitled to contribution. \ Lord C. B. Eyre, delivering the opinion of the court, said : — " It is admitted that if they had all joined in one bond for £12,000, there must have been contribution. But this is said to be on the foundation of contract implied from their being parties in the .same engagement, and here the parties might be strangers to each 1 Toussaint v. Martinnant, 2 T. ^ o B. & P. 270. R. 100. 26 402 THE LAW OF QUASI-CONTRACTS. other. And it was stated that no one could be called upon to con- tribute who is not a surety on the face of the bond to which he is called to contribute. The point remains to be proved that contri- bution is founded on contract. If a view is taken of the cases it will appear that the bottom of contribution is a fixed principle of justice, and is not founded in contract. . . . "In Sir William Harbet's ^ case, many cases are put of contri- bution at common law. The reason is, they are all in wquali jure, and as the law requires equality, they shall equally share the bur- den. This is considered as founded in equity; contract is not mentioned. The principle operates more clearly in a court of equity than at law. . . . " In this case, Sir E. Deering, Lord Winchelsea, and Sir J. Rous were all bound that Thomas Deering should account. At law all the bonds are forfeited. The balance due might have been so large as to have taken in all the bonds ; but here the balance happens to be less than the penalty of one. ^Yhich ought to pay ? He on whom the crown calls must pay to the crown ; but as between them- selves they are in oequali jure, and shall contribute. . . . "There is an instance in the Civil Law of average, where part of a cargo was thrown overboard to save the vessel. The maxim applied is qui sentU commodum sentire debet et onus. In the case of average there is no contract express or implied, nor any privity 1 in an original sense. This shows that contribution is founded on equalitj', and established by the law of all nations." That the right of a surety to contribution from a co-surety rests not upon contract, but upon the equitable principle herein before considered, was the ground of the decision in Tobias V. Rogers,^ where it was held that a surety who had received his discharge in bankruptcy before the payment of the debt by a co-surety, was not hable for contribution. Gardiner, C. J., said: — " Contribution is not founded upon, although it may be modified by, contract. The right to it is as complete in the case where the sureties are unknown to each other as in any other. The law fol- lowing equity will imply a promise to contribute in order to afford a remedy. But as this is in most instances a fiction, in aid of an 1 3 Co. IL "- 1.3 X. Y. 59, MOXF.Y PAID TO THE USK OF THE pefexhant. 403 equitable riglit, it will never be tolerated where the relation upon which the equity is: founded is wanting. Siu'h is this ease. The liability of the defendant upon the replevin bond was discharged four years before the suit by the obligees against the plaintiff ; subsequent to that time, the plaintiff and defendant have never stood in (vt/uali Jure, in reference to the obligation of their prin- cipal. The burden, which pressed with its whole weight upon the plaintiff, was removed from the defendant by aid of the bankrupt la^y. When the former paid the judgment recovered upon the replevin bond, it was as sole surety for ilahouey and Trull, and not as co-surety with the defendant." While the theory of a contract implied in fact on the part of a surety to make contribution to a co-surety would justify the result reached in some cases/t he ripiht of contribut ion is recognized in cases wher e it is impossible to establish a con - tract between the parties : as. for example, where the plain- tiff, who has paid a debt as surety, assumed the obligation before the defendant became or agreed to become a surety.^ In such a case a contract implied in fact between the plain- tiff and the defendant is quite impossible, not only because of the absence of an intention on the part of the plaintiff to con- tract with the defendant at the time when he became surety, but also for the reason that no consideration exists for such contract, since the plaintiff ha s surrendered no right m exchange for the defendant's promise. \ In Batard v. Hawes^ it was held that the amount to be paid by the defendant, one of a number of sureties, was to be determined by ascertaining the number of sureties originally bound, the fact being that before the payment by the plaintiff, a surety, two of the sureties had died. If the defendant's liability was to be determined on the principle of parties equally liable in law bearing the burden equally, then the defendant was under an obligation to pay the plaintiff one- tenth of the amount paid by the plaintiff, there being ten sureties living at the time of such payment. If the defend- 1 Xorton V. Coons, 6 X. Y. -33. ^ o £. & B 287. 404 THE LAW OF QUASI-CONTRACTS. ant's obligation was to be regarded as resting on a contract made with the plaintiff at the time when he became a surety, to pay an aliquot part of the bond, then the defendant was under an obligation to pay only one-twelfth, since twelve per- sons signed as sureties. The court held that the defendant was only bound to pay one-twelfth. Lord Campbell, C. J., delivering the opinion of the court, said : — " If the right to contribution is considered as arising merely from the fact of payment being made so as to relieve a party jointly liable from legal liability, we should have to look to the number of co-contractors actually liable at law at the time of making the payment which relieved them from liability. But we think that it is not merely the legal liability to the creditor at the time of the payment that we are to regard, but that we must look to the implied agreement of each to paj' his share arising out of the joint contract when entered into. To support the action for money paid, it is necessary that there should be a request from the defendant to pay, either express or implied, in law. When one party enters into a legal liability for and at the request of another, a request to pay the money is implied in law from the fact of enter- ing into the engagement; and if the debt or liabilit}' is incurred entirely for a principal, the surety being liable for him at his request, and being obliged to pay, is held at law to pay on an im- plied request from the principal that he will do so. In a joint contract for the benefit of all, each takes upon himself the liability to pay the whole debt, consisting of the shares, which each co- contractor ought to pay as between themselves ; and each in effect takes upon himself a liability for each to the extent of the amount of his share. Each, therefore, may be considered as becoming liable for the share of each one of his co-contractors at the request of such co-contractor, and upon being obliged to pay such share, a request to pay it is implied as against the party who ought to have paid it, and who is relieved from paying what, as between himself and the party who pays, he ought himself to have paid according to the original arrangement." This decision, it is submitted, is not to be supported. The result thereof is that each surety is, as between himself and the other sureties, liable only for an amount bearing the same MONEY PAID TO TUK USE OF TlIK DEFENDANT. 405 proportion to tlic total amount as lie bears to the number of sureties engaging for the payment of the debt. And it neces- sarily follows that notwithstanding one surety was compelled to pay the entire indebtedness, he could not require, either at law or in equity, any other surety to pay an amount exceeding this proportion. For example, if there were ten sureties, of whom eight were insolvent, and one of the solvent sureties ■was compelled by the creditor to pay the entire amount, he could only collect from the remaining solvent surety one- tenth of the amount so paid by him. xVnd while this is in fact the result reached at law,i the reason therefor is the fact that the court of law can never have before it parties who are not jointly or jointly and severally liable, and the question of the insolvency of co-sureties who are not, and cannot be made, co-defendants, because the liability is not joint, can never properly be passed upon.- In such a case a court of equity, with all the parties before it, would decree that the solvent de- fendant should pay one-half the burden borne by the plaintiff, and yet if the principle of contract announced in Batard v. Hawes is sound, it is impossible to support such a result as is reached in equity, since a court of equity has no right to impose an obligation upon a defendant exceeding that agreed upon between himself and the plaintiff. Furthermore, Batard v. Hawes is open to the objection that the court rested the decision upon a theory historically false, for the reason that the right of contribution was recog- nized and in force before the courts recognized the theory of a contract implied in fact. Moreover, if the theory of a con- tract implied in fact is to be accepted as the theory on which a co-surety is compelled to make contribution, it is impossible to support the case of Deenng r. The Earl of Winchelsea,'' where the court held that the plaintiff was entitled to cou- > Cowell c. Edwards. 2 B. & P. 2 Easterly v. Barber, 66 X. V. 268. ioi. 2 See supra p. 401. 40G THE LAW OF QUASI-CONTRACTS. No ciintribu - uctiveen co- PlaintiS must bave paid the debt at his own expense. tribution even though he and the defendant were strangers to each other. Since, however, the liability of the defendant rests upon the principle that there would be an unjust enrichment on his part were he not compelled to share in a burden which should have been borne by him as well as by the plaintiff, the plaintiff, in order to recover against the defendant, must not only show that he and the defendant were sureties for the same act of the same principal, but tliat, as between themselves, they occupy the relation of co-sureties. Thus it was held in Tjar- ner v. Davies ^ that the defendant, who had become a surety for one Evans at the request of the plaintiff, also a surety, was- not liable to the plaintiff, who had paid the amount of the claim owing by Evans, the court holding that while they were both sureties for Evans, they were not, as between them- selves, co-sui'eties, since it was the understanding of the plaintiff and the defendant that the defendant should have the right to loolc to the plaintiff were he compelled to pay the debt owing by Evans. So in Craythorne v. Swinburne'* it was held that the defendant, who obligated himself to pay a debt, if neither the plaintiff, a surety, nor the principal debtor paid it, was not liable to the plaintiff for contribution, since there was not between the plaintiff and the defendant the relation of co-sureties. fis an unjust enrichment on the part of the defendant at the expense of the plaintiff is the basis of the doctrine of contribution between co-sureties, the plaintiff who claims a right to contribution because of the extinguishment of a debt must have paid the debt at his own expense, and not at the expense of the de btor. ) For the reason that he had not done so. it was held in Goepel v. Swinden ^ that the plaintiff who, with the defendant, became a surety for a debtor to whom he in turn was indebted, with the understanding that he 3 1 Dow. & L. 888. 1 2 Esp. 479. 2 14 Ves. 160. MONEY PAID TO THE USE OF THE DEFENDANT. 407 was entitled to treat as payment pro tanto of his indebted- ness to the debtor any sum which he might pay as surety, could not recover from the defendant contribution until the amount paid by him exceeded his indebtedness to the principal debtor. Furthermore, as there can be no unjust enrichment on the Surety has no part of the defendant until the plaintiff has paid more than his tributbn mitil proportionate share of the debt, the (plaintiff's cause of action m„re?ifan Ms against the defendant does not arise until it is estabhshed that share."'""'"^ he has paid more of the debt than, as between himself and h[s co-surety, he should have been called upon to pay.^^ In Ex ^art e Snowdon a surety who had paid just one half of^the debt had Tiisco- surety adjudged a bankrupt because of his failure to answer a debtor's summons for contribution. It was held by the Court of Appeal that such adjudication was erroneous, since his claim against his co-surety could not arise until it appeared that he had paid more than he should have paid as between himself and his co-surety, and non constat that the •defendant might not be called upon to pay, and pay in fact, the remaining half of the claim. Of course, if after a partial payment by a surety of an amount not exceeding, as between himself and the co-surety, the sum payable by him, the claim should become extin- guished without any further payment by the sureties, he would have a right to call for contribution. /Since the right of contribution rests not upon contract but Form of obii- <■ ° * gallon assume up on equi table principles, it should not matter in what f orm by sureties " ^ ' ' ' ' ^ immaterial. t he parties have assumed their obligations as sureties, — whether in the same or several distinct obligations.'' )Such also is the principle of the decision in Reynolds v. Wheeler,^ where it was held that an accommodation acceptor could 1 Davies v. Humphreys, 6 M. & ^ \q c. B. n. a 561. See also W. 153; Ex parte Snowdon, 17 Ch. Easterly v. Barber, 66 N. Y. 433; D. 44. See, contra, 2 Ames, Cas. on Bills & 2 Deeriug v. AVinchelsea, 2 B. & Notes, 682, note 4. P. 270. 408 THE LAW OF QUASI- COXTEACTS. recover from an accommodation endorser the amount which he had been compelled to pay to the holder of the bill. Surety need (U is not necessarv, to entitle th e surety to call for contri- only show his ' >_ ' ' liability to pay bution, that he refuse payment until he is threatened with suit. I t is sufficient for him to show that circumstances existed in which he and the defendant were liable to make t he payment which was in fact made by him.^ ") Right of con- /""j^ jg frequently said that as between tort-feasors there is no tnbution '^^ -• ^ between tort- contribution. This statement is inaccurate and misleading. feasors. ° It is true that contribution will not be given in favor of a plaintiff knowingly engaging in a wrongful act.^ But a plain- tiff who has innocently done an act not tortious in itself, and who has been compelled to indemniiy tne injured party,. is entitled to indemnity or conmbulIoU, — indemnity if, ua be - tween themselves, the defendant in good conscience, and Hot the plaintiff, should have satisfied the claim ; contrioution ii tne defendant, as between himself and tn e plaintitt, snould in good co nscience have shared the burden with the plaintiff.^ Thus, in Churchill v. Holt ^ it was held that the plaintiff who had been compelled to indemnify a person for injuries sus- tained in consequence of falling into an open hatchway in the sidewalk, leading to the basement of a building leased and occupied by the plaintiff, could recover indemnity from the defendant, whose servants had in the course of business, without the knowledge of plaintiff, removed the cover of the hatchway and failed to replace the same. In Armstrong County v. Clarion County ^ it was held that, as the maxim that there can be no contribution between tort- feasors had no application to a case where the injury was the result of an error of judgment simply, the plaintiff could • Pitt V. Purssord, 8 M. & W. 504; Farwell v. Becker, 129 111. 161;. 538. Port Jervis v. First National Bank, 2 Men-yweat hfir.i>- Nixan, 8 T. R. 96 N. Y. 550. 186 ; Boyer v. Bolender, 129 Pa. St. * 127 Mass. 165. 324. 6 66 Pa. St. 218. 8 Pearson v. Skelton, 1 M. & W. MOXEY PxUD TO THE USE OF THE DEFENDANT. 409 recover from the defendant contribution for an injury sus- tained by a defect in a bridge which the plaintiff and the defendant were jointly bound to keep in repair, the fact being that the bridge had been imperfectly repaired at the joint expense of the two counties. r A plaintiff who has incurred a liability, not because of his own p ersaaal w rong, but because of the doctrine of respondeat superio r, whereby he is held responsible for the wrong of a notbei% can call upon the guilty party to indemnify him for the loss which he has incurred, or can call for contribution from those who in good conscience should share his burden ."^! Thus, it was held in Wooley v. Batte ^ that the plaintiff could recover from the defendant, who was a joint owner with him of a line of stage-coaches, one half the amount which the plaintiff had been compelled to pay to a party injured by the negligent driving of a servant. So it was held in Bailey v. Bussing - that the plaintiff, one of three joint owners of a stage line, could recover from the executors of one of the joint owners contribution on account of damages which the plaintiff had been compelled to pay because of the negligent driving of one of the joint owners. Ellsworth, J., said : — '•The reason assigned in the books for denying contribution among trespassers is, that no right of action can be based on a violation of the law, — that is, where the act is known to be such, or is apparently of that character. A guilty trespasser, it is said, cannot be allowed to appeal to the law for an indemnity, for he has placed himself without its pale by contemning it, and must ask in vain for its interposition in his behalf. If, however, he was innocent of an illegal purpose, ignorant of the nature of the act, which was apparently correct and proper, the rule will change with its reason, and he may then have an indemnity, or, as the case may be, a contribution, as a servant yielding obedience to the command of his master, or an agent to his principal, in what appears to be right, an assistant rendering aid to the sheriff in the 1 2 C. & P. 417- "- 28 Conn. 455. 410 THE LAW OF QUASI-CONTRACTS. execution of the process, or common carriers to whom is committed and who innocently carry away property which has been stolen from the owner. . . . The form of action, then, is not the criterion. We must look further. We must look for personal participation, personal culpability, personal knowledge. If we do not find these circumstances, but perceive only a liability in the eye of the law, growing out of a mere relation to the perpetrator of the wrong, the maxim of law that there is no contribution among wrong-doers is not to be applied. Indeed, we think this maxim too much broken in upon at this day to be called with propriety a rule of law, so many are the exceptions to it, as in the cases of master and ser- vant, principal and agent, partners, joint operators, carriers, and the like." Money need ( While to maintain the eo nnf fnv mnnpv p ^id to the use of not be paid to }^ . . maintain action the defendant it IS not necessar y for the plaintiff to show that for monev paid .. ^^^^— i^— ' ""^'^— to use of de- he actually paid money, it being sufficient for him to show- that he transferred property^ in extinguishment of the claim,^ the mere giving of a bond or promissory note will not entitle one to recover in a count for money pa id.'^ 1 Ainslie v. Wilson, 7 Cow. 662. Aid. 51 ; Camming v. Hackley, 8 * Maxwell v. Jameson, 2 B. & Johns. 202. MONEY PAID UNDER COMPULSION OS LA^V. 411 CHAPTER X. EECOVERY OP MONEY PAID UNDER COMPULSION OF LAW, SECTION I. EECOTEET OF MOXEY PAID AFTER ACTIOl^' BROUGHT. : ,As a rule, if one after action brought, whether before or Money paid after judgment, pays the claim made upon him by the plain- brought can- t iff therein, he cann ot afterwards make that paj^ment the basis be lecovered,' of an action against the party to whom the money was paid." This rule is founded both upon common sense and public policy. The payment would be an idle ceremony if the only effect thereof were to reverse the position of the parties as plaintiff and defendant. Not only would the payment be an idle ceremony, but injustice would be done the party to whom the money was paid, since it would subject him to an action to be instituted at sucli time and place as might be deemed desirable by the party making the payment. Furthermore, if payments made in su ch circumstances can be recovered, t he litigation between parties could be made almost interminabl e. \ If the defendant paying in the first action can make that payment the basis of an action, the defendant in the second action has of course the same privilege. One of the most striking illustrations of this rule is afforded by the case of IMarriott v. Hampton.^ In that case the plain- tiff sued to recover money which he had paid to the defendant 1 7 T. R. 269. 412 THE LAW OF QUASI-CONTRACTS. Eight of re- covery "where court had no jurisdiction over subject- matter of de- fence in an action wherein he was sued by the defendant to recover a sum of money which he contended he had paid. Being unable to find the receipt which he had received on paying the claim, he paid the amount thereof a second time. He afterwards found the receipt, and thereupon sued to recover from the defendant the money so paid. It was held that he could not recover. " If this action could be maintained," said Lord Kenyon, C. J., " I know not what cause of action could ever be at rest. After a recovery by process of law there must be an end of the litigation ; otherwise there would be no security for any person." It does not appear at what stage of the action the payment was made ; but that fact would seem to be immaterial, as the payment was made in an action in which tlie subject-matter of the litigation was the plaintiff's right to recover the money which the defendant in fact paid him in that action. Undoubtedly in Marriott v. Hampton there was a strong equity in favor of tlie plaintiff that would not ordinarily exist, — the fact that the plaintiff had, in the action in wliich he appeared as defendant, the burden of proving payment to the plaintiff therein, and had lost the evidence thereof, namely, the receipt, which would in all probability have been controlling. But while the case is exceptional in this particular, it seems clear that a court could not for this reason reach a result different from that reached in the ordinary case. A court can of course, because of a loss of evidence, postpone the trial of a case in order to give the party an opportunity of finding the same, or even grant a new trial, within the rules allowing such relief, upon the ground of newly discovered evidence ; and in a case like Marriott v. Hampton a party must avail liimself of these remedies. This case has been thought to be in conflict with the decision in Moses v. Macferlan.^ The two cases are, however, entirely dissimilar ; and each case, it is submitted, was cor- 1 2 Burr. 1005. MONEY PAID rXPEK COMPULSION OF LAW. 413 rectly decided. The decision in Marriott v. Hampton rested upon and involved the simple principle that all issuable allegations of which the court in which an action is brought has jurisdiction must be raised and decided, if at all, in that action. In Moses v. Macferlan it was decided that a defendant who is unable to avail himself of certain matter because the court in which the action is brought cannot entertain the defence for want of jurisdiction, is not precluded by the pay- ment of a judgment therein from making such matter the basis of an action for a recovery of the money so paid. The plaintiff in Moses v. Macferlan had endorsed to the defendant four promissory notes of which the plaintiff was payee, for the purpose of enabling the defendant to sue the maker thereon, the defendant agreeing to indemnify him against any liability because of such endorsement. The defendant nevertheless sued the plaintiff as endorser in the court of conscience, to recover the amount of the notes and recovered judgment, the court holding that it had no jurisdiction over the subject- matter of the defence ; namely, the collateral agreement not to sue on the endorsements. The plaintiff thereupon paid the judgment, and brought an action in the King's Bench to recover the money so paid. It was held, Lord Mansfield delivering the opinion of the court, that he was entitled to recover. The decision was put by Lord Mansfield distinctly on the ground that the court of conscience had no jurisdiction to inquire into the subject-matter of the defence. On this point Lord Mansfield said : — '■Many other objections besides that which arose nt the trial, have since been made to the propriety of this action in the present case. . . . ••Third objection. Where money has been recovered by the judgment nt a court having competent jurisdiction, the matter can never be brought over again by a new action. '•Answer. It must be clear that the words of a judgment can never be overhauled by an ordinary suit, either at law or in equity. 414 THE LAW OF QUASI-CONTEACTS. Till the judgment is set aside or reversed, it is conclusive as to the subject-matter of it, to all intents and purposes. "But the ground of this action is consistent with the judgment of the court of conscience ; it admits the commission did right. They decreed upon the endorsement of the notes by the plaintiff, which endorsement is not now disputed. The ground upon which this action proceeds was no defence against that sentence. "It is enough for us that the commissioners adjudged that 'they had no cognizance of such collateral matter.' We cannot correct an error in their proceedings, and ought to suppose what is done by a final jurisdiction to be right. But we think the ' commissioners did right in refusing to go into such collateral matter.' . . . "The ground of this action is not 'that the judgment was wrong,' but 'that (for a reason which the now plaintiff could not avail himself of against that judgment) the defendant ought not in justice to keep the money.' And at Guildhall I declared very particularly ' that the merits of a question determined by the com- missioners, where they had jurisdiction, never could be brought over again in any shape whatever.' "Money may be recovered bj' a right and legal judgment, and yet the iniquity of keeping that money may be manifest upon causes which could not be used by way of defence against the judgment." Whatever views Loi'd Mansfield may have entertained as to the use of the count for money had and received to recover money, which a defendant cannot in conscience keep, it is evident that he did not regard his decision in Moses v. Mac- ferlan as at all infringing upon, or limiting the rule that the subject-matter of an action over which a court has jurisdic- tion cannot, after a decision hy that court, be litigated between the same parties in another action. If one is to criticise the decision in Moses v. Macferlan, it should be not for the reason that it violates the doctrine of res adjudicata, or the rule against double vexation, but rather that the court should have refused to have allowed the action for the reason that the defendant, in the first action, might have obtained from a court of equity an injunction restrain- MONEY PAID UNDER COMPULSION OF LAW. 415 ing that action, and thereby have avoided multiplicity of litigation. The injunction, if granted, would have accom- plished the result obtained by the two actions, in that the holder of the note would have been enjoined from collecting from the defendant what he did in fact collect, and what, under the decision in Moses v. Macferlan, he was required to repay. Even from this point of view, however, the decision in Moses v. Macferlan seems to be correct.^ Macferlan was plainly guilty of a breach of contract in suing Moses on the endorsement, and that breach of contract gave Moses a right to bring an action in sjwcial assuinjjsit to recover whatever damage he had suffered in consequence of such breach of contract. Certainly no one would contend that a man who has a right to sue for a breach . of contract must, if the opportunity offers, avail himself of that right as an equitable defence. Surely he cannot in this way be deprived of his right to sue for damages in an action which he will control as plaintiff. If then his right to sue in special assumpsit for damages is not barred by his failure to avail himself of his right to an injunction, why should he not be allowed, if he prefers, to sue in the count for money had and received ? Although the case of Moses v. Macferlan is constantly spoken of to-day as if it were overruled, the writer knows of no case in which any doctrine differing from the decision of Moses V. Macferlan has been laid down. Undoubtedly Lord Mansfield, in that case, used many expressions which would not represent the law of to-day, but they were mere obiter dicta, and should not be confused with the grounds upon which Lord Mansfield in fact rested the decision in favor of the plaintiff, f There are exceptions to the rule that money paid after an Money ex- V ^ 1 Tc • 1 i • tolled under action brought cannot be recovered. It it can be shown in coiorofiawcan any given case that the money paid was in fact extorted under color of law, the party receiving it knowing that he 1 See Woodward v. Hill, 6 Wis. 143. 416 THE LAW OF QUASI-CONTRACTS. had no right thereto, then, notwithstanding the payment was made in a pending ac tion, the party paying is allowed to sue ~ in a count for money had and receiyed to recover the same.^ Thus, in Duke_de Cadaval v. Collins,^ the plaintiff, a foreigner/ was allowed to recover from the defendant money which he had paid the defendant to secure his release from arrest in an action brought by the defendant, who knew that he had no cause of action. Lord Denman, C. J., said : — "It is asserted that the principle of the decision in Marriott v. Hampton has not been adhered to in this case. But that case does not warrant the argument drawn from it. It does not decide that money obtained under compulsion of legal process can never be recovered back; but only that after the defence in an action has failed, and money has been recovered in an action, it cannot be recovered in another action. The question there arose not upon an extortion by legal process, but upon the want of means of defence in a previous action, which means a party ought to have when such action is brought. But no case has decided that when a fraudulent use has been made of legal process, both parties know- ing throughout that money claimed was not due, the party paying under such process is not to have the assistance of the law." The same principle is illustrated by the case of Chandler v. Sanger.^ In that case the plaintiff, who had received his discharge in insolvency, and had been thereby released from liability on a note given by him to the defendant, paid the note to release his property from an attachment issued in an action brought on the note. It was held that if the defend- ant attached the property of the plaintiff knowing that he needed the same for immediate use in his business, and knowing that he had no claim against the plaintiff, the plaintiff was entitled to recover, notwithstanding the fact that the action in which the attachment was issued was still pending. Gray, J., said : — "This is not an action for tort to recover damage for malicious prosecution or abuse of legal process, but an action of contract, in 1 4 A. & E. 858. 2 114 Mass. 364. MOXEY PAID UNDER COMPULSION OF LAW. 417 the nature of assumpsit, for money had and received by the defend- ants, which they had no legal or equitable right to retain as against the plaintiff. Although the process sued out for the defendant was in this form, yet if, as was offered to be proved at the trial, he fraudulently, and knowing that he had no just claim against the plaintiff, arrested his body or seized his goods for the purpose of extorting money from him, then, according to all the authorities, the payment of money bj' the plaintiff, in order to release himself or his goods from such fraudulent or wrongful detention, was not voluntary but by compulsion ; and the money so paid may be recovered back, without proof of such a termination of the former suit as would be necessarj- to maintain an action for malicious prosecution." Another limitation upon the general rule is, that a party M oney paid who has paid money upon a judgment which has been sub- men" subse?" s equently reversed, may sue in a count tor money had and versed'canbe J , .1 -J -V recovered. r eceived to recover the money so paid. ) In Clark v. Pinney,^ the plaintiffs, against whom a judg- ment had been obtained, gave a note in satisfaction of the execution issued thereon. A judgment was subsequently obtained on this note, and the amount thereof collected. The first judgment having been reversed, it was held that the plaintiff could recover the money paid upon this second judgment in satisfaction of the first, in a count for money had and received. Savage, C. J., delivering the opinion of the court said : — "The general proposition is, that this action lies in all cases where a defendant has in his hands money which, ex cequo et bono, belongs to the plaintiff. When money is collected upon an erro- neous judgment which subsequent to the payment of the money is reversed, the legal conclusion is irresistible that the money belongs to the person from whom it was collected. Of course he is entitled to have it returned to him. The only question is whether this would be the proper remedy. . . . " Upon the whole my view of the question is this: The general principle is undoubtedly in favor of sustaining the action. . . . 1 6 Cow. 297. 27 418 THE LAW OF QUASI-CONTEACTS. I am inclined to sustain the action. The inclination of courts is to extend the action for money had and received. It is not denied that the plaintiff is entitled to some remedy for the money. It was taken from him by process erroneous merely. Then why turn him around from this simple action to the antiquated remedy by scire facias ? I do not think the purposes of justice require it. "It is also contended that the facts in this case do not amount to a payment of money to the defendant. A note was received by the sheriff as payment of the execution by the direction of the plaintiff and his attorney, and the execution was returned satisfied. Nay, more, a judgment has been obtained, and the money actually paid upon that note. To what would the plaintiffs be restricted on a scire facias ? To the money paid by the note, as restitution could be for nothing else." Judgment /'Nor is it necessary to entitle one to recover money paid debtor need not V — i defer payment on an erroneous judgment, that the judgment debtor refuse execution. to pay until execution has been issued against him. As a decision must be regarded as law until reversed, the judg- ment may be immediately paid, even though the party paying intends at the time to appeal, and, upon obtaining a reversal, he can recover the money so paid.*^ ^ In discussing this ques- tion in Lott v. Swezey, Emmott, J., says : — "We ought not to say that a party must resist the judgment of a court to the last extremity, and with what is something like contumacy, if he wishes to preserve his right to restitution in case he succeeds in reversing the judgment. Where a man pays without coercion, and with knowledge of the facts of his case, he cannot be heard afterwards to say that upon these facts he ought not to have been called upon for payment. That is undoubtedly a settled rule of law. But that sup230ses that he claims restitution upon the same state of facts which existed when he paid the money. When, however, the payment is made in obedience to the judgment of a court which had determined that he must pay it, and that his adversary had the right to demand it of him, and subsequently a legal tribunal of competent authority adjudges that the first judg- ment was erroneous, and therefore vacates and reverses it, the Halsey, 72 N. Y. 578 ; Lott c. Swezey, 29 Barb. 87 MOXF.Y PAID UNDER COMPULSION OF L.VW. 419 conclusion is irresistible that tlie plaintiff in the first judgment, if he has received its amount, has received what he is equitably and justly bound to restore." fTo entitle a party to reco ver money paid upon a judgment Right of party afterwards reversed, lie need not appear as the deiendant of "udgmen" record. It is sufficient for liim to show that he was the cove? money real party in interest, and in fact paid the judgment in per - ment°ubse-"'^ formance of an obli.Q-ation which he was under to the jud g- veSedf "^" ment debtor. J) Th us, in Stevens v. Fitch.^ the defendant had obtained a judgment against one Stevens for flowing his land by means of a mill-dam, and the plaintiff, who used the dam on the land of Stevens for the purpose of operating a mill on his own land, paid the amount of the defendant's judgment, under an agreement with Stevens to indemnify him against any damage occasioned thereby. The judgment being sub- sequently reversed, it was held that he was entitled to recover, in a count for money had and received, the amount so paid. Wilde, J., delivering the opinion of the court, said : — "The only defence relied on is, that there was no privit}' of contract between the present parties, and that the action should have been brought in the name of Stephen Stevens, administrator. But there is no ground for this defence. The money now sued for was paid by the plaintiff not as the agent or attorney of Stephen Stevens, who is only a nominal party. The plaintiff was the sole party in interest, and he paid the money on his own account wliicli he was obliged to pay on a consideration which had failed; and this; shows a privity of contract implied by law. In the case cited in support of the defence it appeared that the money was paid by an agent. The contrary is proved in the present case; for the plaintiff paid his own money, and in no sense can he be considered as the agent of Stephen Stevens." ^ As the basis of recovery by a plaintiff seeking to recover 1 11 Met. 248. ment obtained against the debtor, ^ In Garr v. Martin, 20 N. Y. in an action to which he was not a 306, it was held that the only remedy party, but which he had paid, was of a surety on the reversal of a judg- against the judgment debtor. 420 THE LAW OF QUASI-CONTRACTS. Defendant money paid under a judgment which had been reversed is received the the unjust enrichment of the defendant, fi t must appear that *on°orthroifgh the party from whom he seeks to r ecover the money, either an agen . received the money in person or through an agent. ] Thus, it was held in Tsom v. John,i that money paid to a sheriff could not be recovered from the judgment creditor on the reversal of the judgment under which it had been paid, unless the money had been received by the judgment creditor, or an agent on his behalf, the sheriff not being regarded as an agent, but simply as an official. Tiiat money ( Sincc a judgment must be regarded as properly rendered ■defendant will Until a reversal thereof, the right to restitution does not arise render him Until that time. NNo liability to make restitution to the judg- ment debtor can arise therefore simply from the fact that the defendant collected the money for the judgment debtor. This is true even though the judgment debtor at the time of pay- ment gives notice that he intends to appeal, and that he will hold the party receiving the money liable for the amount received in the event of a reversal. Thus, in The Bank o f the United States v. The Bank of Washington,^ the plaintiff in error, who collected, as agent for a judgment creditor, the amount of a judgment from the defendant in error, was notified at the time when he collected the money that an appeal was to be taken, and that in the event of a reversal he would be expected to return the money collected by him. It was held that as the plaintiff in error received the money simply as the agent of the judgment creditor, it was a com- plete defence to an action brought on the reversal of the judgment to recover the money so paid, that he had paid the money to his principal. In delivering the opinion of the court, Mr. Justice Thompson said : — " It is a settled rule of law that upon an erroneous judgment, if there be a legal execution, the party may justify under it until the judgment is reversed; for an erroneous judgment is the act of the 1 2 Munf. 272. 2 6 Pet. 8. MONEY r.VID UXUEK COMPULSION OF LAW. 41^1 court. If till' marshal might have sold the property of the bank ami given a good title, it is ditficult to discover any good reason why a payment made by the bank should not he equally valid, as it respects the rights of third persons. In neither ease does the party against whom the erroneous judgment has been enforced lose his remedy against the party to the judgment. On the re\ersal of the judgment the law raises an obligation in the party to the record, who has received the benefit of the erroneous judgment to make restitution to the other party for what he has lost. . . . But as it respects third persons, whatever has been done under the judg- ment whilst it remained in full force is valid and binding. "When the money was paid there was a legal obligation on tlie part of the Bank of Washington to pay it; and a legal right on the part of Triplett and Xeale to receive it, or to enforce payment of it under the execution. Whatever was done under the execution, whilst the judgment was in full force, was valid and binding on the Bank of Washington so far as the rights i if strangers and thix'd persons are con- cerned. The reversal of the judgment cannot have a retrospective operation, and make void that which was lawful when done. The re- versal of the judgment gives a new right or cause of action against the parties to the judgment, and creates a legal obligation on their part to restore what the other party has lost by reasun of the erroneous judgment ; and as between the parties to the judgment, there is all the privity necessary to sustain and enforce such right ; but as to strangers there is no such privity, and if no legal right existed when the money was paid to recover it back, no such right could be created by notice of an intention to do so." SECTION II. EECOVERT OF MONEY PAID TO PREA-EXT A THREATENED SALE (IF PROPERTY IXDEE LEGAL PROCESS. (^ Although money voluntarily paid to the defendant cannot M oney so paid be recovered, for the r easons heretofore stated, money paid sairrfpersonal to prevent a sale of personal property under leg ;al process. PLTL'L''t" ■ „ , . . . . , 1 • 1 1 defendant has by a defend ant in a position to make a seizure and sale .,„ i„„„i „. thereof, and threatenin": to do so, can be recovered if the H ?".'Ifi''° ""'" defendant had no right thereto, either in law or equity. 422 THE LAW OF QUASI-CONTRACTS. ( While the cases uniformly support the above proposition, there is a conflict of authority as to what facts short of those first stated will entitle a plaintiff to recover money as paid under compulsion of legal process. \) Piiiintiff need It has been held that one who^'^was threatened with a not wait until , . , property has seizure and sale of his personal property, unless he paid been seized. , , ,, . , ,,, , . certain taxes, could recover the money so paid, although in fact a warrant of distress had not been issued; the officer making the threat being in a position, however, to issue the warrant and levy the same.i The ground of recovery was thus stated by Shaw, C. J : — "But the warrant to a collector, under our statute for the assess- ment and collection of taxes, is in the nature of an execution, running against the person and property of the party, upon which he has no day in court, no opportunity to plead and offer proof, and have a judicial decision of the question of his liability. Where, therefore, a party not liable to taxation is called on peremptorily to pay upon such a warrant, and he can save himself and his property in no other way than by paying the illegal demand, he may give notice that he so pays it by duress and not voluntarily, and, by showing that he is not liable, recover it back as money had and received. " It appears by tlie facts agreed, that upon the first notice of the tax, the plaintiff applied to the treasurer and collector, setting forth his specific ground oi objection, namely, that he was not an inhabitant and not liable to the tax on personal property. The plaintiff was informed by the collector that he had no discretion on the subject, and unless he obtained an abatement a warrant of dis- tress would issue against him. He then applied to the citj' government, stated the grounds of his objection, and remonstrated against the tax; but they decided that the tax must be paid, of which the collector was duly informed. The law under which the treasurer and collector acted obliged him to issue a warrant, under which the person and property of the plaintiff would have heen liable to be taken, and that officer had notified him that such warrant would be issued. Under these circumstances the money ■was paid, and we think it cannot be considered as a voluntary 1 Preston v. City of Boston, 12 Pick. 7. MOXEY PAID rXDER COMPULSION OF LAW. 423 payment, but a pavmeiit made under such circumstances of con- straint and compulsion, and with such notice on his part that it was so paid, that on showing that he was not liable he may recover it back in this action from the defendants, into whose treasury it has gone." It is not necessary that the plaintiff establish that the goods would have been seized at the moment of payment had not the money been paid. He has established a right of recovery if he prove that an officer presented the warrant for collection, and " manifested an intention to enforce collection by seizure and sale of the property at any time.i While it has been held ^ that it was sufficient that payment was made after the taxes were payable, and notice thereof given to the plaintiff, though before a summons or warrant was issued or was issuable ; yet it was held in Railroad Co. V. Commissioners ^ that the plaintiff could not recover taxes paid in the following circumstances: Tax-lists with warrants attached had been delivered to the treasurer of the county. The warrants authorized the treasurer, should default be made in the payment of any of the taxes, to seize the personal property of the party in default. No demand of payment was necessary, but it was the duty of every per- son to attend at the treasurer's office and make payment. The plaintiff, whose name was on the tax-list, and against whom a warrant had been delivered to the treasurer of the county, called at the office of the treasurer and paid, under protest,* the taxes assessed against him, although no attempt 1 Paichei- V. JIarathon County, ment involuntary. In such cases the 52 Wis. 388. importance of paying under protest 2 Boston & Sandwich Glass Co. v. is that the protest is evidence of Boston, 4 Met. 181. the plaintiff's intention at the time 8 98 U. S. 541. when the payment was made. Liamr * If, independently of protest, the born v. County Commissioners, 97 circumstances in which a payment U. S. 181; Detroit v. Martin, 34 is made, would not justify a recovery Mich. 170; Flower v. Lance, 59 N. thereof, the fact of payment under Y. 603 ; De La Cuesta v. Insurance protest will not render such pay- Co , 136 Pa. St. 62. 424 THE LAW OF QUASI-CONTRACTS. Recovery of money paid to prevent a sale of real estate. had been made to collect the same, and no threat had been made to seize his property. If the rule is well founded that one who pays a judgment without waiting for execution to issue thereon, can recover the money so paid as paid under compulsion, i it would seem that the same rule might be applied to a case such as was presented for the consideration of the court in the Railroad Co. V. Commissioners. In each case a competent tribunal has declared a certain sum of money to be payable, and in each case the plaintiff's property is subject to seizure for such payment. In neither case was a seizure threatened. In the case of the Railroad Co. v. Commissioners, however, differing from the case where money is paid under a judg- ment upon which execution has not issued, an execution had been in fact issued directing the collection of the taxes. (The question of the recovery of money as paid under com- pulsion of law may arise because of a threatened sale of real as well as personal property. A threat^lifid salti 'ttf Kiil estate differs from a threatened sale of personal property in one particular: an officer who sells personal property takes possession thereof. Where a sale of real estate is threat- ened, it is not the purpose of the officer to take p ossession of the property , but simply to sell the same, leaving the pur- chaser to assert his rights thereto under the sale. For th is- reason it has been held that money paid under a threatened sale of real property under leg al process cannot be recovered, unless the sale thereof would have created a cloud upon title. •■' y Had^the effect of the threatened sale upon the market- value of the property been adopted as the test of the exist- ence of a cloud upon title, the rule would be unobjectionable. *" ' See supra, p. 418. ^ L amborn v. Commissioners, 97 U. S. 181 ; The Hit.v of Detroit v. Martin, 34 Mich. 170 ; Bruecher v. The Village of Portchester, 101 N. y. 240. 3 See Whitney v. Port Huron, 88 Mich. 268. MONEY PAID UNDER COMPULSION OF L.VW. 425 But the rule seems objectionable if the test of the existence of a cloud upon title is whether the absence of a right to sell the property, as for exaiiaple, the unconstitutionality of a statute, appears by the record under which the right is claimed. It seems hardly justifiable to hold that while one whose enjoyment of personal property is interfered with by a threatened unlawful taking or detention thereof, can recover money paid to prevent such interference,^ money paid to prevent a depreciation in value of real estate because of an unlaNvful interference therewith, cannot be recovered if the court is of the opinion that an inspection of a record will enable one sufficiently versed in law to say that the interference is unlawful. 1 See infra, p. 426. 426 THE LAW OF QUASI-CONTRACTS. CHA.PTER XI, EECOVEET OP MONET PAID TO THE DEFENDANT UNDER DURESS, LEGAL OR EQUITABLE. ( It is proposed to consider in this chapter the right of a~ plaintiif to recover money paid in the followin g circumstances : 1. To prevent the wrong-ful taking or detention of property ; 2. To avoid injury to business: 3. In performance of a usurious contract ; 4. To induce the defendant to discharge a duty ; 5. To avoid arrest or to be released therefrom, a SECTION I. EECOVEKT OF MONEY PAID TO PREVENT THE TJNLAVfFUL TAKING OE DETENTION OF PEOPEETT. lawMtaking" property does not constitu te legal duress, and would not, or detention of ."^ /. , ., . i r j_ i • j_i , c property can therefore, constitute a defence at law m the absence of equi- Money paid to ( ^hilc the unlawful tak ing or detention of another's la 0] Pi . . erecovere . table defences to an action on a contract,^ yet money paid to prevent such taking or detention can be recovered in the. count for money had a nd received, as paid under cntripiilsinn.^ 1 Skeate v. Beale, 11 A. & E. same, is a striking illustration not 983. only of the diiierence between legal 2 This seeming anomaly in our and equitable principles, but also of law, where on the same facts money the importance of keeping the dis- paid can be recovered, while one tinction between law and equity who has made a contract has no de- clearly in mind. The decision that fence thereto and must perform the in a court of law a defendant who MOXEY PAID TO THE DllFEXDAXT VXDEK DURESS. 427 Thus it was held in Hills_i'. Street i that the pLaintiff who paid to the defendant a sum of money to prevent a wrongful removal and sale of his goods under a distraint, could recover the money so paid. Likewise in Hooper v. Mayor, etc, 2 it was held that the plaintiff who paid harbor duties to the defendant in excess of what was due, to prevent a wrongful talcing of his goods for the duties so charged, could recover the money so paid. It would seem, therefore, that the decision in Nibbs v. Hall, 3 holding that a plaintiff was not justified because of a threatened distress in paying a claim made upon him, for the reason that he might have defended himself by replevying the goods, can no longer be regarded as law. The ground upon w hich a recovery of money so paid is allowed, seems to belihat a plaintitt who iias a right to the p ossession of his property, need not wait upon the delays of the law to obtain the same, b ut can, if necessary, comply in form with the terms imposed by the party attempting to deprive him thereof. ^ In Astley v. Reynolds,* which may perhaps be called the leading case on this subject, the plaintiff, who had pawned contracted for a consid eration to pay was whether the circumstances were money to, prevent " fne wrongful such that equitably the defendant taking or detention of his goods had should restore to the plaintiff that no defence to the contract, was per- which he had received. When, fectly sound, for the reason that however, a plaintiff sought to re- such acts did not constitute duress cover on a contract, the sole ques- at law, and a common law court had tion before the court was whether no jurisdiction over a mere equity the facts pleaded by the defendant existing in favor of the defendant, constituted duress at law. Xor %vas this decision inconsistent o Bing. 37, with the ruling that money paid in ^ 5(3 l .7. 4.57. See also Chase the same circumstances could be re- r. Dwinal, 7 Greenl. 134 ; Chamber- covered in the count for money had lain v. Reed, 13 Me. 357. and received. In the count for ^ 1 Esp. 84. money had and received the court * 2 Str. 915. See also Briggs v. dealt confessedly with equitable Boyd, 56 N. Y. 289 ; Buford v. principles, and the simple question Lonegan, 6 Utah, 301. 428. THE LAW OF QUASI-CONTRACTS. plate to the defendant, was allowed to recover money unlaw- fully demanded of the plaintiff as a condition of allowing him to redeem. Said the court : — "We think also that this is a payment by compulsion; the plaintiff might have such an immediate want of his goods that the action of trover would not do his business; where the rule volenti non fit injuria is applied it must be where the party had the freedom of exercising bis will, which this man had not; we must take it he paid the money, relying on his legal remedy to get it back again." In Wakefield v. Newbon,^ the defendant, a mortgagee, having refused to return to the plaintiff, the mortgagor, the title deeds of the mortgaged premises, unless he was paid an amount to which he was not entitled, was held compelled to return to the plaintiff the amount so paid. In Close V. Phipps^ it was held that the defendant, who demanded as a condition of allowing the plaintiff to redeem mortgaged premises a payment not due, and threatened to sell the property if his demand was not complied with, should refund to the plaintiff the money so paid. On the same principle, it is held that money paid to a carrier who refuses to deliver goods, except on condition of receiving a payment, to which he is not entitled, can he recovered by the party making the payment.^ On the same principle, money paid to obtain from the defendant bonds or stock which the defendant refused to deliver except on the payment of a sum to which he was not entitled, can be recovered as paid under compulsion.* 1 6 Q. B. 276. Western Steamship Co., 74 N. Y. 2 7 M. & G. 586. 125, 129. 2 Ashmole. v. Wainwright, 2 Q. * Scholey v. Mumford, 60 N. Y. B. 837 ; Lafayette & Indianapolis 498 ; Bates v. The New York In- R. R. Co. u. Pattison, 41 Ind. 312 ; surance Co., 3 John. Cas. 238. See, Harmony v. Bingham, 12 N. Y. 99; however, De La Cuesta ». Insurance Baldwin v. The Liverpool Great Co., 136 Pa. St. 62. MONEY PAID TO THE DEFEXDANT UNDER DURESS. 429 .' On the same princJDle. if one's enjoyment of his real eatatR Recovery of -^ ■ , I- 1 -111 ii !• c !• ,• money paid to IS interiered with by tiie assei'tion ot a claim creating a remove cloud cloud upon title, he can, though not deprived of his posses - sion, pay the demand made upon him and recover the money so paid as paid luider equitable duress. ^Thus, it was held in Joannin c. Ogilvie ^ that the plaintiff, who was compelled, in order to obtain a loan, to pay an unfounded claim of lien, could recover the money so paid.^ / The plaintiff in the cases considered u nde r this section No recovery ^' , , ■ n r^l •, r— r of money paid cannot, however, recover the money so pa id unless it is to protect prop- against conscience for the defendan t to retain it,^ and the retention o£ burden is on the plaintiff to establish that fact.*^ "conscience. In Richmond v. The Union Steamboat Co.," the defend- ant refused to deliver a cargo belonging to the plaintiff at the place where the plaintiff claimed the delivery should be made, and would not surrender to the plaintiff the cargo, except on payment of the freight. The plaintiff paid the freight, and then had the goods transported to the place where he claimed the defendant should have delivered them. In an action brought by the plaintiff to recover money alleged to have been paid under duress, the plaintiff on the trial recovered not only the sum paid by him to the defendant as freight, but also the expenses incurred by him in sending the goods to their destination. It was held that while the defendant had no right to refuse to deliver the goods to the plaintiff, still it was manifestly unjust that the plaintiff should recover both the money paid by him to the defendant and also the expense which he had incurred in transporting the goods to their destination, and that the most just and equitable rule was to allow the plaintiff to 1 49 :\rinn. 561. »'• Trinity Church, 12.3 Mass. 1 2 It is held, however, that title (semble). to real estate cannot be tried m the ^ Richmond «. The Union Steam- action for money had and received, boat Co., 87 N. Y. 240. Lindon V. Hooper, Cowp. 414 ; King * Briggs v. Boyd, 56 N. Y. 289. t;ni^on, 42 111. 223-, Piokman ^ 87 N. Y. 240. 430 THE LAW OF QUASI-CONTKACTS. recover from the defendant the amount of the expenses that had been incurred by him. The result reached can be sus- tained upon two theories, — that the plaintiff should have been allowed to recover as for money paid to the use of the defendant, since the defendant should have complied with the plaintiff's demand as to the delivery of the goods ; or that the defendant was liable to the plaintiff in a count for money had and received, but that as the defendant had substantially performed the contract on his pai't, the amount of his un- just enrichment would be the sum that it cost the plaintiff to do what should have been done by him. SECTION II. BECOVERT OF MONEY PAID TO AVOID AN THJVRY TO ONE's BUSINESS. Money so paid j Although neither the plaintiff's person or property is ered if defend- threatened with seizure or detention, he can recover as paid unlawful. under compulsion, money wrongfully demanded of him, and paid by him to preven t a serious injury to his business. ) Thus it was held in Westlake v. St. Louis ^ that the plaintiff could recover money paid to the defendant, who threatened, unless his wrongful demand was complied with, to deprive the plaintiff of the use of water necessary to the conduct of his business. In Carew v. Rutherford, ^ it appeared that in consequence of the plaintiff's refusal to pay a fine of $500, which had been imposed upon him by an association of workmen, of which the defendant was a member, for sending some of his work to New York, his workmen had left his employ and notified him that until the fine was paid neither they nor any members of the association would work for him. The 1 77 Mo. 47. See also Panton v. (Minn. 1892) ; Lehigh Coal Co. v. Dnluth Co., 52 N. W. Rep. 527 Brown, 100 Pa. St. 338. 2 106 Mass. 1. MO\EY PAID TO THE DEFENDANT UNDER DURESS. 431 plaintiff, who was a freestone cutter, and was under large contracts to fui-nish freestone, being unable to employ work- men to enable him to perform his contracts, paid the fine. It was held that the money so paid could be recovered. Said Chapman, C. J. : — "Without undertaking to lay down a precise rule applicable to all cases, we think it clear that the principle which is established by all the authorities cited abuve, wliether tliey are actions of tort for disturbing a man in the exercise of his rights and privileges, or to recover back money tortiously obtained, extends to a case like the present. We have no doubt that a conspiracy against a mechanic, who is under the necessity of employing workmen in order to carry on his business, to obtain a sum of money from him, which he is under no legal liability to paj', by inducing his worlimen to leave him, and by deterring others from entering into his employment, or by threatening to do this, so that he is induced to pay the money demanded, under a reasonable apprehension that he can- not carry on his business without yielding to the illegal demand, is an illegal, if not a criminal conspiracy ; that the acts done under it are illegal, and that the money thus obtained may be recovered back, and, if the parties succeed in injuring his business, they are liable to pay all the damage thus done to him. It is a species of annoyance and extortion which the common law has never tolerated." In Swift Co. V. United States ^ it was held that a plaintiff whose business could not be conducted without the use of certain stamps, could recover from the defendant the money rmlawfully exacted from him as a condition of delivering the stamps. In delivering the opinion of the court, Mr. Justice Matthews said : — "From this statement,it clearly appears that the Internal Revenue Bureau had at the beginning deliberately adopted the construction of the law upon which it acted through its successive commission- ers, requiring all persons purchasing such proprietary stamps to receive their statutory commissions in stamps at their face value, 1 111 U. S. 22. 432 THE LAW OF QUASI-CONTRACTS. instead of in money; that it regulated all its forms, modes of busi- ness, receipts, accounts, and returns upon that interpretation of the law; that it refused on application, prior to 1866, and subsequently, to modify its decision; that all who dealt with it in purchasing these stamps were informed of its adherence to this ruling; and finally, that conformity to it on their part was made a condition without which they would not be permitted to purchase stamps at all. This was in effect to say to the appellant, that unless it com- plied with the exaction, it should not continue its business; for it could not continue business without stamps, and it could not purchase stamps except upon the terms prescribed by the commis- sioners of internal revenue. The question is whether the receipts, agreements, accounts, and settlements made in pursuance of that demand and necessity were voluntary in such sense as to preclude the appellant from subsequently insisting on its statutory right. "We cannot hesitate to answer that question in the negative. The parties were not on equal terms. The appellant had no choice. The only alternative was to submit to an illegal exaction, or dis- continue its business. It was in the power of the officers of the law, and could only do as they required. Money paid or other value parted with, under such pressure, has never been regarded as a voluntary act within the meaning of the maxim, volenti non fit injuria." In Robertson v. Frank Brothers Co. ^ it was held that a plain- tiff who added additional charges to the cost of goods, thereby involving a payment of increased duties, and paid the same to avoid a penalty which the custom officials threatened to enforce if he did not add such additional charges, could recover the amount of the increased duties. Mr. Justice Bradley, speaking for the court, said: — "In that case (Maxwell v. G-riswold, 10 How. 242), it is true, the fact that the importer was not able to get possession of the goods without making the payment complained of, was referred to by the court as an important circumstance; but it was not stated to be an indispensable circumstance. The ultimate fact, of which that was an ingredient in the particular case, was the 1 132 U. S. 17. -MONEY PAID TO THE DEFEXUAXT UXDEE DDKESS. 433 moral duress not justified In- law. When such duress is exerted under eiroumstauees sutKoient to influence the apprehensions and conduct of a prudent business man, payment of money wrong- fully induced thereby ought not to be regarded as voluntary. But the circumstances of the case are always to be takeu into consideration. When the duress has been exerted In- one clothed with official authority, or exercising a public employ- ment, less evidence of compulsion or pressure is re(]uired, — as where an officer exacts illegal fees, or a common carrier excessive charges. But the principle is applicable in all cases according to the nature and exigency of each. In Swift Co. r. United States, 111 U. S. 22, the plaintiffs, who were manufacturers of matches, and furnished their own dies for the stamps used by them, and were thereby entitled to a commission of ten per cent on the price of such stamps, accepted for a long period their commissions in stamps (which, of course, were worth to them onlj"- ninetj' cents to the dollar), and they did this because the Treasury Department would pa_v in no other manner. AA'e held that the apprehension of being stopped in their business by non-compliance with the Treasury regulation was a sufficient moral duress to make their payments involuntary. . . . The cases referred to by Justice Matthews abundantly support the jJosition taken, and need not be repeated here. In our judgment, the payment of money to an official, as in the present case, to avoid an onerous penalty', though the imposition of that penalty might have been illegal, was suffi- cient to make the p.aj-ment an involuntary one. It is true that the thing done under compulsion in this case was the insertion of the additional charges upon the entries and invoices; but that necessarily involved the payment of the increased duties caused thereby, and in effect amounts to the same thing as an involuntarj'- payment." It would seem that the test adopted by Mr. Justice Bradley in Robertson v. Frank Brothers Co., namely, "that "n-hen such duress is exerted in circumstances sufficient to influence the apprehensions and conduct of a prudent busi- ness man, payment of money wrongfully induced thereby ought not to be regarded as voluntary," should have led to a different result in Oceanic Steam Navigation Co. v. "28" 434 THE LAW OF QUASI-CONTRACTS. Tappan,^ where the plaintiff sought to recover money paid under protest as an immigration tax, claiming that the statute imposing it was unconstitutional. The statute im- posed penalties upon the non-payment of the tax, which it was admitted would, if collected, have ordinarily bankrupted a ship-owner. It was held that the money so paid could not be recovered. Said Wallace, J. : — "Palpably the statute was framed to coerce the payment of the commutation moneys. If they were not paid, the owner of the vessel was made liable to an accumulation of penalties which would aggregate an enormous sum, and which, if collected, would ordinarily bankrupt the ship-owner. Xaturally, rather than incur the hazard of such disastrous consequences, the ship-owner would pay, in preference to abiding the contingencies of litigation. The hardship of tlie particular case, however, cannot change the rule of law. The penalties imposed in lieu of the commutation money could only be collected by suit in a court of law, where the cor- poration against which they were claimed could have its day and all the protection which the courts afford to suitors; and a payment made under such a state of facts is not made under legal coercion." While it is and should be true that ordinarily money paid under a threat of suit cannot be recovered as money paid under compulsion,^ the rule, it is submitted, should not con- trol such a case as the one under consideration. As a rule the recovery of money paid to avoid litigation would make a payment meaningless, and often do injury to a defendant by giving the plaintiff control of the litigation, but when payment is made to avoid consequences such as were involved in the Oceanic Steam Navigation Co. v. Tap- pan, it does not make the original payment an idle ceremony, since the payment was made to avoid possible bankruptcy growing out of a doubtful question of law. Surely the cir- 1 16 Blatch. 296. 4.5 la. 185; Emmons v. Scudder, 2 City of Muscatine v. The 115 Mass. 367 ; Regan v. Baldwin, Keokuk Northern Line Packet Co., 126 iMass. 485. MOXEY PAID TO THE DEFENDANT UNDEK DURESS. 435 cumstances of tliat case were "sufficient to influence the apprehensions and conduct of a prudent business man." To this principle must be referred the decision in Smith V. Cuft',1 where it was held that a defendant who refused to sign a composition agreement, and who threatened to take bankruptcy proceedings against the plaintiff, his debtor, unless he was paid the difference between the amount of his debt and the amount stated in the composition agreement, must refund to the plaintiff' the money received by him in excess of the sum named in the composition agi-eement. Said Lord Ellenborough, C. J.: — "This is not a case of par delictum ; it is oppression on one side and submission on the other; it never can be predicated as par delictum when one holds the rod and the other bows to it. There was an inequality of situation between these parties : one was creditor, the other debtor, who was driven to compl}' with the terms which the former chose to enforce. And is there any case where, money having been obtained extorsivelj-, and by oppres- sion, and in fraud of the party's own act as it regards the other creditors, it has been held that it may not be recovered back ? On the contrary, I believe it has been uniformly decided that an action lies." The writer is unable to agree with this decision, which, it must be admitted, is generally regarded as law. It is true, as was said by Lord Ellenborough, that the defendant held the rod and the plaintiff' bowed to it, but the defend- ant only succeeded by the use thereof in collecting the amount of his debt. The defendant was under no obli- gation to the plaintiff to sign the composition agreement. It is true that the defendant practiced a fraud upon the creditors, — a fraud in which the plaintiff co-operated, and which, of course, gave the creditors a right to set aside the composition agreement as against the plaintiff, and perhaps a right also in equity to compel the defendant to hold what he received over and above the sum named in the composi- 1 6 il & S. 160. 436 THE LAW OF QUASI-CONTRACTS. tion agreement for their benefit. The result reached in Smith V. Cuff was not that the creditors received money which the defendant in fraud of their rights received from the plaintiff, but that the defendant was compelled to refund to his creditor a sum of money which it is admitted was owing by the plaintiff to the defendant. ^ SECTION III. Amount paid in excess of firincipal and egal rate of interest can be recovered. KECOVEEY OF MONET PAID UXDEK A USURIOUS COSTTEACT. The inception of a usurious contract rather than its performance suggests the existence of duress. While one attempting to borrow money may, because of his necessities, be somewhat restrained in the exercise of his volition, it seems difficult to say that a payment made by one who has the right to refuse to pay, is a payment made under com- pulsion. Nevertheless, ( it has been held that a party paying money under a contract void for usury, can recover as ■ ■' ■ 11 . m 11.1 <',' I . i i i_ _ I ' money paid under compulsion the amount paid in excess of the principal and legal rate of interest.^ '^If a recovery is to be allowed, manifestly it would be unjust to allow a recovery of more than the excessive rate of interest, since to the extent of the principal and legal rate of interest, he is only returning to the defendant what he received from him, and therefore it is impossible to say that as to that amount the defendant has anything which in equity and good conscience he should return to the plaintiff. In considering the right of a plaintiff to recover money paid, where an action could not be maintained to recover the 1 See questioning the soundness of this decision, Solinger v. Earle, 82 N. Y. 393-397, 398. ^ Bosanquet t v. Dashwood, Cas. t. Tal. 37 ; Browning (-. Morris, Cowp. 790 (semble); Fowler v. Equitable Trust Co., 141 U. S. 384 ; Kendall V. Davis, 55 Ark. 318 (semble) ; Willie V. Green, 2 N. H. 333. MOXEY PAID TO THE DEFENDANT UNDER DURESS. 437 rate of interest agreed upon in the contract, it is important, TJn r«-rivpTY ho-n-ever, to distinguish between a statute forbidding the rimpb-'refe" exacting of more than a given rate of interest, and a statute bfiuSit?ir which renders an agreement for more than a given rate of ""' '" "'"" iig: interest unenforceable unless the agreement is in writing. In the latter case the contract, while unenforceable, is per- fectly la-«-ful, and if performed, no part of the money paid thereunder can be recovered.^ fAs the law prohibits n ot the payment but the ta king o f Such payments ^. -x Vl . T.<1,, ? — ^^^ "Ot treated usurious interest, payments so made will not be treated a s as payments payments pro tanto of the principal debt.^ \ k debtor cannot prindpai debt. therefore, after the statute of limitations has run against the recovery of such payments, claim the benefit thereof in an action brought to recover the principal debt, where such actions are allowed.^ SECTION IV. EECOVEKT or MOXEY PAID TO INDUCE THE PEEFOEMANCE OF A DUTY. /^Money paid to one who, because of his position, is under an obligation to discharge certain duties to the public, but who refuses to discharge such duty without the payment of a sum of money, to which he is not entitled, can be recovered as money paid under compulsion. "(Thus, in Dew v . Parsons* it was held that a sheriff who exacted money to which he was not entitled, as a condition of issuing warrants, was liable to an action for the recovery of the money paid in excess of that to which he was entitled. 1 Marvin v. Mandell, 125 Mass. Hodgdon, 62 N. H. 300. See also 562. See also Carson v. Cochran, Pixley v. Ingram, 53 Hun, 93. 53 N. W. Rep. 1130 (Minn. 1892). » Cummings o. Knight, 65 N. H. 2 Peterborough Savings Bank v. 202; Pixley v. Ingram, 53 Hun, 93. 4 2 B. & Aid. 562. 438 THE LAW OF QUASI-CONTRACTS. In Steele v. Williams,^ the plaintiff applied to the defendant for permission to search certain records in the office of the defendant, a parish clerk, and to take extracts therefrom. He was told by the clerk that whether he took extracts or received official certificates, he would have to pay a certain fee. The plaintiff, after completing his search, paid the fee demanded by the defendant. It was held in an action brought to recover the money so paid, that, notwithstanding the payment was not made until after the searches had been made and the extracts taken, the plaintiff, since he had agreed to pay the fee in question on the defendant's de- manding it as a condition of allowing him to make the search, could recover the money so paid as paid under ■compulsion. On the same principle, it is held that a carrier who refuses to receive goods tendered to him unless a sum of money is paid to which he is not entitled, must refund to the plaintiff the overpayment made in such circumstances.^ SECTION V. RECOVERY OF MONEY PAID TO AVOID ARREST OR TO BE RELEASED THEREFROM. Money paid to ( jf money paid to prevent the wrongful seizure or detention obteinTeiease of property Can be recovered as paid under compulsion, a fuUmstTar'' recovery should certainly be allowed of money paid to avoid e recovered, bodily harm, Or to prevent the wrongf ul arrest or detention of t he party making the paymen t. ) Accordingly, it was held in De Mesnil v. Dakin ^ that the plaintiff could recover money" which he paid to obtain his release from an arrest not only 1 8 Ex. 625. As to the recovery of money paid to 2 Parker v. The Great Western obtain goods detained by a carrier, Railway Co., 7 M. & G. 253 ; Cook see supra, p. 428. V. Chicago R. R. Co., 81 la. 551. s l. R. 3 Q. B. 18. MOXEY PAID TO THE DEFE.\DANT UNDER DURESS. 439 groundless but unlawful, because the warrant authorized the arrest not of tlie plaintiff but of his brother. ^ven thoudi the arrest is legal in form, haYing been made as required by law, if the defendant caused the arrest to be made not in the interest of justice but to enable him to extort monej- from the plaintiff, money paid to obtain release therefrom can be recovere d.^ " ( _While, ordinarily, m oney paid under a mere threat of When money \ . . . . " can be recuv- cnminal prosecution in circumstances not authorizing the ered though belief that there is immediate da nger of arrest without an immediate Quportunity of being heard will be regarded as a voluntary arrest. pavrpent .^ still, if it can be. shown that the plaintiff was im- posed upon because of his age, infirmity, position, or igno- rance, and money was procured by such threats, a recovery thereof will be allowed.' a It is not enough, however, for the plaintiff to show that No recovery prior to the time when he made the payment which he seeks pWriecessit.y to recover, he was acting under duress ; it must appear that he haspassea was acting under compulsion at the time of making the pay- ment which he seeks to recover. Thus in Schultz v. Culbert- son* it was held that the plaintiff, who gave a note to avoid the arrest of his son on a false criminal charge, could not recover the money paid in extinguishment of the note, it not appearing that there was any necessity for the payment of the note. Since, however, the plaintiff must establish an unjust en- Payment must unjustly enrich nchment on the part of the defendant, ^t bere can be no def endant. recovery if in fact the plaintiff has only done what he should have done voluntarily .^ '\ 1 Richardson v. Duncan, 3 N. H. 227 ; Higgins c. Brown, 78 Me. 473; 508. See also Hackett v. King, (3 Betts <>. Reading, 93 Mich. 77. Allen, 58; Heckman v. Swartz, 64 " Cribbs u. Sowle, 87 Mich. 340; Wis. 48. Adams i: Irving National Bank, 116 2 Bosley w. Shanner, 26 Ark. 280; X. Y. 606. Hines v. Hamilton County, 93 Ind. ^ 46 Wis. 313- 266; Harmon v. Harmon, 61 Me. ^ See Diller u. Johnson, 27 Tex. 47. 440 THE LAW OF QUASI-COXTRACTS. Plaintiff need not be tlae party threat- ened with arrest. (Xotonly can the party u nlawfully arrested or threatened with arrest recover money which he has paid to avoid such a result, but one closely related to him will be allowed to recover money paid in such circumstances.^ > In Adams v. Irving National Bank ^ it was held that the plaintiff, who had paid money under a threat by the defend- ant to arrest her husband if the money was not paid, could recover the money so paid, as paid under compulsion. Brown, J., delivering the opinion of the court, said : — "It is not an accurate use of language to apply the term duress to the facts upon which the plaintiff seeks to recover. The case falls rather within the equitable principle which renders voidable contracts obtained by undue influence. However we may classify the case, the rule is firmly established that in relation to husband and wife, or parent and child, each may avoid a contract induced and obtained by threats of imprisonment of the other. And it is of no consequence whether the threat is of a lawful or unlawful imprisonment." ^, Recovery of — money paict t o compouiia a leiony. The statement of the learned judge that it is of no con- sequence whether the threat is of a lawful or unlawful imprisonment seems to need modification. It was held in Haynes v. Rudd^ that a father who gave a note to the defendant to prevent the prosecution of his son for larceny, and who was compelled to pay the same at maturity, had no cause of action against the defendant for the money so paid, since the money was paid to compound a felony, and the parties were in pari delicto.^ On the same principle, it was held in Gotwalt v. Neal ^ that a deed executed for the purpose of compounding a threatened prosecution for embezzlement could not be set aside as obtained under duress. 1 Adams v. Irving National Bank, 116 N. y. 606 ; Schultz v. Culbertson, 49 Wis. 122. 2 116 N. Y. 606. 8 102 N. Y. 372. * See supra, p. 273. 6 25 Md. 434. xMOXEY PAID TO THE DEFENDANT UNDER DURESS. 441 In Schoener v. Lissauer,' however, the court entertained a bill to procure the cancellation and discharge of a mort- gage apparently given to compound a felony committed by the son of the mortgagor. It is submitted that Haynes v. Rudd and Schoener v. Lissauer are the same in principle. In each case equitable relief was sought by a party who had engaged in an illegal transaction. It is true that the one action was at law, while the other was in equity ; but it must not be forgotten that while Haynes v. Rudd was an action at law, it was an action which is maintained on equitable principles.^ It is true that the one transaction was executed, while the other was, in a sense, executory. But in each case the defendant had acquired legal as distinguished from equi- table rights. In each case the plaintiff sought to deprive the defendant of his legal right. In the one case he was allowed to do it, in the other not. If relief was properly denied in the one case because the parties were in pari delicto, why should it have been granted in the other case, in spite of that fact ? 1 107 N. Y. 111. See also Bryant ^ ggg Hunt v. Amidon, supra, p. V. Peck & Whipple Co., 154 Mass. 400, note 1. 460. INDEX. PAGE INDEX. ACCOUNT, recovery of money paid under mistake as to an account . 121 ACTION, EIGHT OF survival of 163-165 See Assumpsit ; Conteact; Indebitatus Assumpsit; QUASI-CONTKACT ; SPECIAL ASSUMPSIT; SuiT; TORTJ Waives of Tort. AGENCY, recovery from an agent, not disclosing his agency, of money paid under mistake . 61-63 70 plea of payment to principal by agent to whom money has been paid under mistake ........... 62 recovery of money paid under a mistake as to the authority of an agent 113-118 recovery of money lent under mistake as to the authority of an agent 331-333 recovery for goods delivered under mistake as to the exist- ence of an agency 334 recovery for services rendered under mistake as to authority of an agent 326 recovery of money collected without authority from plain- tiflf's debtor 167-170 recovery of money paid by an agent under an illegal contract 181 recovery from a principal of money wrongfully received by his agent . , 200 liability in quasi-contract of an agent committing a tort 60, 201-203 personal liability of one professing to act as agent for ben- efits received 334-337 right of agent to Indemnity 398 ADMINISTRATOE. See Executor. 446 INDEX, APPRENTICE, PAo. right of recovery against one enticing away an apprentice . 189 ARREST, recovery of money paid to avoid or to obtain release from, wliere arrest is unautliorized 438 where made for purposes of extortion , . . 415, 439 recovery of money paid where there is no immediate dan- ger of arrest , . . i 439 recovery of money paid to prevent the arrest of a third person •....••.4>i.a< . . . . 18 right of, to indemnity for money expended in preservation of property 399 liability of, to refund money unlawfully demanded, as a condition of delivering goods 428 as a condition of receiving goods 438 CHANGE OF POSITION. See Position, Change op. CHECKS, recovery of money paid on an overdrawn check , 34, 76, 81-82 limit of recovery 31 See Negotiable Paper. CHILD, right of, to recover for services rendered to parent . . • 317 CLOUD ON TITLE, recovery of money paid to remove 429 COLLATERAL FACT, recovery of money paid under mistake as to ... . 74-77 COMPROMISE, when recovery can be had of money paid under mistake by way of compromise .... 30 448 INDEX. PAS! COMPULSION, PAYMENT UNDER. See Duress; Legal Process; Statutory Liability; Taxes; Usury. CONDITIONS, distinction between express and implied conditions . 222-226, 241-244 source and nature of conditions implied in law . , . 223-225 no recovery on contract unless conditions thereof have been performed, or performance waived 214 CONSCIENCE, no recovery of money paid under mistake, unless the re- tention thereof is against conscience 43 money due in point of, cannot be recovered, though paid under mistake 44 the amount which it is against conscience to retain is the measure of recovery where money has been paid under mistake, or because of fraud 34, 183 See Unjust Enrichment. CONSIDERATION, FAILURE OF, the basis of recovery of money paid under mistake ... 34 recovery of money paid under mistake where failure of consideration only partial , , . . 124, 130 recovery of money paid under a contract where failure of consideration only partial 304 CONSPIRACY, liability of conspirator for money had and received by co- conspirator 200-202 See Waiver of Tort. CONSTRUCTION, when a question of law 102-106 CONTRACTS, classification and division of, 3 genuine contracts rest upon intention 4, 5 distinction between contracts and quasi-contracts .... 5-6 See Conditions ; Contracts implied in Fact ; Con- tracts IMPLIED IN Law; Construction; Frauds, Statute of; Goods Sold and Delivered; Ille- gality ; Impossibility ; Money Paid ; Money Had and Received; Quasi-Contract ; Unperformed Contract. INDEX. 449 FADE CONTRACTS IMPLIED IN FACT, distinction between, and express contracts 4-5 distinction between, and quasi-contracts .... 5-6, 12, n. 2 CONTRACTS IMPLIED IN LAW, usual classification of 3 distinction between, and a genuine contract, whether express or implied in fact 5 are not dependent upon intention , 5 origin of term ^ 14-15 See Q0ASI-CONTEACT. CONTRIBUTION, nature of right to 401-403 right to, between tort-feasors 408 See Monet Paid to Use of Defendant; Surety. CO-PARTNERSHIP. See Partnership. COURT, questions decided by, are not necessarily questions of law 97-112 DAMAGES. See Recovery, Measure of. DEMAND, when necessary, as a condition of suing to recover money paid under mistake 140-153 necessity for demand as a condition of suing to recover money under paid contract which the defendant has re- fused to perform 146,147,151,309 necessity for, when plaintiff sues in disaffirmance of an illegal contract 266 DEFENDANT IN DEFAULT UNDER A CONTRACT. See Frauds, Statute op; Goods Sold and Deliv- ered; Illegality; Impossibility; Monet Had and Received; Monet Paid; Unperformed Contract. DISSEISEE, not liable in an action for use and occupation ..... 191 nor in an action to recover the proceeds arising from a sale of timber cut from land 172 DISTRAINT. See Legal Process. DISTRESS. See Legal Process. 29 450 INDEX. DURESS, PAGE. nature of obligation to refund money paid under .... 25 recovery of money paid to prevent an unlawful taking or detention of property 426-430 recovery of money paid to remove a cloud on title . . . 429 recovery of money paid to prevent an injury to business 430-436 recovery of money paid to induce creditor to sign composi- tion agreement 435-436 no recovery unless retention of money obtained by, against conscience 429 measure of recovery 429- See Arrest; Attachment; Carrier; Law, Compul- sion OF ; Public Officer ; Suit, ELECTION, satisfaction of claim in tort bars remedy in quasi-contract . 203' eflFect of receipt of money in diminution of damages on right to sue in quasi-contract ........... 203^ effect on quasi-contractual right of unsatisfied demand for the proceeds of sale of property tortiously sold .... 203 eflfect of beginning an action against tort-feasor . . . 204-207 effect of suing claim against tort-feasor to judgment . . . 207 effect of electing to sue one of two joint tort-feasors in I assumpsit . 208-213- effect of an election between special and indebitatus assumpsit. . 309-311 EQUITY, relief in equity where money is paid under a contract en- tered into under mistake 122-124 recovery in equity for improvements made upon land by a vendee in possession 363 recovery in equity for improvements made upon land under a mistake as to the ownership thereof .... 377 See Frauds, Statute of; Improvements. EXECUTION, recovery of money paid in purchase of property under an execution sale 395-396 CUTOR, lability of executor or administrator, to refund money re- ceived on the sale of property to which he had no title . 128- INDEX. 451 'E.XECVTOH —condmted. ,.-... PAGE liability of an executor or administrator for the tort of the testator or intestate 163-165 liability of an executor or administrator for funeral expenses 344 EXTRINSIC FACT. See Collateral Fact. FEES, recovery of fees collected by usurper of an office . . , 188-189 FELONY, recovery of money paid, to compound a felony . . . 440-441 FICTIONS, use and abuse of, 160, 211-212 FOREIGN LAW, treated as a question of fact . . . , , 92 recovery of money paid under mistake as to . . . . 92-94 FOREIGNER, recovery of money paid by, under mistake as to domestic law 92 FORGERY, proof of forgery, will not sustain count for money had and received 161 See Negotiable Instruments. FORGETFULNESS, recovery of money paid in forgetfulness of facts .... 31 FRAUD, recovery of money obtained by 180-188 right of plaintiff to disaffirm contract induced by fraud, and to sue for goods sold and delivered 197-199 liability of a third party for goods sold and delivered under a contract induced by fraud 196 See Election ; Recovery, Measure of ; Waiver oi Tort. FRAUDS, STATUTE OF, effect of statute upon contracts 232 right of a plaintiff repudiating contract because of statute of frauds, to reoover monev paid thereunder .... 232 452 INDEX. FEAUDS, STATUTE OF — continued. paoe to recover for use and occupation 233 to recover for services rendered 283-234 liability of defendant repudiating contract because of stat- ute of frauds to refund money received thereunder . . 278 to pay for services rendered thereunder .... 278 to pay for use and occupation of land of which he was in possession under a contract for the pur- chase thereof 278 enrichment of defendant, not damage to plaintifE, the ground of recovery . , . . , 279, 289 obligation imposed upon defendant is to make restitution . 286 effect of offer by defendant to return what he received under the contract 285-289 right of defendant to a credit for benefits conferred upon plaintiff 281-285 use of contract as evidence against defendant .... 289-292 See Improvements ; Recovery, Measure of. FREIGHT, recovery of freight p7-o rata ttineris, completion of voyage being impossible 251-254 recovery of money paid, completion of voyage being impos- sible 292-294 FUNERAL EXPENSES, recovery of money paid in defraying . 341-344 GOODS SOLD AND DELIVERED, liability of a lunatic in count for goods sold and delivered, for necessaries 20, 195 liability of tort-feasor in count for goods sold and deliv- ered 192-195 liability of a third party for goods sold and delivered under a contract induced by fraud 196 right of recovery in count for goods sold and delivered, against party to fraudulent contract 19^ See Husband and Wipe ; Infant ; Unperformed Contract. ^'OLDER FOR VALUE, recovery of money paid under mistake where defendant is a holder for value 77-81 INDEX. 453 HOLDER FOR V ALim —contmued. recovery of money tortiously obtained where defendant is a holder for value 185-188 HONOR, no recovery of money paid under mistake, but due in point of honor . . 43-44 HOUSEHOLD, right of members of, to recover for services rendered . 316-319 HUSBAND AND WIFE, nature of liability of husband for necessaries furnished wife ... . 22 right of one rendering services in the mistaken belief that she is the defendant's wife, to recover the value thereof 321-326 liability of widow for necessaries furnished on the credit of her husband by one ignorant of his death . • , .334-336 recovery by wife of money lent to husband , . . .336-340 IGNORANTIA JURIS HAUD EXCUSAT, application of maxim 87-92 ILLEGALITY, recovery of money paid, though not due, under an illegal contract, where payment is induced by fraud ... .181 right of plaintiff to disaffirm contract because of illegality and sue in quasi-contract , 258, 263 recovery of money paid under an illegal contract by plain- tiff acting in disaffirmance thereof .... ... 259 recovery of money forfeited under an illegal contract by the default of the plaintiff 264 liability of stakeholder under illegal contract .... 261-262 necessity of demand or notice as a condition of suing where plaintiff sues in disaffirmance of an illegal contract . . 266 where the defendant is in default under an illegal contract, and the plaintiff is in pari delicto, there cau be no recov- ery of money paid thereunder . 269 nor for services rendere,.... 309 LUNATIC, liability of, for necessaries, quasi-contractual 9, 20 MALICIOUS PROSECUTION, question of reasonable and probable cause in, a question of fact not of law 110-112 MARRIED WOMAN. See Husband and Wife. MEASUREMENT, recovery of money paid under mistake as to 30 MISTAKE, BENEFITS CONFERRED UNDER, RE- COVERY FOR, recovery for services rendered by a plaintiff under mistake as to his stattis 318-326 recovery of money lent under mistake as to the creation of a co-partnership obligation , , . 326-329 as to the authority of an agent , , 330-334 INDEX. 459 MISTAKE — continued. p^„^ recovery for services rendered under a mistake as to the existence of a co-partnership obligation 326 recovery for services rendered under mistake as to the terms of an offer 330 recovery for goods delivered to vridow in ignorance of death of husband , 334-336 See Agency; Husband and Wife; Impeovements,, MISTAKE, MONEY PAID UNDEE, RECOVERY OF, obligation to return money paid under mistake (|uasi- contractual 23 recovery of money paid under mistake is based upon equit- able principles 26 plaintiff must prove a failure of consideration 34 money must have been paid under a belief that it was due . 27 a mere suspicion that money was not due will not prevent a recovery as of money paid under mistake ..... 29 knowledge prior to time of making payment immaterial . 31 mistake must be as to a material fact 32, 41 retention of money must be against conscience 43 effect upon right of recovery of an irrevocable change of position involving defendant in a loss 59-73 when title to money paid under mistake is in payee ... 63 effect of negligence upon right of recovery 70-72 effect of laches in asserting claim 72 recovery of money paid under mistake as to a collateral fact 74 no recovery against holder for value 77 recovery of money paid under mistake of law . . . . 85-112 mutuality of mistake, when necessary 122 when demand must be made as a condition of recovery . . 139 to recover as for money paid under mistake, money or its equivalent must have been received 139 when restitution must be made by plaintiff of value re- ceived 129, 138 recovery of interest on money paid under mistake . . 1.54 recovery of money paid under mistake as to the creation of an obligation 112-118 as to the existence of an obligation 119-120 as to the amount of an obligation 120-124 460 INDEX. MISTAKE, MONEY PAID UNDER — co«fonMe(f. as to title 125-130 as to the existence of the subject-matter of sale . 130-138 recovery of money paid to wrong person 167-168 See Account; Agency; Compromise; Foreign Law; Foreigner ; Law ; Law, Mistake of ; Monet Had AND Received ; Negotiable Paper ; Position, Change of ; Proof, Burden of ; Recotery, Meas URE of ; Sales. MONEY HAD AND RECEIVED, count for, an equitable action 44, n. 1, 400, n. 1 cannot be maintained unless money, or what was treated as money, has been received 139, 161, 173 See Agency; Arrest; Attachment; Frauds, Statute OF ; Illegality ; Impossibility ; Judgment ; Law, Compulsion of ; Mistake, Recovery op Monet Paid Under ; Mistake, Recovery for Benefits Conferred Under ; Property ; Unperformed Con- tract ; "Waiver of Tort. MONEY LENT, use of count for 329,331,339 MONEY PAID TO USE OF DEFENDANT, RECOV- ERY OF, what facts will support allegation of payment of money . . 410 right of recovery where plaintiff pays debt of defendant to protect his own property 388-395 right of recovery, where plaintiff's property is sold under execution on account of defendant's debt .... 391-393 effect on right of recovery that seizure of property was unlawful 394-395 recovery of money paid in extinguishment of a claim which as between plaintiff and defendant should have been paid in whole or in part by the defendant . 396-410 right of recovery when payment necessitated by wrongful act of defendant 396 right of recovery when though the claim existed against the plaintifiF, the defendant had agreed to pay it . . 397-399 right of recovery where payment was necessary because of representations made by defendant 399 See Contribution; Indemnity; Surety; Tort-feasors. INDEX. 461 MONEY PAID UNDER MISTAKE. See Mistake, MoxKY Paid Uxder, Recovery of. PAGE NEGLIGENCE, a question of fact not of law 107-109 effect of negligence on right to recover money paid under mistake 70-72 NEGOTIABLE INSTRUMENTS, recovery by payee of money paid in ignorance of the alter- ation of a note 47 recovery by maker of money paid to holder of an unin- dorsed note 49 right of payee to recover proceeds of altered note . . 169 recovery of purchase money paid for a forged bill of exchange 131 for a bill of exchange void for want of a stamp . . . 131 recovery by acceptor of money paid under mistake as to a collateral fact 74 recovery by acceptor or drawee of money paid in extin- guishment of a bill of exchange, forged as to the drawer's signature . . o . . 154, n. 1 forged as to the body of the instrument or an indorse- ment thereon 154, n. 1 on the faith of a forged bill of lading . . . . 154, n. 1 recovery of money paid in extinguishment of a bill of ex- change for the honor of one whose name is forged 154, n. 1 NON-EXISTING THING, recovery of money paid under mistake as to the existence of a thing 130-138 See Mistake, Recovery of Monet Paid Under; Negotiable Paper ; Sales. NOTES. See Negotiable Papek. OFFICIALS, nature of obligation imposed upon 16 recovery of money paid to, under mistake of law ... 94 recovery of money extorted by . . 437 OVERPAYMENTS, recovery of •• 120-125 462 INDEX. PARENT AND CHILD. See Child. "» PARTNERSHIP, recovery of money paid under mistake as to the existence of a partnership agreement 116-118 recovery of money lent under mistake as to the existence of a partnership agreement 326-329 recovery for services rendered under mistake as to the ex- istence of a partnership agreement 326 PATENT, recovery of money paid for the use of, under mistake as to the validity of latters patent 37 liability of infringer of, in quasi-contract 165 PAWNBROKER, recovery of money paid to, under mistake as to his title to property purchased 129 PERSONAL PROPERTY, recovery in quasi-contract for the wrongful use of . , . 190 See Goods Sold and Dehvehed; Peopertt; Sales. PILOT, statutory right of, to half pilotage fees is a quasi-contract- ual right 17 PLAINTIFF IN DEFAULT, rights of, quasi-contractual 24 See Frauds, Statute ov ; Illegality ; Impossi- bility ; Unperformed Contract. PLEADING. See Set-Ofp. PLEDGE, recovery of money wrongfully exacted on the redemption of 427-428 POSITION, CHANGE OF, eflfect of an irrevocable change of position on right to re- cover money paid under mistake 59-72 burden of proof, as to 73 POSSESSION, right of one in possession, to maintain count for money had and received to recover proceeds of property from tort- feasor 197 INDEX. 46 D PRINCIPAL AND AGENT. See Agenct. ^^<=^ PROMISE. See Assumpsit ; Contract ; Contract Im- plied IN Fact ; Contract Implied in Laiy ; Indebitatus Assumpsit ; Quasi-Contract ; Spe- cial Assumpsit. PROTEST, effect of 423, n. 4 PROMISSORY NOTE. See Negotiable Paper. PROOF, BURDEN OF, burden of establishing an irrevocable change of position . 73 burden of, on question of intention to charge for services rendered 317, n. 3 PROPERTY, recovery of money paid in extinguishment of defendant's debt by plaintifE to protect his own property . . . 388-395 recovery of money paid to defendant to prevent a wrong- ful seizure or detention of property 426-430 recovery for wrongful use of 190—191 recovery for services rendered in the preservation of prop- erty without request 353-357 See Duress ; Law, Compulsion of ; Improvements ; Real Estate ; Sales ; Use and Occupation ; Waiver of Tort. PUBLIC OFFICER, recovery of money illegally exacted by, as a condition of performing a duty 437-438 See Officials. QUANTUM MERUIT. See Frauds, Statute of; In- debitatus Assumpsit ; Illegality ; Impossibility ; Unperformed Contract ; Waiver of Tort. QUASI-CONTRACTS, usual classification of ° reason for classification ^4 quasi-contractual obligation exists independently of intention 5, 12, n. 2 distinction between, and torts 15 sources of the quasi-contractual obligation 16 464 INDEX. REAL ESTATE, page recovery of money paid to remove cloud on title .... 421) title to, cannot be tried in count for money had and re- ceived 429 See Duress ; Improvements ; Law, Compulsion of ; Property; Sales; Use and Occupation; Waiter OF Tort. EEASONABLE TIME, when a question of law 104-106 RECORD, nature of obligation of 16 See Contracts ; Quasi-Contracts. RECOVERY, MEASURE OF, limit of recovery where money is paid under mistake . 34, 183 measure of recovery for wrongful user of property . . . 166 recovery in count for money had and received is limited to amount received . , 173 limit of recovery where tort is waived, and an action is brought for money had and received 173, 183 measui-e of recovery where a recovery is sought of money paid as on a failure of consideration ..... 115-116 measure and limit of recovery where a recovery is sought in quasi-contract for services rendered under a contract that has been abandoned . . 289, 298-300, 311, 313, n. 2 measure of recovery where services have been rendered under a mistake as to the terms of an offer . . . . 330 measure of recovery for improvements made upon land which the vendor refuses to convey 364, 371 measure of recovery for improvements made upon land under mistake 377 RELATIVES. See Child; Household. RENT, recovery of money paid in extinguishment of rent due from defendant 388-390 See Use and Occupation. RESCISSION, distinction between rescission and abandonment of con- tract 310, n. 1 INDEX. 4(;,-, RESCISSION — continued. .^ PAGE right of recovery for benefits leceived where contract is re- scinded by mutual consent .... ... 310nl See Illegality; Improvements; Frauds, Statute OF ; Unperformed Contracts. RESTITUTION, as the basis of a quasi-contractual obligation . 164, 286, 299, 308 necessity of making restitution, as a condition of suing to recover money paid under mistake 129, 138 as a condition of recovery against a defendant in default under a contract . . ... 302 as a condition of recovery against a vendor in default for improvements made . . 365 SALES, recovery of proceeds of wrongful sale .... 170,172,176- recovery of money paid under mistake as to the title to property sold 125-130 as to the existence of the subject-matter of sale . ISO-lS^ See Limitations, Statute of; Mistake, Money Paid Under, Recovery of; Negotiable Paper ; Unper- formed Contract ; Waiver of Tort. seal, contract under, recovery of money paid under, from a defendant in default 308 recovery for services rendered or goods sold and delivered under, against a defendant in default 308-309 SET-OFF, recovery of money paid in ignorance of right of . . 49-51 money paid under mistake should be pleaded as a set-ofE, and not as payment . -• 54 tort may be waived and claim asserted by way of . . . 207, n. 5 SHERIFF, nature of liability of . . 19 recovery of money illegally exacted by 437 SIMPLE CONTRACTS, division and classification of .... 3 30 466 INDEX. SPECIAL ASSUMPSIT, distinction between special and indebitatus assumpsit . . . 307 when special assumpsit is exclusive of indebitatus assumpsit 309-311 effect of an election between special and indebitatus as- sumpsit 309-311 special, not indebitatus assumpsit is the remedy to recover damages for a wrongful discharge 307 See Assumpsit ; Indebitatus Assumpsit. STATUTE OF FRAUDS. See Frauds, Statute of. STATUTE OF LIMITATIONS. See Limitations, Statute of. STATUTORY LIABILITY, is quasi-contractual ^ It) right of a party meeting an obligation imposed upon him by statute to indemnity 398 SUNDAY LAWS. See Illegality. SUIT, recovery of money paid under threat of 434 See Action, Right of. SURETY, nature of surety's claim against debtor 400 against co-surety 40l-40fi surety cannot claim in opposition to terms of contract 40u, 406 that sureties are strangers to each other will not defeat a claim to contribution . . . ... 401, 403, 407 no contribution except as between co-sureties . . . . 406 surety has no right to call for contribution unless debt has been paid at his expense ... . . . . . 406 when right to contribution arises 407 effect of form of obligation assumed by sureties, upon right to contribution ... ... ... 407 See Law, Compulsion of ; Monet Paid to Use of Defendant, Recovery of. TAXES, recovery of money paid in the mistaken belief that property has been taxed .... 119 INDEX. 4G7 PAGE TAXES — continued. no recovery of taxes paid under mistake as to an imma terial fact •>.) no recovery of taxes paid under mistake where the reten- tion thereof is not agaiust conscience 47 liability of owner of laud to one paying taxes under mistake as to the ownership of the land . 378 380 recovery of taxes paid to prevent a sale of personal property 422-424 of real estate 424-425 TITLE, when title to money paid under mistake is in payee ... 63 recovery of purchase money paid under mistake as to title 125-129 recovery of money where failure of title is partial only . . 130 TORT, distinction between, and quasi-contract 15 See AVaiver of Toet. TORT-FEASORS, right of, to contribution or indemnity 408-410 See Waiver of Tort. TRESPASS, a mere trespass will not entitle injured party to sue in quasi-contract . 160-163 TRESPASSER, not liable in quasi-contract for use and occupation . . . 191 ULTRA VIRES, nature of the liability of a corporation acting ultra vires 272, n. 1 USURY, recovery of amount paid in excess of legal interest . . , 43G distinction between usurious contracts, and contracts for the payment of interest unenforceable because not in writing 436 payment of usurious interest not treated as payment pro tanto of principal debt 437 UNJUST ENRICHMENT, as a source of quasi-contract 19 no recovery of money paid under mistake in the absence of 43 the basis of waiver of tort 160 468 INDEX. UXJUST ENRICHMENT — cowftMuecf. p^™ where tort is waived recovery limited to amount of . . . 183 the basis of recovery when plaintiff is in default under a contract .... 253 when defendant is in default under an unenforceable contract 279, 286 the basis of recovery of money expended in improving the land of another without request 364 UNPERFORMED CONTRACT, (a) Defendant Failing To Perform Contract. recovery of money paid to under an illegal contract 268-273 under a contract unenforceable because of the statute of frauds 278 under a contract impossible of performance . . 293-298 under a contract as to which the defendant is wilfully or inexcusably in default .... 298-300, 302-309 recovery for services rendered under a contract unenforce- able because of the statute of frauds 278-281 recovery for services when the defendant is wilfully or in- excusably in default 300 recovery for property sold under a contract as to which the defendant is wilfully or inexcusably in default .... 304 (b) Plaintiff Failing To Perform Contract. right of recovery quasi-contractual • . . . 24 recovery is had upon equitable principles 214 recovery by a plaintiff in wilful default for services rendered 215, 218 of money paid 217, 229 for goods sold and delivered 226 right of recovery where plaintiffs default is unintentional 230-231 right of a plaintiff relying upon statute of frauds to recover money paid under a contract . 232-233, 236, 240 right of a plaintiff to recover for benefits conferred under a contract impossible of further performance . . 244-254 right of a plauitiff to recover money paid, or for benefits conferred under an illegal contract ... . 258-266 See Frauds, Statute of. Illegality; Impossibility-, Improvemknxs ; LniiTATTONs, Statute of ; Money Had and Received ; Recovery, Measure of. INDEX. 469 USE AND OCCUPATION, ^^^^ trespasser, not liable in 191 liability in, of vendee refusing to perform contract for the purchase or lease of land 278 liability of a vendee for use and occupation to a vendor re- fusing to perform contract for the sale of land . . 233,371 VALUE. See Holder for Value ; Recovery, Measure OP ; Unjust Enrichment. VOLUNTEER, no recovery by an officious volunteer for benefits con- ferred 3.50, 360, 388 no recovery where no intention to charge 315, 350 recovery by, for services rendered in the preservation of property ■ 353-357 recovery for services rendered to one whom the defendant was under an obligation to support 344-351 See Child ; Funeral Expenses ; Husband and Wife ; Improvements ; Money Paid to Use of Defendant, Recovery of. WAIVER OF TORT, obligation quasi-contractual 24 waiver of tort an election of remedies 159 waiver does not create right 159-160 unjust enrichment the basis of 160 right of a party whose estate has not been diminished by the commission of the tort . . .163-166 measure of recovery for wrongful use of property . 167 recovery of proceeds of property wrongfully sold . . . 167-170 to waive tort and sue in count for money had and received, money must have been received by tort-feasor 172-173, 175 "•ecovery of interest in count for money had and received where tort is waived 175 oifect of statute of limitations running against action in tort before sale of property 176 effect of running of statute of limitations after sale of prop- erty but before receipt of money by tort-feasor . . 17/ 470 INDEX. WAIVER OF TOUT — continued. paok right of one having a possessory right only to recover pro- ceeds of sale 179 recovery in count for money had and received of money wrongfully obtained 180 where tort can be waived notwithstanding illegality . . . 181 Utility of third party for money tortiously obtained from plaintiff 183-185, 188 recovery of money received by one usurping an office . 188-189 recovery for services of apprentice enticed away . . . . 189 recovery for wrongful use of property 190 use and occupation for wrongful use of land will not lie . 191 right to waive tort and sue for goods sold and delivered . 192-197 extent and nature of liability of joint tort-feasors . . 200-202 satisfaction of tort bars remedy in quasi-contract .... 203 effect upon right in quasi-contract of receipt of money in diminution of damages 203 effect of bringing an action in tort upon quasi-contractual right 204-207 eflFect of recovery in quasi-contract against one of two joint tort-feasors upon right to sue other tort-feasor . . . 208-213 See Limitations, Statute of ; Recovery, Measure of; Tort ; Tort-feasor ; Trespass ; Trespasser. WEIGHT, recovery of money paid under mistake as to ... . 30, 61 WORK AND LABOR. See Conditions ; Frauds, Stat- ute OF ; Illegality; Impossibility; Improvements; Mistake, Benefits conferred Under, Recovery FOR; Unperformed Con^tract ; Volunteers; Waiver of Tort. WRONGDOERS. See Contribution; Tort-feasors; Waiver op Tort. WRONG PERSON, recovery of money paid to 167-168