Budd v. Eyermann

• Decision Date: 07 June 1881
• Citation: 10 Mo.App. 437
• Parties: CHARLES P. BUDD ET AL., Appellants, v. GOTTLIEB EYERMANN, Respondent.
• Court: Missouri Court of Appeals

10 Mo.App. 437

CHARLES P. BUDD ET AL., Appellants,

v.GOTTLIEB EYERMANN, Respondent.

St. Louis Court of Appeals, Missouri.

Jun. 7, 1881.

1. Money paid under a mistake of fact may be recovered back.

2. Where it appears beyond a reasonable doubt that the plaintiff was to pay for a certain judgment the amount due and collectable thereon, that, unknown to either party, a portion of the judgment had been paid to the defendant's agent, and that, by mistake, the plaintiff paid that sum in excess of his agreement, he is entitled, as matter of law, to recover back this excess.

APPEAL from the St. Louis Circuit Court, LINDLEY, J.

Reversed and remanded.

OVERALL, JUDSON & TUTT, for the appellants: The admitted facts establish a case of money paid, by mistake of facts, as alleged in the petition, for the recovery of which an action lies.--4 Wait's Act. & Def. 469; Harris v. Board, 3 Mo. App. 570; Koontz v. Bank, 51 Mo. 275; Bank v. Allen, 59 Mo. 313; Lawrence v. Bank, 54 N. Y. 435; Burr v. Veeder, 3 Wend. 412.

GEORGE A. CASTLEMAN, for the respondent: “The purchaser of a chattel cannot rescind the sale without returning it to the vendor, unless it be entirely worthless to both parties. If it be of any value to the vendor, or if its loss would be any injury to him, it must be returned.”-- Perley v. Balch, 23 Peck, 283; Shepherd v. Temple, 3 N. H. 455; Sandford v. Dodd, 2 Day, 437; Tisdale v. Buckmore, 33 Me. 461; Dorr v. Fisher, 7 Cush. 274-277; Moyer v. Shoemaker, 5 Barb. 319; Babcock v. Carr, 61 Pa. St. 427; Mohun v. Reeves, 11 Ala. 345; Smith v. Smith, 30 Vt. 139; Dill v. O'Furell, 45 Ind. 268; Morse v. Brackett, 98 Mass. 205; s. c. 104 Mass. 494.

LEWIS, P. J., delivered the opinion of the court.

The petition states that the plaintiffs agreed to purchase from the defendant a certain judgment of which he was the owner, “for and in consideration of an amount equal to said judgment and all interest thereon and costs of suit;” that this amount, at the date of the purchase, was $325.25, provided nothing had been previously paid; and the plaintiffs paid that sum to the defendant, who thereupon assigned the judgment to them; that there had then, in fact, been paid on the judgment divers sums, amounting to $208.25, which payments had never been credited on the judgment, but were concealed from the plaintiffs by the defendant; that the plaintiffs are entitled to recover the difference between the sum really remaining due on the judgment at the time of the purchase, and the amount which the plaintiffs thus paid by mistake, to wit, the said sum of $208.25. The answer was a general denial, and the cause was submitted to the court, sitting as a jury. No declarations of law were asked on either side, or given by the court, and the finding was for the defendant.

It cannot be questioned that if it was agreed between the parties that the price to be paid for the judgment should be the amount then remaining due and collectable upon it, and if, in consequence of concealment or misrepresentation by the seller, or a mistake by both parties, a larger sum was paid by the purchaser, the latter would be entitled to recover back the difference between what he had agreed to pay and supposed he was paying, and the larger sum which he never agreed or intended to pay, but in truth did pay under a misapprehension of the facts. It is claimed for the plaintiffs that such was the transaction in the present case. If this be true, the judgment of the court below was wrong.

But it is also unquestionable that the holder of a judgment may sell it for a fixed sum either greater or less than what may be collected upon it; and if a purchaser chooses to pay ten times such collectable amount, and the holder sells and transfers his judgment for such an exaggerated price, and receives the money, no law can compel the seller to refund any part of the excess over the available value. A man may, for reasons of his own, be willing to pay $5,000 for a one-thousand-dollar judgment. The owner may be unwilling to transfer it to that purchaser for a less sum. If the parties so agree and close the transaction, the courts will leave them where they have placed themselves.

The question to be here determined is, to which of these classes does the record assign the present case. The answer must be found in the truth or untruth of the allegation in the petition, that the agreed price of the judgment was...