Ficken v. Edward's Inc.

• Decision Date: 03 May 1962
• Docket Number: No. CV,CV
• Citation: 183 A.2d 924,23 Conn.Supp. 378
• Court: Connecticut Circuit Court
• Parties: , 23 Conn.Supp. 378 Henry FICKEN v. EDWARD'S, INC. 9-616-238.

Page 924

183 A.2d 924

1 Conn.Cir.Ct. 251, 23 Conn.Supp. 378

Henry FICKEN v. EDWARD'S, INC.

No. CV 9-616-238.

Circuit Court of Connecticut, Ninth Circuit.

May 3, 1962.

A. Robert Gordon, Middletown, for plaintiff.

William A. Rabinowitz, Hartford, for defendant.

KOSICKI, Judge.

The plaintiff brought action against the defendant to recover money paid by mistake. The defendant filed a general denial and counterclaimed for $1005.36, alleging that the plaintiff had agreed to pay $1805.36 for merchandise installed on the plaintiff's premises, of which amount $800 had been paid. This the plaintiff denied.

The following facts, about which there was no substantial dispute, are found. On July 14, 1960, the plaintiff entered into a written contract with Edward Zak, Jr., not a party to this suit, for the construction of a house at a total cost of $14,200. The contract provided for stage construction payments which coincided with payments to be made by the City Savings Bank of Meriden on a construction mortgage executed by the plaintiff on said premises. All payments on the building contract were made to the contractor, the balance being paid on December 6, 1960.

As a part of the building contract, Zak was required to instal ceramic tile and formica, vinyl or linoleum surface covering in various areas of the house, and the defendant was chosen by him as the subcontractor for that purpose. The plaintiff made a selection of the materials to be used. He stood in no contractual relation with the defendant; the cost of the work was included in the contract price; and the defendant dealt solely with Zak and looked to him for payment. On November 25, 1960, the defendant sent Zak a detailed statement and invoice for the completed work in the total amount of $1805.36. No notice was given by the defendant to the plaintiff on or before December 6, when the final payment was made by the plaintiff to the contractor, Zak. The bill of the defendant has not been paid. On March 31, 1961, Zak was adjudicated a bankrupt. The defendant was listed as a creditor and filed its claim in the total amount due.

On December 29, 1960, the defendant, by its president, called the plaintiff about the money owed to it by Zak and demanded payment in the honest belief that it had a right to a mechanic's lien which it proposed to file; and it was so represented to the plaintiff. Shortly thereafter, both parties consulted with counsel and acted upon their advice. At that time, counsel supposed that a right to a mechanic's lien existed and arranged for payment by the plaintiff of the full amount claimed by the defendant, upon obtaining the usual release, waiver and assignment. On January 27, 1961, all of those papers were delivered by defendant's attorney to the attorney for the plaintiff upon receipt of two checks in the amounts of $800 and $1005.36 respectively. To that point, both parties and counsel acted upon the belief that the plaintiff was liable to the defendant, that the debt of Zak was enforceable against the plaintiff, and that, unless he paid, a valid mechanic's lien would be lodged against the plaintiff's property. Soon after the checks were delivered, the attorney for the plaintiff became aware of the unsoundness of the defendant's claim and so notified defendant's counsel. Payment on the check for $1005.36 was stopped; the check for $800 had already been cashed by the defendant.

It is clear from the foregoing recital of facts that on and after December 6, 1960, the defendant had no right to a subcontractor's lien. General Statutes §§ 49-32 to 49-41; Tice v. Moore, 82 Conn. 244, 248, 73 A. 133; Rowley v. Salladin, 139 Conn. 642, 644, 96 A.2d 219. It is not claimed by the defendant that there was any personal liability resting on the plaintiff. It follows from the foregoing that on January 25, the defendant could not have recovered from the plaintiff in a contract action, nor could it have placed a valid encumbrance on the plaintiff's property. The conclusion is inescapable that so far as the aborted payment of $1805.36 is concerned, the defendant has no cause of action against the plaintiff and cannot recover the balance asserted in the counterclaim. The only question on which the parties are seriously at issue is whether the defendant can keep the $800 mistakenly paid to it or whether the defendant is obliged to return it to the plaintiff.

Where money is paid under a mutual mistake, the general rule appears to be that if the mistake is one of fact the payment may be recovered; but where the mistake is one of law, subject, however, to certain well defined exceptions, no recovery can be had. 40 Am.Jur. 844-850 §§ 187-198, 856-858 §§ 205-208. The rule in Connecticut is not in accord with that prevailing in other jurisdictions with respect to the distinction between a mistake of fact and a mistake of law. State ex rel. Johnson v. Atchison, 105 Conn. 315, 326, 135 A. 456; Mansfield v. Lynch, 59 Conn. 320, 328-330, 22 A. 313, 12 L.R.A. 285. In the case of Northrup v. Graves, 19 Conn. 548, 554, the rule applicable here was thus stated: 'In the present case, we establish no new principle, nor depart from any well settled doctrine of the common law. We do not decide, that money paid by a mere mistake in point of law, can be recovered back; (a) as if it has been paid by an infant, by a feme covert, or by a person after the statute of limitations has barred an action, or when any other merely legal defence existed against a claim for the money so paid, and which might be honestly retained. But we mean distinctly to assert, that, when money is paid by one, under a mistake of his rights and his duty, and which he was under no legal or moral obligation to pay, and which the recipient has no right in good conscience to retain, it may be recovered back, in an action of indebitatus assumpsit, whether such mistake be one of fact or law; and this we insist, may be done, both upon the principle of Christian morals and the common law. And such only was the doctrine of the charge to the jury, in the present case. In such a case as we have stated, there can be no reasonable presumption that a gratuity is intended; nor is the maxim Volenti non fit injuria, at all...