Lyle v. Shinnebarger
| Decision Date | 23 March 1885 |
| Citation | 17 Mo.App. 66 |
| Parties | JAMES LYLE, Appellant, v. WILLIAM A. SHINNEBARGER, Respondent. |
| Court | Kansas Court of Appeals |
APPEAL from Nodaway Circuit Court, HON. H. S. KELLY, Judge.
Reversed and remanded.
The facts sufficiently appear in the opinion of the court.
S. R BEECH and WILLIAM C. ELLISON for the appellant.
I. The first instruction, as qualified by the court, does not correctly state the law. A mistake of fact, though negligently or carelessly made, does not prevent a recovery and even though the party has possession of the means of discovering the mistake, or once knew the facts but has forgotten them, he may recover.-- Koontz v. Central National Bank, 51 Mo. 275; Fraker v. Little, 24 Kan. 598; Devine v. Edwards, 87 Ill. 177; Stanley, Rule & Co v. Brielsy, 45 Conn. 464; Llewellen v. Garrett, 58 Ind. 442; School Directors v. Boomhorn, 83 Ill. 17.
II. A further qualification of said instructions is erroneous, viz " If the plaintiff supposed that by the laws of Nebraska, delivery and acceptance were not necessary, he is bound by his act in paying the money, although such acts are necessary to a valid sale in that state." The true principle is that if the law mistaken is the law of a foreign state, the mistake is regarded as one of fact.-- Haven v. Fostu, 9 Pick. 111; Kerr on Fraud and Mistake (Bump's ed.), 402.
III. The third instruction, as qualified, is against the current of authority.
IV. The first and second instructions for defendant have no evidence for their support.
No brief on file for respondent.
This suit was begun before a magistrate in Nodaway county to recover from respondent sixty dollars claimed to have been paid to him through a mistake of facts.
The circumstances under which the money was paid were as follows: The son of appellant, sometime during the summer of 1879, went to York county, Nebraska, leaving on his father's farm in Nodaway county, Missouri, a growing crop of corn and a new cultivator plow. He made himself a home in Nebraska, and, while residing there, met with respondent, who was then a resident farmer of the neighborhood. After some time had elapsed, respondent, who also had been a resident of Nodaway county, returned and seeing appellant, asked him if his son John had a field of corn on his place. Appellant answered that he had. Respondent then told him that before he left Nebraska, he had seen his son John and had made a trade with him; that he had sold to John a twenty-acre field of corn in Nebraska, at three dollars per acre; and that John had agreed to let him have his pay out of the proceeds of the sale of his corn on his father's farm, in Nodaway county. Appellant relying solely upon these representations, and without further or other information in respect to the transaction, said that he would rather hold his son's corn for a better price than corn was then bringing, and that he would pay respondent the cash and " take his son for it." The offer to pay cash was accepted by respondent, and appellant paid him accordingly.
In a short time appellant learned that respondent and his son were disputing as to whether there had been any such trade made between them, the former claiming and the latter denying that there had been. However that may be, appellant's son positively refused to accept the Nebraska corn, denied that he had ever agreed to, and refused to approve his father's act in paying the $60 on his account. At the institution of this suit the corn still remains in the field as it was when respondent left it. Appellant demanded back the $60 of respondent, claiming that when he paid it he supposed he was accommodating him, and especially his son. Respondent refused to refund, whereupon this suit was instituted.
The court gave for appellant the following instructions:
1. " If the jury believe from the evidence that, at the time the money in controversy was paid to defendant, the parties did not understand each other; that the plaintiff thought he was paying it on account of corn that defendant was to gather for him, and defendant thought he was receiving it on account of a sale of corn he had made to the plaintiff's son in Nebraska, then their minds did not meet in the transaction, and you should find for the plaintiff. That is to say, if the plaintiff and defendant did not come to an agreement or understanding of the terms of the contract between them, by which the money was paid to defendant, and that without any fault or negligence of the plaintiff, he paid the money through a mistake of the facts, and he took steps to have the matter set aright within a reasonable time after discovering the misunderstanding, the jury should find for the plaintiff; but if the facts were correctly represented to the plaintiff, and he paid the money under an agreement between him and defendant had on the faith of such representation of the facts, the plaintiff cannot recover the money back, although he may not have understood the legal effect of the transaction.
2. The court instructs the jury that, if one person, through a mistake of facts, pays money to another, which he does not owe, it is the duty of the other to refund the money on demand; if therefore, the jury believe from the evidence, that defendant represented to plaintiff, that he had sold to his son corn in Nebraska, standing in the field; and that, believing there had been a binding sale on the faith of such representation, plaintiff paid him $60, saying, ‘ he would take his son for it; ’ and if they further find from the evidence that, plaintiff's son never had taken possession of the corn, and had never paid any money or other valuable thing to defendant therefor, and that there had been no writing of any kind between defendant and plaintiff's son, affirming or recognizing such sale, they will find for the plaintiff. Provided, they further find that plaintiff's son refused to take said corn, and denied the validity of said contract between him and defendant for the sale of said corn.
3. The court instructs the jury that mere words will not constitute a delivery of personal property; whatever the language of the contract may be, there must be some act of the parties, operating and intended to operate as a transfer of possession and an acceptance by the buyer; if the jury believe from the evidence that anything remained to be done between the defendant and John Lyle in Nebraska, as contemplated by the contract, in the way of separating a specific quantity sold from a large field in which the corn in evidence was standing with other corn, in order to the delivery thereof, then there was no delivery of the corn."
The italics in each of the above instructions are what was added to them as originally asked by appellant, and to this addition or modification exceptions were duly saved.
For respondent the court gave the following instructions, to the giving of which appellant excepted at the time:
1. " If the jury believe from the evidence that defendant sold to John Lyle, who they may believe from the evidence is the son of James Lyle, the plaintiff, twenty acres of corn standing in a field in the state of Nebraska for three dollars per acre, and that he had pointed and showed said John Lyle where said corn was, and that an exchange of plows and the payment of the difference of value was a part and parcel of said contract, then no further or other delivery of said corn was necessary to complete and make binding said contract for the sale of said corn.
2. If the jury believe from the evidence that defendant had twenty acres of corn standing in the field; that he bargained and sold said corn to the son of the plaintiff who lived near said corn, in the state of Nebraska, for the price of sixty dollars; that defendant was to have certain corn in Nodaway county in payment of said corn in Nebraska, and that at the time of said sale said corn was pointed out and shown to plaintiff's son, and he was directed to, and did agree to take said corn in the field and gather it, and defendant left said corn in his care, this was sufficient delivery of the corn to constitute a valid contract in law; provided, the jury believe from the evidence that the corn in its then condition was not capable of a more specific delivery and no other or further delivery was contemplated by the parties at the time.
3. If the jury believe from the evidence that James Lyle, the plaintiff, voluntarily paid the defendant the sum of sixty dollars for his son, John Lyle, in discharge of the contract of said son, for the purchase of the defendant's corn in Nebraska, with a view of holding John Lyle's corn in Nodaway county until the price of corn would increase, then the jury will find for the defendant, and it makes no difference that John Lyle may have written to the defendant that he would go back on the contract after the payment of the money."
On trial plaintiff introduced in evidence section 9 of the Nebraska statute of frauds as follows:
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