Norton v. Bohart
| Decision Date | 02 June 1891 |
| Citation | 16 S.W. 598,105 Mo. 615 |
| Parties | Norton, Surviving Partner, v. Bohart, Appellant |
| Court | Missouri Supreme Court |
Appeal from Caldwell Circuit Court. -- Hon. J. M. Davis, Judge.
Reversed and remanded.
Thomas J. Porter, William A. Wood and Johnson & Wait for appellant.
(1) If the money sued for was paid in pursuance of the contract set forth in defendant's answer, the plaintiff cannot recover on averments which ignore and contradict the contract. The petition should have set it forth truly, and pleaded such facts as would have entitled plaintiff to recover notwithstanding the contract. Christy v. Price, 7 Mo. 430; Fruin v. Railroad, 89 Mo. 397; Mill Co v. Brundage, 25 Mo.App. 268; State to use v Samuels, 28 Mo.App. 649; Treadway v. Johnson, 33 Mo.App. 122. (2) If the money sued for was paid to defendant in pursuance of a contract between the parties, and in exact accordance with its terms, it cannot be recovered on the ground that plaintiffs were mistaken as to the nature or effect of the contract, or the character or value of the property purchased; for a mistake of one party, relief will not be afforded, so as to subject the other party to obligations or conditions to which he never assented. Any relief will be denied in such case, unless the parties can be placed in their former position. Kerr on Fraud and Mistake p. 428; Matthews v. Kansas City, 80 Mo. 231; Fruin v. Railroad, 89 Mo. 397; Treadway v. Johnson, supra; Schouler on Personal Prop., pp. 626-628; Comer v. Grannis, 75 Ga. 277; Brown v. Mosher, 33 N.W. 38. (3) If a party, through ignorance, forgetfulness, inadvertence or mistake, makes a contract, he has the choice of abiding by it as made, or of asking its rescission on the ground of such ignorance, etc., but he cannot hold the fruits of the contract as made, and enforce different terms against the other party, to which that party never assented. Kerr on Fraud and Mistake, pp. 409-422; Fruin v. Railroad, 89 Mo. 397; Benson v. Markoe, 5 Am. St. 816; Sawyer v. Hovey, 3 Allen, 331. (4) If the parties had agreed upon $ 11,750 as the price of the property sold, and by mutual mistake the contract had been made to call for $ 13,750, it would be a case where a court of equity would reform the contract, but only then upon the most conclusive evidence that the sum named was mentioned contrary to the intention of both parties; "and the mistake must be proved as much to the satisfaction of the court as if admitted." Ford v. Joyce, 78 N.Y. 618; Wemple v. Stewart, 22 Barb. 158; Frederick v. Henderson, 94 Mo. 98; Sawyer v. Hovey, 3 Allen, 331. (5) Unless there was either a mutual mistake or fraud on the part of the defendant (which is neither alleged nor proven), there can be no relief at law or equity, notwithstanding the plaintiffs were mistaken, if they had the means of discovering the facts and neglected to avail themselves of the opportunity. Pomeroy's Equity, sec. 856; Kerr on Fraud and Mistake, p. 409; Brown v. Fagan, 71 Mo. 563; Needles v. Burk, 84 Mo. 560; Grymes v. Saunders, 93 U.S. 55. (6) If the defendant received only the amount he contracted for, and understood he was entitled to, he cannot be compelled to refund any part of it, so as to conform the transaction to the understanding of the other party to the contract. He is entitled to keep it all, or to surrender it all, and be restored to his original position. Jarrett v. Morton, 44 Mo. 275; Woodward v. VanHoy, 45 Mo. 300. (7) The plaintiff, having declared on the written memorandum mentioned in defendant's answer in his former suit against the defendant as the contract of the parties, and sought to recover $ 2,000 for a breach of the contract, will not be permitted to deny the contract, ignore its terms and recover on the ground the money sued for was paid by mistake. "A party cannot recover on a statement of facts entirely inconsistent with claims set up by him in a prior suit for the same cause of action." Walker v. Walker, 37 La. Ann. 107; Brue v. Sims, 34 Mo. 246; Speck v. Riggin, 40 Mo. 405-6. (8) Notwithstanding the change in form of action, the decision in 24 Mo.App. 240, must govern the decision of this case as to the contract between the parties, and their rights and liabilities under it. Adair Co. v. Ormsby, 75 Mo. 282; Murphy v. Murphy, 28 Mo.App. 276; Bevis v. Railroad, 30 Mo.App. 564; Railroad v. Traube, 59 Mo. 355; Chouteau v. Gibson, 76 Mo. 38. (9) As there was no proof of mutual mistake nor of fraud on the part of the defendant, his demurrer to the evidence should have been sustained. Authorities above cited.
James F. Mister, Anderson & Carmack, S. C. Woodson and R. P. C. Wilson for respondent.
(1) Right to recovery is based upon the view that the transaction in this case involves the doctrine of surprise combined with a mistake of law. Jeremy's Eq. Jurisp., pt. 2, ch. 2, p. 366. The relief is on the ground that the party has been taken unawares; that he acted without due deliberation and under confused and sudden impressions. Where the result of denying the relief will be to give the other party an unconscionable advantage (in the case of a misapprehension or mistake of an established rule of law,) and the fact of such misapprehension is admitted, or proved to the satisfaction of the court, this is sufficient ground for equitable interference. 1 Story's Eq. Jurisp. [10 Ed.] sec. 138, note 2, 138e, 138f, 138g, 138h, 138i; also 119, 134; Snell's Principles of Equity, 369, 370; Irwin v. Wilson, 12 W. Rep. 873; Chitwood v. Russell, 36 Mo.App. 245. (2) When the mistake is of so fundamental a character that the minds of the parties had never, in fact, met, or where an unconscionable advantage has been gained by mere mistake or misapprehension; and there was no gross negligence on the part of the plaintiff, either in falling into the error, or in not sooner claiming redress, and no intervening rights have accrued, and the parties may still be placed in statu quo, equity will interfere, in its discretion, in order to prevent intolerable injustice. 1 Story's Eq. Jurisp., sec. 138i. (3) Money paid voluntarily under a mistake of fact may be recovered back as money had and received. A contract may be set aside, if made for a consideration which is really non-existent, but which both parties mistakenly supposed to exist. Adams on Equity [4 Am. Ed.] *188, marg. page. (4) When the surprise is mutual there is, of course, a still stronger ground to interfere, for neither party has intended what has been done. They have misunderstood the effect of their own agreements or acts; or have presupposed some facts or rights existing, as the basis of their proceedings, which in truth did not exist. Snell's Principles of Equity, 369, 370; Irwin v. Wilson, 12 W. Rep. 873; Coal Co. v. Slack, 7 S. Rep. 300; Cleghorn v. Zumwalt, 23 P. 294. (5) If the money is paid under the impression of the truth of a fact which is untrue, it may, generally speaking, be recovered back, however careless the party paying had been in omitting to use due diligence to inquire into the facts. The imputation of negligence would not bar the plaintiff's action. Where the parties acted under a mistake of facts, and both were mutually in error, if, in consequence of such mutual mistake, one party has received the property (or money) of the other, he must refund, and that without reference to vigilance or negligence. Koontz v. Bank, 51 Mo. 275; Fraker v. Little, 24 Kansas, 598; Divine v. Edwards, 87 Ill. 177. (6) And even though it should be conceded that the defendant was innocent in his representations to the plaintiff, he would still not be entitled to retain the money. The question whether he understood the matter as he represented it to be is not involved. But how was the fact? School Directors v. Boonhorn, 83 Ill. 17; Dobson v. Winner, 26 Mo.App. 329; Chitwood v. Russell, 36 Mo.App. 248. (7) But where an account has been stated, and the supposed balance paid, and afterwards an error is discovered on the face of the account (as in the memorandum in this case), such as crediting a single item twice, must the merchant file a bill in equity in order to have such an error corrected? In every such case there is an implied obligation upon both parties, ex oequo et bono, to rectify any mistakes, and an action at law will lie to recover the balance paid by reason of such mistake. Hanson v. Jones, 20 Mo.App. 598; Chitwood v. Russell, 36 Mo.App. 245; Slayden v. Coal Co., 25 Mo.App. 446; Wright v. McPike, 70 Mo. 175; Matthews v. City of Kansas, 80 Mo. 235.
Silver & Brown also for respondent.
(1) The contract for the purchase of the bank property was an oral one, notwithstanding the memorandum read in evidence. Bishop on Contracts [2 Ed.] sec. 168. (2) It was for the jury to determine the terms of the contract, it being an oral one, or at most partly oral and partly written. 1 Thompson on Trials sec. 1113; Judge v. Leclare, 31 Mo. 127. (3) It is well settled in this state that where there is no liability or only a supposed liability under a contract, and money is paid thereunder by mistake, or misapprehension of a fact, it can be recovered back as money had and received. Ins. Co. v. Walsh, 18 Mo. 229, and cases cited; Koontz v. Bank, 51 Mo. 275; Morrow v. Surber, 97 Mo. 155. The contract properly construed contained no liability to pay twice for the bank building. See also Mowart v. Wright, 1 Wend. 360; Wheadon v. Olds, 20 Wend. 174; Kelly v. Solari, 9 Mees. & Wels. 54. (4) The plaintiff is entitled to recover on the ground of a partial or pro tanto failure of consideration. The most usual example of recovery of money had and received or failure of consideration is where the purchase price of the goods has been paid, and the goods are not delivered to the vendee. Nash v. Towne, 5 Wallace, 689. So...
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