Simms v. Vick

• Decision Date: 29 September 1909
• Citation: 65 S.E. 621,151 N.C. 78
• Parties: SIMMS. v. VICK.
• Court: North Carolina Supreme Court

65 S.E. 621

151 N.C. 78

SIMMS.

v.VICK.

Supreme Court of North Carolina.

Sept. 29, 1909.

1. Payment (§ 85^*)—Recovery of Payments —Voluntary Payment—Mistake of Fact.

While a voluntary payment, with knowledge of all the facts, cannot be recovered back, though there was no debt, a payment made under a mistake of facts may be.

[Ed. Note.—For other cases, see Payment, Cent. Dig. § 272; Dec. Dig. § 85.*]

2. Payment (§ 85*)—Recovery of Payment-Mistake of Fact.

It is not sufficient to preclude one from recovering money paid by him under a mistake of fact that he had the means of knowledge of the fact, unless he paid it intentionally, not choosing to investigate the fact.

[Ed. Note.—For other cases, see Payment, Cent. Dig. § 280; Dec. Dig. § 85.*]

3. Payment (§ 85*)—Recovery of Payment-Mistake of Fact.

Where plaintiff, who could not read, had on the day of his last payment on a note forgotten his first payment and his receipt therefor, and thus made an overpayment, there was a mistake of fact, and he was entitled to recover the amount of the overpayment.

[Ed. Note.—For other cases, see Payment, Cent. Dig. § 273; Dec. Dig. § 85.*]

Appeal from Superior Court, Wilson County; O. H. Allen, Judge.

Action by James A. Simms against Sam H. Vick. There was a judgment, and plaintiff excepted and appeals. Error. Remanded.

Civil action tried by O. H. Allen, J., and a jury, at February term, 1909, of the superior court of Wilson county. The plaintiff sued the defendant before a justice of the peace upon two causes of action, to wit: (1) For $40 due by note; (2) for $67.50, an overpayment on a note of $175. The justice gave judgment in favor of plaintiff on the note of $40, from which judgment plaintiff appealed. At the trial in the superior court, defendant tendered judgment for the $40 interest and costs, and his honor submitted the following issues to the jury: "Is the defendant, S. H. Vick, indebted to the plaintiff, and, if so, in what amount?" to which the jury responded: "Yes; for $67.50 and interest." The record then proceeds: "Thereupon, on motion, the verdict was set aside, upon the grounds that the mistake in overpayment claimed by the plaintiff was not such a mistake as the law would relieve against. Plaintiff excepts. And it was ordered that plaintiff do not recover the amount claimed to have been overpaid upon the note of $175." Judgment was thereupon entered in favor of plaintiff for $40 interest and costs, and further, that plaintiff was not entitled to recover the overpayment of $67.50 upon the grounds stated above. To this part of the judgment plaintiff excepted and appealed to this court.

J. D. Ba'rdin, for appellant.

Connor & Connor, for appellee.

MANNING, J. Upon the trial plaintiff produced receipts of the defendant for $67.50 more than the principal and interest of his note. The note was dated March 3, 1906, and was due November 1, 1906. The receipts were dated from March 6, 1906, to November 12, 1906. Upon the payment made on the last-named day the note was surrendered to plaintiff, indorsed: "Paid in full." The plaintiff testified that he could not read and on the day of the last payment had forgotten the first payment and his receipt therefor. The defendant testified that he had no personal knowledge of the receipts to plaintiff, as they were signed by his clerks and bookkeeper, and that plaintiff did not mention to him the overpayment for 12 months afterwards. The jury found the issue in favor of plaintiff. The question presented is whether his honor erred in holding that upon the verdict the mistake was a mistake of law, and could not be relieved against. We think his honor committed error. A voluntary payment, with a knowledge of all the facts, cannot be recovered back, although there was no debt. But a payment under a mistake of fact may be. Adams v. Reeves, 68 N. C. 134, 12 Am. Rep. 627; Pool v. Allen, 29 N. C. 120; Newell v. March, 30 N. C. 441; Lyle v. Siler, 103 N. C. 261, 9 S. E. 491; Worth v. Stewart, 122 N. C. 258, 29 S. E. 579; Com'rs v. Com'rs, 75 N. C....