authority of a statute, receives taxes paid to him under duress and protest, an action may be maintained against him to recover the amount thus paid, provided the statute is void, although he has placed the money to the credit of the state. However, on the ground that money paid under a mistake of law is not recoverable, it has been held that money paid under an unconstitutional statute, without any circumstances of compulsion, cannot be recovered. Thus it has been held that money voluntarily paid to city authorities, as a license, in pursuance of an ordinance which is adjudged to be void, cannot be recovered back; but in a jurisdiction wherein money paid under a mistake of law may be recovered the rule is otherwise.10

189. Payment Induced by Fraud.-The doctrine of voluntary payment presupposes bona fides on the part of the person exacting payinent. It has no application when the money is obtained by the fraud of the person receiving it and if such is the case the person paying may recover.11 Hence where a contract was made to pay a person a percentage for assisting in recovering moneys due from one therein named, and such person was afterwards paid the agreed percentage on the collection of such money because of his representation that the collection was made by him, it was held that the person making the payment could recover back the money so paid, if such representation were false, and if the person receiving the same performed no services in the matter.12 An officer who receives fees to which he is not entitled, from a person whom he knows to be ignorant of the law, without informing him that he is not bound to pay, receives money fraudulently, and is liable to an action for money had and received.13 But if an obligation procured by fraud is paid

7. Scottish Union, etc., Ins. Co. v. 37, 160 S. W. 751, 49 L.R.A. (N.S.) Herriott, 109 Ia. 606, 80 N. W. 665, 387. 77 A. S. R. 548.

8. Wingerter v. San Francisco, 134 Cal. 547, 66 Pac. 730, 86 A. S. R. 294; Ligonier v. Ackerman, 46 Ind. 552, 15 Am. Rep. 323, overruled on another point by Jennings v. Fisher, 103 Ind. 112, 2 N. E. 285; Eslow v. Albion, 153 Mich. 720, 117 N. W. 328, 22 L.R.A. (N.S.) 872; Taylor v. Board of Health, 31 Pa. St. 73, 72 Am. Dec. 724; Noyes v. State, 46 Wis. 250, 1 N. W. 1, 32 Am. Rep. 710.

Note: 94 A. S. R. 411, 427.

9. Robinson v. Charleston, 2 Rich. L. (S. C.) 317, 45 Am. Dec. 739. See LICENSES, vol. 17, pp. 552-554.

10. Spaulding v. Lebanon, 156 Ky.

11. Lamborn v. Dickenson County Com'rs, 97 U. S. 181, 24 U. S. (L. ed.) 926; Ligonier v. Ackerman, 46 Ind. 552, 15 Am. Rep. 323, overruled on another point by Jennings v. Fisher, 103 Ind. 112, 2 N. E. 285; Boyd v. Anderson, 1 Overt. (Tenn.) 438, 3 Am. Dec. 762.

Notes: 94 A. S. R. 414.

See FRAUD AND DECEIT, vol. 12, pp. 406, 456.

12. United States v. Sanborn, 135 U. S. 271, 10 S. Ct. 812, 34 U. S. (L. ed.) 112.

13. Marcotte v. Allen, 91 Me. 74, 39 Atl. 346, 40 L.R.A. 185.

Note: 15 L.R.A. (N.S.) 184.

voluntarily with a full knowledge of the facts, the amount so paid cannot be recovered.14

190. Time of Compulsion.-The rule allowing a person to recove! money which he bas once paid on the ground that it was paid under compulsion applies only where there is no other means of immediate relief. On this principle, if a person obtains relief from duress by a promise of future payment and makes the payment after the duress is removed and when he has had opportunity to escape it by legal methods, he cannot afterwards recover it.15 Still if the danger is certainly impending, it need not be presently so. This principle is applicable to payments of illegal taxes where the law is imperative, and giving no discretion, commands the issue of the warrant at a definite time, and the levy under that warrant within a fixed time thereafter. Under these circumstances an individual need not wait until the last moment, and pay only just as the officer is seizing his property, but he may assume that the officers of the law will obey its precepts and when all opportunity for consideration and correction has passed, all discretion is ended, and the tax roll is in the treasurer's hands, he may then pay to the treasurer, protesting against the legality, and asserting his intention to contest, and recovery will be allowed.16

Mistake of Fact

191. In General.-Where money is paid to another under the influence of a mistake of fact, that is, on the mistaken supposition of the existence of a specific fact which would entitle the other to the money, and the money would not have been paid if it had been known to the payer that the fact was otherwise, it may be recovered. The ground

14. Note: 94 A. S. R. 415.

Feemster v. Markham, 2 J. J. Marsh.

15. Notes: 45 Am. Dec. 154; 94 (Ky.) 303, 19 Am. Dec. 131; Watson A. S. R. 413.

v. Cresop, 1 B. Mon. (Ky.) 195, 36 Am. Dec. 572; Tucker v. Denton, 106 S. W. 280, 32 Ky. L. Rep. 521, 15 L.R.A. (N.S.) 289; Frontier Bank v. Morse, 22 Me. 88, 38 Am. Dec. 284: Baltimore, etc., R. Co. v. Faunce, 6 Gill (Md.) 68, 46 Am. Dec. 655 and note; Haven v. Foster, 9 Pick. (Mass.) 112, 19 Am. Dec. 353; Merchants' Nat. Bank v. National Eagle Bank, 101 Mass. 281, 100 Am. Dec. 120; Welch v. Goodwin, 123 Mass. 71, 25 Am. Rep. 24; Talbot v. National Rank, 129 Mass. 67, 37 Am. Rep. 302; Needles v. Burk, 81 Mo. 569, 51 Am. Rep. 251; American Brewing Co. v. St. Louis, 187 Mo. 367, 86 S. W. 129, 2 Ann. Cas. 821; Evans v. Gale, 17 N. H. 573,

16. Note: 94 A. S. R. 414. 17. Espy v. Cincinnati First Nat. Bank, 18 Wall. 604, 21 U. S. (L. ed.) 947; Louisiana v. Wood, 102 U. S. 294, 26 U. S. (L. ed.) 153; United States v. Barlow, 132 U. S. 271, 10 S. Ct. 77, 33 U. S. (L. ed.) 346; United States v. Carr, 132 U. S. 644, 10 S. Ct. 182, 33 U. S. (L. ed.) 483; Hogben v. Metropolitan L. Ins. Co., 69 Conn. 503, 38 Atl. 214, 61 A. S. R. 53; Logan v. Sumter, 28 Ga. 242, 73 Am. Dec. 755; Wolf v. Beaird, 123 Ill. 585, 15 N. É. 161, 5 A. S. R. 565; Lewellen v. Garett, 58 Ind. 442, 26 Am. Rep. 74; Noble v. Doughten, 72 Kan. 336, 83 Pac. 1048, 3 L.R.A.(N.S.) 1167:

on which the rule rests is that money, paid through misapprehension of facts, in equity and good conscience belongs to the person who paid it.18 Municipal corporations as well as individuals are subject to this rule.19 An error of fact is ordinarily said to take place either when some fact which really exists is unknown, or some fact is supposed to exist which really does not exist. 20 It has sometimes been attempted to draw a distinction between ignorance of fact and error of fact. In practical effect, however, they are substantially one and the same thing and, considered as a motive of actions, ignorance differs but little from error. In practice the terms are frequently used as of interchangeable significance.1

192. Exceptions and Qualifications to Rule; Mutual Mistake.There are certain well defined exceptions to the general rule that money paid under mistake of fact may be recovered. One is where the drawee of a draft or bill of exchange pays it to a bona fide holder, under the belief that the signature of the drawer is genuine, and it turns out to have been forged. It has been decided that the drawee is bound to know the signature of the drawer, and that if he accepts or pays he cannot recover. So also it has been held that if one pays a draft, purporting to be accepted by him, he cannot afterward set up that the acceptance was a forgery, as against a bona fide holder to whom the payment was made. And further if a bank pays what purports to be its own bills or receives them on deposit, and passes them to the credit of its customer, it cannot recall the payment, or revoke the credit on subsequently discovering that the bills had been fraudulently

579, 34 Atl. 455, 51 A. S. R. 785; Boyd v. Anderson, 1 Overt. (Tenn.) 438, 3 Am. Dec. 762; Dickins v. Jones, 6 Yerg. (Tenn.) 483, 27 Am. Dec. 488 and note.

Notes: 64 Am. Dec. 95; 50 Am. Rep. 139; 51 Am. Rep. 820; 94 A. S. R. 415; 11 L.R.A. (N.S.) 234; 13 Ann. Cas. 411.

43 Am. Dec. 614; Behring v. Somer- degrove, 5 Pa. St. 516, 47 Am. Dec. ville, 63 N. J. L. 568, 44 Atl. 641, 49 425; McKibben v. Doyle, 173 Pa. St. L.R.A. 578; Waite v. Leggette, 8 Cow. (N. Y.) 195, 18 Am. Dec. 441 and note; Mowatt v. Wright, 1 Wend. (N. Y.) 355, 19 Am. Dec. 508 and note: Kingston Bank v. Eltinge, 40 N. Y. 391, 100 Am. Dec. 516 and note; National Bank v. National Mechanics' Banking Ass'n, 55 N. Y. 211, 14 Am. Rep. 232; National City Bank v. Wescott, 118 N. Y. 468, 23 N. E. 900, 16 A. S. R. 771; Hathaway v. Delaware County, 185 N. Y. 368, 78 4 Gray (Mass.) 518, 64 Am. Dec. 92. N. E. 153, 113 A. S. R. 909, 13 L.R.A. (N.S.) 273; Adams v. Reeves, 68 N. C. 134, 12 Am. Rep. 627; Simms v. Vick, 151 N. C. 78, 65 S. E. 621, 18 Ann. Cas. 669, 24 L.R.A. (N.S.) 517; Ellis v. Ohio L. Ins., etc., Co., 4 Ohio St. 628, 64 Am. Dec. 610; Scott v. Ford, 45 Ore. 531, 78 Pac. 742, 80 1. Scott v. Ford, 45 Ore. 531, 78 Fac. 899, 68 L.R.A. 469; Boas v. Up- Pac. 742, 80 Pac. 899, 68 L.R.A. 469.

And see ASSUMPSIT, vol. 2, p. 784. 18. Appleton Bank v. McGilvray,

19. American Brewing Co. v. St. Louis, 187 Mo. 367, 86 S. W. 129. 2 Ann. Cas. 821.

20. Mowatt v. Wright, 1 Wend (N. Y.) 355, 19 Am. Dec. 508; Scott v. Ford, 45 Ore. 531, 78 Pac. 742, 80 Pac. 899, 68 L.R.A. 469.

altered by raising their amounts. But it has been held that if one pays a forged note, supposing the signature to be his own, he may maintain an action to recover the money so paid, provided he proceeds promptly on discovering the forgery, although the defendant at the time of such payment had surrendered to him a mortgage which he in good faith had received as collateral security for the note, but which had been executed as security for another note, of which the forged note was a copy. It is often said that a mistake must be mutual to permit of a recovery of money paid under its influence. However, that does not seem to be essential, for if a person pays money under an honest mistake of fact on his part, although it is received by the payee with full knowledge, he may recover the money so paid, while on the other hand if he pays it with full knowledge of all the facts it is voluntary and cannot be recovered even though the payee received it under a mistake of fact.

3

193. Mistake of Fact and Law.-On principle a recovery should be allowed where money is paid under a mistake of fact although such mistake of fact may be induced by a mistake of law or where there is both a mistake of fact and a mistake of law. But where there would be no legal liability if there had been no mistake of fact, then money paid under a mistake of law cannot be recovered. Thus if a parent under the mistaken belief that his child had committed a tort paid the damage done, he cannot recover the amount paid on ascertaining that the fact was otherwise.

194. Payment by Government.-Reasons for the application of the rule that money paid under a mistake of fact may be recovered are much more potent in the case of the contracts of the government than of contracts of individuals; for the government must necessarily rely on the acts of agents, whose ignorance, carelessness or unfaithfulness would otherwise often bind it, to the serious injury of its operations." Thus it has been held that where an allowance was made by the United States to a contractor, for expedited service, on a clear mistake of fact as to what additional men and animals were required for such service, and the money was paid in ignorance of the fact that

2. Hoffman v. National City Bank, 12 Wall. 181, 20 U. S. (L. ed.) 366; American Brewing Co. v. St. Louis, 187 Mo. 367, 86 S. W. 129, 2 Ann. Cas. 821; National Bank v. National Mechanics' Banking Ass'n, 55 N. Y. 211, 14 Am. Rep. 232. And see BILLS AND NOTES, vol. 3, pp. 1290, 1296.

3. Welch v. Goodwin, 123 Mass. 71, 25 Am. Rep. 24.

4. Wolf v. Beaird, 123 Ili. 585, 15 N. E. 161, 5 A. S. R. 565; Tucker v.

Denton, 106 S. W. 280, 32 Ky. L. Rep. 521, 15 L.R.A. (N.S.) 289.

Note: 33 U. S. (L. ed.) 346.

5. Freeman v. Curtis, 51 Me. 140, 81 Am. Dec. 564.

6. Needles v. Burk, 81 Mo. 569, 51 Am. Rep. 251.

7. United States v. Barlow, 132 U. S. 271, 10 S. Ct. 77, 33 U. S. (L. ed.) 346; United States v. Carr, 132 U. S. 644, 10 S. Ct. 182, 33 U. S. (L. ed.) 483.

no additional number had been employed in that service, the United States could recover the moneys paid on such allowance.R

195. Existence and Materiality of Fact.-A mistake, to be available as a ground for recovering money paid, must be as to an existing fact, and therefore where the subjects in relation to which the contract of parties is made are known by them to be of an uncertain and speculative character or value, a mere mistake by them in their estimate of the value is not deemed sufficient to authorize a recovery of the moneys paid on the erroneous estimate.10 In order to entitle one to relief, the mistake must be one concerning a fact which is material to the transaction. The fact must be such that it animated and controlled the conduct of the parties. It must go to the essence of the object in view, and not be merely incidental, and the court must be satisfied that, but for the mistake, the obligation from which relief is sought would never have been assumed.11. And it is also true that in order to entitle a person to recover money paid under a mistake of fact the mistake must be as to a fact which, if true, would make the person paying liable to pay the money, not where if true it would merely make it desirable that he should pay the money.12

196. Mistake Induced by Negligence.-The general rule is that where money is paid by mistake of fact, although there was negligence on the part of the person making the payment, it may be recovered for the reason that otherwise the person receiving the money would be enriched at the expense of the other.18 But where the mistake is due to the wilful or intentional neglect on the part of the person making the payment to investigate the facts he should not be allowed. to recover the money paid; 14 under such circumstances he would be estopped to allege that he was without knowledge.15 And the negligence of a drawee of a forged bill of exchange in not discovering the

8. United States v. Barlow, 132 U. S. 271, 10 S. Ct. 77, 33 U. S. (L. ed.) 346.

9. Tucker v. Denton, 106 S. W. 280, 32 Ky. L. Rep. 521, 15 L.R.A. (N.S.) 289; Kingston Bank v. Eltinge, 40 N. Y. 391, 100 Am. Dec. 516 and note. 10. United States v. Barlow, 132 U. S. 271, 10 S. Ct. 77, 33 U. S. (L. ed.) 346.

11. Tucker v. Denton, 106 S. W. 280, 32 Ky. L. Rep. 521, 15 L.R.A. (N.S.) 289; Buffalo v. O'Malley, 61 Wis. 255, 20 N. W. 913, 50 Am. Rep. 137.

12. Needles. Burk, 81 Mo. 569, 51 Am. Rep. 251.

13. Tucker v. Denton, 106 S. W. 280, 32 Ky. L. Rep. 521, 15 L.R.A.

(N.S.) 289; Appleton Bank v. McGilvray, 4 Gray (Mass.) 518, 64 Am. Dec. 92; Kingston Bank v. Eltinge, 40 N. Y. 391, 100 Am. Dec. 516; National Bank v. National Mechanics' Banking Ass'n, 55 N. Y. 211, 14 Am. Rep. 232; Hathaway v. Delaware County, 185 N. Y. 368, 78 N. E. 153, 113 A. S. R. 909, 13 L.R.A. (N.S.) 273. Notes: 64 Am. Dec. 95; 33 U. S. (L. ed.) 346.

And see CHECKS, vol. 5, p. 555.

14. Bend v. Hoyt, 13 Pet. 263, 10 U. S. (L. ed.) 154; Scott v. Ford, 45 Ore. 531, 78 Pac. 742, 80 Pac. 899, 68 L.R.A. 469.

15. Scott v. Ford, 45 Ore. 531, 78 Pac. 742, 80 Pac. 899, 68 L.R.A. 469.