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ty is, that acts done, and contracts made, under mistake or ignorance of a material fact, are voidable and relieva

agent pays over to his principal, after notice not to pay moneys illegally demanded and received by him, he remains personally liable. The same rule was adopted in Ohio, holding that a mistake of the parties in point of law might be corrected in Equity. M.Naughten v. Partridge, 11 Ohio Rep. 223. Evants v. Strode, Id. 480. On the other hand, in Cadaval v. Collins, 4 Adolph. f. Ellis, 858, and in Clark v. Dutcher, 9 Cowen, 674, it was declared that money paid bona fide and with full knowledge of the fact, cannot be recovered back, though there was no debt, and that the case of Marriott v. Hampton, 7 Term, 269, was rightfully decided where it was held, that money recovered by due process of law without fraud or undue compulsion, ought not to be recovered back. The lext of the Roman law contained propositions seemingly contradictory on the point, whether a payment of money made under a mistake of the law could be reclaimed. See Dig. 22. 6. 1. 7, 8, and Code, 1. 18. 10. Vinnius & D'Aguesseau, contended that the money might be recovered back, unless the person making the payment was under a natural or moral obligation to make it. Voet and Pothier were of a contrary opinion, and the French civil code followed the former authorities, and made no distinction whether it be error of law or of fact. The question has become exceedingly perplexed by contradictory opinions and decisions. In Burge's Commentaries on Colonial and Foreign Laws, vol. iii. 727—739, there is a review of the authorities in the civil and English law on the question. An able writer in the American Jurist for April and July, 1840, has also examined very critically, and at large, all the cases, decisions, and dicta, and he concludes that there is no solid ground for the distinction between mistakes of law and mistakes of fact, as to the right to relief, and that the preponderance of authority is unequivocally on that side. It would be inadmissible in a work so general and comprehensive as the present one, to enter into the discussion. I have no doubt that injustice may sometimes result from a strict adherence to the rule refusing relief where the contract is founded on a mistake in law. But I incline to the opinion that true policy dictates that we take the law according to what I understand to be the more prevalent doctrine in the English and American courts; and that the contracts and acts of competent parties, when free from fraud of every kind, and made or done with full knowledge of all the facts, ought not to be disturbed on the allegation of ignorance of the law. It strikes my mind that such investigations as the relaxation of the rule would lead to, must be hazardous to the conscience and pernicious as precedents. In the Spanish law the rule is explicitly laid down that what is paid through ignorance of law cannot be recovered back, because, says the text, we are all obliged to know the laws of the kingdom ; though payments through error, mistake, or ignorance of facts of what was not due, may be recovered back.

ble in law and equity. It has been held, that even where a party contracted under a clear mistake of his legai rights, and such rights were of a doubtful character, he might be relieved in equity.b The distinction in the above rules was equally known to the civil law.c In Lawrence v. Beaubien, the distinction between ignorance of the law and a mistake of the law was learnedly discussed, and it was held that the latter might be ground for relief in equity, though the former could not.e A third general rule on the subject is, that equity will rectify a mistake and give relief, and decree specific performance in cases of written contract, where there is a plain

Institutes of the Civil Law of Spain, by Aso & Manuel, b. 2. tit. 11. ch. 2. Mr White, in his Recopilacion of the Laws of Spain and the Indies, says that every chapter of that work, constitutes the corpus juris civilis of Texas.

· Milnes v. Duncan, 6 Barnw. Cress. 671. The dictum of Bayley, J. in this last case, that money paid by mistake though with means of knowledge of the fact, cannot be recovered back, is contradicted by Mr. Baron Park. Kelly v. Solari, 9 Meeson of Wellsby, 54. In this last case, it was adjudged that money paid under a bona fide forgetfulness of facts, which disentitled the defendant to receive it, may be recovered back. Deare v. Carr, 1 Green N. J. Ch. R. 513. The mistake or ignorance for which a contract will be relieved in equity, must be of a material fact, essential to its character, and such as the party would not by reasonable diligence have known, when put upon inquiry. Broadwell v. Broadwell, i Gilman's Ill. R. 599. S. P. Waite v. Leggett, 8 Cowen, 195. Story's Comm. Id. 155. 155. Buller, J., in Lowry v. Bourdieu, Doug. 467. Stevens v. Lynch, 12 East, 38. Champlin v. Layton, 18 Wendell, 407. Cummins v. White, 4 Blackf. Ind. Rep. 356. Foreign laws are treated as facts, and ignorance of them is a ground for relief, like the ignorance of any other fact. Burge's Comm. on Colonial and Foreign Laws, vol. ii. 741.

• Lammot v. Bowley, 6 Harr. & Johnson, 500. 525. 526.

Pothier, Pand. 22. 6. 3. n. 4–7. Ibid. sec. 4. n. 10, 11. Ibid. 41. tit. 4. 1. 2. sec. 15. Code, 1. 18. 10.

2 Bailey's S. C. Rep. 623. • Mr. Justice Bronson, in Champlin v. Laytin, Wendell, 416, thought that the distinction taken in the Carolina case between ignoranee of the law and mistake of the law, was not solid.

mistake clearly made out by satisfactory parol proof, or even fairly and necessarily implied.a

*VII. Of passing the title by delivery.

*492 (1.) When the terms of sale are agreed on, and the bargain is struck, and every thing that the seller has to do with the goods is complete, the contract of sale becomes absolute as between the parties, without actual payment or delivery, and the property and the risk of accident to the goods vest in the buyer. He is entitled to the goods on payment or tender of the price, and not otherwise, when nothing is said at the sale as to the

a Gillespie v. Moon, 2 Johns. Ch. Rep. 595. Lyman v. United Ins. Co., Ib. 630. Keisselbrack v. Livingston, 4 Ib. 144. Andrews v. Essex F. & M. Ins. Co., 3 Mason, 10. 15. Dunlap v. Stetson, 4 Ib. 349. 372. Hunt v. Rousmanier, 8 Wheaton, 174. 211. Story's Comm. on Eq. Jurisprudence, 164. 176. Newson v. Bufferlow, 1 Dev. N. C. Eq. Cases, 379. 1 Yeates' Penn. Rep. 132. 138. 437. Ball v. Storie, 1 Sim. f- Stu. 210. Lord Eldon's case, cited in 10 Vesey, 227. Tilton v. Tilton, 9 N. H. Rep. 385. Moale v. Buchanan, 11 Gill. f. Johnson, 314. Mr. Justice Story, in his Comm. on Eq. Jurisprudence, 121—194, has reviewed and collected most of the English and American cases, and drawn the proper conclusions from them, with his customary ability and accuracy. Mr. Justice Turley in Trigg v. Read, 5 Humphrey's Tenn. R. 529, has elaborately and ably examined the refined distinctions on this subject. So, in Duer on Insurance, vol. i. vol. 132, note 11, the cases in equity correcting a clear mistake in policy of insurance are collected. In Rogers v. Atkinson, 1 Kelly's Geo. R. 12, Ch. J. Lumpkin accurately collects and examines the principal English and American cases leading to the establishment of the principle, that equity relieves against mistakes as well as fraud in contracts in wri. ting. The subject was very learnedly discussed in that case.

Noy's Maxims, ch. 42. 2 Blacks. Com. 448. Lord Ellenborough, in Hinde v. Whitehouse, 7 East's Rep. 571. Code Napoleon, No. 1583. Civil Code of Louisiana, art. 2431. Tarling v. Baxter, 6 Barnw.f Cress. 360. Fletcher v. Howard, 2 Aiken's Ver. Rep. 115. Potter v. Coward, 1 Meig's Tenn. Rep. 22. Mr. Justice Story observed in the case of the brig Sarah Ann, 2 Sumner's Rep. 211, that he knew of no principle of law which establishes, that a sale of personal goods is invalid, because they are not in possession of the rightful owner, but are withheld by a wrongdoer. The sale is not, under such circumstances, the sale of a right of action, but a sale of the thing itself, and good to pass the title against every person, not holding the same under a bona fide title, for a valuable consideration without notice, and a fortiori against a wrongdoer.

time of delivery, or the time of payment. The payment, or tender of the price, is, in such cases, a condition precedent implied in the contract of sale, and the buyer cannot take the goods, or sue for them, without payment; for, though the vendee acquires a right of property by the

contract of sale, he does not acquire a right of *493 possession of the goods *until he pays or tenders

the price. But if the goods are sold upon credit, and nothing is agreed upon, as to the time of delivering the goods, the vendee is immediately entitled to the possession, and the right of possession and the right of property vest at once in him ; though the right of possession is not absolute, but is liable to be defeated, if he becomes insolvent before he obtains possession.b If the seller has even despatched the goods to the buyer, and insolvency occurs, he has a right, in virtue of his original ownership, to stop them in transitu ; for, though the property is vested in the buyer, so as to subject him to the risk of any accident, he has not an indefeasible right to the possession; and his insolvency, without payment of the price, defeats that right, equally after the transitus has begun, as before the seller has parted with the actual possession of the goods. Whether default in payment, when the credit expires, will destroy that right of possession, if the vendee has not before that time obtained actual possession, and put the vendor in the same situation as if there had been no bargain for credit, was left undecided in Bloxam v. Sanders, though as between the original parties that consequence would follow.d

a Glanville, b. 10. ch. 14. Langfoot v. Tyler, 1 Salk. 113. Hob. Rep. 41. 1H. Blacks. Rep. 363. Bloxam v. Sanders, 4 Barnw. g Cress. 941. Lafon v. De Armas, 12 Rob. Louis. Rep. 598. 622. See infra, p. 497. S. C.

b Hanson v. Myer, 6 East's Rep. 614. Bayley, J., in Bloxam v. Sanders, 4 Barnw. g. Cress. 941, and in Simmons v. Swist, 5 Id. 857.

4 Barnw. f Cress. 941.

. This has been so decided in Hunter v. Talbit, 3 Smedes f. Marshall, 754, and in New v. Swain, Dan. & Lloyd's Mer. Cases, 193, where it was

(2.) To make the contract of sale valid in the first instance according to statute law, there must be a delivery or tender of it, or payment, or tender of payment, or earnest given, or a memorandum in writing signed by the party to be charged ; and if nothing of this kind takes place, it is no contract, and the owner may dispose of his goods as he pleases. The English statute of *frauds of 29 Car. II. ch. 3. sec. 17, (the provis- 494* ions of which prevail in the United States, with the exception of Louisiana,) declares, that no contract for the sale of goods, for the price of £10 or upwards, shall be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part payment; or unless some note or memorandum in writing of the bargain be made, and signed by the parties to be charged, or their agents thereunto lawfully authorised.b

held, that if the buyer does not pay when the time of payment arrives, the seller in that case has a right to retain the goods. It was held in that case, that the right of the seller to retain the goods, existed, though the goods were left with the seller on rent. If, however, the rent had been actually received, it would seem to have amounted to an actual transfer.

· Noy's Maxims, ch. 42. Tempest v. Fitzgerald, 3 Barnw. 4. Ald. 680.

b 'The New-York Revised Statutes, vol. ii. p. 136. sec. 3. 8, apply to the sale of goods, chattels, or things in action, for the price of fisty dollars, or more, and declare that there must be a note or memorandum of such contract, in writing, subscribed by the parties to be charged, or the lawsul agent of the party; or the buyer accept and receive part of the goods, or the evidences, or some of them, of the things in action; or at the time pay some part of the purchase money. The statute puts equitable transfers of choses in action on a footing similar to that on which sales of goods stand. The English statute is not so broad. It does not reach things in action as shares in a banking company. Humble v. Mitchell, 3 Perry of Davi. son, 141. S. C. 11 Adolph. f Ellis, 205. The New-York statute requires the name of the party to be charged to be literally subscribed or signed below or at the end of the memorandum, and the more loose doc. trine under the English statute as to signing is not sufficient. Davis v. Shields, 26 Wendell, 341. In Connecticut, the price limited is $35, and in New-Jersey, $30, or upwards. In England, the provisions of the 17th section of the statute of frauds, have been lately extended by statute to contracts for the sale of goods, "notwithstanding the goods may not, at the VOL. II.


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