Sec 752

We have already seen that money paid under mistake of fact may be recovered back.1 "Where money," said Lord Mansfield, "is paid under a mistake, which there was no ground to claim in conscience, the party may recover it back again."2 This has been held to be the case with money paid under mistaken weight or measurement, or in miscalculation of price,3 and with money paid by a tenant of land to the wrong party claiming as landlord.4 Thus, the accommodation maker of a note which has been materially altered without his knowledge, and who paid in ignorance of the alteration, may recover back the money so paid.5 The purchaser, also, to take another illustration, of milk bought by the can, who pays more money than is due by reason of the cans being deficient in size, can recover back from the vendor his excess of payment.6 But the mistake should be established as a prerequisite to recovery,7 and, after any considerable lapse of time, should be established by clear and strong proof.8 And the obligation of a party ignorant of the mistake to repay money voluntarily paid him in mistake, arises only on notification of the mistake.9 - Even when a mistake has been fraudulently induced, the right to recover back is lost where the party paying the money, after a discovery of all the facts, acquiesces in the disbursement of the money in pursuance of the contract by the other contracting party.1 But mere lapse of time does not preclude recovery; and where there has been no laches imputable to the plaintiff, the fact that the defendant is prejudiced by the mistake is no defence.2 - The mistake must have been as to an existing fact.3 sec 753. That the mistake of fact was negligently made does not necessarily preclude the party from recovering.4 A party who omits to avail himself of the means of correcting his mistake, although these means were at hand, is not thereby prevented from setting up this mistake in a suit to recover back money paid under its influence.5 Even though notice had been previously given him of the true state of facts, yet if he had forgotten these facts he may nevertheless recover; as where it was held that a life insurance company could recover back money paid by them on a lapsed policy, though their books showed they had notice of the lapse.6 - That where a contract has been negligently induced a different conclusion may be reached, and the party negligently inducing another to contract with him may be estopped, we have already seen.7 And, when the payment is imputable to the plaintiff's recklessness, the plaintiff has no case.8

Money paid in mistake of fact may be recovered back.

' Supra, sec 197, 521.

2 Bize V. Dickason, 1 T. R. 285. See to same effect Kelly V. Solari, 9 M. & W. 58; Norton V. Marden, 15 Me. 45; Pearson V. Lord, 6 Mass. 81; Bond V. Hayes, 12 Mass. 36; Talbot V. Nat. Bk., 129 Mass. 67; Stanley Rule Co. V. Bailey, 45 Conn. 464; Burr V. Veeder, 3 Wend. 412; Sprague V. Birdsall, 2 Cow. 419; Mayor of N. Y. V. Erben, 38 N. Y. 305; Higgins V. Mendenhall, 51 Iowa, 135; Glenn V. Shannon, 12 S. C. 570; Wilson V. Sergeant, 12 Ala. 778. See Rice V. Barnard, 127 Mass. 241.

3 Supra, sec 190, 520 et seq.; Benj. on Sales, 3d Am. ed. sec 415; Cox V. Prentice, 3 M. & S. 344; Newall V. Tomlin-son, L. R. 6 C. P. 405; Lyon V. Bertram, 20 How. (U. S.) 149; Holtz V.

Schmidt, 59 N. Y. 253; Wooster V. Sage, 67 N. Y. 67. See Garland V. Salem Bank, 9 Mass. 408.

4 Newsome V. Graham, 10 B. & C. 234; Barber V. Brown, 1 C. B. N. S. 121.

5 Fraker V. Little, 24 Kans. 598. See as to alterations supra, sec 695.

6 Devine V. Edwards, 87 Ill. 177.

7 Union Savings Ass. V. Kehlor, 7 Mo. Ap. 158.

8 Thompson V. Fnllinwider, 5 Ill. Ap. 551; supra, sec 289.

9 Southwick V. Bank, 84 N. Y. 420; citing Freeman V. Jefferies, L. R. 4 Exch. 189; Stacy V. Graham, 14 N. Y. 492; Snyder V. Williams, 37 N. Y. 109; supra, sec 284 et seq.

Mere negligence does not preclude party from recovering.

1 People V. Stephens, 71 N. Y. 527; see supra, sec 289.

2 Durrant V. Comm., L. R. 6 Q. B. D. 234. See Mr. Moak's note, 29 Eng. R. 590, citing Young V. Lehman, 63 Ala. 619; Alston V. Richardson, 51 Tex. 1.

3 Supra, sec 197, 521; Southwick V. Bank, 84 N. Y. 433.

4 Supra, sec 196, 245, 289, 572; Leake, 2d ed. 102; Bell V. Gardiner, 4 M. & G. 11; Townsend V. Crowdry, 8 C. B. N. S. 477; Stanley Rule Co. V. Bailey, 45 Conn. 464; Waite V. Leggett, 8 Cow. 195; Boyer V. Park, 2 Denio, 107; De-vine V. Edwards, 87 Ill. 177; Rutherford V. Mclvor, 21 Ala. 750; Alston V.

Richardson, 51 Tex. 1. As to liability for negligence, see infra, sec 1043.

5 Person V. Sanger, 1 Wood. & M. 138; Wheadon V. Olds, 20 Wend. 174; Fraker V. Little, 24 Kan. 598; Lamb V. Harris, 8 Ga. 546. See supra, sec 196, 245, 289, 572.

6 Kelly V. Solari, 9 M. & W. 54; Townsend V. Crowdy, 8 C. B. N. S. 477; Mayer V. New York, 63 N. Y. 455. See supra, sec 196, 245, 289, 572.

7 Supra, sec 196, 202 a, 226; Norton V. Marden, 15 Me. 45. See Kingston Bank V. Eltinge, 40 N. Y. 391; Rutherford V. Mclvor, 21 Ala. 750.

8 Wood V. Boylston Bank, 129 Mass. 358; supra, sec 196, 245, 289, 572.