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The
Law of Contracts
By
WILLIAM HERBERT PAGE
Professor of Law in the Law School of the Umversity
of Wisconsin; Author of Page on Wills;
Page and Jones on Taxation
by Assessments
SECOND EDITION
REVISED. REWRITTEN AND ENLARGED
WITH FORMS
VOLUME III
. •
CINCINNATI
THE W, H. ANDERSON COMPANY
LAW BOOK PUBLISHERS
1920
ComiGirr, 1905, Br
THE W. H. ANDERSON COMPANY
CINCINNATI, O.
COPT»lGHT, 1920, Bt
THE W. H, ANDERSON COMPANY
CINCINNATI, O.
• • ••• •
• ••• ••••,•••
Page on Contracts
TABLE OF CONTENTS
Volume III
CHAPTER XLH
Ck>NTRACT8 Which Must Be m Wbtting, Fn.Kn for
Record, etc, pag«
1 1429. Contracta required bj statute to be in writing— Contracts of specific
elasses of parties ', 2448
1 1430. Contracts required by statute to be in writing — Special classes of
subject-matter 2448
f 1481. Contracts required bj law-merchant to be in writing 2450
1 1432. Contractual provisions requiring writing 2451
1 1433. Necessity of filing contract for record 2462
CHAPTER XLin
Gentjine Implied Contracts
i. general nature
1 1434. Meanings of "implied contract" — Covenants of express oontraet ob-
tained by construction 2456
1 1435. Incidents attached by law to express contract 2450
1 1436. Genuine implied contracts 2458
1 1437. Illustrations of genuine- implied contracts 2460
1 1438. Express contract as excluding implied contract 2461
1 1430. Work done under contract with one, enuring to benefit of another . 2463
1 1440. Classification of genuine implied contracts 2464
n. WORK AND LABOR
1 1441. Work and labor done at request — ^Express contract 2464
1 1442. Work and labor done at request — ^Implied contract 2466
1 1443. Compensation fixed by law— Public oflScers, etc 2468
1 1444. Elements of implied request 2470
1 1445. Acceptance of work and labor 2470
1 1446. Services rendered as gratuity 2472
1 1447. Services between members of the same family— General principles. . 2480
1 1448. Who are members of family — Husband and wife 2481
11449. Persons related by consanguinity — ^Parent and child 2482
1 1450. Other relationships 2483>
Hi
iv Table op Contents
PACTD
1 1451. Persons related* by affinity 2484
1 1452. De facto membership of same family 2485
I 1463. Nature of services 2488
1 1454. Services between persons not members of same family 2486
1 1455. Effect of lack of contractual capacity 2489
§1456. Presumption of gratuitous service rebuttable — Express contract.. 2400
§ 1457. Genuine understanding that compensation be made 2492
§ 1458. Degree of proof requisite 2493
S 1459. Extra work 2494
S 1460. Extras for unforeseen expense in performance 2495
S 1461. Work and labor demanded as gratuitous or under a claim of right. . 2496
1 1462. Extras due to modification or breach 2498
i 1463. Effect of provision requiring written authority for extras 2499
§ 1464. Extras furnished without knowledge of adversary party 2500
§ 1465. Employment for entire time — ^Request for extra work of similar
nature 2500
§ 1466. Employment for entire time — ^Request for extra work of different
character 2501
f 1467. Extra services by directors, partners, etc 2502
1 1468. Effect of statutory limitation of hours of labor 2503
1 1469. Work and labor done under a contract void for mistake as to an
essential element 2605
S 1470. Work done for one at request of another, without express contract. 2506
m. GOODS SOLD
f 1471. Goods sold and delivered 2607
1 1472. Goods delivered to one at request of another 2609
IV. MONEY HAD AND RECEIVED
S 1473. General nature of right 2610
1 1474. Elements of right to recover in this action — Money or equivalent
must be received 2518
S 1475. Receipt of equivalent of money 2516
S 1476. Receipt of definite sum necessary 2617
§ 1477. Action not means of recovering damages 2519
§ 1478. Party who seeks to recover money must rightfully *be entitled
thereto 2520
S 1479. From whom payment may be recovered 2521
1 1480. Persons receiving money must not be entitled in good conscience to
retain it 2522
11481. Defendant receiving fund from third person 2525
§ 1482. Payments at tax sale 2526
1 1483. Payments at judicial sale 2527
§ 1484. Party from whom recovery is sought must be placed in statu quo. . 2528
§ 1485. Action does not enlarge substantive rights 2530
1 1486. Classes of rights — ^Receipt of money from third person 2533
1 1487. Receipt of money to discharge specific obligation due another 2641
Table op Contents >
V. MONEY LOANED. faok
1 1488. Money loaned — ^Necessity of genuine contract 2544
1 1489. Against whom action will lie 2644
VI. MONEY LAID OUT AND EXPENDED
1 1490. Money paid 2645
VII. USE AND OCCUPATION
1 1491. Assumpsit for occupation under genuine but informal contract.. 2546
1 1492. Assumpsit for occupation of realty under a formal lease 2648
/
CHAPTER XLIV
QUASl-CONTRACT OR CONSTRXJCTTVE CONTRACT
I. GENERAL NATURE
, V
1 1493. Quasi-contracts 2551
1 1494. Historical use of term "quasi-contract'' 2554
i 1495. Historical reason for confusion between implied contract and quasi-
contract 2667
1 1496. Fictitious character of promise in quasi-contract 2658
§ 1497. Confusion in terms at modem law 26€0
§ 1498. Practical importance of distinction between contract and quasi-
contract , 2561
1 1499. Distinction between contract and quasi-contract in procedure — ^At-
tachment 2561
§ 1500. Statute of limitations 2563
§ 1501. Statutes conferring jurisdiction 2565
§ 1502. Set-off and counterclaim 2566
i 1503. Classification of quasi-contracts ; 2566
n. WAIVER OP TORT
§ 1504. Waiver of tort — ^Nature and theory of doctrine 2569
f 1505. Conversion of money 2574
§ 1506. Conversion of personalty which is then converted into money 2574
1 1507. Conversion of personalty which is not converted into money —
Original taking wrongful — Assumpsit denied 2576
§ 1508. Original taking rightful 2579
§ 1509. Assumpsit allowed without regard to nature of original taking 2560
§ 1510. Wrongful sale of realty 2582
§ 1511. Appropriation of realty without compensation 2583
§ 1512. Wrongful occupancy of real property 2584
§ 151<$. Liability of trespasser in assumpsit 2586
I 1514. Other forms of occupancy excluding liability in contract 2588
1 1515. Work and labor obtained by tort. 2583
viii Table op Contents
PAOS
§ 1577. Present standing of original rule 2T21
I 1578. Modern rule concerning the effect of an infant's contracts 2723
§ 1570. Void contracts — Powers of attorney 2723
I 1580. Void contracts — Appointments of agents 2724
§ 1581. Other contracts held void 2726
§ 1582. Valid contracts — ^Marriage 2726
§ 1583. Valid contracts— Enlistment 2727
§ 1584. Valid contracts — Apprenticeship '. 2729
§ 1685. Valid contracts — Performance of legal duty 2730
§ 1586. Valid contracts — ^Xecessaries — ^Nature of liability 2731
§ 1587. What are necessaries 2734
§ 1588. Examples of necessaries 2735
§ 1589. Effect of special circumstances 2740
§ 1590. Effect of excessive supply of articles 2740
S 1591. Effect of existence of parent or guardian 2741
§ 1592. Money as a necessary 2742
§ 1593. Voidable contracts 2743
I 1594. Examples of voidable contracts — Transfers of property 2747
§ 1595. Contracts for work and labor 2750
§ 1596. Contracts of suretyship 2752
S 1597. Compromise and arbitration 2753
S 1598. Instruments negotiable in form 2764
§ 1699. Contracts of partnership 2766
{ 1600. Infant as member of corporation 2758
§ 1601. Concealment or misrepresentation of minority 2760
§ 1602. Ratification— Who can ratify 2763
§ 1603. Nature and effect of ratification 2765
{ 1604. What constitutes ratification — Express ratification 2767
§ 1605. Form of express ratification 2768
§1606. Ratification by acts and conduct showing unequivocal intent 2769
§ 1607. Acts and conduct not showing unequivocal intent 2770
§ 1608. Acknowledgment or part payment 2771
f 1609. Who can disaffirm 2772
§ 1610. Time for disaffirmance — Minority 2774
{ 1611. Theory of reasonable time after reaching majority 2776
§ 1612. Theory of period of limitations 2779
§ 1613. What constitutes disaffirmance — Executory contracts 2781
§ 1614. Disaffirmance of convevance of realtv 2782
§ 1615. Disaffirmance of contract for sale or purchase of personalty 2784
{ 1616. Partial disaffirmance impossible 2784
§ 1617. Restoration of consideration on disaffirmance 2787
§ 1618. Consideration not enurinor to benefit of infant 2790
§ 1610. Chan.sie in form of consideration — Subrogation 2791
§ 1620. Special statutory provisions 2703
§ 1621. ^\lien restoration of consideration must be made 2704
H 1622. Results of disaffirmance 2797
§ 1623. Theory that contract of infant is voidable only on full restitution. 2801
§ 1624. Infant as bankrupt 2803
§ 1625. Infant's torts arising out of contract 2804
Table of Contents ix
CHAPTER XLVII
Contracts of Insane, Imbecile, etc. j^^q*
I 1626. Nature of insanity in contract law — ^Perfect sanity not necessary. 2806
§ 1627. Test of capacity 280S
I 1628. Weakness of mind not due to insanity 2810
§ 1629. Time at which capacity must exist 2811
§1630. Validity of contracts of an insane person — Before adjudication... 2811
§ 1631. Void contracts 2812
§1632. Valid contracts 2813
§ 1633. Necessaries 2814
I 1634. Voidable contracts 2815
§ 1635. Disaffirmance 2821
§ 1636. Ratification 2822
1 1637. Restoration of consideration — Bona fide transaction — Consideration
enuring to insane person 2824
§ 1638. Consideration not enuring to insane person 2826
I 1639. Transaction with knowledge of insanity 2827
f 1640. Amount of restitution 2828
I 1641. Contracts made after adjudication — Statute not providing that con-
tract is void -. 2829
§ 1642. Statute making contract void — Guardian acting 2830
§ 1643. Guardian not acting 2831
I 1644. Retroactive effect of adjudication *. 2832
§ 164^. Adjudication or finding of restoration to sanity 2833
CHAPTER XLVIII
Deaf, Dumb and Blind
1 1646. Deaf, dumb and blind 2834
CHAPTER XLIX
Contracts of Drunkards
1 1647. Nature of drunkenncRS in contract law 2836
i 1648. Legal effect of intoxication 2839
§ 1640. Intoxication as aflfected by unfair conduct of adversary 2842
§ 1650. Effect of intoxication in equity 2842
S 1651. Contracts for necessaries 2843
S 1652. Ratification and disafl^rmance 2844
1 16.'>3. Restoration of consideration 2845
f 1654. Effect of adjudication as habitual drunkard 2846
1 1655. Effect of drugs 2847
CHAPTER L
Spendthrifts
S 1656. Spendthrifts under guardianship 2848
X Table op Contents
CHAPTER LI
Convicts and Felons ^aoe
11657. Convicts and felonB 2860
CHAPTER LII
Contracts of Married Women
i 1658. Contracts of married women at common law 2852
1 1659. Exceptions to common-law rule 2855
1 1660. Contracts of married women in equity 2857
i 1661. Extent of power over separate estate 2858
i 1662. Presumptive intent to charge separate estate 2859
1 1663. Contracts of married women under modern statues 2862
1 1664. Power to contract for benefit of separate estate. 2863
§ 1665. Power to contract as feme sole with reference to separate estate. . . 2866
§ 1666. Statutes conferring limited capacity 2869
i 1667. Husband required to join in contract 2870
1 1668. Consent of husband necessary 2871
1 1669. Contract required to be in writing 2872
i 1670. Power as sole trader 2874
1 1671. Capacity under contract with husband 2874
1 1672. Power to contract as feme sole generally 2875
i 1673. Contracts of suretyship — At common law and under statutes confer-
ring capacity 2877
1 1674. Under statutes restricting her power to act as surety 2879
S 1675. Mortgage or conveyance of wife's property to secure debt of hus-
band— ^Under statutes conferring capacity 2885
i 1676. Under statute restricting method of securing husband's debt 2886
i 1677. Under statute forbidding mortgage for husband's debt 2887
§1678. Contracts between husband and wife — At common law 2891
S 1679. Under modern statutes 2893
1 1680. Partnership between husband and wife 2900
i 1681. Agent of married woman 2902
§ 1682. Ratification 2903
i 1683. Restitution 2904
§ 1684. Estoppel 2905
1 1685. Right to avoid executed contracts 2906
S 1686. Coverture must be pleaded 2907
i 1687. Who can use coverture as a defense 2907
CHAPTER LIII
Partnership
S 1688. Nature of partnership 2010
i 1689. Partnership as legal entity 2912
i 1690. Form and content of partnership contract 2912
i 1691. Name of partnership 2915
Table of Contents xi
PAGK
§1692. Joint ownership 2W5
1 1^3. Sharing profits — Necessity in partnership 2917
i 1604. Sharing profits — Effect as making parties partners 2017
i 1696. Examples of partnership 2924
S 1006. Limited .partnerships 2926
S 1607. Joint etoqk companies 4 2927
i 1698. Form of contracts entered into by partnership 2927
f 1609. Scope of partnership 2029
§ 1700. Liability of partners on contract within scope of business 2930
§ 1701. Non-trading firms 2933
1 1702. Trading firms 2985
( 1703. Acquiescence of partners 2941
1 1701. Liability of partners on contract without scope of business 2942
i 1705. Dissent of partner 2942
1 1706. Estoppel 2943
i 1707. Wrongful act or omission necessary to create estoppel 2947
1 1708. Reliance necessary to create estoppel 2048
( 1709. Ratification— Nature and effect 2949
1 1710. Elements of ratification 2050
1 1711. Illustrations of ratification 2952
i 1712. Effect of ratification as against adversary party 2952
1 1713. Effect of ratification— Third persons 2953
1 1714. Dissolution 2964
i 1715. Assumption of debts on change of firm 2958
S 1716. Powers after dissolution 2060
1 1717. Notice necessary on dissolution 2062
i 1718. Powers of surviving partners 2966
S 1719. Peculiarities of enforcement of contract between partners — Account-
ing involved, t 2068
1 1720. Accounting not involved 2969
1 1721. Accounts involving three or more parties, or common member 2971
i 1722. Personal liability of partner on unauthorized contract 2971
CHAPTER LIV
Agency
i 1723. Nature of agency 2074
i 1724. Control as test of agency 2975
1 1725. Public utility as agent 2976
1 1726. Agency distinguished from other legal relations generally 2976
i 1727. Agency distinguished from sale 2978
1 1728. Agent distinguished from independent contractor 2980
( 1720. Place of agency in contract law 2081
( 1730. Appointment of agent — Necessity of contract 2982
1 1731. Agency between persons in domestic relations 2083
1 1732. Agency by necessity 2983
1 1733. Express and implied appointment 2984
§ 1734. Form of appointment to make sealed instrument 2985
i 1735. Form of appointment to make simple contract — Common law 2986
xii Table of Contents
PAca
1 1736. Form of appointment to make simple contracts — Statutory regu-
lations 2981
1 1737. Termination of agent's authority — ^Intent of parties to terminate. . . 2088
1 1738.. Termination by operation of law — Performance 2090
i 1730.. Termination by operation of law — ^Death and insanity 2991
S 1740. Termination by operation of law — ^Bankruptcy, dissolution, etc 2992
1 1741. Power coupled with interest .^ 2992
i 1742. Effect of termination of authority 2994
1 1743. Notice of termination of authority — TerminatioYi by act of parties. .2994
1 1744. Notice of termination of authority — Termination by operation of law. 2995
i 1745. Scope of agent's authority — General principles 2996
i 1746. Scope of agent's authority — Power to manage business 3000
i 1747. Scope of agent's authority — ^Power to sell generally 3001
1 1748. Scope of agent's authority — Power' to sell realty 3002
i 1749. Scope of agent's authority— Power to sell personalty 3003
i 1750. Scope of agent's authority — Power to solicit orders 3006
i 1751. Scope of agent's authority — Power to collect 3007
i 1752. Power to settle, compromise, etc 3010
1 1753. Scope of agent's authority — ^Power to borrow money and to execute
negotiable instruments,- mortgages, etc 301 1
1 1754. Scope of agent's authority — ^Power to lend money 3012
1 17515. Scope of agent's authority — ^Power to buy 3012
f 1756. Scope of agent's authority — Power to lease 3013
} 1757. Scope of agent's authority — Other illustrations 3013
g 1758. Nature of liability of principal 3014
S 1759. Liability of principal — Agent acting within authority 3016
§ 1760. Liability of principal — Estoppel 3018
§ 1761. Acts of imauthorized agent not estoppel 3025
i 1762. Liability of principal in contract — ^Agent acting outside of authority 3026
i 1763. Rights and liabilities of principal in quasi-contract — Agent acting
outside of scope of authority 3031
1764. Ratification— Nature and effect 3032
1705. Methods of ratification 3035
§ 1706. Necessity of full knowledge of facts 3043
S 1767. Partial ratification impossible 3046
§ 1768. Necessity of acting as agent 3048
S 1760. Effect of ratification — ^Adversary party 3049
i 1770. Effect of ratification— Third persons 3053
§ 1771. Liability of agent to adversary party — Contract authorized 3054
I 1772. Liability of agent — Contract not authorized — Adversary not misled. 3053
§ 1773. Liability of agent — Contract not authorized — ^Adversary misled 3055
fi 1774. Liability of agent— Unauthorized contract ratified 3056
i 1775. Liability of agent of undisclosed principal 3057
i 1776. Election of adversary party to hold agent or undisclosed principal. . 3059
1 1777. What constitutes election 3060
§ 1778. Liability of agent of non-existent principal 3061
J 1779. Nature of liability of agent to adversary party 306*3
i 1780. Personal liability of agent by terms of contract 3064
§ 1781. Rights of principal on contract 3064
Table of Contents xiii
CHAPTER LV
Officers and Agents of Public Corporations pag»
i 1782. Powers of public officers and agents — General nature 3067
i 1783. Nature and construction of grant of power 8068
1 1784. Powers of specific officers 3069
( 1786. Action as board, council^ etc 3070
( 1786. Liability of public corporation upon authorized contracts 3071
S 1787. Liability of public corporation on unauthorized contracts — Estoppel. 3072
S 1788. Liability of adversary p^rty on unauthorized contracts 3074
( 1780. Personal liability of public officer or agent 3075
S 1790. Ratification— Who may ratify 3076
S 1791. What amounts to ratification 3077
S 1792. Liability in quasi-contract for benefits 3078
CHAPTER LVI
Agents and Officers of Private Corporations
1 1793. Application of general principles of agency to private corporations . . 3082
i 1794. Notice of termination of authority * 3086
f 1795. Stockholders 3087
1 1796. Directors 3096
f 179?. President 3098
§ 1798. Vice president 3103
i 1799. Secretary, treasurer, cashier and teller 3104
1 1800. General and special managers 3106
1 1801. Estoppel 3110
S 1802. Liability in quasi-contract 3111
i 1803. Ratification — General principles 3111
i 1804. Who may ratify 3113
i 1805. What amounts to ratification 3114
S 1806. Effect of ratification 3118
( 1807. Personal liability of agent or officer of corporation 3119
CHAPTER LVII
Contracts of Persons Acting in Fiduciary Capacity
I. trustees
i 1808. Trustee can not bind beneficiary personally 3124
§ 1809. Power to bind trust estate 3124
1 1810. Personal liability of trustee 3126
§ 1811. Liability of estate for benefits received 3127
n. EXECUTORS AND ADMINISTRATORS
S 1812. General want of power to bind estate 3128
f 1813. Statutory power to bind estate 3131
i 1814. Power created by will to bind estate 3133
1 1815. Personal liability of executors 3134
§ 1816. Liability of estate for benefits received 3136
xiv Table op Contents
m. GUABDIANS PAOK
1 1817. General want of power to bind estate 3139
§ 1818. Statutory power to bind estate 3141
1 18ig. Personal liability of guardian 3143
1 1820. Personal interest of guardian in his contracts 8143
f 1821. Liability of estate for benefits received 3144
IV. RECEIVERS
f 1822. Contracts under order of court 3145
i 1823. Power to displace prior liens — ReoeiTer of private corporation 3147
1 1824. Receiver of quasi-public corporation 3149
1 1825. Contracts not under order of court — Charge upon fund 3150
i 1826. Contracts not under order of court — ^Personal liability of receiver. .3151
i 1827. LiabiUty of fund for benefits received 3153
V. CONTRACTS OF PROMOTERS
11828. Promoters 3154
( 1829. Contracts of promoters not binding on corporation 3155
( 1830. Theory that corporation may adopt contract of promoter 3167
i 1831. Nature of liability of corporation 3161
( 1832. Theory tliat corporation can not adopt contract of promoter 3163
( 1833. Statutory restrictions on adoption by corporation 3165
1 1834. Personal liability of promoters 3165
CHAPTER LVIII
Voluntary Associations
1 1836. Contracts of voluntary associations — ^Voluntary association for
profit 3168
§ 1836. Voluntary association not for profit — ^Liability of members upon
unauthorized contracts 3169
1 1837. Liability of members upon authorized contracts 3170
1 1838.. Ratification 3170
i 1839. Liability of member who acts as agent or officer 3170
1 1840. Nature of liability of members 3172
1 1841. Rights of members upon contract 3172
CHAPTER LIX
Governments
I. THE UNITED STATES
f 1842. Contracts of the United States — ^Power to contract 3174
i 1843. Powers of officers and agents 3174
§ 1844. Applicability of general principles of contract law 3176
1 1845. Necessity of appropriation .• . 8177
f 1840. NeCP^a't-^ ni f^Av»^^i'»r^y^4>it%4' fm. KM^ 3179
Table of Contents xv
FAoa
1847. Fonii neoeesary in contraets of United States 8181
1848. Construction 3186
1840. Assignment 3188
1850. Contractor's bonds 3188
1861. Priority as creditor 3189
1852. Extension of time and new contracts 3190
1853. Impossibility 3191
1854. Performance and breach 3192
1865. Extras 8194
1868. Provision for decision of architect, engineer, etc 3195
1857. Enforcement of contract against United States 3196
1858. Conditions imposed on actions against United States 3197
1859. Jurisdiction in contract 3197
1860. Jurisdiction in quasi-contract other than waiver of tort 3196
1861. Jurisdiction in quasi-contract — ^Waiver of tort 3198
1862. Claim founded on act of congress 3200
1863. Limitation of actions and presumption of payment 3200
n. STATES OF THE UNION
1864. Contracts of a state of the union — General principles 3200
1865. Nature of state contracts 3201
I
1866. Powers of officers or agents of state 3202
1867. Ratification 3204
1868. Powers of state — ^Borrowing money 3204
1869. Applicability of general principles of contract law 3205
1870. Limitation on amount of indebtedness .^ 3206
1871. Necessity of advertisement for bids and competitive bidding 3207
1872. Letting contract as entirety 3208
1873. Letting state contract to lowest bidder 3208
1874. Liability of state upon authorized contracts 3209
1875. Liability of state upon unauthorized contracts 3209
1876. Liability of state in quasi-contract for benefits 3210
1877. Enforcement of contract against state — General principles 3210
1878. Enforcement of contract against state in federal courts 3211
1870. Consent of state to be sued 3212
S 1880. Necessity of- complying with conditions precedent to action against
sUte 3213
1 18S1. Wliat constitutes an action against the state 3214
1 1882. Priority of state as creditor 3215
m. FOREIGN GOVERNMENTS
1 1883. Foreign governments 3216
CHAPTER LX
Public Corporations and Quasi-Corporations
l nature and classes
i 1884. Nature and classes of public corporations 3222
yi Table of Contents
in. QUASI-CONTRACTUAL RIGHTS ARISING NEITHER FROM
CONTRACT NOR FROM TORT
A. YOLUNTAST PATMENT8, 8EBVICES, ETC. PAQB
1 1516. Services rendered voluntarily without request 2591
§ ldl7. Services rendered by finder of lost property 2593
I 1518. Services rendered to preserve animals 2594
1 1519. Receipt of money from real owner — Voluntary payments 2595
11520. Money paid for use of another — ^\^oluntary payment 2598
B. PATICENT, SERVICES, ETC. — SPECIAL CASES OF HUMANITT, DECENCY, ETC.
1 1521. Services rendered in emergency to preserve human life 2692
f 1522. Funeral expenses 2603
f 1523. Liability of husband for wife's necessaries 2606
1 1524. Liability of parent for necessaries of minor child 2610
§ 1525. Liability to third person of one who has contracted to furnish sup-
port 2613
1 1526. Support of paupers 2613
1 1527. Support of persons under quarantine, etc 2615
C. INVOLUNTABT PAYMENTS IN OSNEBAL
f 1628. Involuntary payments 2616
( 1529. Payment by one not beneficial owner 2617
D. PAYMENTS UNDER COMPULSION
1 1530. Payment under duress and undue influence — General nature 2620
S 1531. Elements of compulsion 2623
1 1532. What compulsion justifies recovery — In general 2625
§ 1633. Payment extorted by imprisonment 2626
I 1534. Payment extorted by wrongful detention of goods 262S
§ 1535. Payment to remove cloud from title to realty 2632
1 1536. Civil action as compulsion — Failure to invoke protection of law . . . 2633
I 1537. Legal process as compulsion 2635
1 1538. Breach of contract as duress 2637
§ 1539. Other forms of duress 2639
§1540. Dilemma not duress 2640
§ 1541. Unfair advantage as duress 2641
1 1542. Payment of another's debt to protect one's interests 2645
S 1543. Payment by party secondarily liable 2643
1 1544. Recovery of payments made on judgments 2650
1 1545. Application of foregoing principles to taxes, assessments for local
improvements and license fees 2658
S 1546. Protest 2667
1 1547. Necessity of demand 2668
E. PAYMENT OBTAINED BY FBAUD
1 1548. Payment obtained by fraud — General principles 2671
§ 1649. Payment obtained by fraud — Specific illustrations 2673
f 1550. Who may recover and from whom 2674
Table op Contents vii
F. PAYMENT BY MISREPBESENTATION
S 1661. Payment by misrepresentation 2676
O. PAYMENT UXDEB MISTAKE OF FACT
1 1652. Payment under mistake of fact 2676
( 1653. Elements of mistake of fact — Unconscious ignorance or forgetfulness. 267S
i 1564. Mistake as to essential element 2679
i 1555. Mistake as to evidence 2682
S 1556. Illustrations of mistake of fact 2682
S 1557. Mistakes in computation 2685
§ 1566. Recovery of payment on forged instrument 2686
1 1659. Recovery of payment causing overdraft 2602
i 1560. Negligence of party making payment — ^Held not to bar recovery.. 2693
§ 1561. Negligence held to bar recovery 2693
1 1562. Innocent payee must be placed in statu quo 2697
1 1563. Mistake need not be mutual 2699
•
H. PAYMENT BY MISTAKE OF LAW
1 1564. Payment by mistake of law 2699
1 1565. Illustrations — Total failure of consideration 2703
1 1566. Doctrine that payment by mistake of law may be recovered 2704
1 1567. Mistake of law coupled with other operative facts 2708
PART IV
PARTIES
CHAPTER XLV
Parties
1 1668. Necessity of two adversary parties 2710
f 1569. Abnormal status as affecting contractual capacity 2712
CHAPTER XLVI
Contracts of Infants
1 1570. Theory underlying doctrine of infancy 2714
1 1571. The termination of minority at common law 2715
1 1572. Effect of emancipation 2710
9 1573. Assent of parent or guardian 2717
1 1574. Statutes affecting capacity of minors 2717
S 1675. Infant married women 2719
f 1676. Original rule concerning the effect of an infant's contract 2720
viii Table of Contents
PAGE
1 1577. Present standing of original rule 27121
i 1578. Modern rule concerning the effect of an infant's contracts 2723
i 1579. Void contracts — Powers of attorney 2723
( 1580. Void contracts — ^Appointments of agents 2724
§ 1581. Other contracts held void 2726
I 1582. Valid contracts— Marriage 2726
§ 1583. Valid contracts— Enlistment 2727
i 1584. Valid contracts — Apprenticeship '. 2729
i 1585. Valid contracts — ^Performance of legal duty 2730
I 1586. Valid contracts — ^Necessaries — ^Nature of liability 2731
( 1587. What are necessaries 2734
i 1588. Examples of necessaries 2735
i 1589. Effect of special circumstances 2740
S 1590. Effect of excessive supply of articles 2740
1 1591. Effect of existence of parent or guardian 2741
§ 1592. Money as a necessary 2742
i 1593. Voidable contracts 2743
§ 1594. Examples of voidable contracts — Transfers of property 2747
1 1595. Contracts for work and labor 2750
§ 1596. Contracts of suretyship 2752
§ 1597. Compromise and arbitration 2753
§ 1598. Instruments negotiable in form 2754
f 1599. Contracts of partnership 2756
i 1600. Infant as member of corporation 2758
§ 1601. Concealment or misrepresentation of minority 2760
§ 1602. Ratification— Who can ratify 2763
§ 1603. Nature and effect of ratification 2765
i 1604. What constitutes ratification — Express ratification 2767
§ 1605. Form of express ratification 2768
§1606. Ratification by acts and conduct showing unequivocal intent 2769
I 1607. Acts and conduct not showing unequivocal intent 2770
§ 1608. Acknowledgment or part payment 2771
§ 1609. Who can disaffirm 2772
§ 1610. Time for disaffirmance — Minority 2774
§ 1611. Theory of reasonable time after reaching majority 2776
§ 1612. Theory of period of limitations 2779
§ 1613. What constitutes disaffirmance — Executory contracts 2781
§ 1614. Disaffirmance of conveyance of realtv 2782
§ 1615. Disaffirmance of contract for sale or purchase of personalty 2784
§ 1616. Partial disaffirmance impossible 2784
§ 1617. Restoration of consideration on disaffirmance 2787
§ 1618. Consideration not enuring to benefit of infant 2790
§ 1619. Chanjje in form of consideration — Subrogation 2791
§ 1620. Special statutory provisions 2793
§ 1621. When restoration of consideration must be made 2794
a 1622. Results of disaffirmance 2797
§ 1623. Theory that contract of infant is voidable only on full restitution. 2801
§ 1624. Infant as bankrupt 2803
§ 1625. Infant's torts arising mit of contract 2804
Table op Contents ix
CHAPTER XLVII
Contracts of Insane, Imbecile, etc. page
1 1626. Nature of insanity in contract law — ^Perfect sanity not necessary. 2806
( 1627. Test of capacity 280S
i 1628. Weakness of mind not due to insanity 2810
f 1629. Time at which capacity must exist 2811
f 1630. Validity of contracts of an insane person — Before adjudication... 2811
f 1631. Void contracts 2812
S 1632. Valid contracts -.r. 2813
i 1633. Necessaries 2814
§ 1634. Voidable contracts 2815
S 1635. Disaffirmance 2821
§ 1636. Ratification 2822
1 1637. Restoration of consideration — Bona fide transaction — Consideration
enuring to insane jJerson 2824
§ 1638. Consideration not enuring to insane person 2826
S 1639. Transaction with knowledge of insanity 2827
i 1640. Amount of restitution 2828
S 1641. Contracts made after adjudication — Statute not providing that con-
tract is void -. 2829
§ 1642. Statute making contract void — Guardian acting 2830
§ 1643. Guardian not acting 2831
S 1644. Retroactive effect of adjudication * 2832
§ 1645. Adjudication or finding of restoration to sanity 2833
CHAPTER XLVIII
Deaf, Dumb and Blind
S 1646. Deaf, dumb and blind 2834
CHAPTER XLIX
Contracts of Drunkards
S 1647. Nature of drunkenness in contract law 2836
i 1648. Legal effect of intoxication 2839
§ 1649. Intoxication as affected by unfair conduct of adversary 2842
§ 1650. Effect of intoxication in equity 2842
S 1651. Contracts for necesRaries 2843
S 1652. Ratification and di-^affirmance 2844
§ 1653. Restoration of consideration 2845
i 1654. Effect of adjudication as habitual drunkard 2846
S 1656. Effect of drugs 2847
CHAPTER L
Spendthrifts
i 1656. Spendthrifts under guardianship 2848
X Table op Contents
CHAPTER LI
Convicts and Felons '^«
11667. ConyicU and feknis 2860
CHAPTER LH
Contracts of Married Women
1 1668. Contracts of married women at common law 2852
i 1659. Exceptions to common-law mle 2855
1 1660. Contracts of married women in equity 2857
1 1661. Extent of power over separate estate 2858
1 1662. Presumptive intent to charge separate estate 2859
i 1663. Contracts of married women under modern statues 2862
1 1664. Power to contract for benefit of separate estate 2863
§ 1665. Power to contract as feme sole with reference to separate estate... 2866
§ 1<666. Statutes conferring limited capacity 2869
1 1667. Husband required to join in contract 2870
( 1668. Consent of husband necessary 2871
1 1669. Contract required to be in writing 2872
fi 1670. Power as sole trader 2874
i 1671. Capacity under contract with husband 2874
1 1672. Power to contract as feme sole generally 2875
i 1673. Contracts of suretyship — At common law and under statutes confer-
ring capacity 2877
S 1674. Under statutes restricting her power to act as surety 2879
§ 1675. Mortgage or conveyance of wife*s property to secure debt of hus-
band— ^Under statutes conferring capacity 2885
i 1676. Under statute restricting method of securing husband's debt 2886
i 1677. Under statute forbidding mortgage for husband's debt 2887
\ 1678. Contracts between husband and wife — At common law 2801
S 1679. Under modern statutes 2893
i 1680. Partnership between husband and wife 2900
§ 1681. Agent of married woman 2902
§ 1682. Ratification 2903
i 1683. Restitution 2904
§ 1684. Estoppel 2905
S 1685. Right to avoid executed contracts 2006
§ 1686. Coverture must be pleaded 2907
1 1687. Who can use coverture as a defense 2907
CHAPTER LIII
Partnership
S 1688. Nature of partnership 2010
§ 1689. Partnership as legal entity 2912
\ 1690. Form and content of partnership contract 2912
S 1691. Name of partnership 2915
Table of Contents xi
PAGK
§1802. Joint ownership 2»15
S 1093. fiharing profits — Necessity in partnership 2917
i 1004. Sharing profits— Effect as making parties partners 2017
1 1696. Examples of partnership 2924
S 1006. Limited .partnerships 2926
1 1697. Joint stofjk companies < 2927
1 1608. Form of contracts entered into by partnership 2027
( 1600. Scope of partnership 2020
§ 1700. Liability of partners on contract within scope of business 2030
§ 1701. Non-trading firms 2033
i 1702. Trading firms 2035
1 1703. Acquiescence of partners 2041
1 1704. Liability of partners on contract without scope of business 2042
i 1705. Dissent of partner 2042
11706. Estoppel 2043
( 1707. Wrongful act or omission necessary to create estoppel 2047
i 1708. Reliance necessary to create estoppel 2048
1 1700. Ratification— Nature and effect 2040
( 1710. Elements of ratification 2050
S 1711. Illustrations of ratification 2052
i 1712. Effect of ratification as against adversary party 2052
1 1713. Effect of ratification— Third persons 2053
i 1714. Dissolution 2054
i 1716. Assumption of debts on change of firm 2058
1 1716. Powers after dissolution 2060
1 1717. Notice necessary on dissolution 2062
1 1718. Powers of surviving partners 2066
S 1710. Peculiarities of enforcement of contract between partners — Account-
ing involved, t 2068
1 1720. Accounting not involved 2060
11721. Accounts involving three or more parties, or common member 2071
1 1722. Personal Irability of partner on unauthorized contract 2071
CHAPTER LIV
Agency
i 1723. Nature of agency 2074
1 1724. Control as test of agency 2075
f 1725. PubUc utility as agent 2076
1 1726. Agency distinguished from other legal relations generally 2076
S 1727. Agency distinguished from sale 2078
§ 1728. Agent distinguished from independent contractor 2080
1 1720. Place of agency in contract law 2081
i 1730. Appointment of agent — Necessity of contract 2982
i 1731. Agency between persons in domestic relations 2083
i 1732. Agency by necessity 2083
( 1733. Express and implied appointment 2084
§ 1734. Form of appointment to make sealed instrument 2085
1 1735. Form of appointment to make simple contract — Common law 2086
xii Table of Contents
PAGl
1 1736. Form of appointment to make simple contracts — Statutory regu-
lations 2981
1 1737. Termination of agent's authority — Intent of parties to terminate. . . 2988
i 1738.. Termination by operation of law — Performance 2990
I 1739.. Termination by operation of law — ^Death and insanity 2991
i 1740. Termination by operation of law — ^Bankruptcy, dissolution, etc 2992
i 1741. Power coupled with interest ^ 2992
i 1742. Effect of termination of authority 2994
i 1743. Notice of termination of authority — TerminatioYi by act of parties. .2994
1 1744. Notice of termination of authority — Termination by operation of law. 2995
i 1745. Scope of agent's authority — General principles 2996
i 1746. Scope of agent's authority — Power to manage business 3000
i 1747. Scope of agent's authority — Power to sell generally 3001
1 1748. Scope of agent's authority — Power' to sell realty 3002
i 1749. Scope of agent's author! ty^Power to sell personalty 3003
1 1750. Scope of agent's authority — ^Power to solicit orders 3006
§ 1751. Scope of agent's authority — Power to collect 3007
( 1752. Power to settle, compromise, etc 3010
§ 1753. Scope of agent's authority — ^Power to borrow money and to execute
negotiable instruments,* mortgages, etc 3011
1 1754. Scope of agent's authority — ^Power to lend money 3012
1 175i5. ficope of agent's authority — Power to buy 3012
{ 1756. Scope of agent's authority — Power to lease 3013
} 1757. Scope of agent's authority — Other illustrations 3013
g 1758. Nature of liabiUty of principal 3014
§ 1759. Liability of principal — Agent acting within authority 3016
§ 1760. Liability of principal—Estoppel 3018
§ 1761. Acts of unauthorized agent not estoppel 3025
1 1762. Liability of principal in contract — ^Agent acting outside of authority 3026
§ 1763. Rights and liabilities of principal in quasi-contract — Agent acting
outside of scope of authority 3031
§ 1764. Ratification—Nature and effect 3032
i 1765. Methods of ratification 3035
§ 1766. Necessity of full knowledge of facts 3043
i 1767. Partial ratification impossible 3046
S 1768. Necessity of acting as agent 3048
S 1769. Effect of ratification— Adversary party 3049
1 1770. Effect of ratification— Third persons 3053
1 1771. Liability of agent to adversary party — Contract authorized 3054
I 1772. Liability of agent — Contract not authorized — Adversary not misled. 3053
§ 1773. Liability of agent — Contract not authorized — ^Adversary misled 3055
1 1774. Liability of agent— Unauthorized contract ratified 3056
i 1775. Liability of agent of undisclosed principal 3057
i 1776. Election of adversary party to hold agent or undisclosed principal. . 3059
S 1777. What constitutes election 3060
§ 1778. Liability of agent of non-existent principal 3061
1 1779. Nature of liability of agent to adversary party 300*3
§ 1780. Personal liability of agent by terms of contract 3064
i 1781. Rights of principal on contract 3064
Table of Contents xiii
CHAPTER LV
Officers and Agents of Public Corporations pao»
f 1782. Powers of public officers and agents — General nature 3067
1 1783. Nature and construction of grant of power 8068
i 1784. Powers of specific officers 3069
fi 1785. Action as board, council^ etc 3070
i 1786. Liability of public corporation upon authorized contracts 3071
i 1787. Liability of public corporation on unauthorized contracts — Estoppel. 3072
1 1788. Liability of adversary party on unauthorized contracts 3074
1 1789. Personal liability of public officer or agent 3075
( 1790. Ratification— Who may ratify 3075
1 1791. What amounts to ratification 3077
i 1702. Liability in quasi-contract for benefits 3076
CHAPTER LVI
Agents and Officers of Private Corporations
1 1793. Application of general principles of agency to private corporations . . 3082
i 1794. Notice of termination of authority : 3086
1 1795. ^ockholders 3087
i 1796. Directors 3095
1 179?. President 3098
S 1798. Vice president 3103
§ 1799. Secretary, treasurer, cashier and teller 3104
§ 1800. General and special managers 3106
i 1801. Estoppel 3110
i 1802. Liability in quasi-contract 3111
§ 1803. Ratification— General principles 3111
§ 1804. Who may ratify 3113
1 1805. ^Vhat amounts to ratification 3114
1 1806. Effect of ratification 3118
1 1807. Personal liability of agent or officer of corporation 3119
CHAPTER LVII
Contracts of Persons Acting in Fiduciary Capacitt
I. trustees
S 1808. Trustee can not bind beneficiary personally 3124
S 1809. Power to bind trust estate 3124
1 1810. Personal liability of trustee , 3125
i 1811. Liability of estate for benefits received 3127
n. EXECUTORS AND ADMINISTRATORS
1 1812. General want of power to bind estate 3128
f 1813. Statutory power to bind estate 3131
f 1814. Power created by will to bind estate 3133
§ 1815. Personal liability of executors 3134
1 1816. Liability of estate for benefits received 3136
iv Table of Contents
PAGB
f 1451. PeraoiiB related* by affinity 2484
( 1452. De facto membership of same family 2485
( 1453. Nature of services 2486
f 1454. Services between persons not members of same family 2486
1 1455. Effect of lack of contractual capacity 2489
11456. Presumption of gratuitous service rebuttable — Express contract.. 2490
§ 1457. Oenuine understanding that compensation be made 2492
§ 1458. Degree of proof requisite 2493
1 1459. Extra work 2494
i 1460. Extras for unforeseen expense in performance 2495
1 1461. Work and labor demanded as gratuitous or under a claim of right. . 2496
1 1462. Extras due to modification or breach 2498
1 1463. Effect of provision requiring written authority for extras 2499
S 1464. Extras furnished without knowledge of adversary party 2500
§ 1465. Employment for entire time — ^Request for extra work of similar
nature 2500
i 1466. Employment for entire time — ^Request for extra work of different
character 2501
1 1467. Extra services by directors, partners, etc 2502
i 1468. Effect of statutory limitation of hours of labor 2503
f 1469. Work and labor done under a contract void for mistake as to an
essential element 2505
1 1470. Work done for one at request of another, without express contract. 2505
m. GOODS SOLD
1 1471. Goods sold and delivered 2507
i 1472. Goods delivered to one at request of another 2509
IV. MONEY HAD AND RECEIVED
1 1473. General nature of right. 2510
1 1474. Elements of right to recover in this action — Money or equivalent
must be received 2513
1 1475. Receipt of equivalent of money 2516
$ 1476. Receipt of definite sum necessary 2517
i 1477. Action not means of recovering damages 2519
I 1478. Party who seeks to recover money must rightfully "be entitled
thereto 2520
1 1479. From whom payment may be recovered 2521
§ 1480. Persons receiving money must not be entitled in good conscience to
retain it 2522
S 1481. Defendant receiving fund from third person 2525
1 1482. Payments at tax sale 2526
§ 1483. Payments at judicial sale 2527
1 1484. Party from whom recovery is sought must be placed in statu quo. . 2528
S 1485. Action does not enlarge substantive rights 2530
§ 1486. Classes of rights — ^Receipt of money from third person 2533
f 1487. Receipt of money to discharge specific obligation due another 2541
Table op Contents *v
V. MONEY LOANED. page
i 1488. Money loaned — ^Necessity of genuine contract 2544
I 1489. Against whom action will lie 2644
VI. MONEY LAID OUT AND EXPENDED
i 1490. Money paid 2545
VTI. USE AND OCCUPATION
11491. Assumpsit for occupation under genuine but informal contract.. 2546
1 1492. Assumpsit for occupation of realty under a formal lease 2548
/
CHAPTER XLIV
QUASI-CONTRACT OR CONSTBUCTTVE CONTRACT
I. GENERAL NATURE
.V
f 1493. Quasi-contracts 2551
f 1494. Historical use of term "quasi-contract" 2564
S 1495. Historical reason for confusion between implied contract and quasi-
contract 2567
f 1496. Fictitious character of promise in quasi-contract 2558
§ 1497. Confusion in terms at modem law 2660
§ 1498. Practical importance of distinction between contract and quasi-
contract 2561
f 1499. Distinction between contract and quasi-contract in procedure — ^At-
tachment 2501
f 1500. Statute of limitations 2563
§ 1501. Statutes conferring jurisdiction 2565
§ 1502. Set-off and counterclaim 2566
1 1503. Classification of quasi-contracts 2566
IT. WAIVER OP TORT
§ 1504. Waiver of tort — ^Nature and theory of doctrine 2569
$ 1505. Conversion of money 2574
$ 1506. Conversion of personalty which is then converted into money 2574
f 1507. Conversion of personalty which is not converted into money —
Original taking wrongful — Assumpsit denied 2576
f 1508. Original taking rightful 2570
§ 1509. Assumpsit allowed without regard to nature of original taking. . . . 25S0
$ 1510. Wrongful sale of realty 2582
{ 1511. Appropriation of realty without compensation 2583
$ 1512. Wrongful occupancy of real property 2584
§ 15HS. Liability of trespasser in assumpsit 2586
{1514. Other forms of occupancy excluding liability in contract 2588
1 1516. Work and labor obtained by tort 2583
/
xvi Table of Contents
n. POWERS PAOB
S 1885. Notice of powers of public corporations 3225
§ 1886. Power of public corporations to make contracts 3226
§ 1887. Effect of statute on power to contract 3228
f 1888. EffQct of statute on power to make implied contracts 3230
§ 1880. Construction of statutory and constitutional powers — General pro-
visions 3232
§ 1890. Power to contract— In general 3234
§1891. Specific illustrations — Power to acquire and dispose of property 3235
§ 1892. Grant of franchises 3236
i 1893. Streets 3237
} 1894. Water supply 3238
§ 1895. Light, power and electricity 3240
§ 1896. Sewers 3241
f 1897. Public buildings 3242
{ 1898. Contract to refrain from exercise of gdvernmental functions 3242
} 1899. Delegation or assumption of public duties 3243
§ 1900. Powers incidental to taxation 3244
§ 1901. Contracts to be performed during long period 3245
§ 1902. Power to borrow money 3249
} 1903. Power to issue negotiable instruments 3250
} 1904. Statutory restriction on power to borrow 3253
} 1905. Construction of statutory provisions 3255
§ 1906. Power to incur indebtedness 3258
§ 1907. Statutory prohibition against incurring debt 3259
§ 1908. Necessity of appropriation 3260
§ 1909. Necessity of levying tax to meet obligation 3261
§ 1910. Liabilities forbidden in excess of current income 3263
§1911. Necessity of certificate showing suflficient funds 3266
§ 1912. Limitation on amount of indebtedness 3266
§ 1913. Claims subject to limitation 3269
§ 1914. Claims not subject to limitation 3274
§ 1915. Claims payable out of assessments 3276
§ 1916. Refunding bonds 3278
§ 1917. Method of valuing property 3280
§ 1918. Method of ascertaining debt 3282
§ 1919. Debts of other coterminous or inclusive public corporations 3286
§ 1920. Amounts to become due under installment contracts 3287
§ 192L Validity of debt which causes excess over limit 3291
§ 1922. Popular vote on incurring debt 3291
§ 1923. Submission of question 3295
§1924. Formalities of election — Voting on several propositions 3296
§ 1925. Notice of election 3297
§ 1926. Number of votes necessary 3299
§ 1927. Method of holding election 3300
§ 1928. Petition of voters 3301
§ 1929. Employment of attorney 3302
§ 1930. Compromise of disputed claims 3305
§ 1931. Contracts for speculation 3306
§ 1932. Loan of credit 3307
§ 1933. Other incidental powers 3308
Table of Contents xvii
m. PRESENTATION OF CLAIMS PAGE
} 1034. Presentation of claims 3309
IV. FORM OF CONTRACT
§ 1935. Form necessary in contracts of public corporations 3310
$ 1036. Necessity of competitive )>idding 3313
§ 1937. Notice and advertisement for bids — Necessity 3314
§ 1938. Contents 3315
§ 1930. Method of giving notice 3315
§ 1940. Re-advertisement 33l6
§ 1941. Specifications 3317
§ 1942. Estimates 3319
f 1043. Bids : 3320
8 1944. Bond 3321
§ 1945. Rejection of bid 3321
§ 1946. Letting public contract to lowest bidder 3322
§ 1947. Exercise of discretion by public xjfficers 3i^24
S 1948. Requirements restricting competition — Monopolies 3326
8 1949. Restricting competition in labor 3328
1 1950. Covenants requiring repair of streets 3329
$ 1951. Other provisions which tend to increase cost 3331
V. ULTRA VIRES CONTRACTS
8 1952. Nature of ultra vires , 3333
8 1953. Right to take advantage of ultra vires 3335
8 1954. Who may take advantage of ultra vires 3330
8 1955. Effect of ultra vires contracts— Executory contracts »»^. i 3337
8 1956. Performance by public corporation 3338
8 1957. Performance by adversary party — Liability on contract 3340
8 1058. Performance by adversary party — Liability in quasi-contract 3341
8 1050. Recovery of property in specie 3344
8 1060. Performance by both parties 3345
8 1961. Effect of divisible or indivisible contract 3346
8 1962. Contracts in violation of statutory provision 3346
8 1063. Illustrations of particular statutes 3.340
§ 1964. Presumption as to validity of contracts of public corporations 33."i4
8 1065. Estoppel 3354
8 1066. Estoppel by recitals 3356
8 1067. Ratification 3360
8 1068. Curative legislation 3362
CHAPTER LXI
Private Corporations
i. history and nature
8 1969. Origin of corporation 3365
8 1970. Attributes of private corporation 3366
8 1071. Legal personality of corporation 3368
xviii Table op Contents
PAGE
§ 1072. Corporation as "person" 3372
§ 1073. Corporation as 'Vitizen" 3372
§ 1074. Existence of corporation as "legal fiction" 3373
§ 1075. Definitions of private corporation 3375
^ 1070. Ellect of divergence as to fundamental legal tlieorics of corporation. 3378
II. POWERS
§ 1077. Tlie charter of the corporation 3378
§ 1!I7S. Scope and construction of corporate charters 3380
§ 1070. Implied powers 3382
§ lOSO. IU)iTowing money 3382
§ 1081. Borrowing in excess of limitation of indebtedness 3383
§ 1082. Accommodation paper 3384
§ 1083. Suretyship 3387
§ 1084. Lending money ., 3300
§ 1085. Power to acquire real property 3300
§ 1086. Power to acquire personal property 3302
§ 1087. Power to purchase its own stock 3303
§ 1088. Power to purchase stock in otlicr corporation 3307
§ 1080. Partnership contracts 3401
§ 1000. Power to dispose of corporate pro])erty 3402
§ 1001. Examples of powers of particular corporations 3404
§ 1002. Contracts collateral to corixirate business 3407
III. FORM OF CONTRACT
§1003. Form necessary in contracts of private corporations 3412
IV. ULTRA VIRES
§ 1004. The origin of the doctrine of ultra vires 3414
§ 1005. Preliminary considerations 3415
§ 1006. Wliat ultra vires includes 3418
§ 1007. The reasons underlying tlie doctrine of ultra vires 3421
§ 1008. Wlio can take advantage of ultra vires 3424
§ 1000. Executory contracts 3428
§2000. Contracts performed by one party — Performance by the corporation. 3420
§2001. Performance by adversary party— Liability on contract 3433
§ 20<»2. Liability independent of contract 3438
§ 20(»3. Partial performance by one party 3443
§ 200L Performance not conferring benefit on corporation 3444
§ 2005. Contracts fully performed 3447
§ 2006. Estoppel ' -^^-i-^
§ 2007. Ratification 3454
§ 2008. Ladies 3455
§2000. Personal liability of agent or officer on ultra vires contract 3456
§ 2010. "Modern doctrine" of ultra vires 3458
Table of Contexts xix
CHAPTER LXII
Irregular Orgaxizatioxs and De Facto
corporatioxs page
§ 2011. Nature of de facto private pt»rporationB 3461
§ 2012. Elements of de facto corporation 3403
§ 2013. Illustrations of specific defects in organization of corporation 3406
S 2014. Estoppel to deny corporate existence — Estoppel of persons dealin«i[
with corporation 3471
§ 2015. Estoppel of corporation to deny its own existence 3474
§ 2016. Contracts of de facto corporation — Organization treated as corpora-
tion 3474
§ 2017. Organization treated as group of natural persons 3477
§ 2018. ElTect of special contract as to nature of liability 3480
S 2019. De facto public corporations 3481
X Table op Contents
CHAPTER LI
Convicts and Felons ^aiw
f leST. Convlctg and fckuu 2850
CHAPTER LII
Contracts of Married Women
f 1668. Contracts of married women at common law 2852
§ 1050. Exceptions to common-law rule 2855
§ 1660. Contracts of married women in equity 2857
S 1661. Extent of power over separate estate 2858
} 1662. Presumptive intent to charge separate estate 2859
§ 1663. Contracts of married women under modern statues 2862
} 1664. Power to contract for benefit of separate estate. 2863
§ 1665. Power to contract as feme sole with reference to separate estate. . . 2866
§ 1066. Statutes conferring limited capacity 2869
S 1667. Husband required to join in contract 2870
f 1668. Consent of husband necessary 2871
S 1669. Contract required to be in writing 2872
§ 1670. Power as sole trader 2874
§ 1671. Capacity under contract with husband 2874
{ 1672. Power to contract as feme sole generally 2875
S 1673. Contracts of suretyship — At common law and under statutes confer-
ring capacity 2877
f 1674. Under statutes restricting her power to act as surety 2879
§ 1675. Mortgage or conveyance of wife's property to secure debt of hus-
band— ^Under statutes conferring capacity 2885
} 1676. Under statute restricting method of securing husband's debt 2886
§ 1677. Under statute forbidding mortgage for husband's debt 2887
f 1678. Contracts between husband and wife — At common law 2801
{ 1670. Under modern statutes 2893
§ 1680. Partnership between husband and wife 2000
{ 1681. Agent of married woman 2902
§ 1682. Ratification 2903
1 1683. Restitution 2904
§ 1684. Estoppel 2905
§ 1685. Right to avoid executed contracts 2006
§ 1686. Coverture must be pleaded 2907
i 1687. Who can use coverture as a defense 2907
CHAPTER LIII
Partnership
g 1688. Nature of partnership 2010
{ 1689. Partnership as legal entity 2912
§1690. Form and content of partnership contract 2912
{ 1691. Name of partnership 2915
Table of Contents xi
PAGE
1 1602. Joint ownersbip 2915
1 1^93. fifaaring prof! U— Necessity in partnership 2917
i 1604. Sharing profits — ^Effect as making parties partners 2017
1 1606. Examples of partnership 2024
1 1006. Limited . partnerships S^6
1 1697. Joint »to^ companies 2027
i 1608. Form of contracts entered into by partnership 2027
S 1600. Scope of partnership 2020
{ 1700. Liability of partners on contract within scope of business 2930
f 1701. Non-trading firms 2933
i 1702. Trading firms 2035
1 1703. Acquiescence of partners 2941
I ]7(VI. Liability of partners on contract without scope of business 2942
S 1705. Dissent of partner 2942
i 1706. Estoppel 2943
1 1707. Wrongful act or omission necessary to create estoppel 2947
} 1708. Reliance necessary to create estoppel 2048
i 1700. Ratification>-Nature and effect 2040
f 1710. Elements of ratification 2050
} 1711. Illustrations of ratification 2052
i 1712. Effect of ratification as against adversary party 2052
{ 1713. Effect of ratification— Third persons 2053
i 1714. Dissolution 2064
§ 1716. Assumption of debts on change of firm 2058
§ 1716. Powers after dissolution 2060
i 1717. Notice necessary on dissolution 2062
§ 1718. Powers of surviving partners 2066
§ 1710. Peculiarities of enforcement of contract between partners — Account-
ing involved, i 2068
i 1720. Accounting not involved 2969
1 1721. Accounts involving three or more parties, or common member 2971
1 1722. Personal liability of partner on unauthorized contract 2971
CHAPTER LIV
Agency
i 1723. Nature of agency 2074
f 1724. Control as test of agency 2975
f 1725. PubUc utility as agent 2976
S 1726. Agency distinguished from other legal relations generally 2976
f 1727. Agency distinguished from sale 2978
f 1728. Agent distinguished from independent contractor 2980
1 1720. Place of agency in contract law 2081
1 1730. Appointment of agent— Necessity of contract. , 2982
S 1731. Agency between persons in domestic relations 2083
f 1732. Agency by necessity 2083
f 1733. Express and implied appointment 2084
§ 1734. Form of appointment to make sealed instrument 2985
§ 1735. Form of appointment to make simple contract — Common law 2986
'
xii Table of Contents
PAG&
} 1736. Form of appointment to make simple contracts — Statutory regu-
lations 298i
1 1737. Termination of agent's authority — Intent of parties to terminate... 2988
S 1738.. Termination by operation of law — Performance 2990
§ 1730.. Termination by operation of law — ^Death and insanity 2991
§ 1740. Termination by operation of law — Bankruptcy, dissolution, etc 2992
1 1741. Power coupled with interest ^ 2992
§ 1742. Effect of termination of authority 2994
1 1743. Notice of termination of authority — ^Terminatioli by act of parties. .2994
i 1744. Notice of termination of authority — ^Termination by operation of law. 2905
1 1745. Scope of agent's authority — General principles 2996
§ 1746. Scope of agent's authority — Power to manage business 3000
S 1747. Scope of agent's authority — Power to sell generally 3001
1 1748. Scope of agent's authority — Powei' to sell realty 3002
§ 1749. Scope of agent's author! ty^Power to sell personalty 3003
1 1750. Scope of agent's authority — Power to solicit orders 3006
§ 1751. Scope of agent's authority — Power to collect 3007
§ 1752. Power to settle, compromise, etc 3010
§ 1753. Scope of agent's authority — ^Power to borrow money and to execute
negotiable instruments,- mortgages, etc 3011
§ 1754. Scope of agent's authority — ^Power to lend money 3012
f 1755. Scope of agent's authority — Power to buy 3012
{ 1756. Scope of agent's authority — Power to lease 3013
} 1757. Scope of agent's authority — Other illustrations 3013
§ 1758. Nature of liability of principal 3014
1 1759. Liability of principal — Agent acting within authority 3016
f 1760. Liability of principal— Estoppel 3018
§ 1761. Acts of imauthorized agent not estoppel 3025
{ 1762. Liability of principal in contract — ^Agent acting outside of authority 3026
§ 1763. Rights and liabilities of principal in quasi-contract — Agent acting
outside of scope of authority 3031
§ 1764. Ratification— Nature and effect 3032
§ 1705. Methods of ratification 3035
§ 1766. Necessity of full knowledge of facts 3043
§ 1767. Partial ratification impossible 3046
§ 1768. Necessity of acting as agent 3048
§ 1769. Effect of ratification — ^Adversary party 3049
S 1770. Effect of ratification— Third persons 3053
I 1771. Liability of agent to adversary party — Contract authorized 3054
§ 1772. Liability of agent — Contract not authorized — Adversary not misled. 3053
} 1773. Liability of agent — Contract not authorized — ^Adversary misled 30.55
{ 1774. Liability of agentr— Unauthorized contract ratified 3056
§ 1775. Liability of agent of undisclosed principal 3057
i 1776. Election of adversary party to hold agent or undisclosed principal . . 3059
§ 1777. WTiat constitutes election 3060
§ 1778. Liability of agent of non-existent principal 3061
1 1779. Nature of liability of agent to adversary party 300*3
§ 1780. Personal liability of agent by terms of contract 3064
1 1781. Rights of principal on contract 3064
Table of Contents xiii
CHAPTER LV
Officers and Agents of Public Corporations ^aok
1 1782. Powers of public officers and agents — General nature 3067
f 1783. Nature and construction of grant of power 8068
i 1784. Powers of specific officers 3069
1 1785. Action as board, council^ etc 3070
i 1786. Liability of public corporation upon authorized contracts 3071
1 1787. Liability of public corporation on unauthorized contracts — Estoppel. 3072
S 1788. Liability of adversary party on unauthorized contracts 3074
1 1789. Personal liability of public officer or agent 3075
S 1790. Ratification— Who may ratify 3076
f 1791. What amounts to ratification 3077
i 1792. Liability in quaai-oontract for benefits 3078
CHAPTER LVI
Agents and Officers of Private Corporations
1 1793. Application of general principles of agency to private corporations . . 3082
§ 1794. Notice of termination of authority * 3086
i 1795. Stockholders 3087
i 1796. Directors 3096
i 179?. President 3098
} 1798. Vice president 3103
1 1799. Secretary, treasurer, cashier and teller 3104
{ 1800. General and special managers 3106
1 1801. Estoppel 3110
§ 1802. Liability in quasi-contract 3111
i 1803. Ratification — General principles 3111
§ 1804. Who may ratify 3113
S 1805. What amounts to ratification 3114
1 1806. Effect of ratification 3118
{ 1807. Personal liability of agent or officer of corporation 3119
CHAPTER LVII
Contracts of Persons Acting in Fiduciary Capacity
I. trustees
§ 1808. Trustee can not bind beneficiary personally 3124
§ 1809. Power to bind trust estate 3124
§ 1810. Personal liability of trustee 3125
§ 1811. Liability of estate for benefits received 3127
n. executors and administrators
1 1812. General want of power to bind estate 3128
{ 1813. Statutory power to bind estate 3131
{ 1814. Power created by will to bind estate 3133
{ 1815. Personal liability of executors 3134
f 1816. Liability of estate for benefits received 3136
xiv Table of Contents
m. GUARDIANS FACT
f 1817. General want of power to bind estate 3189
i 1818. Statutory power to bind estate 3141
1 1819. Personal liability of guardian 3143
f 1820. Personal interest of guardian in his contracts 8148
1 1821. Liability of estate for benefits received 8144
IV. RECEIVERS
f 1822. Contracts under order of court 8145
1 1823. Power to displace prior liens— Receiver of private oorporatioa 8147
S 1824. Receiver of quasi-public corporation 8149
S 1825. Contracts not under order of court — Charge upon fund 8150
f 1826. Contracts not under order of court — Personal liability of receiver. . 8151
f 1827. Liability of fund for benefits received 3153
V. CONTRACTS OF PROMOTERS
S 1828. PlK>moter8 3164
f 1829. Contracts of promoters not binding on corporation 3155
} 1830. Theory that corporation may adopt contract of promoter 3157
f 1831. Nature of liability of corporation 3161
1 1832. Theory that corporation can not adopt contract of promoter 3163
1 1833. Statutory restrictions on adoption by corporation 3165
1 1834. Personal liability of promoters 8166
CHAPTER LVIII
Voluntary Ajssoclitions
1 1836. Contracts of voluntary associations — ^Voluntary association for
profit 8168
S 1836. Voluntary association not for profit — Liability of members upon
unauthorized contracts 3169
1 1837. Liability of members upon authorized contracts 3170
f 1838.. Ratification 3170
i 1839. Liability of member who acts as agent or officer 3170
1 1840. Nature of liability of members 3172
( 1841. Rights of members upon contract 3172
CHAPTER LIX
Governments
L THE UNITED STATES
1 1842. Contracts of the United States — ^Power to contract 8174
§ 1843. Powers of officers and agents 3174
f 1844. Applicability of general principles of contract law 3176
i 1846. Necessity of appropriation .•. 8I77
1 1846. Nerp«»*t'7' «f n**vo%^w«**T»«»«* f^^ h\^{^ , 8179
Table of Contents xv
FAOB
S 1847. Form neoestaiy in oontractB of Unit«d States 3181
§ 1848. CoBBtrnction 3186
S 1840. AMignment 3188
i 1860. Contraetor'ft bonds 3188
1 1851. Priority as creditor 3180
{ 1862. Extension of time and new contracts 3100
f 1853. Impossibility 3101
} 1864. Performance and breach 3102
f 1865. Extras 3104
} 1856. Provision for decision of architect, engineer, etc 3105
f 1867. Enforcement of contract against United States 8106
1 1868. Ck>ndition8 imposed on actions against United States 3107
f 1850. Jurisdiction in contract 3107
1 1860. Jurisdiction in quasi-contract other than waiver of tort 3108
1 1861. Jurisdiction in quasi-contract — Waiver of tort 3108
§ 186SL Claim founded on act of congress 3200
f 1863. Limitation of actions and presumption of payment 3200
n. STATES OF THE UNION
1864. Contracts of a state of the union — General principles 3200
1865. Nature of state contracts 3201
I
1866. Powers of officers or agents of state 3202
1867. Ratification 3204
1868. Powers of state — ^Borrowing money 3204
1869. Applicability of general principles of contract law 3205
1870. Limitation on amount of indebtedness .^ 3206
1871. Necessity of advertisement for bids and competitive bidding 3207
1872. Letting contract as entirety 3208
1873. Letting state contract to lowest bidder 3208
1874. Liability of state upon authorized contracts 3200
1875. Liability of state upon unauthorized contracts 3200
1876. Liability of state in quasi-contract for benefits 3210
1877. Enforcement of contract against state — General principles 3210
1878. Enforcement of contract against state in federal courts 3211
1870. Consent of state to be sued 3212
1880. Necessity of- complying with conditions precedent to action against
state 3213
IBSl. \^^at constitutes an action against the state 3214
1882. Priority of state as creditor 3215
m. FOREIGN GOVERNMENTS
{ 1883. Foreign governments 3216
CHAPTER LX
Public Corporations and Quasi-Corporations
L nature and CLASSES
i 1884. Nature and classes of public corporations 3222
1433
Page ox Contracts
2452
tect the rights of the subcontractors, materialmen, artisans and
laborers. ' ' ^
These statutes usually provide for filing of plans and speci-
fications as well as for filing the contract itself.* If, however,
the contract is so drawn that it embodies all the necessary
specifications, it is not necessary to file specifications apart
from such contract.* Under the original provision of the Cali-
fornia statute, the omission to file such contract rendered it
**whollv void*' and no recoverv could be had thereon bv either
party thereto.* By the express provisions of this statute,
no action could be brought upon such a contract by either
party thereto, if such contract was not filed in compliance
with the terms of the statute.^ The object of such statute,
however, as has been said, was to impose a penalty upon the
parties so as to force them to file the contract for the pro-
tection of the subcontractors, materialmen, and the like.' It
was not intended to enrich either party at the expense of
the other. On the one hand, the owner could not have such
a contract canceled unless he had paid the contractor a rea-
sonable compensation for work, labor and materials fur-
nished under such contract.* On the other hand, the con-
tractor might recover reasonable compensation for work, labor
and materials furnished under such contract, but his claim
for compensation could not exceed the contract rate. The
contract was **not the basis of his recovery, but the measure
and test of his right to recover."^* If the owner overpaid
the contractor by mistake, the fact that the contract was not^
recorded did not prevent the owner from recovering such over-
payment."
3 Condon v. Donohue, IfiO Cnl. 7'40,
118 Pac. 113.
4 Pierce v. Birkholm, 115 Cal. 057, 47
Pac. 681; Keiipler v. Reeve, 79 N. J.
Eq. 480 Isub nomine, Keupler v. Eisele,
83 Atl. 9091.
• Keupler v. Reeve. 79 N. J. Eq. 480
[sub nomine, Keupler v. Eiaele, 83 Atl.
999].
• California Code of Civil Procedure,
§ 1183, as- enacted in 18S5, California
statutes, 1885, page 143.
T Condon v. Donohue, 160 Cnl. 749,
ns Pac. 113.
• Condon v. Donohue, 1<50 Cal. 740,
118 Pac. 113.
• Sullivan v. California Realty Co.,
142 Cal. 201, 75 Pac. 767.
IBLaidlaw v. Marye, 133 Cal. 170, 65
Pac. 391. See to the «ame effect, Con-
don v. Donohue, 160 Cal. 749, 118 Pac.
113; Mannix v. R. L. Radke Co., 166
Cal. 333, 136 Pac. 52.
11 Atchison, Topeka & Santa Fe Ry.
Co. V. West, 176 Cal. 148, UM Pac. 868.
2453 CoxTRACTS Which Must Be in Writixg § 14"!
While the statute^ of some states provide for recording con-
tracts for the sale of realty, such provisions are made for the
purpose of giving constructive notice to the world at large of
such contract of s.ale and they are not intended to render the
contract invalid as between the parties in case of failure to file
such a contract for record in compliance with the terms . of the
statute.^*
12 McPheeter'a v. Ronning, 95 Minn. jurisdictions. Strauss v. W'hite, C6
1G4, 103 X. W. 889. Possession undor Ark. 1G7, 51 S. W. 04; Bilansky v.
the contract is such notice thereof as to Hogan, 190 Mich. 4453, 167 X. W. 13.
make recording unnecessary in most
xviii Table of CoxTExra
PAGE
§ 1072. Corporation as "person" 3372
§ 1U73. Cori)oration as "citizen" 3372
§ 1974. Kxistcnce of corporation as *iegal fiction" 3373
§ 107;"!. DoHnitionft of private corporation 3375
§ 1070. Kflcct of (liverj^'cncc as to fundamental legal theories of corporation. 3378
II. POWERS
§ 1077. Tlie charter of the corporation 3378
§ l!)7S. Scope and construction of corporate charters 3380
§ 1070. Implied powers 3382
§ lOSO. IhjiTOwinnr money 3.*JS2
§ lOSl. l?orrowin«; in excess of limitation of indebtedness 3383
§ 1 0S2. Accommodation paper 3384
§ 1083. Suretyship 3387
§ 10S4. Lcndin-' monov ., 3300
§ l!)8.>. Power to accpiire real property 3300
§ 1086. Power to acquire personal property 3302
§ 1087. Power to purchase its own stock 3303
§ 1088. Power to purchase stock in otlicr corporation 3307
§ 1080. Partnersliip contracts 3401
§ 10!)0. Power to dispose of corporate proj>erty 3402
§1001. Kxamples of powers of particular corporations 3404
§ 1002. Contracts collateral to corporate business 3407
III. FORM OF CONTRACT
§1003. Form necessary in contracts of private corporations 3412
IV. ULTRA VIRES
§ 1004. The ori«:in of the di>ctrine of ultra vires 3414
S 10!)."). Preliminary considerations 3415
§ 1000. What ultra vires includes 3418
§ 1007. The reasons underlyinjr the doctrine of ultra vires 3421
§ 1008. Who can take advantage of ultra vires 3424
§ 1000. Executory contracts 3428
§2000. Contracts performed by one party — Performance by the corporation. 3420
§2001. Performance by adversary party — Liability on contract 3433
§ 20<)2. Liability independent of contract 3438
§ 2003. Partial performance by one party 3443
S 2004. Performance not conferring? benefit on corporation )U44
§ 200.">. Contracts fully performed 3147
§ 2000. Estoppel * 3440
§ 2007. Ratification 3454
§ 2008. Ladies 34.m
§2000. Personal liability of a^'cnt or officer on ultra vires contract 3456
§ 2010. "Modem doctrine'* of ultra vires 3458
Table of Contexts xix
CHAPTER LXII
Irregular Orgaxizatioxs and De Facto
Corporations page
} 2011. Nature of de facto private corporations 3461
f '2f)l2. Elements of de facto corporation 34(>3
S 2013. Illustrations of specific defects in orfranization of corporation 3400
§ 2014. E.stoppel to deny corporate existence — Estoppel of persons dealin<^
with corporation 347 1
§ 201.'). Estoppel of corporation to deny its own existence 3474
§ 2010. Contracts of de facto corporation — Orjranization treated as corpora-
tion 3474
§ 2017. Orjjanization treated as group of natural persons 3477
§ 2018. Effect of special contract as to nature of liability 3480
§ 2019. De facto public corporations 3481
CHAPTER XLII
Contracts Which Must Be in Writing, Piled eor
Record, etc.
§ 1429. Contracts required by . statute to be in writing — Contracts of specific
classes of parties.
1 1430. Contracts required by statute to be in writing — Special classes of sub-
ject-matter.
§ 1431. Contracts required 1^ law-merchant to be in writing.
1 1432. Contractual provisions requiring writing.
§ 1433. Necessity of filing contract for record.
§ 1429. Contracts required by statute to be in writing*— Oon^
tracts of specific classes of parties. In considering the contracts
which must be in writing as distinguished from those which merely
must be proved by writing and which were considered in the pre-
ceding chapter,^ and as distinguished from those which have been
reduced to writing by the parties, although they need not be in
writing and need not be proved by writing,* it must be noted that
the contracts which must be in writing are of two general classes.
One class consists of those contracts which are required by statute
to be in writing. Of this class, one subdivision consists of con-
tracts of persons of abnormal status, including, in some states,
contracts of married women; in others certain contracts of private
corporations; and in many states certain contracts of public cor-
porations, of public quasi-corporations of the state and also of the
United States. Since these contracts are closely connected with
questions of status, further discussion is deferred until the subject
of parties has been considered.'
§ 1430. Contracts required by statute to be in writing— Special
classes of subject-matter. The other subdivision of contracts which
are required by statute to be in writing consists of a miscellaneous
group of contracts, some of them contracts without consideration
1 See ch. XLL > See chs. XLVI et eeq.
ISee ch. XL.
§ 1436 Page on Contracts 2458
provision is made for excluding their operation,* and the fact that
trade usages and customs are regarded as a part of a contract
which is made in the course of the business to which such usages
and customs relate,' have been explained on the theory that each
of these terms is an implied contract between the parties. In the
same way the duty of one who sells goods without any express
promise as to the title thereof or to the quality thereof, to deliver
goods to which he can pass good title and which are of the quality
required by law, is explained on the theory that there is an implied
promise on his part to furnish such goodsJ'
§ 1436. Genuine implied contracts. After eliminating the so-
called implied contracts which are really provisions of express
contracts deduced by construction from the express provisions
thereof, and the incidents which the law adds to express contracts,
unless the parties make specific provisions against such incidents,
we still have two entirely distinct classes of ideas grouped under
the general heading of implied contracts. As has been said before,^
the term ''contract" as used at common law included all rights
which could be enforced by one of the actions ex contractu. By
the common-law classification every contract was either express or
implied, as these two classes exhausted the entire general class of
contracts. If from all the rights of action which at common law
could be enforced by actions ex contractu we subtract the rights
arising out^f express contract we have left a miscellaneous group
of rights which the common law in its later and classic form
grouped under the head of implied contracts. With the abolition
of common-law forms of action in many jurisdictions, and their
reconstruction on a rational basis in others, the necessity of defin-
ing such legal ideas as contract and tort without reference to the
rigid form of action by which only it once was enforceable, has
become apparent. Substantive law has been arranged and classi-
fied as the main division of the law, to which, in theory at least,
the adjective law of pleading, practice, evidence, remedies, and
procedure, is supplemental, whereas under the common-law ideas
Missouri. Priddy v. Mackenzie, 205 Wisconsin. Malone ▼. Gerth, 100
Mo. 181, 103 S. W. 968. Wis. 166, 75 N. W. 972; Marchand v.
Ohio. Gillette v. Tucker, 67 O. S. Bellin, 158 Wis. 184, 147 N. W. 1033.
106, 65 N. E. 865. I See § 2048.
Tennessee. Memphis Consolidated tSee §2056.
Gas & Electric Co. v. Simpson, 118 10 See §392.
Tenn. 532, 103 6. W. 788. 1 See §§ 34 et seq.
2459
Genuine Implied Contracts
§1436
substaAtiye law was in reality a mere appendix and supplement to
the law of procedure.
The modern law, as has been said before,' has treated the term
"contract" as including all agreements which are enforceable at
law.
When we analyze the common-law classification of implied con-
tracts as used in this limited sense, and when we then apply to
such classification the modern test of what a contract is, we find
that the common-law class of implied contracts in this limited sense
is made up of two distinct classes of rights.* One of these classes
consists of genuine agreements which are enforceable at law and
which are therefore Just as truly contracts under the modern-law
test as express contracts are, and which differ from express con-
tracts only in the fact that in express contracts the parties •arrive
at their agreement by words either oral or written and either under
seal or not under seal; while in implied contracts of this type the
parties arrive at their agreement by their acts and not by their
words.* A contract of this sort *is a genuine contract,* and it
differs from the express contract only by the evidence by which
2 See §§32 and 46 et seq.
3 Miller V. Schloss, 218 N. Y. 400, 113
N. E. 337; Morse v. Kenney, 87 Vt.
445, 89 Atl. 86^5.
4 Alabama. McFarland v. Dawson,
125 Ala. 428, 29 So. 327.
Delaware. Jones v. Tucker, 26 Del.
(3 Boyce.) 422, 84 Atl. 1012.
Georgia. Maynard v. Maynard, 147
Ga. 178, L. R. A. 1918A, 81, 93 S. E.
289.
niiiMis. Highway Commissioners v.
Bloomington, 253 III. 164, Ann. Cas.
1913A, 471, 97 N. E. 280; People v.
Dummer, 274 111. 637, 113 N. E. 934.
Indiana. Yawger v. Joseph, 184 Ind.
228, 108 N. E. 774.
Kansaa. Rains v. Weiler, 101 Kan.
294, L. R. A. 1917F, 571, 166 Pac. 235.
Kentucky. Evans' Adm'r v. McVey,
172 Ky. 1, 188 S. W. 1075.
Maine. Ladd v. Bean (Me.), 104 Atl.
814.
Hasaachuaetta. W. A. Snow Iron
Works V. Chadwick, 227 Mass. 382, 116
N. E. 801.
Minnesota. Chicago, Milwaukee &
St. Paul Railway Co. v. Greenberg, 139
Minn. 428, L. R. A. 1918D, 158, Ann.
Cas. 1918E, 456, 166 N. W. 1073.
New Hampshire. Sceva v. True, 53
N, H. 627.
New Jersey. Gannon v. Brady Brass
Co., 82 N. J. L. 411, Ann. Cas. 1913C,
1308, 81 Atl. 727.
New York. Miller v. Schloss, 218 N.
Y. 400, 113 N. E. 337.
Oregon. Stamm v. Wood, 86 Or.
174, 168 Pac. 69.
South CaroUna. Dowling v. Charles-
ton & W. C. Ry. Co. (S. Car.), 81 S.
E. 313.
Vermont. Morse v. Kenney, 87 Vt.
445, 89 Atl. 865; Underhill v. Rutland
R. Co., 90 Vt. 462, 98 Atl. 1017.
Washington. Prince v. Prince, 64
Wash. 552, 64 Wash. 696, 117 Pac. 255,
260.
• Rains v. Weiler, 101 Kan. 294, L.
R. A. 1917F, 571, 166 Pac. 235; W. A.
Snow Iron Works v. Chadwick, 227
Mass. 382, 116 N. £. 801; Underhill
§1437
Page on Contracts
2460
the agreement of the parties is to be proved.* . Such a corftract is
sometimes spoken of as a genuine implied contract, a contract
implied as of fact,' or as an implied contract without further qual-
ification. Whatever quasi-contractual liability may exist, no gen-
uine contract either express or implied can exist according to
modern-law notions if it is the evident intention of the party
against whom such liability is enforce, not to enter into a
contract.'
§ 1437. ninstrations of genuine implied contracts. The ques-
tion of the existence of a genuine implied contract is primarily
one of fact, including the question of the inferences of fact which
may be drawn from the facts which are conceded or established by
the evidence. A contract can be implied in fact only when a
genuine agreement between the parties is shown to exist.^ Conduct
which arouses a hope or expectation of a gratuitous benefit is not
sufficient to amount to an implied contract.^ The fact that a
lessor has been in the habit of making repairs upon the leased
property does not establish the fact that there was an implied con-
tract on his part to make such repairs.' The fact that a municipal
V. Rutland R. Co., 90 Vt. 462, 98 Atl.
1017; Wojahn v. National Union Bank,
144 Wis. 646, 129 N. W. 1068.
**The courts recognize by the lan-
guage of their opinit)ns two classes of
implied contracts. The one class con-
sists of those contracts which are
evidenced by the acts of the parties
and not by their verbal or written
words — true contracts which rest upon
an implied promise in fact. The second
class consists of contracts implied by
the law where none in fact exist —
quasi or constructive contracts created
by law and not by the intentions of
the parties. A contract can not be
implied in fact where the facts are in-
consistent with its existence; or
against the declaration of the party to
be charged; or where there is an ex-
press contract covering the subject-
matter involved; or against the
intention or understanding of the par-
ties; or where an express promise
would be contrary to law. The asflent
of the person to be charged is neces-
sary and unless he has conducted him-
self in such a manner that his assent
may fairly be inferred, he has not con-
tracted." Milier v. Schloss, 218 N. Y.
400, 113 N. E. 337.
• Lombard v. Rahilly, 127 Minn. 449,
149 N. W. 95a
T Wisconsin Steel Co. v. Maryland
Steel Co., 203 Fed. 403, 121 C. C. A.
507; Miller v. Schloss, 218 X. Y. 400,
113 N. E. 337; Underbill v. Rutland R.
Co., 90 Vt. 462, 98 Atl. 1017; Wojahn
V. National Union Bank, 144 Wis. 648,
129 N. W. 1068.
■ Miller v. Schloss, 218 N. Y. 400, 113
N. E. 337; Remarkis v. Reid (Okla.),
166 Pac. 728.
1 Brown v. Dwight Mfg. Co., — Ala.
— , L. R. A. 1917F, 997, 76 So. 292.
2 Brown v. Dwight Mfg. Co., — Ala.
— , L. R. A. 1917F, 997, 76 So. 292.
■ Brown v. Dwight Mfg. Co., — Ala.
— , L. R. A. 1917F, 997, 76 So. 292.
2461
Genuine Implied Contbagts
§1438
corporation has accepted a water supply from a water company for
general fire purposes and has paid for such water, is not enough to
show a contract on the part of the water company to furnish
water 'so as to make.it liable to the municipal corporation if prop-
erty is destroyed by fire for want of an adequate water supply.*
On the other hand, it has been said that the fact that a municipal
corporation supplies its inhabitants with water for a specified rate,
amounts to an implied agreement to furnish an adequate supply,'
and that a- municipal corporation is liable to the owner of a resi-
dence for failure to furnish an adequate supply of water.* The
fact that husband and wife executed wills which were alike in
form, leaving property to their children, is said to show the exist-
ence of a contract between them for making such wills.'
«
§ 1438. Express contract as excluding implied contract. It is
frequently said that an express contract excludes an implied con-
tract and that where an express contract is found no implied con-
tract can exist.^ In certain of its applications this statement is
true. If the parties have entered into an express contract il is
• Ukiah City v. Ukiah W. & I. Co.,
142 Cal. 173, 64 L. R. A. 231, 75 Pac.
778.
8 Woodward t. Livermore Falls
Water District, 116 Me. 86, L. R. A.
1917D, 678, 100 Atl. 317.
• Woodward v. Livermore Falls
Water District, 116 Me. 86, L. R. A.
1917D, 678, 100 Atl. 317.
7 Prince v. Prince, 64 Wash. 552, 64
Wash. 696, 117 Pac. 255, 260.
1 Enslasd. Cutter v. Powell, 6 T. R.
320.
United States. Perkins v. Hart, 24
U. S. (11 Wheat.) 237, 6 L. ed. 463;
Lord V. United States, 217 XJ. S. 340,
M L. ed. 790.
Alabama. Loval v. Wolf, 179 Ala.
505, 60 So. 298; Robinson Lumber Co.
▼. Sager, — Ala. — , 75 So. 309.
niiiiois. Benner ▼. Dove, 283 IlL 318,
119 N. E. 349.
Kansas. Ray ▼. Missouri E. & T.
By. Co., 90 Kan. 244, 133 Pac. 847.
Kaine. Ladd ▼. Bean, 117 Me. 445,
104 AtL 814.
Michigan. Cashin v. Pliter, 168
Mich. 386, Ann. Cas. 1913C, 697, 134
N. W. 482.
New York. Watson ▼. Gugino, 204
N. Y. 535, 39 L. R. A. (N.S.) 1090, Ann.
Cas. 1913D, 215, 98 N. E. 18; Miller v.
Schloss, 218 N. Y. 400, 113 N. E. 337.
North Carolina. Morganton Mfg. &
Trading Co. v. Andrews, 165 N. Car.
285, Ann. Cas. 1916A, 763, 81 S. E. 418.
Ohio. Abbott v. Inskip, 29 O. S. 59;
Kachelmacher v. Laird, 92 0. S. 324,
Ann. Cas. 1917E, 1117, 110 N. E. 933.
Pennsylvania. Powers v. Curtis, 147
Pa. St. 340, 23 Atl. 450.
Rhode Island. Beggs v. James Han*
ley Brewing Co., 27 R. L 389, 114 Anu
St. Rep. 44, 62 Atl. 373.
Vermont. Brightlook Hospital Asso*
ciation v. Garfield, — Vt. — > 104 AtL
99.
Wisconsin. Tietz ▼. Tietz, 90 Wis.
66, 62 N. W.' 939; Appleton Water*
works Co. ▼. Appleton^ 132 Wis. 568»
113 K. W. 44.
§ 1438 Page on Contracts 2462
evident that they did not intend to make a genuine implied con-
tract upon the same subject-matter at the same time. An express
contract measures the rights of the parties, to the exclusion of a^y
implied liability that might have arisen but for sqch express con-
tract.* If A agrees to perform services for B, for which A is to
be paid only in case certain other and further facts occur, A can
not be heard to claim that he rendered such services under a gen-
uine implied contract.' This principle is also frequently invoked
to prevent a party who has performed an express contract in part
and who has then broken such contract from recovering in quasi-
contract for the value of his performance up to the time of such
breach.*
There is, however, no arbitrary rule of law which prevents the
parties to an express contract from entering into an implied con-
tract with reference to an analogous subject-matter.' If A and B
enter into an express contract by which A is to lease a room to B
at a specified rent, such express contract does not exclude an
implied contract under which B can be held to pay reasonable
rental value for another room which he uses with A's consent in
connection with the room for which he made such express con-
tract.' In like manner the parties to an express contract may
subsequently enter into a genuine implied contract for the per-
formance of extra work or for furnishing extra material in con-
nection with the performance of the express contract.'
The rule that an express contract excludes an implied contract
has no application to cases in which the express contract is void or
voidable at its inception or has been discharged by facts which
arise after its formation, and in which one party seeks to recover
the value of the consideration which he has furnished under such
contract.' If A, who does business as a corporation in which he is
the only person interested, obtains money by fraud from B, B may
ZBenner v. Dove, 283 III. 318, 110 lEfron v. Steea, 113 Minn. 242, 129
N. E. 349; Ladd v. Bean, 117 Me. 445, N. W. 374.
104 Atl. 814; Brightlook Hospital As- lEfron v. Steea, 113 Minn. 242, 129
Bociation t. Garfield, — Vt. — , 104 Atl. N. W. 374.
90. 7 See §§1459 et seq.
• Lord V. United States, 217 U. S. ISee §§278, 342, 372, 435, 47?, 504,
340, 54 L. ed. 790; Druiding v. Lyon, 1071, 1530 et seq., 1622, 1637 et seq.,
7 Mo. App. 109; Powers v. Curtis, 147 1652, 1683, 1792, 1802, 1811, 1816, 1821,
Pa. St. 340, 23 Atl. 450. 1827, 1860, 1876, 1958, 2002, and ch.
4 See ch. LXXXVm. LXXXVIH.
2463
Genuine Implied Contracts
§1439
recover such money from A, although B has assumed to deal with
such co)rporation.'
§ 1439. Work done under contract with one, enuring to bene-
fit of another. If B renders services or furnishes property or.
money to C under an express contract with G, B can not claim
thereafter that such services, property, and the like, were fur-
nished under an implied contract with A, even if B made use of
such services or property in performing his contract with A, and
even if A ultimately got the benefit of such services or property by
reason of B's performance of such contract J If A lends money to
By and B lends such money to C, A can not maintain an action
against C for money had and receive<^ if B was not C's agent.^ In
the absence of an express previous request it is necessary that the
person for whom the work is done should know that it is being
done and further that it is being done for his benefit and also upon
his liability. If A employs B to do certain work, and B employs
G to aid him therein, no implied contract between A and G exists,
even if A knows that C is doing the work and that A will ulti-
mately receive the benefit thereof, since A is liable over to B on
his contract for the work thus done.* Thus where a railroad lets
a contract for grading to B, and B employs C to work thereon,
these facts do not^ive G a right of action against the railroad.*
If .B employs G to do work on A's property which is in B's posses-
sion, G can not recover from A.* If B agrees to constriict a build-
ing for A, and B employs G to work for B in the performance of
• Donovan y. Purtell, 216 III. 629, 1
L. R. A. (N.S.) 176, 75 N. E. 334.
1 England. In re English & Colonial
Produce Co. [1906], 2 Ch. 435.
Alabama. Alexander v. Alabama
Western Ry., 179 Ala. 480, 60 So. 395.
Arizona. Brutinel v. Nygren, 17
Ariz. 491, L. R. A. 1918F, 713, 154 Pac.
1042.
Massachiiaetts. Steinert A Sons Co.
V. Jackson, 190 Mass. 428, 76 N. E.
905.
Wsaissippi. Miller v. Fisher, 116
Miss. 350, 77 So. 151.
New Jersey. Fidelity Trust Co. v.
Federal Trlist Co., 87 N. J. £q. 560,
ioO AtL 615.
Vermont. Conti ▼. Johnson, 91 Vt.
467, 100 Atl. 874.
West Virginia. Virginia Supply Co.
V. Calfee, 71 W. Va. 300, 76 S. E. 669.
2 Fidelity Trust Co. v. Federal Trust
Co., 87 N. J. Eq. 550, 100 Atl. 615'.
3 Brutinel v. Nygren, 17 Ariz. 491, L.
R. A. 1918F, 713, 154 Pac. 1042; Petter-
son V. Ry., 134 Cal. 244, 66 Pac. 304;
Conti V. Johnson, 91 Vt. 467, 100 Atl.
874.
4Petter8on v. Ry., 134 Cal. 244, 66
Pac. 304.
I Miller v. Fisher, 116 Miss. 350, 77
So. 151.
§ 1441 Page on Contracts 2464
such contract, C can not recover from A in the absence of statute,
on the theory of implied contract* Hence, the fact that C believed
that A was employing him is immaterial as affecting A's liability
if A did not know of such belief and did not so act as to justify
.such belief J
§ 1440. Olassiflcation of genuine implied contracts. Any divi-
sion of genuine implied contracts into classes is arbitrary. No
exhaustive classification can be made. To divide them into groups
is to divide the indivisible. Any grouprag must be made upon a
basis of outward fact rather than of essential principle. Most of
the more common classes of genuine implied contracts were recog-
nized at common law by th^ law of pleading as separate classes;
and the different forms of common counts in general assumpsit,
such as the count for money had and received, money paid, quan-
tum meruit, quantum valebat, the account stated and according to
some authorities the counts for fidelity and skill and implied war-
ranties, were used for these different classes of contracts. There
was a strong tendency in many jurisdictions to reduce the common
counts to the indebitatus assumpsit counts, such as the counts for
land sold, goods sold, work and labor, board and lodging,. and the
like. No classification of this sort, hcrwever, can be exhaustive or
complete; and any classification which is undertaken is merely a
matter of convenience.
The principles which control the right to maintain an action for
money had, oi* for goods sold, and the like, are illustrated by cases
of genuine contract and also by cases of quasi-contract. A com-
plete separation of the cases of genuine contract from the cases of
quasi-contract is impossible, therefore, unless we are willing to
repeat much of the principles which they have in common.
n
WORK AND LABOR
§1441. Work and labor done at request— Express contract.
Whether a request for the rendition of services without any express
promise to pay therefor, implies such a promise or not, probably
depends upon the general understanding in that community which
attaches to such words with reference to such subject-matter. If
•Conti V. Johnson, 91 Vt. 467, 100 TPetterson v. Ry., 134 GaL 244, 6S
Atl. 874. Pac. 304.
2465
Genuine Implied Contracts
§1441
A requests B to perform services for A, and it is customary in
such locality to pay for services of the kind for which A asks, A's
request will be regarded as equivalent to a promise to pay a
reasonable price therefore If the services are of such a sort that
it is not usual or customary to pay therefor, a request for such
services or property is not equivalent to a promise to pay there-
for. If one person performs work and labor for another of a sort
for which compensation is customary, intending to charge therefor,
and the person for whom the work is done either has requested,
expressly or impliedly, before the doing of such work, that it
should be done, or after it was done, has voluntarily accepted the
benefits arising therefrom, the person for whom the work is done,
is liable to the person who does it.^
If such work and labor is done under an express contract the
rights of the parties are measured by such express contract ; ' and
1 Arkansas. Blake v. Scott, 92 Ark.
46, 121 §. W. 1054, 123 S. W. 1181.
Coimecticnt. Rowell v. Ross, 87
Conn. 157, 87 Atl. 365; Seward v. M.
Seward & Son Co., 91 Conn. 190, 99 Atl.
887.
Iowa. Rea v. Flathers, 31 la. 545.
New Jersey. Conklin v. Kruger, 79
N. J. L. 326, 75 Atl. 436.
Virginia. Briggs v. Bamett, 108 Va.
404, 61 S. E. 797.
Wisconsin* Wojahn v. National
Union Bank, 144 Wis. 646, 129 N. W.
1068.
As to services between members of
the' same family, see §§ 1447 et seq.
2 Alabama. Lafayette Ry. Co. v.
Tucker, 124 Ala. 514, 27 So. 447; Tyson
V. Thompson, 195 Ala. 230, 70 S. W.
649.
Comiecticat. Casey v. McFarlane
Bros. Co., 83 Conn. 442, 76 Atl. 515.
Delaware. Nichols v. Vinson, 9
Iloust. (Del.) 274, 32 Atl. 225.
Indiana. Palmer v. Miller, 19 Ind.
App. 624, 49 N. E. 975.
Kansas. Manny v. Cowley County
National Bank, 92 Kan. 129, Ann. Cas.
1916B, 195, 139 Pac. 1021.
Kentucky. Baxter v. Knox (Ky.), 44
S. W. 972.
Maine. Wadleigh v. Katahdin Pulp
& Paper Co., 116 Me. 107, 100 Atl.
150.
Massachusetts. Day v. Caton, 119
Mass. 518, 20 Am. Rep. 347.
Michigan. Eggleston v. Boardman,
37 Mich. 14; Vandecar v. Nowland's
Estate, 188 Mich. 429, 154 N. W. 137.
Mississippi. Gulf & S. I. R. Co. v.
Magee Warehouse Co., 109 Miss. 9, 67
So. 648.
Nebraska. Courier, etc, Co. v. Wil-
son (Neb.), 90 N. W. 1120.
New Hampshire. Hill v. Carr, — N.
H. — , 101 Atl. 525.
New Jersey. CoUoty v. Schuman, 75
N. J. L. 97, 68 Atl. 933; Gnichtel v.
Jewell, 59 N. J. Eq. 651, 44 Atl. 1099
[affirming, 41 Atl. 227].
New York. Bonynge v. Field, 81 N.
Y. 159.
Oregon. Ingram v. Basye, 67 Or. 257,
135 Pac. 883.
Vermont. Jones v. CampbeU, — Vt.
— , 102 Atl. 102.
Wisconsin. Grot j an v. Rice, 124 Wis.
253, 102 N. W. 551; Wojahn v. Na-
tional Union Bank, 144 Wis. 646, 129
N. W. 1088.
3 Becker v. Churdan, 175 la. 159, 157
N. W. 221; Hollister v. Kinyon's Es-
1442
Page on Contracts
2466
if such express contract is still in force neither party can ignore
such express contract and treat the transaction as an implied con-
tract.* If an express offer has been accepted by the performance
of an act and such contract is still in effect, no recovery can be
had on quantum meruit for reasonable compensation.*
If such work and labor is not performed under an express con-
tract, but it is performed under a genuine understanding between
the parties that compensation is to be made therefor, a genuine
implied contract exists.*
•
§1442. Work and labor done at request — ^Implied contract.
If services are rendered at the request of the person for whom
they are rendered, or if the benefits thereof are accepted voluntarily
by such person, there is an implied promise on his part to make
reasonable compensation therefor if no express contract has been
made, if the services are such as are ordinarily paid for and if the
party who rendered them was not bound to- render them without
compensation.^
tate, 195 Mich. 261, 161 N. W. 962;
Eureka Manufacturing Co. v. Wim-
berly, 113 Miss. 90, 73 So. 871; Coos
Bay Times Pub. Co. v. Coos County,
81 Or. 626, 160 Pac. 532.
• Becker v. Churdan, 175 la. 159, 157
N. W. 221; Eureka Manufacturing Co.
V. Wimberly, 113 Miss. 90, 73 So. 871.
See S1438.
• Hollister v. Kinyon's Estate, 195
Mich. 261, 161 N. W. 962.
• "Where, in the absence of an ex-
press contract, valuable services are
rendered by one person to another
which are knowingly accepted, the law
will imply a promise to pay a fair and
reasonable compensation for such serv-
ices." McFarland v. Dawson, 125 Ala.
428, 432, 29 Sa. 327 [citing, Wood v.
Brewer, 66 Ala. 570; Hood v. League,
102 Ala. 228, 14 So. 572].
1 Arkansas. Spearman v. Texarkana,
58 Ark. 348, 22 L. R. A. 855, 24 S. W.
883.
Connecticut. Clark v. Clark, 46
Conn. 586.
Delaware. Claringbold v. Newark
Garage & Electric Co., 29 Del. (6
Boyce) 129, 97 Atl. 386.
Indiana. Lockwood v. Bobbins, 125
Ind. 398, 25 N. E. 455.
Iowa. Wadleigh v. McDowell, 102
la. 480, 71 N. W. 336.
Kentucky. Coleman v. Simpson, 32
Ky. (2 Dana) 186.
Maine. Wadleigh v. Katahdin Pulp
& Paper Co., 116 Me. 107, 100 Atl.
150.
Massachusetts. Blaisdell v. Gladwin,
58 Mass. (4 Cush.) 373.
Michigan. Ten Eyck v. R. R., 74
Mich. 226, 16 Am. St. Rep. 633. 3 L.
R. A. 378, 41 N. W. 905.
Missouri. Ryans v. Haspes, 167 Mo.
342, 67 S. W,'285.
Nebraska. Emery v. Cobbey, 27 Xeb.
621, 43 N. W. 410.
Pennsylvania. Masterson v. Master-
son, 121 Pa. St. 6a>, 15 Atl. 652.
Wisconsin. Miller v. Tracy, 86 Wis.
330, 56 X. W. 866.
2467
Genuine Implied Contracts
§1442
A previous request made by A to B, to perform services for A
makes A liable therefor, even though he does not make an express
promise to pay B therefor.^ Thus where a managing editor is
requested by the editor-in-chief to do the work of the latter, a
promise on the part of the editor-in-chief to pay him is implied^'
In jurisdictions in which a married woman may bind herself by
contract, a married woman is liable for legal services rendered to
her at her request in securing a divorce,^ even if the court makes
an allowance in such divorce proceeding for her attorney fees.* It
will not be presumed in such cases that the attorney necessarily
agreed to look for his compensation solely to the amount awarded
by the court. In the absence of an express agreement a married
woman can not recover for board furnished at her house. The
implied contract is between the husband and the person to whom
such board is furnished.* If A performs separate services for B
and C, A can not recover without showing to which of them credit
for such services was extended or without showing a promise to
pay for all such services which is a sufficient compliance with the
Statute of Frauds.^ If A, who owns an automobile, sends his car
to B's garage for repairs, and because of a fire at such garage B
sends such car to the manufacturer, A is liable on an implied prom-
ise to pay for the repairs for which he originally sent the car to
the garage, but not for those due to such fire.* If A employs B
as an attorney at an annual salary and B defends an action brought
2 Canada. Weeks v. North Sidney, 26
N. S. 396.
Arkansas. Spearman v. Tezarkana,
58 Ark. 348, 22 L. R. A. 855, 24 S. W.
883.
California. Sonoma County v. Santa
Rosa, 102 Cal. 426, 36 Pac. 810.
Maasachnsetts. Blaisdell v. Gladwin,
$8 Mass. (4 Cush.) 373.
Michigan. Ten Eyck ▼. R. R., 74
Mich. 226, 16 Am. St. Rep. 633, 3 L. R.
A. 378, 41 N. W. 905.
Minnesota. Schwab v. Pierre, 43
Minn. 520, 46 N. W. 71.
New Jersey. Pangborn v. Phelps, 63
N. J. L. 346, 43 AtL 977.
Rhode Island. Fuller v. Mowry, 18
R. I. 424, 28 AtL 606.
Texas. Bonner v. Bradley, 14 Tex.
Civ. App. 234, 36 S. W. 1014.
Washington. Isham ▼. Parker, 3
Wash. 755, 29 Pac. 835.
3 Pangborn v. Phelps, 63 N. J. L. 346,
43 Atl. 977.
4 Wolcott V. Patterson, 100 Mich. 227,
43 Am. St. Rep. 456, 24 L. R. A. 629,
58 N. W. 1006; Tyler v. Winder, 89
Neb. 409, 34 L. R. A. (N.S.) 1080, 131
N. W. 592.
I Culley V. Badgley, 196 Mich. 414, L.
R. A. 1917F, 359, 163 N. W. 33; State
V. Superior Court, 58 Wash. 97, 107 Pac.
876.
I Stevenson v. Akarman, 83 K. J. L.
458, 46 L. R. A. (N.S.) 238, 85 AtL 166.
7 Anderson v. Fmitvale Transp. Co.,
195 Mich. 734, 162 N. W. 273.
tHelber v. Sehaible, 183 Mich. 879,
150 N. W. 145.
§1443
Page on (Jontracts
2468
against A and X for a judgment in solido, A can not recover from
X for the value of B's services in the absence of a contract other
than that implied by X's acceptance of B's services.*
§ 1443. Compensation fixed by law— Public officers, etc. Rea-
sons of public policy make the case of the public officer an excep-
tion to the general rule that a request for the rendition. of services
implies a promise to pay therefor. If the law fixes a specified
compensation for certain services to be rendered by a public ofiicer,
he can not recover extra compensation for such services, even if
they are reasonably worth itj So after having performed the
seorvices he has no right of action for additional compensation on
the ground that the compensation was less than the services were
worth.^ If the law makes no provision for compensation for any or
all of the official duties of a public officer he can make no charge
therefor.' He can not recover reasonable compensation for new
duties which are imposed upon him by statute without provision
for additional compensation.* If he is not willing to perform such
9 Louisiana & N. W. R. Co. v. Athens
Lumber Co., 134 La. 788, L. R. A. 1915B,
856, 64 So. 714.
1 United States. Brown v. United
States, 50 U. S. (9 How.) 487, 13 L. ed.
228.
Georgia. Twiggs v. Wingfleld, 147
Ga. 790, L. R. A. 191SE, 757, 95 S. E.
711.
Illinois. Kreitz v. Behrensmeyer, 149
111. 496, 24 L. R. A. 59, 36 N. E. 983.
Iowa. Moore v. Independent Dis-
trict, 55 la. 654, 8 N. W. 631.
Massachusetts. Rogers v. Simmons,
155 Mass. 259, 29 X. E. 580.
Nebraska. State v. Meserve, 58 Neb.
451, 78 N. W. 721; O'Shea v. Kavan-
augh, 65 Neb. 639, 91 N. W. 578.
Ohio. Clark v. Lucas County. 58 O.
S. 107, 50 X. E. 356.
2 United States. MuUett v. United
States, 150 U. S. 566, 37 L. ed. 1184.
California. Irwin v. Yuba County,
119 Cal. 686, 52 Pac. 35.
Indiana. Ex parte Harrison, 112 Ind.
329, 14 N. E. 225.
Iowa. Hamil v. Carroll County, 106
la. 523, 69 N. W. 1122, 71 X. W. 425.
Michigan. Gardner v. Newaygo
County, 110 Mich. 94, 67 N. W. 1091.
3 Alabama. Torbert v. Hale County,
131 Ala. 143, 30 So. 453.
Illinois. Rickert v. Suddard, 184 IlL
149, o& N. E. 344.
Indiana. Tippecanoe County v.
Barnes, 123 Ind. 403, 24 N. E. 137;
Marshall County v. Johnson, 127 Ind.
238, 26 N. E, 821 ; Rochester v. Camp-
bell, 184 Ind. 421, 111 N. E. 420.
Iowa. Twinam v. Lucas County, 104
la. 231, 73 N. W. 473.
Missouri. State v. Brown, 146 Mo.
401, 47 S. W. 504.
North Carolina. Borden v. Goldsboro,
173 N. Car. 661, 92 S. E. 694.
Oklahoma. Shelton v. State, — Okla.
— , 162 Pnc. 224.
Wisconsin. Crocker v. Brown County,
35 Wis. 284; Outagamie County v.
Zuehlke, 165 Wis. 32, 161 N. W. 6.
• Georgia. Twiggs v. Wingfleld, 147
Ga. 790, L. R. A. 191gE, 757, 95 S. E.
711.
2469
Genuine Implied Contracts
§1443
work for nothing, he^should resign. If he collects compensation
from the municipality for which he acts, which is not authorized
by law, he may be compelled to refund.' Thus a statute authorized
the appointment of a commissioner to revise the statutes, but made
no provision for his compensation. He has no right of action for
the reasonable value of his services.' However, it has been held
that an attorney is not a public officer in this sense. Hence, if the
statute authorizes the county to employ an attorney in disbarment
proceedings and does not provide for compensation, he may, never-
theless, recover a reasonable compensation.' If a public officer
performs services which are entirely outside of his official duties
a different principle applies, and, in the absence of a statute, to the
contrary,' he may recover reasonable compensation for such serv-
ices if his office is not one which is to occupy his entire time.' If
a board of health directs one of its members to inspect a case of
diphtheria, and such services are not within the official duty of the
member of such board, the person rendering such services may
recover a reasonable corapensfetion therefor.^' If the office is to
occupy the entire time of the officer, the same principle applies as
in the case of private employes,^^ and no recovery can be had for
extra compensation, even for services entirely outside of official
duties."
If the amount of compensation is fixed by statute, no greater
amount can be recovered on the theory of reasonable compensa-
tion, even in cases other than those of public officers." If a statute
fixes the compensation for publishing a delinquent tax list, a news-
lUinois. Jones v. O'Connell, 260 III.
443, 107 N. E. 731.
Massachusetts. Brophy v. -Marble,
lis Mass. 548.
Michigan. Kearney v. Board of Au-
ditors, ISO Mich. 666, loo X. W. 510.
New York. People v. Mitchell, 220 N.
Y. 86, 115 N. E. 271.
»St. Croix County v. Webster, 111
Wis. 270, 87 N. W. 302.
• Harris v. State, 0 S. D. 453, 69 N.
W. 825.
7 Hyatt v. Hamilton County, 121 la.
292, 63 L. R. A. 614, 96 N. W. 855.
I Evans v. United States, 226 U. S.
567, 57 L. ed. -353; Lewis v. United
States, 244 U. S. 134, 61 L. ed. 103».
See §§ 1459 et seq.
9 United States v. Brindle, 110 U. S.
CSS, 28 L. ed. 286; Spearman v. Tex-
arkana, 58 Ark. 348, 22 L. R. A. 855,
24 S. W. 883; Slay ton v. Rogers, 128
Ky. 106, 107 S. W. 690; Xiles v. Muzzy,
33 Mich. 61, 20 Am. Rep. 670.
10 Spearman v. Texarkana, 58 Ark.
348. 22 L. R. A. 855, 24 S. W. 883.
11 See § 465.
N 12 McBrian v. Nation, 78 Kan. 665, 97
Pac. 798.
13 Coos Bay Times- Pub. Co. v. Coos
County, 81 Or. 626, 160 Pac. 532.
§1445
Page on Contracts
2470
paper can not recover compensation in excess of the statutory
amount on the theory of quantum meruitJ^
§ 1444. Elements of implied request. If the person for whom
services of a kind usually made the subject of charge are rendered
knows of their rendition, he is liable therefor though he has made
no express request, in the absence of special circumstances negativ-
ing his liability J If the person for whom the work is done knows
that it is being done and that the person doing it expects compensa-
tion from the person for whom it is done, and believes that such
compensation will be made, and the latter does nothing to correct
such impression, he is liable for the work thus done.* One who
ships freight is liable, therefore, to the carrier in the absence of
special contract if the consignee refuses to accept the goods.' If
the consignee accepts the goods and pays part of the freight, a
promise on his part to pay the balance is thereby implied.*
Even where a husband and wife may make contracts with one
another,* the fact that the husband works upon his wife's farm
will not establish an implied contract on her part to pay him for
such labor ; but to enable him to recover, an express contract must
be shown.*
§1445. Acceptance of work and labor. If the services are
accepted voluntarily, a previous request is not necessary to the
creation of liability.^ If A has prepared incorporation papers
under a contract with B, and if A then delivers such incorporation
14 Coos Bay Times Pub. Co. v. Coos
County, 81 Or. 626, 160 Pac. 532.
1 Alabama. Tyson v. Thompson, 195
Ala. 230, 70 So. 649.
Florida. Lewis v. Meginniss, 30 Fla.
. 419, 12 So. 19.
>^ Kentucky. Evans' Administrator v.
McVey, 172 Ky. 1, 188 S. W. 1075.
Michigan. Vandecar v. Nowland's
Estate, 188 Mich. 429, 154 N. W. 137.
Oregon. Ingram v. Basye, 67 Or. 257,
135 Pac. 883. '
Wisconsin. Grotjan v. Rice, 124 Wis.
253, 102 N. W. 551.
2 Evans' Administrator v. McVey, 172
Ky. 1, 188 S. W. 1075; Riser v. Holla-
day, 29 Or. 338, 45 Pac. 759.
3 Baltimore & Ohio Railroad Co. v.
Luella Coal & Coke Co., 7'4 W. Va. 167,^
52 L. R. A. (N.S.) 398, 81 S. E. 1044.
4 Chicago, Milwaukee & St. Paul Rail-
way Co. V. Greenbe'rg, 139 Minn. 428,
L. R. A. 1918D, 158, Ann. Cas. 1918E,
456, 166 N. W. 1073.
• See § 1679.
t Estate of Simonson v. Bergum, 164
Wis. 590 [sub nomine, In re Simonson's
Estate, 160 N. W. 1040].
1 Delaware. Nichols v. Vinson,' 9
Houst. (Del.) 274, 32 Atl. 225.
Illinois. Rockford, etc., Ry. v. Wil-
cox, 66 111. 417.
Indiana. Palmer v. Miller, 19 Ind.
App. 624, 49 N. E. 975.
2471
Genuine Impliho Contracts
§1445
papers to C, to whom B has transferred his interests under a eon-
tract by which C is to retransfer such interests to B if B could
make certain payments, A may recover for his services in drawing
such corporation papers from C if he delivers such papers to C at
C's request, not knowing- of such condition subsequent, and if C
makes use of such papers in forming a new corporation.* Whether
the act of a property owner in making use of a party-wall agrees
to an implied contract on his part to pay his proportion of the
expenses thereof, or not, is a question upon which there is a
divergence of authority. In some cases an implied contract is
found to exist by reason of such conduct ; ' while in other juris-
dictions it is said that such facts do not amount to an implied con-
tract.* Where the party-wall was originally constructed with the
expectation of reimbursement in case the adjoining owner made
use thereof, the act of the adjoining owner in making use of such
wall may be regarded as an acceptance of such offer.* An agent
who acquiesces in the rebuilding of a division-wall between the
land of his principal and that of the adjoining owner is not liable
to such adjoining owner for a portion of the expenses of such
wall ; • nor is the principal liable, there being no express contract
to pay such expenses.^ If a litigant knows that a stenographer is
taking and transcribing testimony during a trial for the use of the
Iowa. Shoemaker v. Roberts, 103 la.
681, 72 N. W. 776.
Kentucky. Viley v. Pettit, 96 Ky.
576, 29 S. W. 438; Baxter v. Knox
(Ky.), 44 S. W, 972.
Maine. Ladd v. Bean, 117 Me. 445,
104 Atl. 814.
Massachnaetts. Paul v. Wilbur, 189
Mass. 48, 75 K. E. 63.
Michigan. Snyder v. Neal, 129 Mich.
692, 89 N. W. 588.
Hew Hampshire. Hill v. Carr, — N.
H. —, 101 Atl. 525.
Hew York. Port Jervis Water
Works Co. V. Port Jervis, 151 N. Y.
Ill, 45 N. E. 388.
Horth CaroliBa. Moffitt v. Glass, 117
N. Car. 142, 23 S. E. 104.
Oregon. Kiser v. Holladay, 29 Or.
338, 45 Pac. 759.
Vermont. Jones v. Campbell, — Yt.
—, 102 Atl. 102.
Wisconsin. Wheeler v. Hall, 41 Wis.
447.
2 Paul V. Wilbur, 189 Mass. 48, 75
N. E. 63.
• Younker v. McCutchen, 177 la. 634,
159 N. W. 441; Walker v. Stetson, 162
Mass. 86, 44 Am. St. Rep. 350, 38 N.
E. 18; Reid v. King, 158 N. Car. 85,
73 S. E. 168.
4 Bisquay v. Jeunelot; 10 Ala. 245, 44
Am. Dec. 483; Eckleman v. Miller, 57
Ind. 88; Abrahams y- Krautler, 24 Mo.
69, 66 Am. Dec. 698; Hawkes v. Hoff-
man, 56 Wash. 120, 24 L. R. A. {N.S.)
1038, 105 Pac. 156.
• Day V. Caton, 119 Mass. 513, 20 Am.
R^. 347.
BCheseboro v. Lockwood, 88 Conn.
219, 91 Atl. 188.
TCheseboro v. Lockwood, 88 Conn.
219, 91 Atl. 188.
§1446
Page on Contracts
2472
attorney of the litigant, the latter, on accepting the benefit of such
services, is liable therefor.* So if A nurses and cares for B, and B
accepts such services, he is liable therefor.* If A renders services
on a farm owned in part by B and in part by C, and such services
are rendered for the benefit of both, and A expects to be paid by
both, B and C are jointly liable for such services if they accept
them knowing of A's belief.^ So if water is furnished to a village,
and the authorities accepting it were authorized to contract there*
for, and were not required by law to make contracts in a specified
form, the village is liable for a reasonable compensation therefor.*^
Acceptance of work and labor under contracts entered into by
an unauthorized agent,^^ or by an unauthorized agent of a private
corporation,^* or by an unauthorized agent of a public corpora*
tion ; ^* or acceptance by a corporation of services rendered under a
contract entered into by a promoter,** create liabilities which are
discussed elsewhere.
The question of liability for work and labor performed under a
mistake or through fraud or by duress, or performed under a con-
tract which is unenforceable or which is discharged before it was
performed in full, is discussed under other headings.** The prin-
ciple that voluntary acceptance of services creates a liability to pay
therefor often takes us into cases of constructive contract, since
there is often no enforceable contract in fact between the parties.
§ 1446. Services rendered as gratuity. If A renders services
for B, and A does not intend at the time of their rendition to make
any charge therefor, and B knows of such intention, A can not
subsequently, upon changing his mind, recover for such services
as upon an implied contract, even if such work was done with B*s
knowledge or at B's request.* The operation of this principle is
clearest where the services are rendered under an express agree-
« Palmer v. Miller, 19 Ind. App. 624,
49 N. E. 975.
t Baxter y. Rnoz (Ky.), 44 S. W. 972.
10 Snyder ▼. Neal, 129 Mich. 692, 89
N. W. 688.
11 Port Jervis Water Works Co. y.
Port Jeryis, 151. N. Y. Ill, 45 N. E. 388.
12 See §§1764 et aeq.
It See §§1803 et aeq.
14 See §§ 1791 et seq.
II See § 1830.
16 See §§ 278, 342, 372, 435, 477, 604,
1071, 1530 et aeq., 1622, 1637 et aeq.,
1652, 1683, 1792, 1802, 1811, 1816, 1821,
1827, 1860, 1876, 1958, 2002, and ch.
Lxxxvni.
1 Connecticiit. Gillette's Appeal, 82
Conn. 500, 74 Atl. 762.
DeUwaxv. Leyy v. Oillls, 1 Penn.
(Del.) 119, 39 Atl. 785.
HUsola. Eyana y. Henry, 66 111. App.
144.
2473
Genuine Implied Contracts
§1446
ment that no charge shall be made therefor. If A performs serv-
ices for B under an express agreement that they are to be gratu-
itous, he can not subsequently recover therefor.* The fact that the
person who rendered gratuitous services did not know that the
person for whom they were rendered was able to pay for them,
does not entitle him to recover compensation thereafter if the
person for whom they were rendered was not guilty of fraud.'
The principle is by no means limited to cases of express agreement
that no compensation shall be made, but extends to cases where
from the acts of the parties and the surrounding circumstances it
is apparent that the party by whom the services were rendered did
not intend to charge therefor and the party for whom they were
rendered accepted them in reliance upon such intention. Thus
where services are rendered solely because of friendship and
mutual accommodation,* as where a real estate broker and an
attorney interchange services for accommodation;' or one renders
services as attorney in fact, both parties knowing that the services
are to be gratuitous ; • or one renders political services for a friend
in a campaign;'' or one friend indorses a note for another, the note
being ultimately paid out of the maker's property -and no loss
Indiana. Hill v. Hill, 121 Ind. 255,
23 N. E. 87; McFadden v. Ferris, 6 Ind.
App. 454, 32 N. E. 107.
Iowa. Tank v. Rohweder, 98 la. 154,
67 N. W. 106; Cochran v. ^achery, 137
la. 585, 16 L. R, A. {N.S.) 235, 15 Ann.
Caa. 297, 115 N. W. 486.
Maine. Cole v. Clark, 85 Me. 336, 21
L. R. A. 714, 27 Atl. 186.
Michigan. Woods v. Ayres, 39 Mich.
345, 33 Am. Rep. 396; Cicotte y. Church,
60 Mich. 552, 27 N. W. 682; Allen v.
Allen, 60 Mich. 635, 27 N. W. 702.
Missonri. Buelterman v. Meyer, 132
Mo. 474, 34 S. W. 67; Woods v. Land,
30 Mo. App. 176.
Hew Jersey. Disbrow v. Durand, 54
N. J. L. 343, 33 Am. St. Rep. 678, 24
AtL 545.
Mew York. Potter v. Carpenter, 71
K. Y. 74; Doyle v. Trinity Church, 133
N. Y. 372, 31 N. E. 221.
Oregon. Forbis y. Inman, 23 Or. 68,
31 Pac. 204.
Pennsylvania. Hoffeditz y. Iron Co.,
141 Pa. St. 58, 21 Atl. 764.
Vermont. State v. St. John«bury, 59
Vt. 332, 10 Atl. 531 ; Crampton v. Sey-
mour, 67 Vt. 393, 31 Atl. 889.
Washington. Gross y. Cadwell, 4
Wash. 670, 30 Pac. 1052.
2Hanrahan y. Baxter (la.), 16 L. R.
A. (N.S.) 1046, 116 N. W. 595; Sidway
Y. Live Stock Co., 163 Mo. 342, 63 S.
W. 705.
SHanrahan y. Baxter (la.), 16 L. R.
A. (N.S.) 1046, 116 N. W. 595.
4 Tank y. Rohweder, 98 la. 154, 67 N.
W. 106; Rabasse's Succession, 49 La.
Ann. 1405, 22 So. 767.
9 Gross y. Cadwell, 4 Wash. 670, 30
Pac. 1052.
• Royston y. McCully (Tenn.), 52 L.
R. A. 899, 59 S. W. 725.
TLeyy y. Gillis, 1 Penn. (Del.) 119,
39 Atl. 785.
§1446
Page on Contracts
2474
resulting to the indorser by reason thereof,' no recovery can be
had. If services are rendered without the intent of making a
charge therefor, or of creating a legal liability thereby, the fact
that the person rendering them did so in the hope that the party
receiving them would be grateful therefor, and would manifest
such gratitude in some substantial form, such as a gift or legacy,
does not give to the party rendering such services a right to re-
cover a reasonable compensation therefor if such hopes are dis-
appointed.* No recovery can be had for gratuitous services,
although they would not have been rendered if it had been fore-
seen that another agreement between the same parties would not
have been performed.'*
If services are rendered for each other by persons who are under
contract to intermarry,^' as where one party furnishes board to the
other,'* recovery can not be had therefor upon breach of the contract
to marry, as on an implied contract. The remedy, if any, is said to
be by an action in quantum meruit. If the original contract
between the parties to intermarry did not call for the rendition of
such services, the result is probably correct. If, however, the orig-
inal contract to intermarry contemplated the rendition of such
services, no reason appears why the party injured by the breach of
such contract should not be permitted to waive an action upon the
contract and to recover for services rendered under such contract
as in cases of discharge by breach."
If a woman marries a man, believing that he is single, and keeps
«
house for him, it is said that she can not recover for services thus
rendered when she discovers that he is already married.'* Where
a man marries a woman, believing her single,* and she was already
married, he can not recover on an implied contract for furnishing
her with board, lodging, medical attendance, and the like. His
• Hagar v. Whitmore, 82 Me. 248, 19
Atl. 444. (The indorser subsequently
sought to recover compensation for ever
having incurred liability.)
tOsbourn v. Governors, etc., 2 Stra.
728; Gillette's Appeal, 82 Conn. 500, 74
Atl. 762; Guenther v. Birkicht's Ad-
ministrator, 22 Mo. 439; Castle v. Ed-
wards, 63 Mo. App. 564; Swires v. Par-
sons, 6 Watts. & S. (Pa.) 357.
10 Cochran v. Zachery, 137 la. 585,
16 L. R. A. (N.S.) 235, 115 N. W. 486.
11 La Fontain v. Hayhurst, 89 Me.
388, 56 Am. St. Rep. 430, 36 Atl. 623.
12 Cl«ry V. Clary, 93 Me. 220, 44 Atl.
921.
« See ch. LXXXVIH.
14 Cooper v. Cooper, 147 Mass. 370,
9 Am. St. Rep. 721, 17 N. E. 892.
Contra, Fox v. Dawson, 8 Mart. (0.
S.) (La.) 94; Higgins v. Breen, 9 Mo.
497.
See i.1515.
2475
Genuine Implied Contracts
§1446
damages of this sort are inseparable from his claim for damages
for deceit; and, accordingly, will not survive against her estate.^'
Where no such liability exists a subsequent note payable to the
order of the ma'ker, not indorsed by him, but delivered to the per-
son performing such services, creates no liability^* Board and
lodging furnished to one who comes on invitation as a guest are
understood to be gratuitous apd no recovery can be had thereforj^
By statute in Kentucky no recovery can be had for board and
lodging unless furnished by the keeper of a tavern or house of
private entertainment or unless under a contract therefor."
Where A does work on land which he claims in good faith as
his own, recovery therefor from the real owner, after the claimant
is defeated by the real owner in an action for the possession of the
real property, can not be had." He may, however, set off the
increase in the value of the property resulting from his improve-
ments against the amount due from him for rents and profits.^
This right of set-off is founded on ** broad and growing principles
of equity,'**^ and was originally an innovation at common law.
The civil law allowed compensation for the value of the improve-
ments less the use of the land.^ This rule of the civil law was
» Payne's Appeal, 65 Conn. 397, 48
Am. St. Rep. 215, 33 L. R. A. 418, 32
Ail. 948.
KRabasse's Succession, 49 La. Ann.
1405, 22 So. 767.
17 Action by husband: invitation giv-
en by his wife to her sister, Harrison
V. McMillan, 169 Tenn. 77, 69 S. W. 973.
It Hancock v. Hancock's Administra-
tor (Ky.), 69 S. W. 757.
It Georgia. Dudley v. Johnson, 102
Ga. 1, 29 S. E. 50.
Iowa. Lunqutet v. Ten Eyck, 40 la.
213.
Loiiisiaiia. Pharr v. Broussard, 106
La. 59, 30 So. 296.
llABsadiiiaettB. Russell v. Blake, 10
Mass. (2 Pick.) fi05.
Texas. Bonner v. Wiggins, 52 Tex.
125.
Weat Virgiaia. Moore v. Ligon, 30
W. Va. 146, 3 S. E. 572.
aniiaoia. Potts v. Cullum, 68 IlL
217.
MichigaiL Jones v. Merrill, 113 Mich.
433, 67 Am. St. Rep. 475, 71 N. W. 838;
Petit V. R. R., 119 Mich. 492, 75 Am.
St. Rep. 417, 78 N. W. 554.
Missomi. Tice v. Fleming, 173 Mo.
49, 96 Am. St. Rep. 479, 72 S. W. 689.
New York. Jackson v. Loom is, 4
Cow. (N. Y.) 168, 15 Am. Dec. 347.
Pennsylvama. Putnam v. Tyler, 117
Pa. St. 570, 12 Atl. 43; Estate of Glee-
son, 192 Pa. St. 279, 73 Am. St. Rep.
808, 43 Atl. 1032.
West Vixginia. Dawson v. Grow, 29
W. Va. 333, 1 S. E. 564.
Wisconsin. Davis v. Louk, 30 Wis.
308.
21 Tice V. Fleming, 173 Mo. 49, 56;
96 Am. St. Rep. 479, 483; 72 S. W. 689.
See also. Barton v. Land Co., 27
Kan. 634.
22 Putnam v. Ritchie, 6 Paige (N. Y.)
390.
§1446
Page on Contracts
2476
r-dopted by equity. Equity required the real owner to do equity
if he was obliged to ask aid of equity to recover his property, and
to make compensation for the increase in value due to the improve-
ments placed thereon by the innocent claimant.^ According to the
weight of authority, equity could give no further relief than by
way of set-off. Affirmative compensation could not be had.^ In
other cases, however, equity has ignored the restriction to set-off
and allowed compensation for improvements to the extent of the
increase in value due thereto, even if they exceed the amount of
rents and profits."-'
Statutes known as occupyin{; claimant acts, or betterment acts,
have extended these principles in specific classes of cases. No
detailed discussion of these statutes will, however, be undertaken
here. The compact between Virginia and Kentucky which pro-
vided that rights which had arisen in Kentucky under the laws of
Virginia should be determined under the laws of Virginia, renders
invalid a statute of Kentucky which relieves an occupant from
liability for rents and profits before judgment and which requires
the true owner to pay for the improvements, or to secure such
payment; and in default thereof, permits the occupant to elect
between a judgment against the true owner for the value of the
improvements and taking the land at its assessed value and giving
security therefor.* One who by mistake erects a building on the
land of another can not have compensation therefor." The right
of recovery exists only in favor of one who in good faith believes
himself to be the owner. Thus a tenant for life," or for years,*
can not, in any form of action, have compensation for increase in
value due to improvements made by him.
nniinois. WilliamB v. Vanderbilt,
145 111. 238, 36 Am. St. Rep. 486, 21 L.
R. A. 489, 34 N. E. 476.
Iowa. Parsons v. Moses, 16 la. 440.
Kentucky. Sale v. Cruichfield, 71 Ky.
(8 Bush.) 636.
New York. Miner v. Beekman, 50
N. Y. 337.
WByers v. Fowler, 12 Ark. 218, 54
Am. Dec. 271; McCloy v. Amett, 47
Ark. 445, 2 S. W. 71; Dudley v. John-
son, 102 Ga. 1, 29 S. E. 50; Jackson v.
Loomis, 4 Cow. (N. Y.) "68, 15 Am.
Dec. 347; Jones v. Perry, .6 Tenn. (10
Yerg.) 59, 30 Am. Dec. 430.
» Taylor v. James, 109 Ga. 327, 34
S. E. 674; Effinger v. Kenney, 92 Va.
245, 23 S. E. 742.
M Green v. Biddle, 21 U. S. (8 Wheat.)
1, 5 L. ed. 547.
27Dutton V. Ensley, 21 Ind. App. 46,
69 Am. St. Rep. 340, 51 N. E. 380.
21 Springfield v. Bethel, 90 Ky. 593,
14 S. W. 592; Moore v. Simonson, 27 Or.
117, 39 #ac. 1105.
21 Jones v. Hoard, 59 Ark. 42, 43 Am.
St. Rep. 17, 26 S. W. 193; Willoughby
V. Furnishing Co., 93 Me. 185, 44 AtL
612; Wolf V. Holton, 92 Mich. J36, 52
N. W. 459; Windon v. Stewart, 43 W.
Vi».'7n.9« S. E. 776, •
2477 Genuine Implied Contracts § 1446
One who performs work and labor upon his own property can
not hold others liable therefor upon an implied contract. He must
be taken as having done the work for his own benefit, whatever his
secret intention may have been. Thus where A*s cattle were sold
at auction, and the title thereto did not pass until possession was
delivered and the money paid or security given, A can not recover
from the purchaser for keeping such cattle between the time of the
auction and the time of giving security.* A co-tenant in posses-
sion can not recover compensation from his co-tenants for work
done in taking care of the common property, as in collecting the
rents.*' The principle that no recovery can be had for services
rendered by A, whereby B is benefited if A does not intend to
make a charge against B therefor, applies even in cases where A
believed when he performed the services, that he was bound by a
contract with X,** or by some positive rule of law,** to render such
services. Thus where A, believing- that he is doing work under his
contract with X, does work which B is under contract to do, A
can not recover from B.** So where A is employed by the govern-
ment to transport mail, and he does not only the work which is
required by his contract with the government, but also work which
the railroad which hauls the mail is bound to do by reason of its
contract with the government, he can not recover from the railroad
where he does this work, thinking that he is bound by his contract
with the government to do it.** So a county auditor can not re-
cover from the treasurer where the auditor has made certain tax
apportionments and statements which it was the legal duty of the
treasurer to make, where both auditor and treasurer are under the
impression that it is the auditor's duty to make such apportion-
ment and statements.** Whether a public corporation or an in-
dividual furnished support to a pauper can recover therefor from
such pauper if he proves to have property, or subsequently acquires
property, depends in the absence of statute on whether the pauper
has been guilty of any fraud in inducing such person to furnish
MChalmerB t. McAnley, 68 Vt. 44, MRohr v. Baker, 13 Or. 350, 10 Pac.
33 Ail. 767. 627.
•tSwitzer v. Switzer, 57 N. J. Eq. 30 Columbus, etc., Ry. v. Gaffney, 65
421, 41 AtL 486. O. S. 104, 61 N. E. 152; Jahnson v. Ry.,
» Columbus, etc., Ry. v. Gaffney, 63 69 Vt. 521, 38 Atl. 267.
O. S. 104, 61 N. E. 152; Johnson v. Ry., Contra, McHary v. R. R., 102 Mich.
69 Vt 521, 38 Atl. 267. 312, 60 N. W. 695.
"Keough ▼. Wendelschafer, 73 Minn. MKeough v. Wendelschafer, 73 Minn.
352, 76 N. W. 46. 352, 76 N. W. 46.
§1446
Page on Contracts
2478
sueh support. If he has not been guilty of fraud, he is not liable
in the absence of statute.'^ Thus if a pauper subsequently acquired
property, he is not liable for support furnished to him by a public
corporation * If, however, the pauper has received such support
through fraudulent representations as to his financial condition, the
person furnishing such support has been allowed to recover. Thus
where a voluntary charitable association, thinking A a pauper
through A's misrepresentations, supported A, and A promised to
make a will in favor of such association, when it began to suspect
that A was not in need of support, and A subsequently revoked the
will made in performance of this contract and made another will,
it was held that equity could not give specific performance of a
promise to make a will, as the consideration was a past considera-
tion, but that the voluntary association could recover for the sup-
port furnished.* In some jurisdictions the statute specifically pro-
vides for a recovery against a pauper for support furnished, if
such pauper has or subsequently acquires property.* A right of
action against one to whom support has been furnished as a
pauper is limited by the statute giving such right. Thus a statute
giving a right of action against certain relatives who were primar-
ily liable for the support of a pauper does not give a right of
action against such jpauper.^^ Under a constitutional provision that
no special legislation shall be made with reference to the estates of
persons under disability, an insane pauper can not be required, on
acquiring property, to pay a greater sum for support than one who
is not a pauper would have been obliged to pay.** Thus in the
absence of statute the estate of an insane person is not liable for
support furnished' if there is no special contract therefor.* In
some cases already cited, language is used which seems to support
97 Maine. Kennebunkport v. Smith,
22 Me. 445.
Massachusetts. Deer Isle v. Eaton,
12 Mass. 327.
New Hampshire. Charleston v. Hub-
bard, 9 N. H. 195.
Hew York. Albany v. McNamara,
117 N. Y. 168, 6 L. R. A. 212, 22 N.
E. 931.
Pennsylvania. Montgomery County
V. Nyce, 161 Pa. St. 82, 28 Atl. 999.
Vennont. Fairbanks y. Benjamin, 50
Vt 99.
MBeer Isle v. Eaton, 12 Mass. 327;
Charleston v. Hubbard, 9 N. H. 195.
MEggers v. Anderson, 63 N. J. Eq.
264, 55 L. R. A. 570, 49 Atl. 578.
«r Cutler V. Maker, 41 Me. 594; East
Sudbury v. Belknap, 18 Mass. (1 Pick.)
512; Directors v. Nyce, 161 Pa. St. 82,
28 Atl. 999.
41 Bremer County v. Curtis, 54 la. 72,
6 N. W. 135.
42Schroer v. Asylum, 113 Ky. 288, 68
S. W. 150.
*8 Montgomery County v. Gupton, 139
Mo. 303, 39 S. W. 447, 40 S. W. 1094.
2479 Genuine Implied Contracts § 1446
the broad principle that one who performs services with another
without intending to charge therefor, can not recover even if the
services- are of a sort for which charges are usually made, and the
party for whom the services are rendered does not know that the
other party does not intend to make a charge. While this prin-
ciple is supported by occasional dicta, the cases in which the point
is actually presented for decision do not go so far. The secret
uncommunicated intention of one party to a contract is generally
of no importance, and as it can not be invoked to confer legal
rights upon him, it ought not to be invoked to defeat legal rights.
The true rule seems to be that one who performs services, such as
are usually the subject of charge, at the request of the party for
whom they are performed, whether express or implied, is entitled
to recover therefor, even if at the time he rendered the services his
own secret intention was to make no charge for such services.^
Thus where A performed work. for a shooting club at the request
of the officers thereof in obtaining leases of land for the use of such
club, he can recover a reasonable compensation for such work,
even thqugh he did not intend to make any charge if the club
would buy his house, which they did, and employ him as steward
at a salary, which they did not do.*' So a physician who per-
formed services which he intended at the time of performing them
to be gratuitous, can recover therefor, irrespective of his intention,
if the other party was not induced by such intention to accept the
services.** Thus where A has rendered services for B, not intend-
ing to charge therefor, an instruction by a court to the jury, in an
action by A to recover a reasonable compensation to the effect that
A's indention to make no charge will not prevent recovery unless
A's ''conduct and course of dealing was such as to justify B in
believing and understanding that no charge was intended," was
held correct.*^ In some cases the rights of the parties who have
rendered mutual services, which are intended by the parties to be
reciprocal and gratuitous, have been worked out on a somewhat
different theory. Thus where A was B's ward and lived in B's
family, and rendered services for B and his family, not expecting
44 Thomas v. Shooting Club, 121 N. to recover." Thomas v. Shooting Club,
Car. 238, 28 S. E. 293; Moore v. Ellis, 121 N. Car. 238, 240; 28 S. E. 293. *
89 Wis. 108, 61 N. W. 291. !• Prince v. McRae, 84 N. Car. 674.
41 "Here as the implied promise is not 47 Moore v. Ellis, 89 Wis. 108, 61 N.
met by any agreement that there should W. 291.
be nothing paid, the plainti^ is entitled
\
§1447
Page on Contracts
2480
to be paid for sach services, but expecting such services would
offset her board, A can recover a reasonable compensation for such
services when B has as a matter of fact made a charge against her
for her board, and settled his accounts by applying her estate in
his hands to the payment of such account for board.^ Prom one
point of view, strict logic might hold that A should have resisted
B's charge for board by showing the circumstances under which
the board was furnished. A seems, however, to have learned of the
facts too late to resist the settlement of B's accounts, and her
rights were decided on the theory that she had performed the serv-
ices either under a mistake of fact or by reason of B's fraud and
concealment.
§1447. Services between members of the same
eral principles. Services rendered between members of the same
family form a common example of services which are usually ren-
dered as a gratuity. Persons who live together as members of the
same family, and render personal services each to the other, gen-
erally do so from motives of affection and not because of the
expectation of a financial reward therefor. Accordingly, the mere
rendition of personal services between persons so situated, does not
establish a liability on the part of the j^orson receiving such serv-
ices to make compensation to the person rendering them, even
though the services may be performed at the express request of
the person receiving the benefit thereof or may be voluntarily
accepted by him.^ Conversely, no recovery can be had by the party
4«Boardman v. Ward. 40 Minn. 399,
12 Am. St. Rep. 740, 42 N. W. 202. ^
1 Delaware. Morris v. Simpson, 3
Houst. (Del.) r)6vS: Jones v. Tucker, 26
Del. (3 Boyce) 422, 84 Atl. 4, 1012'.
Georgia. Poole v. Baggett, 110 Ga.
822. 36 S. E. 86.
Illinois. Stock v. Stoltz. 137 111. 349.
27 N. E. 604; Collar v. Patterson. 137
111. 403. 27 N. E. 604.
Indiana. Hill v. HiH, 121 Ind. 255, 23
N. E. 87.
.Iowa. McGarvey v. Roods, 73 la. 363,
35 N. W. ASS; Cowan v. Muagrave, 73
la. 384, 35 N. W. 496; Spitzmiller v.
Fisher, 77 la. 289, 42 N. W. 197.
Kentucky. Coleman . v. Simpson. 32
Ky. (2 Dana) 166; Farley v. Stacy. 177
Ky. 109. 197 S. W. 636; Ballard v. Bal-
lard, 177 Ky. 253, 197 S. W. 661; Arm-
strong's Admiaifitrator v. Shannon. 177
Ky. 547, 197 S. W. 950; Atha v. Web-
ster. 181 Ky. 581, 205 S. W. 598.
Maryland. Bixler v. Sellman, 77 Md.
494. 27 Atl. 137.
Michigan. Allen v. Allen, 60 Mich.
635, 27 X. \V. 702; Harris v.. Smith, 79
Mich. 54, 6 L. R. A. 702, 44 N. W. 169;
Harris v. Harris, 106 Mich. 246, 64 N.
W. 15.
Minnesota. Baxter v. Gale, 74 Minn.
36, 76 N. W. 954; Lansing v. Gregory,
128 Minn. 496, 151 N. W. 277.
2481
Genuine Implied Contracts
§1448
to such relationship who furnishes board and lodging.^ This prin-
ciple is sometimes spoken of as an exception to the general rule
that liability exists where services for which compensation is
usually made, are rendered by one person to another at the pre-
vious request of such other, or are voluntarily accepted by him.
It is not, however, properly speaking, an exception to that rule,
because such services as are here described are not ordinarily the
subject of compensation. It is rather an illustration of the prin-
ciple that services rendered for which the party rendering them
does not expect to make a charge, and accepted by the 'person for
whom they are rendered with that understanding, do not create a
legal liabilty.
§ 1448. Who are members of family— Husband and wife. As
between husband and wife, there is not only a presumption that
mutual services are gratuitous,^ but in many jurisdictions an
express promise to make compensation therefor is unenforceable as
against public policy.* Thus a contract whereby a husband agrees
to pay his wife for services,' even if not performed at their home,
Missouri. Woods v. Land, 30 Mo.
App. 176; Callahan v. Riggins, 43 Mo.
App. 130; liOuder v. Hart, 52 Mo. App.
377.
Nebraska. Moore y. Moore, 58 Neb.
268, 78 N. W. 485.
New Hampshire. Clark t. Sanborn,
68 N. H. 411, 36 Atl. 14.
North Carolina. Ellis v. Cox, — N.
Car. — , 97 S. E. 468.
Ohio. Hinkle v. Sage, 67 O. S. 256,
65 N. E. 999; Merrick v. Ditzler, 91 O.
S. 256, HON. E. 493.
Pennsylvania. Barhites' Appeal, 126
Pa. St. 404, 17 Atl. 617.
Rhode Island* Newell v. Lawton, 20
R. I. 307. 38 Atl. 946.
South CaroHna. Sherwood v. Mc-
Laurin, 103 S. Car. 370, 88 S. E. 363.
South Dakota. Murphy v. Murphy, 1
S. D. 316, 0 L. R. A. 820, 47 N. W. 142.
Virginia. Beale v. Hall, 07 Va. 383,
34 S. E. 53.
Washington. Hodge v. Hodge, 47
Wash. 196, 11 L. R. A. (N.S.) 873, 91
Pac. 764.
West Virginia. Riley v. Riley, 38 W.
Va. 283, 18 S. E. 569; Hanly v. Potts,
52 W. Va. 263, 43 S. E. 218.
Wisconsin. Ellis v. Cary, 74 Wis.
176, 17 Am. St. Rep. 125, 4 L. R. A. 66,
42 N. W. 252.
2Le8sley v. Pond, — Ala. — , 75 So.
298; Tank v. Rohweder, 98 la. 154, 67
N. W. 106; Heinz v. Jacobi, 76 N. J. L.
189, 68 Atl. 1069; Anderson v. Osborn,
62 Wash. 400, 114 Pae. 160; Olsen v.
Olsen, 90 Wash. 174, 155 Pac. 747.
1 Lapworth v. Leach, 79 Mich. 16, 44
N. W. 338.
2 See S^32.
3Kedey v. Petty, 153 Ind. 179, 54 N.
E. 798; Michigan Trust Co. v. Chapin,
106 Mich. 384, 58 Am. St. Rep. 490,
64 N. W. 334; Coleman v. Burr, 93 N.
Y. 17, 45 Am. Rep. 160; In re Collister,
153 N. Y. 294, 60 Am. St. Rep. 620,
47 N. E. 268.
§1449
Page on Contracts
2482
but in business/ or a contract whereby a wife agrees to support
her husband,' are void.
§1449. Persons related by consangnuiity— Parent and child.
Where parents and children are living together as members of a
family, services rendered by one for the other, come within this
rule, and do not of themselves establish any implied contract to
make compensation therefore Thus if a parent renders services for
a child,* as where a father takes care of a horse for his son,' there
is no implied promise to pay therefor. The same principle applies
where a parent furnishes provisions to her daughter as a gift. The.
husband of the daughter can not be held liable to make compensa-
tion therefor, as on an implied contract.* So if a child renders
services to a parent,* as where board, care and lodging are fur-
4 Whitaker v. Whitaker, 52 N. Y. 368,
11 Am. Rep. 711.
Contra, Nuding v. Urich, 169 Pa. St.
^ 289, 32 At]. 409.
• Corcoran v. Corcoran, 119 Ind. 138,
12 Am. St. Rep. 390, 4 L. Jl. A. 782,
21 N. E. 468.
1 Alabama. Borum v. Bell, 132 Ala.
85, 31 So. 454.
Georgia. Hudson v. Hudson, 90 Ga.
581, 16 S. E. 349; O'Kelly v. Faulkner,
92 Ga. 521, 17 S. E. 847; Poole v. Bag-
gett, 110 Ga. 822, 36 S. E. 86.
niinois. Stock v. Stoltz, 137 111. 349,
27 N. E. 604; Robnet v. Robnett, 43 111.
App. 191.
Indiana. King v. Kelly, 28 Ind. 89;
Niebaus v. Cooper, 22 Ind. App. 610,
52 N. E. 761.
Kentucky. Weir v. Weir, 42 Ky. (3
B. Mon.) 645, 39 Am. Dec. 487.
Michigan. Wright v. Senn, 85 Mich.
191, 48 X. W. 545.
Missouri Penter v. Roberts, 61 Mo.
App. 222.
New Mexico. Garcia v. Candelaria, 9
N. M. 374, 54 Pac. 342.
New York. Ulrich v. Ulrich, 136 N.
. Y. 120, 18 L. R. A. 37, 32 N. E. 606.
Oregon. Wilkes v. Cornelius, 21 Or.
348, 28 Pac. 135.
Pennsylvania. Butler v. Slam, 50 Pa.
St. 456; Zimmerman v. Zimmerman, 129
Pa. St. 229, 15 Am. St. Rep. 720,. 18
Atl. 129.
South Carolina. Sherwood v. Mc-
Laurin, 103 S. Car. 370, 88 S. E. 363.
Vermont. Hatch v. Hatch, 60 Vt. 160,
13 Atl. 791.
Virginia. Harshberger v. Alger, 72
Va. (31 Gratt.) 53.
West Virginia. Riley v. Riley, 38 W.
Va. 283, 18 S. E. 569.
Wisconsin. Hall v. Finch, 29 Wis.
278, 9 Am. Rep. 559, 32 N. W. 623;
Leary v. Leary, 68 Wis. 662, 32 N. W.
623; Pritchard v. Pritchard, 69 Wis. 373,
34 N. W. 506.
SLarsen v. Hansen, 74 Cal. 320, 16
Pac. 5; Stoneburner v. Motley, 95 Va.
784, 30 S. E. 364; Bostwick v. Bost-
wick, 71 Wis. 273, 37 N. W. 405^.
3 Stoneburner v. Motley, 95 Va. 784,
30 S. E. 364.
4 Anderson v. Baird (Ky.), 40 S. W.
923.
I Kentucky. Perry v. Perry, 63 Ky.
(2 Duv.) 312; Bishop v. Newman, 168
Ky. 238, 182 S. W. 165; Norman v. Nor-
man, 168 Ky. 365, 182 S. W. 224; Farley
V. Stacy, 177 Ky. 109, 197 S. W. 636;
Atha V. Webster, 181 Ky. 581, 205 S.
W. 698.
2483
Genuine Implied Contracts
§1450
nished to a parent by a child,* there is no implied liability on the
part of the parent to make compensation therefor. This principle
is not confined to cases where a child is a minor^ and is therefor
not to be referred. solely to the fact that the earnings of the minor
are the property of his parents. The principle is the same where
an adult child lives with his parents as a member of the family,
and receives his board and renders services. Even in such a case
there is^ on the one hand, no implied liability of the child to pay
for his board ; and, on the other hand, there is no implied liability
of the parents to pay for the services of the child.^ So where an
uncle, A, requested a minor child, B, who had been emancipated by
his father, C, to work for C, and had expressed his approval of his
conduct in so doing, no implied contract exists on the part of A
to pay B for such services.'
§1450. Other relationships. The same principle applies to
services rendered by brothers and sisters, each for the other, where
they are living together in one family. No liability to make com-
pensation is created by the mere fact of the rendition of the serv-
ices in the absence of anything to show some understanding that
compensation should be made.^ Accordingly, the court commits no
Hiasomi. Kostuba v. Miller, 137 Mo.
161. 38 S. W. 946.
New York. Ulrich v. Ulrich, 136 N.
Y. 120, 18 L. R. A. 37, 32 N. E. 606.
South Carolina. Sherwood v. Mc-
Laurin, 103 S. Car. 370, 88 S. E. 363.
Vermont. Jones v. Campbell, — Vt.
— , 102 Atl. 102.
Washington. Olsen v. Olsen, 90 Wash.
174, 1.55 Pac. 747.
• Alabama. Lessley v. Pond, — Ala.
— , 75 So. 298.
Indiana. Niehaus v. Cooper, 22 Ind.
App. 610, 52 N. E. 761.
Kentucky. Turner v. Turner, 100 Ky.
373, 38 S. W. 506; Bishop v. Newman's
Executor, 168 Ky. 238, 182 S. W. 165;
Norman v. Norman, 168 Ky. 365, 182 S.
W. 224.
Temiessee. Gorrell v. Taylor, 107
Tenn. 568, 64 S. W. 888.
Virginia. Nicholas v. Nicholas, 100
Va. 660, 42 S. E. 669, 866.
Washington. Olsen v. Olsen, 90 Wash.
174, 155 Pac. 747.
^ Schwachtgen v. Schwachtgen, 65 111.
App. 127; Wall v. Wall, 69 111. App.
389; Donovan v. Driscoll, 116 la. 339,
90 N. W. 60.
• Bristol V. Sutton, 115 Mich. 365,
73 N. W. 424.
Ilndiana. Fuller v. Fuller, 21 Ind.
App. 42, 51 N. E. 373.
Kansas. Ay res v. Hull, 5 Kan. 419.
Michigan. Martin v. Sheridan, 46
Mich. 93, 8 N. W. 722.
Minnesota. Knight v. Martin, 124
Minn. 191, 144 N. W. 941.
Tennessee. Taylor v. Lincumfelter,
69 Tenn. (1 Lea) 83; Hayes v. Cheat-
ham, 74 Tenn. (6 Lea) 1.
Washington. Morrissey v. Faucett,
28 Wash. 52, 68 Pac. 352; Hodge v.
Hodge, 47 Wash. 196, 11 L. R. A. (N.S.)
873, 91 Pac. 764.
§1451
Page on Contracts
2484
error in refusing to allow a question to be answered, which was
intended to call forth evidence that the sister had rendered the
services at the request of her brother.^ It is error to refuse to
order a non-suit if the undisputed evidence shows that services
were rendered by one brother to another while members of the
same family and without an express agreement for compensation.'
The same principle applies as between grandparents and grand-
children.* If they are living together in one family, a grandchild
can not recover for personal services rendered to his grandparents.*
If the grandchild renders services for his grandparents under an
arrangement made by his parents, he can not recover from the
estate of his grandparents, since such services were not rendered at
their request.* Similar considerations apply to services rendered
between persons more remotely related, living* together as one fam-
ily, as between cousins,^ or between uncle or aunt, on the one hand,
and nephew or niece, on the other.*
In other jurisdictions it is said that except in transactions
between parent and child, the relationship alone is not enough to
show that the parties did not intend liability for services rendered.'
Accordingly, where this rule is in force a sister may recover from
her brother for services rendered as his housekeeper in the absence
of any express agreement.^*
§1451. Persons related by afllnity. This principle is not
limited, however, to blood relationship. If a son-in-law or daughter-
in-law renders services for parents-in-law, while members of the
same family,^ as by furnishing board and lodging,* no implied con-
JMorrissey v. Faucett, 28 Wash. 52,
68 Pac. 352.
^ 3 Hodge V. Hodge, 47 Wash. 198, 11
L. R. A. (N.S.) 873, 91 Pac. 764.
4Dodson v. McAdams, 96 N. Car. l49,
60 Am. Rep. 408.
B Missouri. Castle v. Edwards, 63 Mo.
App. 564.
North Carolina. Dodson v. McAdams,
96 N. Car. 149, 60 Am. Rep. 408, 2 S.
E. 453.
Pennsylyania. Barhite's Appeal, 126
Pa. St. 404, 17 Atl. 617.
South Dakota. Murphy v. Murphy,
1 S. D. 316, 9 L. R. A. 820, 47 N. W. 142.
Virginia. Jackson v. Jackson, 96 Va
165, 31 S. E. 78.
• Moyer's Appeal, 112 Pa. St. 290,
3 AU. 811.
TNeal V. Gilmore, 79 Pa. St. 421.
• Armstrong's Administrator v. Shan-
non, 177 Ky. 547, 197 S. W. 950.
• Curry v. Curry, 114 Pa. St. 367, 7
Atl. 61. *
W Curry v. Curry, 114 Pa. St. 307,
7 Atl. 61.
. 1 Farmer v. Underwood, 164 la. 587,
146 N. W. 18; Ellis v. Cox, — N. Car.
— , 97 S. E. 468; Hinkle v. Sage, 67 O.
S. 256, 65 N. E. 999.
2 Mariner v. Collins, 2 Harr. (Del.)
290; Ballard v. Ballard, 177 Ky. 253,
197 S. W. 661; Thompson v. Halstead,
-14 W. Va. 390, 29 S. E. 991 ; Schmidt's
Estate, 93 Wis. 120, 67 N. \V. 37.
Contra, Rogers v. Millard, 44 la. 466.
2485
Genuine Implied Contracts
§1452
tract exists by reason of such facts alone. The same principle
applies to mutual services rendered between step-parents and step-
children.' Thus if a step-father voluntarily supports his step-chil-
dren,* or a step-child voluntarily renders services for a step-father,"
no implied contract exists. Accordingly, if a step-daughter renders
services to the family, in reliance upon a promise made by her
mother that she should receive compensation for such services, she
can not recover from the estate of her step-father for such services
unless it can be shown that he not only knew that the promise had
been made, but that he also knew that she continued to render such
services upon such promise.* The principle that a contract for com-
pensation is not implied between a step-father and step-daughter,
has been carried so far that an attorney who procured a divorce
for his step-daughter, who a^that time was living in his family
and rendering domestic services, could not recover therefor four
years after. In the meantime, however, he had set up claims for
certain disbursements made by him in a foreclosure suit brought
by her, but had not made any claim for such legal services.^ How-
ever, a step-father who supports his step-children on his wife's
land undertakes their support only by his labor as applied to their
property. Hence, in an action by them against him to recover
railroad ties, made from timber gr6wing on such land, he may
counter-claim for their support.* Similar principles apply where
services are rendered between brothers-in-law, sisters-in-law, and •
the like, while members of one family.'
§ 1452. De facto membership of same family. The principle
under discussion is not limited to cases of relationship by blood or
affinity, but it applies also to persons who are de facto members of
the same family, even if there is no relationship of any kind
3 Kansas. Longhofer v. Herbel, 83
Kan. 278, 111 Pac. 483.
Massachnsetts. Kirchgassner v. Rod-
ick, 170 Mass. 543, 49 N. E. lOlo.
Minnesota. Baxter v. Gale, 74 Minn.
36, 76 N. W. 954.
New York. VV^illiams v. Hutchinson,
3 N. Y. 312, 53 Am. Dec. 301.
South Carolina. Gaston v. Gaston, 80
S. Car. 157, 61 S. E. 393.
Wisconsin. Ellis v. Gary, 74 Wis. 176,
17 Am. St. Rep. 125, 4 L. R. A. 55,
42 N. W. 252.
• Livingston v. Hammond, 162 Mass.
375, 38 N. E. 968; Haggerty v. Me-
Canna, 25 N. J. Eq. 48.
I Harris v. Smith, 79 Mich. 54, 6 L. R.
A. 702, 44 N. W. 169.
• Harris v. Smith. 79 Mich. 54, 6 L. R.
A. 702, 44 N. W. 169.
7 Baxter v. Gale, 74 Minn. 36, 76 N.
W. 954.
• Kempson v. Goss, 69 Ark. 235, 62 S.
W. 582.
• Hill V. Hill, 121 Ind. 255, 23 N. E. 87.
The same principle applies to serv-
ices rendered for one by his wife's
niece while a member of his household.
In re Bean's Estate, — Pa. St. — , 107
Atl 671.
§1454
Page On Contracts
2486
between themJ Thus if a child has been taken into a family as a
member thereof by persons in no way related to it, there is, on the
one hand, no implied contract that the child, or the parents of the
child, should make compensation for itc board ;^ nor, on the other
hand, that the persona who take sach ohlid into their family are
to make compensation fqr the serrices performed by such child.*
This rule applies even where an ^'adopted'' child remains a mem-
ber of the family after becoming of age* If the "adopted" child
works for his '* adopting" parents for many years after coming of
age and if his right to some compensation is assumed in, their
mutual dealings and the only question is as to the amount thereof,
he is entitled to reasonable compensation.*
•
§ 1453. Nature of services. Soiil^ jurisdictions limit this doc-
trine to cases where the services rendered are purely personal in
their nature, and such as would ordinarily be inspired by affection
or the sense of duty.^ Thus it has been held that there is an
implied contract to pay for such services as washing or making and
mending clothing rendered between persons living together.*
§ 1454. Services between persons not members of same family.
The presumption that services are intended to be gratuitous applies
only to services which are rendered between persons who are living
together as members of the same family. The presumption does
1 Colorado. Walker v. Taylor, 28
Colo. 233, 64 Pac. 192.
Georgia. Howard v. Randolph, 134
6a. 691, 29 L. R. A. (N.S.) 294, 20 Am.
& Eng. Ann. Cas. 392, 68 S. E. 586.
Massachusetts. Graham v. Stanton,
177 Mass. 321, 58 N. E. 1023..
Nebraska. Plath v. Brunken, 102
Neb. 467, 167 N. W. 567.
Vermont. Jones v. Campbell, — Vt.
— , L. R. A. 1918A, 1056, 102 Atl. 102.
2Croxton v. Foreman, 13 Ind. App.
442, 41 N. E. 838.
3 Colorado. Walker v. Taylor, 28
Colo. 233, 64 Pac. 192.
Georgia. Howard v. Randolph, 134
Ga. 691, 29 L. R. A. (N.S.) 294, 20 Am.
& Eng. Ann. Cas. 392, 68 S. E. 586.
Massachusetts. Graham v. Stanton,
177 Mass. 321, 58 N. E. 1023.
Rhode Island. Bliven v. Wheeler, 25
R. I. 313, 55 Atl. 760.
Virginia. Starke v. Storm's Execu-
tor, 115 Va. 651, 79 S. E. 1057.
• Lang V. Dietz, 191 111. 161, 60 N.
E. 841.
Apparently contra^ where valuable
services were rendered for many years,
Plath V. Brunken, 102 Neb. 467, 167 X.
W. 567.
S Jones V. Campbell, — Vt. — , L. R.
A. 1918A, 1056, 102 Atl. 102.
See also, Plath v. Brunken, 102 Neb.
467, 167 N. W. 567.
1 Hurst V. Lane, 105 Ga. 506, 31 S. E.
135; Frailey v. Thompson (Ky.), 49 S.
W. 13.
2 Frailey v. Thompson (Ky.), 49 S.
W. 13.
2487
Genuine Implied Contkacts
§1454
not exist as between persons who are related but who are not living
together.^ If parents-in-law and ehildren-in-law do not live to-
gether as members of the same family, no presumption arises that
services which are rendered by one for the other are gratuitous if
such services are of a sort for which compensation would ordinarily
be made as between persons who are not related.^ Thus if a
woman who does washing and liousecleaning for a living does work
of the same sort for her daughter and her daughter's husband, and
is not a member of the latter 's household, there is an implied agree-
ment on his part to pay therefor.' It will not be presumed that
services which are rendered by a step-child for a step-parent are
gratuitous if such parties do not live together as members of the
same family/ So if A, a middle-aged man, works a year for his
brother, B, in superintending the building of certain houses for B,
and during such period A lives with his own family in one of B's
houses, B is liable to pay A a reasonable compensation, even
though A had been a guest at B's home for six weeks at the time
of the beginning of such work, before his family had rejoined him.*
If persons who are related are not members of the same family
when they enter into an arrangement under which one of them is
to render services to the other and if as a result of such arrange-
ment they live together as members of the same family and render
services one to the other, there is no presumption that such serv-
ices are intended to be gratuitous.' If an adult child who is not
living with his parents renders services to them, it will not be
presumed that such services were intended to be gratuitous,^ even
if he returns to their home in order to perform such services.' If
a sister takes her brother into her home and cares for him during
his last illness there is no presumption that such services were in-
iMcConnell v. McConnell, 75 N. H.
385, 74 Atl. 875; Winkler v. Killian, 141 •
N. Car. 575, 115 Am. St. Hep. 694, 54
N. E. MO; Brown v. CummingB, 27
R. I. 369, C2 Atl. 378; Williams v. Wil-
liama, 114 Wis. 79, SD N. W. 835; Win-
ter V. Greiluig, 114 Wis. 878, 90 N. W.
425.
2McConnell r. McConn^Il, 75 N. H.
385, 74 Atl. 875; Winter v. Greiling, 114
Wis. 378, 90 N. W. 425.
• Winter r. Greiling, 114 Wis. 378,
90 N. W. 425.
4 Brown v. CummingB, 27 R. I. 369,
62 AtL 378.
• Williams v. Williams, 114 Wis. 79,
89 N. W. 835.
• Mark t. Boardman (Ky.)> 1 L. R. A*
(N.S.) 819, 89 S. W. 481, 28 Ky. L.
Rep. 455; Mathias t. Tingey, 39 Utah
561, 38 L. R. A. (N.S.) 749, 118 Pac. 781.
T Winkler v. Killian, 141 N. Car. 575,
115 Am. St. Rep. 694, 54 N. E. 540.
• Mathias v. Tingey, 39 Utah 561, 38
L. R. A. (NJS.) 749, 118 Pac. 781.
§ 1454 Page on Contracts 2488
tended to be gratuitous.* On the other hand, it has been said that
if a child takes his parent into his family and furnishes support
and other services it will be presumed that such support and serv-
ices were gratuitous.'*
The mere fact that the persons between whom the services are
rendered are living in the same house, is not conclusive that they
are members of the same family." If the persons who reside in the
same house are not so related that one of them is bound in law to
support the other, it is, in case of a dispute, a question of fact in
what capacity the person who renders the services is residing in
that house. Thus a nephew who lives with his uncle and renders
services in connection with his uncle's business may recover if it
can be shown that the board furnished him was in part compensa-
tion for the services rendered by him." So where a wealthy man
supported his second cousin at his house, it was a question of fact
for the jury whether she lived there merely as a member of his
family or whether she was living there as housekeeper ; in the latter
case there would be an implied contract on his part to pay for her
services without any express contract.^' So a nephew may recover
for board furnished his aunt, where he shows that she came to his
house on a temporary visit, was taken ill while there, and remained
there on account of ill health seven months, until her death.'* So
where a person is shown to be living in another's house as a
boarder, under an express contract for a compensation, he is liable
for services rendered not included in the express agreement, such
as nursing in sickness.'*
It has, however, been held that where a devise is given A on the
condition that she furnish a home for her uncle, B, on the property
devised to her, as long as he lives, and she accepts such devise, and
her uncle lives with her, a family relation is thereby created
between uncle and niece, so that she can not recover for services in
caring for him in the absence of an express contract on his part.'*
IMark v. Boardman (Ky.), 1 L. R- A. HSprague v. Sea, 152 Mo. 327, 53 S.
(N.S.) 819, 89 S. W. 481, 28 Ky. L. W. 1074.
Rep. 455. 14 Glenn v. Gerald, 64 S. Car. 236,
lOOlsen V. Olsen, 90 Waah. 174, 155 4^ S. E. 155.
Pac. 747. WPfeiffer v. Michelsen, 112 Mich. 614,
11 Gill V. Staylor, 93 Md. 453, 49 Atl. 71 N. W. 156; Gates v. Gilmer (Tenn.
650; Sprague v. Sea, 152 Mo. 327, 53 S. Ch. App.), 48 S. W. 280.
W. 1074. « Lackey's Estate, 181 Pa. St. 638,
12 Gill V. Staylor, 93 Md. 453, 49 Atl. 37 Atl. 813.
650.
2489 Genuine Implied Contra^cts § 1455
§ 1455. Effect of lack of contractual capacity. The rule that
services rendered between members of the same family are pre-
sumptively gratuitous grows out of the fact that, in most cases,
there is a genuine implied understanding between the parties to
this effect, and not out of any arbitrary rule of law which forbids
recovery for such services in the absence of an express agreement.
It follows that if one of the parties to the transaction lacks mental
capacity to make a contract, there can be no valid genuine under-
standing between the parties for gratuitous services; and, accord-
ingly, reasonable compensation for such services can be recovered,
if the party who renders such services is not to render them in the
absence of any agreement*, because of the relationship between
them.^
If the person for whom services are rendered is incapable of
making a contract by reason of insanity or imbecility, it is said
that there will be no presumption that such services were to be
gratuitous, since the parties were incapable of making a contract.*
If the person by whom such services are rendered is mentally in-
capable of making a contract, there can be no genuine understand-
ing that such services are gratuitous, and unless the parties are
closely related by ties of blood, recovery for such services can be
had.' The guardian of an imbecile or an insane person has no
right to the gratuitous services of such person, and accordingly
such person can recover from such guardian for reasonable com-
pensation for services performed.* If an imbecile becomes a mem-
ber of a household when a young child, it is said that her services
up to the time of her coming of age will be presumed to be gratu-
itous, but that after she comes of age she will be entitled to recover
reasonable compensation for the value of her services if they
greatly exceed the value of the support w^hich is furnished to her.*
A different rule would apply where the party \vho renders services
or furnishes support is bound to do so without compensation by
reason of the relationship existing between the parties as in the
ease of parents and minor children.
1 Plath V. Bninken, 102 Neb. 467, 167 SPlath v. Brunken, 102 Neb. 467, 167
N. W. 567; Scattergood v. Ingram, 86 N. W. 567; Champlin v. Slocum, — R. I.
O. S. 76, 98 N. E. »23; Champlin v. — , 103 Atl. 706.
Slocnm, — R. I. — , 103 Atl. 706. 4 Champlin v. Slocum, — R. I. — ,
2 Rcflttei^ood V. Ingram, 86 O. S. 76, 103 Atl. 706.
98 N. E. 923. 5 Plath v. Brunken, 102 Neb. 467, 167
N. W. 567.
§1456
Page on Contractts
2490
§ 1456. Presumption of gratuitous service rebuttable— Express
contract. The rule that there is no implied agreement for a com-
pensation for services between persons in domestic relations living
together as members of a family, is merely a prima facie rule. In
the absence of any evidence there is a presumption that such serv-
ices are gratuitous^ This presumption is rebuttable,* and it has
been held error when evidence has been introduced to show that
there was an understanding for compensation to charge that there
was a presumption of law against such claim.' The force of the
presumption has been held to depend upon the relationship of the
parties, the presumption becoming ** weaker and therefore more
easily rebutted as the relationship recedes.''* It is for the person
alleging that such mutual services were not gratuitous to prove
that fact.* An express contract to make compensation between the
persons between whom such services are rendered is sufficient to
create a liability on the part of the person receiving such services
to make compensation therefor,* as where a father promises to
make compensation to his son for furnishing board and lodging.^
1 1n re Pauly's Estate (Plowman v.
King), 174 la. 122, 156 N- W. 355.
"A presumption of law arises that
such service is gratuitous." Bixler v.
Sellman, 77 Md. 494, 496; 27 Atl. 137.
2 Georgia. Howard v. Randolph, 134
Ga. 691, 29 L. R. A. (N.S.) 294, 20 Am.
& £ng. Ann. Cas. 392, 68 S. £. 586.
Indiana. Pitts v. Pitts, 21 Ind. 309.
Iowa. Resso v. Lehan, 96 la. 45, 64
N. W. 689; In re Pauly's Estate (Plow-
man V. King), 174 la. 122, 156 N. W.
355.
Kentucky. Bry son's Administrator
V. Biggs (Ky.), 104 S. W. 982 [sub
nomine, Bryson's Administrator v.
Briggs, 32 Ky. Law Rep. 1591.
Maryland. Bixler v. Sellman, 77 Md.
494, 27 Atl. 137.
New York. Ulrich v. Ulrich, 136 N.
Y. 120, 18 L. R. A. 37, 32 N. E. 606.
Tennessee. Gorrell v. Taylor, 107
Tenn. 568, 64 S. W. 888.
Virginia. Buchanan v. Higginbotham,
_ Va. — , 97 S. E. 340.
3 Ubich V. Ulrich, 136 N. Y. 120, 18
L. R. A. 37, 32 N. E. 606.
• Gorrell v. Taylor, 107 Tenn. 568,
64 S. W. 888.
• Howard v. Randolph, 134 Ga. 691,
29 L. R. A. (N.S.) 294, 20 Am. & Eng.
Ann. Cas. 392, 68 8. E. 686; Enger v.
Lofland, 100 la. 303, 69 N. W. 526; Bix-
ler V. Sellman, 77 Md. 494, 27 Atl. 137;
Sherwood v. McLaurin. 103 S. Car. 370,
88 S. £. 363.
• Kentucky. Frailey v. Thompson
(Ky.), 49 S. W. 13; Bryson's Adminis-
trator V. Biggs (Ky.), 104 S. W. 982
[sub nomine, Bryson's Administrator
V. Briggs, 32 Ky. Law Rep. 159].
Michigan. O'Connor v. Beckwith, 41
Mich. 657, 3 N. W. 166.
Minnesota. Johanke v. Schmidt, 79
Minn. 261, 82 N. W. 582.
New York. XHrich v. Ulrich, 136 N.
Y. 120, 18 L. R. A. 37, 32 N. E. 606.
Virginia. Jackson v. Jackson. 96 Va.
165, 31 S. E. 78.
West Virginia. Harris v. Orr, 46 W.
Va. 261, 76 Am. St. Rep. 815, 33 S. E.
257.
T Harris v. Orr, 46 W. Va. 261, 76
Am. St. Rep. 815, 33 S. E. 257.
2491
Genuine Implied Contracts
§1456
Thus where a brother-in-law induces his sister-in-law, who was a
member of the family and worked in her brother-in-law's store as
well as in the family, to believe that she would receive pay for
such services, he is liable to her therefor, even if he did not intend
to make such compensation, and was jesting when he made the
statement on which she relied.' A statement by a mother-in-law to
her son-in-law when she asked him to support her, to the effect
that she was not a pauper and was able to pay her way, but that
as she had no immediate funds she wished an account to be kept,
is suflScient to show an agreement on her part to pay for such sup-
port, even under a statute which provides that if persons in certain
specified relations entertain one another without an agreement for
compensation, no recovery can be had for such support.* The fact
that charges were made and accounts rendered regularly shows
that there was an understanding for compensation.^® If an express
contract for compensation exists, recovery for extra services is
allowed whenever recovery could be had for extra services under
other similar contracts." The presumption of gratuitous service is
rebutted by such contract.
If a child is taken into a family as a member thereof by persons
who are not related to it or who are not its parents under a definite
contract by which they agree to support such child and to care for
it, it has been held that if the de facto parents break such contract
the child may recover reasonable compensation for services ren-
dered under such contract."
It IS not necessary, however, that the express contract between
the parties should be enforceable. Even though for some reason
it may be unenforceable as a contract, it may, nevertheless, suffice
to show that the services were not rendered gratuitously." Thus
where a step-daughter rendered services for her step-father under
an oral agreement which is unenforceable by reason of the Statute
of Frauds, she may recover a reasonable compensation for the
• Plate V. Durst, 42 W. Va. 63, 32 L.
R. A. 404, 24 S. E. 580.
tBryson's Administrator v. Biggs
(Ky.), 104 S. W. 982 [sub nomine, Bry-
son*8 Administrator v. Briggs, 32 Ky.
Law Rep. 159].
10 Buchanan v. Higginbotham, — Va.
— , 97 S. E. 340.
11 Oyer v. Conway, 181 Ky. 528, 205
S. W. 562.
«Ottoway V. Milroy, 144 la. 631, 123
N. W. 467; Ingram v. Basye, 67 Or. 257,
135 Pac. 883.
Contra, Blivin v. Wheeler, 25 R. I.
313, 55 Atl. 760.
18 Ellis V. Cary, 74 Wis. 176, 17 Am.
St. Rep. 125, 4 L. R. A. 55. 42 N. W.
252; Taylor v. Thieman, 132 Wis. 38,
122 Am. St. Rep. 943, 111 N. W. 229.
§1457
Page on Contracts
2492
services thus rendered.^^ So where a mother makes an agreement
with the guardians of her insane son when he comes to live at her
house that she shall be paid for caring for him out of his estate,
such agreement is sufficient to show that such services were not
rendered gratuitously, even though the contract was unenforceable
because the appointment of the guardians was voidj* So it has
been held that recovery can be had for services rendered upon the
understanding that the party for whom they were rendered would
make compensation by will, where he dies without making any
such provision in his will, even though there was no agreement as
to the amount of such compensation.^' So if there has been an
express enforceable contract, the person rendering such services
may, in case of a breach of such contract for any reason, recover a
reasonable compensation for such services." Thus where a son
supported his father for life, under a contract by which the father
was to devise to the son certain realty, and the father, by reason
of subsequent insanity, was unable to perform such contract, the
son may recover a reasonable compensation for such services, not
exceeding the value of the land to be devised to him.^' So recov-
ery may be had for services rendered by a son to a father under
a contract which has since been rescinded, in which case the son
is obliged to account for personalty received by him under such
contract and not surrendered when the contract was terminated.^*
§ 1457. Oenuine understanding that compemsation be made.
While an express contract is the most satisfactory and safe method
of showing that the services were not intended to be gratuitous,
it is not, however, necessary. If the facts and circumstances of the
case show that there is in fact an understanding between the per-
son rendering the services and the person for whom they were
rendered^ that a compensation should be made therefor, the person
rendering the services may recover a reasonable compensation.^
14 Ellis V. Gary, 74 Wis. 176, 17 Am.
St. Rep. 126, 4 L. R. A. 55, 42 N. W.
252.
1i JesBup V. Jessup, 17 Ind. App. 177,
46 N. E. 550.
1C Schwab V. Pienro, 43 Minn. 520,
46 N. W. 71; Lillard v. Wilson, 178 Mo.
145, 77 S. W. 74; Taylor v. Thieman,
132 Wis. 38, 122 Am. St. Rep. 943, 111
N. W. 229.
njohanke v. Schmidt, 79 Minn. 261,
82 N. W. 582.
It Hudson V. Hudson, 90 Ga. 581, 16
S. E. 349 [s. c, 87 6a. 678, 27 Am. St.
Rep. 270, 13 S. E. 683].
II Walker v. Walker, 100 la. 99, 69
N. W. 517 [reversing on rehearing, 63
N. W. 331].
1 California. Murdock v. Murdock, 7
Cal. 511.
2493
Genuine Implied Contracts
§1458
Such understanding, however, must be clearly proven,* or as some
courts have held, there must be an express contract or its equiva-
lent*
§ 1458. Degree of proof requisite. Clear and convincing evi-
dence is said to be necessary^ The courts have in one jurisdiction
receded from this rule and they have said that if the person for
whom the support was furnished is dead, the existence of an ex-
press contract must be proved by clear and convincing evidence;
while if such person is alive, it is sufficient if the existence of the
contract is proved by a preponderance of the evidence.*
Some courts have gone further than this. They have declared
that such a contract can be proven only by direct and positive
evidence, and that it is erroneous to charge the jury that such a
contract may be proved by clear and satisfactory evidence,' or
have spoken as if an express contract were indispensable.* This
statement, however, carries the rule too far. The true rule is, that
the rendition of such services is not by itself any evidence that
there was an agreement between the parties for compensation, and
does not of itself impose any liability upon the party for whom
they were rendered. No liability exists, unless there is proof of a
contract, implied or expressed, for compensation ; and the rendition
of such services is not such evidence. It has even been held not to
Georgia. Murrell v. Studstill, 104
Ga. 604, 30 S. E. 760.
lUinois. Morton v. Rainey, 82 111.
215, 25 Am. Rep. 311; Warren v. War-
ren, 105 111. 568; Heffron v. Brown, 155
111. 322, 40 N. E. 583; Neish v. Gannon,
198 lU. 219, 64 N. E. 1000; Jones v.
Adams, 81 111. App. 183.
Indiana. Collins v. Williams, 21 Ind.
App. 227, 52 N. E. 92.
Iowa. Scully v. Scully's Executor,
28 la. 548; Ridler v. Ridler, 103 la. 470,
72 N. W. 671. .
Michigan. Sammon y. Wood, 107
Mich. 606, 65 N. W. 629.
Missouri. Hart v. Hess,. 41 Mo. 441.
Tennessee. Gorrell v. Taylor, 107
Tenn. 568, 64 S. W. 888.
Utah. Mathias v. Tingey, 39 Utah
561, 38 L. R. A. (N.S.) 749, 118 Pac.
781.
Vermont. Westcott v. Westcott, 69
Vt. 234, 39 Atl. 199; Jones v. Campbell,
— Vt. — , L. R. A. 1918A, 1056, 102
Atl. 102.
West Virginia. Broderick v. Broder-
ick, 28 W. Va. 385.
2 Price V. Price, 101 Ky. 28, 39 S. W.
429.
3 Jackson v. Jackson, 96 Va. 165, 31
S. E. 78.
IHinkle v. Sage, 67 O. S. 256, 65
N. E. 999.
2 Merrick v. Ditzler, 91 O. S. 256,
110 N. E. 493 [distinguishing, Hinkle v.
Sage, 67 0. S. 258, 65 N. E. 999J.
3 Bash V. Bash, 9 Pa. St. 260.
4 Hinkle v. Sage, 67 0. S. 256, 65
N. E. 999 (using the term ''express con-
tract" so as to include genuine implied
contracts) ; Murphy v. Murphy, 1 S. D.
316, 9 L. R, A. 820, 47 N. W. 142.
1459
Page on Contractts
2494
be necessary to have in fact a mutual understanding that the
services rendered between relatives are for compensation in order
to create a liability therefor. If the person rendering such services
expects to be compensated and the circumstances under which they
are rendered are such that the person for whom they are rendered
must, as a reasonable man, know that they are rendered for com-
pensation, he is liable therefor, even if he did not in fact know of
such expectation.'
Declarations to third persons, made by the person for whom
services are rendered by a member of his family, to the effect that
such services are valuable and will be paid for, are not sufficient to
show the existence of a contract to pay therefor.* At the same
time such declarations are admissible if they tend to show that
there was an understanding that compensation should be made for
the services which were rendered.^
§1459. Extra work. If A has agreed with B to perform a
certain definite and specific contract for B, without giving his
entire time to B's employment, A may recover for services ren-
dered by him in addition to those specified in the contract if B
either requests A to render such extra services or voluntarily
accepts the benefit of them, when B knows, or should know, that
A expects compensation therefor.' lExtra work done while per-
» Spencer v. Spencer, 181 Mass. 471,
63 N. E. 947.
• Donovan v. Driscoll, 116 la. 339, 90
N. W. 60; Bishop v. Newman's Execu-
tor, 168 Ky. 238, 182 S. W. 165; Zim-
merman V. Zimmerman, 129 Pa. St. 229,
15 Am. St. Rep. 720, 18 Atl. 129.
TLillard v. Wilson, 178 Mo. 145, 77
S. W. 74.
1 California. City Street Improve-
ment Co. V. Kroh, 158 Cal. 308, 110
Pac. 933.
Colorado. Hennessey v. Fleming, 40
Colo. 27, 90 Pac. 77; Hottel v. Poudre
Valley Reservoir Co., 41 Colo. 370, 92
Pac. 918.
Connecticiit. Schaefer v. Ely, 84
Conn. 501, Ann. Cas. 1912D, 899, 80
Atl. 775.
Illinois. Chicago & Eastern Illinois
Railroad Co. v. Moran, 187 111. 316, 58
N. E. 335.
Indiana. Fulton County v. Gibson,
158 Ind. 471, 63 N. E. 982.
Iowa. Evans v. McConnell, 99 la.
326, 63 N. W. 570, 68 N. W. 790.
Kentucky. Escott v. White, 73 Ky.
(10 Bush.) 169.
Massachusetts. Norwood v. Lathrop,
178 Mass. 208, 59 N. E. 650.
Michigan. Pfeiffer v. Michelsen, 112
Mich. 614, 71 N. W. 156; Busse v. Doug-
lass, 165 Mich. 95, 130 N. W. 188.
Nebraska. Sabin v. Cameron; 90 Neb.
347, 133 N. W. 4-22.
North Carolina. McEwen v. Lou-
cheim, 115 N. Car. 348, 20 S. E. 519.
Vermont. Trow v. Forsyth, 70 Vt.
498, 41 Atl. 501; Creamery Package
Mfg. Co. V. Russell, 84 Vt. 80, 32 L. R.
A. (N.S.) 135, 78 Atl. 718.
2495
Genuine Implied Contracts
§1460
forming a building or construction contract is a common illustra-
tion of this principle.* If the owner requests the builder to remove
rubbish which is not required by the original contract, the owner
is liable for reasonable compensation for such services.' Expense
of excavating in difScult material not shown in the specifications
may be allowed.* So A, who has an express contract to act as a
salesman for B within a specified territory, may recover his neces-
sary expenses and a reasonable compensation for sales made out-
side of the territory specified, if made at B's request.' If A has a
contract to furnish B with board, A may recover a reasonable
compensation for services rendered to B as a nurse during illness.*
So where A has contracted to furnish B with power to operate a
certain derrick, A may recover for extra power furnished after B
has put in a new derrick requiring greater power.^
§1460. Extras for unforeseen expense in performance. One
who does no more than he agreed to do can not recover more than
the contract price because the performance is less profitable than
he had anticipated.^ No recovery can be had, as for extra work,
for work which is necessary in the performance of the contract
Washington. Isham v. Parker, 3
Wash, loo, 29 Pac. 835.
Wisconsin. Fitzgerald v. Walsh, 107
Wis. 92, 81 Am. St. Rep. 824, 82 N.
W. 717; Sterling Engineering & Con-
struction Co. V. Berg, 161 Wis. 280, 152
N. W. 851.
2 Colorado. Hottel v. Poudre Valley
Reservoir Co., 41 Colo. 370, 92 Pac. 918.
Connecticnt. Schaefer v. Ely, 84
Conn. 601, Ann. Cas. 1912D, 899, 80
Atl. 775.
niinois. Chicago & Eastern Illinois
Railroad Co. v. Moran, 187 111. 316,
58 X. E. 335.
Indiana. Fulton County v. Gibson,
158 Ind. 471, 63 N. E. 982.
Midiigan. Buase v. Douglass, 165
Mich. 95, 130 N. W. 188.
Minnesota. Meyer v. Berlandi, 53
Minn. 59, 54 N. W. 937.
Nebraska. Sabin v. Cameron, 90 Neb.
347, 133 N. W. 422.
Vermont. Creamery Package Mfg.
Co. V. Russell, 84 Vt. 80, 32 L. R, A.
(N.S.) 135, 78 Atl. 718.
Wisconsin. Fitzgerald v. Walsh, 107
Wis. 92, 81 Am. St. Rep. 824, 82 N. W.
717; Sterling Engineering & Construc-
tion Co. V. Berg, 161 Wis. 280, 162 N.
W. 851.
3 Hennessey v. Fleming, 40 Colo. 27,
90 Pac. 77.
4 Christie v. United States, 237 U. S.
234, 59 L. ed. 933 [reversing judgment,
Christie v. United States, 48 Ct. CI.
293].
BMcEwen v. Loucheim, 115 N. Car.
348, 20 S. E. 519.
• Cryer v. Conway, 181 Ky. 526, 205
S. W. 562; Pfeiffer v. Michelsen, 112
Mich. 614, 71 N. W. 156; Cates v. Gil-
mer (Tenn. Ch. App.), 48 S. W. 280.
TTrow V. Forsyth, 70 Vt. 498, 41
Atl. 501.
1 United States v. Normile, 239 U. S.
344, 60 L. ed. 319 [reversing judgment,
Normile v. United States, 49 Ct. CI.
73].
§1461
Page on Contracts'
2496
though not specifically mentioned therein,' as for blasting rock
when necessary for the excavation of drains required by the spe-
cifications ; ' digging to an extra depth/ as where the contractor is
obliged to do more excavating than he had anticipated in order to
comply with his contract to construct the foundation on solid
ground ; * or driving piling * to obtain a secure foundation required
by the contract, or underpinning an adjoining building to make an
excavation and put in a foundation required by the contract.^ No
additional compensation can be had for collecting logs in a boom
if this is necessary to perform the original contract for delivering
such logs.* An attorney who has agreed to collect a claim on a
contingent fee can not recover additional compensation because of
the fact that an erroneous decision of the trial court obliged the
attorney to prosecute an appeal and- to give bond on the refusal of
his client so to do.*
§ 1461. Work and labor demanded as grataitoas or under a
of right. The circumstances of the case or positive rules of
law may in some cases justify or require a finding that there was
no real intention on the part of the person who requested such
services to make compensation therefor.^ A request for work and
labor may be so made that it shows that the party who makes such
request does not expect to pay therefor; and under such circum-
stances no implied contract is created by performance of such work
and labor in accordance with such request.' If A insists that B
shall perform certain work and labor under an existing contract
into which A and B have entered, as performance thereof, B's
Contracts for excavating under direc-
tions of the owner's engineer. Hucke-
stein T. Inclined Plane Co., 173 Pa. St.
169, 33 Atl. 1108.
2 Hennessey t. Fleming, 40 Colo. 27,
00 Pac 77; Woods v. Ayres, 39 Mich.
345; Brigham t. Martin, 103 Mich. 150,
61 N. W. 276; Cavanaugh v. Robinson,
138 Mich. 554, 101 N. W, 824.
SLee v. Brayton, 18 R. I. 232, 26
Atl. 256.
4Ruecking v. McMahon, 81 Mo. App.
422.
• Hennessey v. Fleming, 40 Colo. 27,
90 Pac. 77.
• Stewart ▼. Cambridge, 125 Mass.
102.
T Ashley ▼. Henahan, 56 O. S. 559,
47 N. E. 673.
• Woods V. Ayres, 39 Mich. 345, 33
Am. Rep. 396.
• Cavanaugh 'v. Robinson, 138 Mich.
554, 101 N. W. 824.
iVeitch T. Russell, Car. & Marsh.
362; Anderson & Fruitvale Transp. Co.,
195 Mich. 734, 162 N. W. 273; McGuire
y. Hughes, 207 N. T. 516, 46 L. R. A.
(N.S.) 577, Ann. Cas. 1914C, 585, 101.
N. E. 460.
2 Green Riyer Asphalt Co. ▼. St.
Louis, 188 Mo. 576, 87 S. W. 986.
2497
Genuine Implied Contracts
§1461
performance of snch work and labor c^reates no implied contract on
the part of A to pay therefor, even if such work and labor were
not required by the true construction of the contract between A
and B.' In such case, if the contractor is willing to take the
chances of the correctness of his interpretation of the contract, he
should perform the contract as he understands it, and enforce his
contract rights against the adversary party .^ Even if an archi-
tect's certificate is by the contract necessary to recovery, he may
recover without it if his interpretation of the contract is correct,
since it is in such case withheld unreasonably.' While a contract
by which a contractor agrees to keep a street in repair for five
years does not bind him to repair a street which has been injured
by the bursting of a water main, still if such contrfictor makes
such repair he can not recover from the city therefor.' A owned a
building which was being erected for him by B, the chief con-
tractor. X, a subcontractor, was doing the plastering under his
contract with B. ^X plastered one room which he claimed that B
was not bound by his contract with A to have plastered. A knew
that he was plastering such room and demanded that he plaster it,
claiming that B was bound by his contract with A to have it
plastered. Even if A was wrong in his contention, he was not
liable to X on an implied. contract Extras can not be allowed for
expenses due to a mistake in judgment on the part of the engineer
who is in charge of the work.'
If a contract with a government or public corporation reserves
to such party the right to direct performance by the contractor^ it
seems that the latter may recover compensation for extras which
are required by such adversary party, even though under claim
that they are necessary to performance of the original contract.*
3 Schneider v. Ann Arbor, 195 Mich.
599, 162 N. W. 110; Green River As-
phalt Co. V. St. Louis, 188 Mo. 576,
87 S. W. 985; O'Brien v. New York, 139
N. Y. 543, 35 N. E. 323.
Apparently contra, Wilson t. Salt
Lake City, 46 Utah 60, 174 Pac. 847.
4 O'Brien v. New York, 139 N. Y.
543, 35 N. £. 323.
5 O'Brien v. New York, 139 N. Y.
543, 35 N. E. 323.
• Green River Asphalt Co. v. St.
Louis, 188 Mo. 576, 87 S. W. 985.
THartnett v. Christopher, 61 Mo.
App. 64.
• Christie v. United States, 237 U. S.
234, 59 L. ed. 933 [reversing judgment,
Christie v. United States, 48 Ct CI.
293].
• Clark V. United States, 73 U. S. (6
Wall.) 543, 18 L. ed. 916; United States
V. Barlow, 184 U. S. 123, 46 L. ed. 463.
See also, Wilson v. Salt Lake City,
46 Utah 60, 174 Pac 847.
§ 1462 Page on Contracts 2498
§ 1462. Extras due to modiflcatioii or breach. If the adver-
sary party to the contract requests a departure therefrom which
necessitates additional labor and material, the contractor may
recover a reasonable compensation for such extra labor and mate-
rial if no express contract is made thereforj Thus ez,tra recovery
may be had by a railroad contractor for putting in a temporary
track in order to enable the company to secure subscriptions which
were conditioned on the completion of the road by a certain date.*
If the original contract reserves a right to alter the plans without
additional expense to the party for whom the work is to be per-
formed, full effect must be given thereto,' even though such change
is expensive to the contractor.*
If the change in plans does not cause additional expense in per-
formance, no recovery can be had.*
If the plans are changed by the consent of the owner and the
contractor, in such a way that performance is less expensive to the
contractor than the performance of the original contract would
have been, there is no implied agreement on the part of the con-
tractor to pay to the owner the amount thus saved to the con-
tractor.* If the contract permits the contractor to use an article
which is equivalent to a specified standard, the contractor may.
recover extra compensation if the architect arbitrarily refuses to
permit the contractor to exercise his choice between two or more
articles of such standard, but demands that one particular article
and that of the highest price be used.^
A contractor may recover for extra labor and material due to
the failure ofH;he adversary party to perform the contract on his
part.* One who agrees to construct a tunnel for which the advcr-
■
1 United States. Henderson Bridge 2 Central Trust Co. v. Condon, 67
Co. V. McGrath, 134 U. S. 260, 33 L. ed. Fed. 84.
934; Smith v. Salt Lake City, 83 Fed. J Denver v. Hindry, 40 Colo. 42, II
784. L. R. A. (N.S.) 1028, 90 Pac. 1028.
Illinois. Cook County v. Harms, 108 4 Denver v. Hindry, 40 Colo. 42, 11 L.
111. 151. R. A. (N.S.) 1028, 90 Pac. 1028. '
Iowa. Evans v. McConnell, 99 la. SThomsen v. Kenosha, 165 Wis. 204,
326, 63 N. W. 570. 161 N. W. 735.
New Jersey. Isaacs v. Reeve (N. J. S Finucane Co. v. Board of Education,
Eq.), 44 Atl. 1. 190 N. Y. 76, 82 N. E. 737.
New York. Delafleld v. Westfleld, 7 Camp v. Neuf elder, 49 Wash. 426,
77 Hun 124. 22 L. R. A. (N.S.) 376, 95 Pac. 640.
Rhode Island. Lee v. Brayton, 18 l McConnell v. Corona City Water
R. I. 232, 26 Atl. 256. Co., 149 Cal. 60, 8 L. R. A. (N.S.) 1171,
Utah. Rhodes y. aute, 17 Utah 137, 85 Pac. 029; Martindale v. Lobdell-
53 Pac. 990. Emery Manufacturing Co., 189 Midu
2499 Genuine Implied Contracts § 1463
sary party is to furnish the timber, may recover as extra compen-
sation expenses incurred by the caving in of such tunnel due to the
defective quality of such timber.* If A's delay renders perform-
ance more expensive on B's part, B may recover for such extra
expense.^*
No recovery can be had by a contractor for extra work made
necessary by the failure of the contractor or his employes to com-
ply with the specifications."
§1463. Effect of provision requiring written authority for
eiztras. One who performs such extra work at the request of the
owner may recover, even though such request is oral and the con-
tract provides that extra work must be done only on a written
order, or though such extra work is done on written and oral
orders of an authorized agent, while the contract provides that it
can be done only on written orders signed by the owner of the
building.^ In some jurisdictions the same result is reached by hold-
ing that the oral order for additional work and the performance
thereof amount to a new contract to which the provision of the
original contract requiring written modifications does not apply.*
In other jurisdictions it is said that there can be no recovery upon
an oral order for extras unless the provision of the original con-
tract requiring such orders to be in writing has been waived ; ' but
that if such provision has been waived, the contractor may recover
upon such oral order.* Such a provision in a contract with a public
corporation can not be waived by an engineer or by a subordinate
477, L. R. A. 1918F, 1, 155 N. W. 659; ' Nebraska. Jobst v. Hayden, 84 Neb.
Hayden v. Astoria, 84 Or. 205, 184 Pac. 735, 50 L. R. A. (N.S.) 501, 121 N. W.
729. ' 957.
• McConnell v. Corona City Water Ohio. Expanded Metal Fire-Proofing
Co., 149 Cal. 60, 8 L. R. A. (N.S.) 1171, Co. v. Xoel Construction Co., 87 0. S.
85 Pac. 929. 428, 101 N. E. 348.
MMartindale v. TjobdeU-Emery Man- Washington. Gehri v. Dawson, 64
nfacturing Co., 189 Mich. 477, L. R. A. Wash. 240, 116 Pac. 673.
1918F, 1, 155 N. W. 559; Hayden v. West Virginia. Simpson v. Mann, 71
Astoria. 84 Or. 205, 164 Pac. 729. W. Va. 516, 48 L. R. A. (K.S.) 579, 76
11 Smoot V. United States, 237 U. S S. E. 895.
38, 59 L. ed. 829 [affirming judgment, 2Pippy v. Winslow, 62 Or. 219, 125
Smoot V. United States, 48 Ct. CI. 427] ; Pac. 298.
03rien v. New York, 139 N. Y. 543, SHeadley v. Cavileer, 82 X. J. L. 635,
35 N. E. 323. 48 L. R. A. (N.S.) 564, 82 Atl, 908.
1 Massachusetts. Norwood v. Lath- 4 Rizzolo v. Poysher, 89 N. J. L. 618,
rop, 178 Mass. 208, 59 N. E. 650. 99 Atl. 390.
§1465
Page on Contracts
2500
ofScer.' If the contract reqnires a written order from the archi-
tect or engineer for extra work, no recovery can be had for extra
work done without such order if the owner or his authorized agent
has neither of them waived such provision.* The architect has no
authority in such cases to bind the agent by an oral order, by
virtue alone of his employment as architect with power to order
alterations in writing. The owner may waive such provision, how-
ever, and thus bind himself by oral modifications of the contract.^
A demand for certain work on the theory that it is required by the
terms of the original contract is not a waiver of a clause requiring
orders for extra work to be in writing.*
§1464. Extras furnished without knowledge of adversary
party. If A has agreed with B to perform a certain definite and
specific contract for B without giving his entire time to B's
emplo3rment, and if A voluntarily renders services not called for
by the terms of the original contract, A can not recover for such
extra services if B did not know that they were being rendered,^
or if he did not. know that A intended to make a charge therefor.*
One who does more work or furnishes more material than is re-
quired by the terms of a building contract without the consent of
the adversary party can not recover therefor. Thus a. contractor
who has agreed to rub down brick-work can not recover as for
extra work though he uses acid in cleaning the walls.* So one who
has agreed to put in glass for three elevations of a building, and
without the knowledge of the owner, and in spite of the fact that
the owner has warned him not to put in more than the contract
calls for, puts glass in on the fourth elevation also, can not recover
extra compensation.^
§ 1465. Employment for entire time— Bequest for extra work
of fldmilar nature. If, on the other hand, B has entered into a
• Thomsen t. Kenosha, 165 VTis. 204,
161 N. W. 735.
• 0*Keefe v. Church, 59 Conn. 551,
22 AtL 325; Stewart v. Cambridge, 125
Maes. 102; Ashley v. Henahan, 56 0. S.
559, 47 N. E. 573; Vanderwerker v. R.
R., 27 Vt. 130.
T Perry v. Potashinski, 169 Mass. 351,
47 N. E. 1022.
• Schneider v. Ann Arbor, 195 Mich.
599, 162 N. W. 110.
1 Anderson v. Quick, 163 Cal. 658,
126 Pac. 871; Beattie v. McMullen, 80
Conn. 160, 67 Atl. 488; Colwell v. Ur-
bana Construction Co., 154 la. 623, 135
K. W. 76.
2 McLeod V. Genius, 31 Neb. 1, 47 N.
W. 473.
S Chamberlain v. Hibbard, 26 Or. 428,
38 Pac. 437.
4 Pittsburgh Plate Glass Co. v. Mac-
Donald, 182 Mass. 593, 66 N. E. 415.
2501
Genuine Implied Gontbacts
§1466
contract of employment with A, whereby B is to give to A his time,
for a compensation fixed by the week, month, and the like, the
question whether B is entitled to any compensation for extra work
depends, in the absence of an agreement for compensation there-
for, on whether the extra work done is of the same general char-
acter as that for which B was employed or not. If it is of the
same general character B can not recover.^ So where A employs
B'to collect rents at two hundred and fifty dollars a month, B
can not recover for extra services in preventing sqnatters from
settling on A's land, in expelling them therefrom and in retaining
exclusive possession for A.^ So if A hires B as a domestic servant
at a certain compensation per week, Bean not recover for extra
work because A became sick after B had entered on her employ-
ment, and B's work was thereby greatly increased,' or because A's
family has increased in size and B's work has thus been increased.^
The same principle applies where A employs B to nurse and to do
housework.' If B is to work for A for a certain sum per month,
B can not recover for work done on Sunday,' especially if he knew
in advance that Sunday work was expected, and if he had received
fhe stipulated wages without objection.^
§ I486. Employment for entire time— Bequest for extra work
of different character. If the extra work done is of a character
different from the general nature of that for which the employe
was hired, a previous request by his employer to do such work,^
or a subsequent voluntary acceptance thereof,^ will of itself create
an implied agreement to pay therefor.' If an agent of the United
States to sell lands belonging to the United States is hired to sell
other lands belonging to Indians, a contract to pay a reasonable
1 United 3Utes. United States y.
Martin, 04 U. S. 400, 24 L. ed. 128.
Connectiait. Leah7 v. Chene7, 90
Conn. 611, L. R. A. 1017D, 809, 98 Atl.
132.
Iowa. Carlin v. Da7, 181 la. 903, 103
N. W. 172.
Kaaaaa. Guthrie t. MerriU, 4 Kan.
187.
Ifichigan. Schurr y. Sayigny, 85
tticli. 144, 48 N. W. 547.
2 Cany t. Halleek, 0 CaL 198.
iToorhees y. Coombs, 33 N. J. L. 494.
4 Leahy v. Cheney, 90 Conn. 611, L.
R. A. 1917D, 809, 98 AtL 132.
■ Carlin v. Da7, 181 la. 903, 165 K. W.
172.
I Guthrie v. Merrill, 4 Kan. 187.
1 Lowe Y. Marlowe, 4 111. App. 420.
1 United States y. Brindle, 110 U. S.
688, 28 L. ed. 286; Niles y. Mu£Z7, 33
Mich. 61, 20 Am. Rep. 670.
2 Cincinnati, etc., R. R. y. Clarkson,
See also {§ 1441 et seq.
7 Ind. 595.
'CouYerse y. United States, 62 U. SL
(21 How.) 463, 16 L. ed. 192.
§ 1467
Page on Contracts
2502
compensation is implied.* An agent of a corporation at a monthly
salary who does extra work in getting subscriptions to the cor-
poration's stock under the oflEer of the corporation to pay two per
cent, commission for obtaining such subscriptions can recover such
commission." Where A, who is the mayor of a city and a member
of its council, is employed by the council to act as attorney for the
city in a pending case, he may recover.' If A agrees to support
B, A can recover for extra services due to B's illness.^
§ 1467. Extra servicee by directors, partners, etc. A director
of a corporation can not recover for ordinary services performed
by him for such corporation either as director,^ or as an officer.*
If, however, a director of a corporation at the request of the board
^of directors performs work outside of his official duties as director,
the corporation is liable to him for reasonable compensation ; * and,
accordingly, a subsequent agreement entered into in good faith
between such director and the board of directors fixing the amount
•of such compensation is enforceable.*
4 United States v. Brindle, 110 U. 6.
688, 28 L. ed. 286. Examples of claims
of public oflScers for extra compensa-
tion are found in § 1443.
5 Cincinnati, etc., R. R. v. Clarkson,
7 Ind. 595.
• Niles V. Muzzy, 33 Mich. 61, 20 Am.
Rep. 670.
TCryer v. Conway, 181 Ky. 526, 205
S. W. 562.
Iln re Newman [1895], 1 Ch. 674;
Huffaker v. Krieger's Assignee, 107 Ky.
200, 46 L. R. A. 384, 53 S. W. 288;
Bagley v. Carthage, Watertown &
Sackets Harbor Railroad Co., 165 N. Y.
179, 58 N. E. 895 (obiter); Althouse v.
Cobaugh Colliery Co., 227 Pa. St. 580,
136 Am. ^t. Rep. 908, 76 Atl. 316.
IWinfield Mortgage & Trust Co. v.
Robinson, 89 Kan. 842, Ann. Cas. 19 15 A,
451, 132 Pac. 979; Goodin v. Dixie
Portland Cement Co., 79 W. Va. 83, L.
R. A. 1917F, 308, 90 S. E. 544.
3 United States. Fitzgerald & Mal-
lory Construction Co. v. Fitzgerald, 137
U. S. 98, 34 L. ed. 608.
California. Bassett v. Fairchild, 132
GaL 637, 52 L. R. A. 611, 64 Pac. 1082.
61 Pac. 791.
Colorado. Gumaer y. Cripple Creek
Tunnel, Transportation & Mining Co.,
40 Colo. 1, 122 Am. St. Rep. 1024, 13
Am. & Eng. Ann. Cas. 781, 90 Pac. 91.
Illinois. Chicago Macaroni Mfg. Co.
V. Boggiano, 202 111. 312, 67 N. E. 17.
Maryland. McGowan v. Finola Mfg.
Co., 120 Md. 335, 87 Atl. 694.
Michigan. Ten Eyck v. R. R., 74
Mich. 226, 16 Am. St. Rep. 633, 3 L.
R. A. 378, 41 N. W. 905.
Oregon. Barrenstecher v. Hof Brau,
07 Or. 194, 135 Pac. 518.
Washington. Blom v. Blom Codfish
Co., 71 Wash. 41, 127 Pac. 596.
Wyoming. Hjorth Oil Co. v. Curtis,
25 Wyom. 1, 163 Pac. 362. Acquies-
cence in A*8 acting as director may
entitle A to recover the statutory com-
pensation. Apsey V. Chattel Loan Co.,
216 Mass. 364, 103 N. E. 899.
4 Ten Eyck v. Pontiac, Oxford & Port
Austin R. R. Co., 74 Mich. 226, 16 Am.
St. Rep. 633, 3 L. R. A. 378, 41 N. W.
905.
2503
Genuine Implied Contracts
§1468
A partner can not recover extra compensation for services per-
formed by him in transacting the business of the partnership, even
if he rendered services of greater value than the other partners ; '
but evidence that the other partners have practically abandoned
the conduct of the partnership business may justify a finding that
there was a genuine implied contract for the payment of special
compensation to the partner who continued to conduct such part-
nership business.* If the surviving partner, in order to complete
a contract, is obliged to do work, part of which the deceased part-
ner would have been obliged to do if he had lived, such surviving
partner is entitled to compensation therefor.
§ 1468. Effect of statutory limitation of hours of labor. If a
statute limits the number of hours of a day's work,^ or provides
that in the absence of agreement to the contrary a certain number
of hours shall constitute a day's work,* an employe who is hired at
a certain sum by the week, month, and the like, can not recover
for extra work in the absence of express contract or of facts from
which an agreement to pay for. extra work may be*inferred. This
is true especially if the employe knows in advance that the work
■ Colorado. Peck ▼. Alexander, 40
Colo. 392, 91 Pac. 38.
Georgia. Bishop v. Pendley, 138 Ga.
738, 76 S. E. 63.
Iowa. Roth V. Boies, 139 la. 253, 115
N. W. 930.
Washington. Williams v. Pedersen,
47 Wash. 472, 17 L. R. A. (N.S.) 384,
02 Pac. 287; Sandberg v. Scougale, 75
Wash. 313, 134 Pac. 1051.
West Virginia. Gay v. Householder,
71 W. Va. 277, Ann. Cas. 1914C, 297,
76 S. E. 450.
Wisconsin. Drew v. Ferson, 22 Wis.
651.
I Florida. Gonzalez v. Smith, 66 Fla.
85, 62 So. 913.
Georgia. Maynard ▼. Maynard, 147
Ga. 178, L. R. A. 1918A, 81, 93 S. E.
289.
Idaho. Jones ▼. Marshall, 24 Ida. 678,
135 Pac 841.
Iowa. Roth V. Boies, 139 la. 253, 115
N. W. 930; Mondamin Bank v. Burke,
165 la. 711, 147 N. W. 148.
Kansas. Rains v. Weiler, 101 Kan.
294, L. R. A. 1917F, 571, 166 Pac. 235.
Maine. Whittaker v. Jordan, 104
Me. 516, 72 Atl. 682.
Michigan. Arthur y. McCallum, 195
Mich. 618, 162 N. W. 118.
Tennessee. Condon v. Callahan, 115
Tenn. 283, 1 L. R. A. (N.S.) 643, 5 Ann.
Cas. 659, 89 S. W. 400.
Wisconsin. Emerson v. Durand, 64
Wis. Ill, 54 Am. Rep. 593, 24 N. W.
129.
1 United States v. Martin, 94 U. S.
400, 24 L. ed. 128; Grisell v. Feed Co.,
9 Ind. App. 251, 36 N. E. 452; Mc-
Carthy V. New York, 96 N. Y. 1, 48
Am. Rep. 601.
2Luske V. Hotchkiss, 37 Conn. 219,
9 Am. Rep. 314; Schurr v. Savigny, 85
Mich. 144, 48 N. W. 547.
§ 1468 Page on Contracts -2504
for which he is employed will necessitate some work overtime,' or
if the employe is notified that if he wishes to keep his position he
must do the extra work/ especially as before the action here de-
cided he had applied for and received an allowance for extra work.
So where A is hired by B to work for him at a certain rate per
month, which amount A receives regularly without objection, cav-
ing a receipt in full therefor, A can not thereafter claim compensa-
tion for extra time.' So even if the statute provides that extra
compensation shall be made for extra work unless there is a provi-
sion in the contract to the contrary, it has been held that an expert
photographer who accepts employment for a year at twenty dollars
a week must know that the nature of his work must require some
extra work, and therefore it is an implied term of such contract
that no compensation is to be made for extra work.' Conversely,
under a statute providing that ten hours shall constitute a day's
work unless there is a provision in the contract to the contrary, an
employer can not insist that his employe who is hired at two
dollars and a half a day must estimate his time where he has
worked less thfln ten hours on some days by counting the number
of hours worked and dividing by ten.^ Some courts have used
language intimating that only an express contract to pay for extra
work could create liability in such cases,' though the same author-
ity concedes that such a proposition, while not containing prejudi-
cial error under the facts of the particular case, is too broad for
the statement of the rule in a legal treatise.' The true rule is that
a contract to pay for extra work may be either express or implied
from the surrounding facts,^' but that the mere rendition of such
extra services with the knowledge of the person for whom they are
rendered, or voluntary acceptance by him does not constitute such
a contract.
Some authorities, however, hold that a request for work, in
addition to the number of hours fixed by statute as a day's work,
creates an implied liability to pay therefor. Thus where A had
ILuske T. HotcbkiBB, 37 Conn. 219, 7 Brooks t. Cotton, 48 N. H. 50.
9 Am. Rep. 314; Lowe ▼. Marlow, 4 tCany t. Hatleck, 9 Cal. 198.
m. App. 420. » Cany v. Halleck, 9 Cal. 198.
4 United States ▼. Martin, 94 TJ. S. IILuske v. Hotchkiss, 37 Conn. 219,
400, 24 L. ed. 128. 9 Am. Rep. 314; Grisell t. Feed Co.,
iForster ▼. Green, 111 Mich. 264, 69 9 Ind. App. 251, 36 N. E. 452; Me-
N. W. 647. Carthy v. New York, 96 N. Y. 1, 4ft
• Schnrr ▼. Savigny, 85 Mich. 144, 48 Am. Rep. 601.
N. W. 647.
2505
Genuine Implied Contracts
§1470
agreed to work for B at eight shillings a day, payable weekly, and
the statnte provided that ten hours should constitute a day's
labor unless there was some provision in the contract to the con-
trary, it was held that if B requested A to work at night, B could
recover for the number of hours in excess of ten per day which he
had worked. The fact that he received his weekly pay for day
labor was held to be no bar for a subsequent recovery for his work
at night, nor was the fact that he waited five years after his
employment terminated before making his claim held to bar himJ^
§ 14G9. Work and labor done under a contract void for mis-
take as to an essential element. If A and B attempt to make a
contract, and by reason of some mistake in the formation no con-
tract is made. A, who has performed work and labor under such
supposed contract,^ may recover a reasonable compensation there-
for. Thus A cut timber on B's land and made it into lumber,
believing that he had a special contract with B for payment there-
for. In fact, owing to a mutual misunderstanding as to the time
when payment was to be made there really was no contract between
A and B. It was held that A could recover a reasonable compensa-
tion for his services.^ A superintended the construction of a build-
ing for B, believing that he was working under a special contract.
In fact, by mistake as to an essential fact there was no meeting of
the minds. An instruction to the jury that under such facts A could
recover a reasonable compensation for his services was held proper.*
§1470. Work done for one at request of another, without
contract. A request by A to B to render services or to
deliver property to X, is not so likely to amount to a promise to
pay therefor as where A is to receive the benefit of such perform-
ance.^ If A requests B to render services for the benefit of X,
11 Bachelder v. Bidcf ord, 62 Me. 527.
ICoanecticiit Rowland ▼. R. R., 61
Conn. 103, 29 Am. St. Rep. 175, 23 AtL
755; Collins ▼. Store Co., 63 Conn. 356,
28 AtL 534.
Iowa. Wyman ▼. Passmore, 146 la.
486, 27 L. R. A. (N.S.) 683, 125 N. W.
213.
Massachasetts. Vickery v. Ritdiie,
202 Mass. 247, 26 L. R. A. (K.S.) 810,
88 K. £. 835.
New Hampaliire. Russell v. Clougli,
71 N. H. 177, 93 Am. St. Rep. 507, 61
Atl. 632.
North Carolina. Burton t. Mfg. Co.,
132 N. Car. 17, 43 S. E. 480.
2 Russell T. Clough, 71 N. H. 177, 93
Am. St. Rep. 507, 51 AtL 632.
9 Burton v. Mfg. Co., 132 N. Cir. 17,
43 S. E. 480.
1 Clark Y. National Steel & Wire Co.,
82 Conn. 178, 72 AtL 930; McGuire v.
§1470
Page on Contracts
2506
there is no implied agreement on the part of B to compensate A
for such services unless B is bound by law to furnish such services
to X* Trustees of a voting trust have no right to compensation
from the corporation which is not a party to the trust agreement,
even though such voting trust might be beneficial to the stock-
holders.' A request by A to B, a doctor, to render medical services
to X, does not amount to a contract by A to pay B therefor, unless
A was bound to support X.* If a bystander calls in a physician to
act for an injured person who can not act for himself ; • or a father
calls in a physician to attend to an adult child who is sick at his
father's house, and for whose support the father is not liable ; • or
a mother calls in a physician to attend to an adult daughter who is
married and who lives with her husband and is not dependent upon
her mother for support;^ or a sister requests a doctor to render
professional services to her brother,* as where A requests a physi-
cian to care for A's insane brother, B, who is not a member of A's
family,* the person summoning the physician is not liable to him
for his services. A different result was reached where A, who had
been brought up in B's family, had gone away to work, but had
returned to B and was then living in B's house and doing domestic
work without any specific contract for compensation, became sick
and B called in X, a physician to attend to A. It was held a ques-
tion of fact whether the understanding between X and B was that
B was personally liable to X for X's services to A.^* If, however,
Hughes, 207 N. Y. 516, 46 L. R. A.
(N.S.) 577, Ann. Cas. 1914C, 585, 101
S. E. 460.
2Veitch V. Russell, Car. & Marsh.
382; Style v. Smith [cited in Marsh v.
Rainsford, 2 Leon. Ill]; Clark v. Na-
tional Steel & Wire Co., 82 Conn. 178.
72 Atl. 930; Morrell v. Lawrence, 203
Mo. 363, 120 Am. St. Rep. 660, 101 S.
W. 571; McGuire v. Hughes. 207 N.
Y. 616, 46 L. R. A. (N.S.) 577, Ann.
Cas. 1914C, 585, 101 N. E. 460.
» Clark V. National Steel & Wire Co.,
82 Conn. 178, 72 Atl. 930.
4 England. Veitch v. Russell, 3 Q. B.
(Adolp. & E.) 928.
Georgia. Norton v. Rourke, 130 Ga.
600, 124 Am. St. Rep. 187, 18 L. R. A.
(N.S.) 173, 61 S. E. 478.
New York. Crane v. Baudouine, 55
N. Y. 256; McGuire v. Hughes, 207 N.
Y. 516, 46 L. R. A. (N.S.) 577, Ann.
Gas. 1914C, 585, 101 N. E. 460.
Pemuylyania. Boyd v. Sappington,
4 Watts. (Pa.) 247.
Rhode Island. Churchill v. Hebden,
32 R. I. 34, 78 Atl. 337.
• Starett v. Miley, 79 111. App. 658;
Meisenbach v. Cooperage Co., 45 Mo.
pp. 232.
S Rankin v. Beale, 68 Mo. App. 325;
Boyd V. Sappington, 4 Watts. (Pa.)
247.
T McGuire v. Hughes, 207 N. Y. 516,
46 L. R. A (N.S.) 577, Ann. Cas.
1914C, 585, 101 S. E. 460.
t Veitch V. Russell, Car. &. Marsh.
362.
• Smith V. Watson, 14 Vt. 332.
10 Clark v. Waterman, 7 Vt. 76, 29
Am. Dec. 150.
2507
Genuine Implied Contracts
§1471
A agrees with a. hospital that A will pay for the care of B till
further notice, A can not end his liability by giving such notice
unless B has so far recovered as to be capable of being movedJ*
If a physician renders services at the request of a father for his
adult son under circumstances which caused the physician to
believe that the father has agreed to pay for such services and did
charge the father with such services on the part of .the physician,
the physician may recover for such services from the father." On
the other hand, it has been said that if A requests his son, B, to
render services for A's father, X, B's right of action is against his
father, A, at whose request such services were rendered and not
against X, for whose benefit they were rendered."
If A is bound to support X, performance by B is a benefit to
A as well as to X; and it will be understood that A is to pay
therefor.^
in
GOODS SOLD
§ 1471. Gk>od8 sold and delivered. If A requests B to deliver
property to A, and it is customary in such locality to pay for
property of that sort, A's request will be regarded as equivalent
to a promise to pay a reasonable price therefor.^ An action for
goods sold and delivered can be maintained wherever goods have
been sold and delivered by one person to another under an express
agreement which is incomplete in that the contract price had not
been fixed.* Under some circumstances this action will not lie for
goods delivered under a contract void for mistake as to an essential
11 St. Barnabas Hospital v. Electric
Co., 68 Minn. 254, 40 L. R. A. 388, 70
N. W. 1120.
MMorrell v. Lawrence, 203 Mo. 363,
120 Am. St. Rep. 660, 101 S. W. 571.
« Meyer's Appeal, 112 Pa. St. 290,
3 Aa 811.
14 Jordan v. Wright, 43 Ark. 237;
Carroll v. McCoy, 40 la. 38.
1 Stoudenmire v. Harper, 81 Ala. 242,
1 So. 857; Ceflfarelli v. Landino, 82
Conn. 126, 72 Atl. 564; South Gardiner
Lumber Co. v. Bradstreet, 97 Me. 165,
53 Atl. 1110; Messmer v. Block, 100
Wis. 684, 76 N. W. 598.
2 Arkansas. Bowser ▼. Marks, 96
Ark. 113, 32 L. R. A. (N.S.) 429, 131
S. W. 334.
niinois. McEwen v. Morey, 60 111.
32.
Kentucky. Gaines v. Reynolds To-
bacco Co., 163 Ky. 716, 174 S. W. 482.
Michigan. James v. Muir, 33 Mich.
223.
North Carolina. Smith v. Summer-
field, 108 N. Car. 284, 12 S. E. 997.
Pennsylvania. Graff v. Callahan, 158
Pa. St. 380, 27 Atl. 1009.
See also, Moses v. Butler, 43 O. S.
166.
§1471
Page on Contracts
2508
element. A sold and delivered coal to B under what both parties
believed to be a special contract. The contract was, however, void
for mistake — ^A understanding that the transaction was a cash sale
while B understood that the price of the coal was to be credited
on A's account. A did not, on learning of the mistake, demand
return of the coal, but insisted that B should keep it under the con-
tract as claimed by A. B used it. It was held that B was not
liable to A for a reasonable compensation for the coal in the
absence of estoppel.* X owed A, and to pay such debt X ordered
goods from B, who furnished such goods to A with an invoice
showing that B had furnished it. A expected that such goods were
to be paid for by X, and B expected that such goods were to be
paid for by A. A was held to be liable to B for the price of such
goods.* This action also lies where property has been taken by
one person with the consent of the owner, the parties intending the
title to pass, although no express agreement has been made.' Thus
a mortgagee of chattels, holding under a mortgage which provides
that the mortgagor may sell the property in the name of the mort-
gagee, may recover under common counts in assumpsit against one
who has bought such property from the mortgagor,* even though
under an ordinary mortgage the mortgagee could not recover on
the common counts from a third person who bought mortgaged
property.^ A builder who uses goods and materials belonging to
another is liable to such other for their value in this form of
action.* Thus A had a contract to erect a building for B. A got
the iron work for such building from X. The contract between
A and B provided that no material should be estimated or paid for
until used in the permanent construction of the building. X de-
S Concord Coal Co. v. Perrin, 71 N.
H. 331, 93 Am. St. Rep. 496, 51 Atl.
283.
4 Great Western Smelting and Refin-
ing Co. V. Evening News Association,
139 Mich. 55, 102 N. W. 286. (The
action of trover was brought in this
case, but the court seems to have re-
garded assumpsit as a suitable rem-
edy.) A different result has been
reached where X is B's agent. Felder
T. Acme Mills, 112 Miss. 322, 73 So.
52.
■ Iowa. Carney v. Cook, SO la.* 747,
45 N. W. 919.
Maine. Rumford Falls Power Co. T,
Paper Co., 95 Me. 186, 49 Atl. 876.
Missoari. Krey v. Hussman, 21 Mo.
App. 343.
Pennsylvania. Indiana Mfg. Co. ▼.
Hayes, 155 Pa. St. 160, 26 Atl. 6.
Wisconsin. Goodland v. Le Clair, 78
Wis. 176, 47 N. W. 268.
I Flood V. Butzbach, 114 Mich. 613,
68 Am. St. Rep. 501, 72 N. W. 603.
7 Warner v. Beebe, 47 Mich. 435, 11
N. W. 258; Tate v. Torcoutt, 100 Mich.
308, 68 N. W. 993.
t Clare v. Johnson (Ky.), 56 S. W. 5.
2509
Genuine Implied Contracts
§1472
livered certain beams under his contract with A, but before they
were used in the building A forfeited his contract, B let a new
contract to C, and C used this iron. It was held that X could
recover from C for such iron.' A, a car-wheej company, shipped
to By the receiver of a railroad^ a number of car-wheels in excess
of his order. B refused to accept the entire number thus shipped,
but A asked B to unload the wheels and hold them subject to A's
order, and to be paid for by B only in case he actually used them.
Subsequently at a receiver's sale, X, who knew all these facts,
bought these wheels among other property. X was held liable to
A for the value of such wheels in implied contract.^* A property
owner who knowingly uses material purchased by a bankrupt con-
tractor is liable to the seller.*^
If A furnishes goods to B without intending to charge therefor,
A can not recover thereafter.^*
§1472. Gk>od8 delivered to ona at request of another. A's
request to B to deliver goods to X is not equivalent in all cases to
a promise by A to pay to B the value of such goods.^ If A requests
B to furnish board and lodging to G and others, employes of A,
A is not liable to B unless he has promised to pay therefor.* Goods
sold and delivered to one person may constitute a liability against
another, at whose request and in reliance upon whose promise to
pay, such goods were sold and delivered.* Thus a lumber company
drew orders for money upon itself in favor of its employes. A
storekeeper, at the request of the lumber company, received these
orders in payment of goods sold to such employes. It was held that
the storekeeper could recover from the lumber company for the
goods sold and delivered.* One person is not liable for goods sold
to another, though he may have received the proceeds thereof.
Thus A, a creditor of B's, agreed that B could continue in business
• Bavley v. Anderson, 71 Wis. 417,
36 K. W. 863.
li Northwestern, etc., Co. t. Ry., 04
WU. 603, 69 N. W. 371.
It School Board v. Saxon Lime &
Lumber Co., 121 Va. 594, 93 S. E. 579.
ISRemarkis v. Reid (Okla.), 166 Pae.
728.
1 Tarnishing or delivering to a third
party, though upon defendant's re-
quest, does not as a matter of law
hnply an undertaking by defendant to
pay." Conrad National Bank ▼. Ry.,
24 Mont. 178, 183, 61 Pac 1.
2 Conrad National Bank ▼. Ry., 24
Mont. 178, 61 Pac. 1.
The real intention of the parties is
the determining factor. Gessner t.
Roeming, 135 Wis. 535, 116 N. W. 171.
»Cox V. Peltier, 159 Ind. 355, 65 N.
E. 6; East, etc., Co. v. Barnwell, 78
Tex. 328, 14 S. W. 782.
4 East, etc., Co. t. Barnwell, 78 Tex.
328, 14 & W, 782,
§1473
Page on Contracts
2510
if A's bookkeeper could take charge of the cash and the drawing
of checks. A temporary arrangement of that sort was entered
into, which either party could avoid at will. Under such arrange-
ment, A was not liable for goods sold and delivered to B."
If goods are sold to A upon A's credit, the fact that they are
delivered to B, and that B received the benefit of them, does not
make B liable therefor.' Thus a railroad company is not liable
for material furnished to its main contractor- for use upon its
road J ^ nor is the owner of property liable for material furnished
to the main contractor, and used by such contractor in building a
house upon such property.*
The right of one whose property has been wrongfully taken by
the tort of another, to maintain an action in assumpsit against such
other is discussed elsewhere.'
IV
MONEY HAD AND RECEIVED
§ 1473. Gteneral nature of right. If A receives money which
belongs to B, under circumstances which give A no right thereto,
but which, bind A on principles of justice and fairness to repay
such money to B, the common law allowed B to sue as on contract,
although there was no express contract and no real implied con-
tract,^ in order to prevent A's unjust enrichment at B's expense.^
This principle has survived in our law, and an action as upon
contract will lie for money had and received wherever one person
has received money which belongs to another, and which in ''equity
• Wood-Dryer Grocery Co. v. Bank,
110 Ala. 311, 20 So. 311.
• Peirce v. Closterhouse, 96 Mich. 124,
55 N. W. 663.
1 Alabama, etc, Ry. v. Moore, 109
Ala. 393, 19 So. 804. So with work
and labor. Woodruff v. Rochester, etc.,
R. R. Co., 108 N". Y. 39, 14 N. E. 832.
• Limer v. Traders' Co., 44 W. Va.
175, 28 S. E. 730; Virginia Supply Co.
V. Calfee, 71 W. Va. 300, 76 S. E.
669.
9 See §§ 1504 et seq.
1 National Bank of Commerce v.
Equitable Trust Co., 227 Fed. 526, 142
C, C, A, 158 [reversing decree. Equitable
Trust Co. V. National Bank of Com-
merce, 211 Fed. 688]; Donovan v. Pur-
tell, 216 III. 629, 1 L. R. A. (N.S.)
176, 75 N. E. 334. '1i the defendant
be under an obligation from the ties
of natural justice to refund, the law
implies a debt and gives this action,
founded in the equity of the plaintiff's
case as it were upon a contract."
Moses V. Macferlan, 2 Burr. 1005, 1008
[quoted in Bates-Farley Savings Bank
V. Dismukes, 107 Ga. 212, 217, 33 S. B.
175].
JHeywood v. Northern Assur. Co.,
133 Minn. 360, Ann. Cas. 1918D, 241,
158 N. W. 632,
2511
Genuine Implied Contracts
§ r473
and good conscience/' or in other words, in justice and right,
should be returned.' Since the contract alleged in the plaintifE's
complaint is often purely fictitious, the plaintiff's right to recover
in a contract does not depend upon any principles of privity of
contract between the plaintiff and the defendant, and no privity is
necessary.* The plaintiff's right to recover is governed by prin-
S United States. Gaines ▼. Miller,
111 U. S. 395, 28 L. ed. 466; Sanford
Y. First National Bank, 238 Fed. 298,
131 C. C. A. 314; Vincennes Bridge
Co. V. Board of County Commissioners,
248 Fed. 93; Board of Commissioners
V. Pollard-Campbell Dredging Co., 251
Fed. 249.
AiixoiUL Copper Belle Min. Co. t.
Gleeson, 14 Ariz. 548, 48 L. R. A. (N.S.)
481, 134 Pac. 285.
California. Pauly v. Pauly, 107 Cal.
8. 48 Am. St. Rep. 98, 40 Pac. 29.
Connecticnt. Brown v. Woodward,
75 Conn. 254, 53 Atl. 112; Manning
V. Chesky, 90 Conn. 647, 98 Atl. 357.
Georgia. Bates-Farley Savings Bank
T. Dismukes, 107 Ga. 212, 33 S. E.
175.
Idaho. Milner ▼. Pelham, 30 Ida.
594, 166 Pac. 574.
Illinois. Wilson v. Turner, 164 IlL
398, 45 N. E. 820.
Indiana. Long v. Straus, 107 Ind.
94, 57 Am. Rep. 87, 6 N. E. 123, 7 N.
£. 763; Indiana Business College ▼.
Cline (Ind.), 119 N. E. 712; Comer v.
Hayworth, 30 Ind. App. 144, 96 Am. St.
Rep. 335, 65 N. E. 695.
Kentucky. Garrott v. Jaffrey, 73
Ky. (10 Bush.) 418.
Maine. Pease v. Bamford, 96 Me.
23, 51 Atl. 234; Bither v. Packard, 115
Me. 306, 98 Atl. 929.
Maryland. Cromwell v. Chance
Marine Construction Co., 131 Md. 105,
101 Atl. 623.
Michigan. Spencer t. Towles, 18
Mich. 9.
Minnesota. Heywood v. Northern
Assur. Co., 133 Minn. 360, Ann. Cas.
1918D, 241, 158 N. W. 632.
Nebraska. School District v. Thomp-
son, 51 Neb. 857, 71 N. W. 728.
Oklahoma. Allsman v. Oklahoma
City, 21 Okla. 142, 16 L. R. A. (N.S.)
511, 17 Ann. Cas. 184, 95 Pac. 468;
Brooks ▼. Hinton State Bank, 26 Okla.
56, 30 L. R. A. (N.S.) 807, 110 Pac. 46;
Helm ▼. Mickleson (Okla.), 170 Pac.
704.
Oregon. Siverson v. Clanton, 88 Or.
261, 170 Pac. 933, 171 Pac. 1051.
Pennsylrania. Gangwer v. Fry, 17
Pa. St. 491, 55 Am. Dec. 678.
Washington. Matthies v. Herth, 31
Wash. 665, 72 Pac. 480.
4 England. Lamine v. Dorrell, 2 Ld.
Raym. 1216; Moses v. Macferlan, 2
Burr. 1005.
United States. Rapalje v. Emory, 2
U. S. (2 Dall.) 51, 1 L. ed. 285; Bank
of the Metropolis v. Bank, 19 Fed.
301; National Bank of Commerce ▼.
Equitable Trust Co., 227 Fed. 526, 142
C. C. A. 158 [reversing decree. Equitable
Trust Co. V. National Bank of Com-
merce, 211 Fed. 6881.
Alabama. Levinshon ▼. Edwards, 79
Ala. 293.
Cafifoxnia. Kreutz v. Livingston, 15
Cal. 344.
Connecticnt. Eagle Bank v. Smith, 6
Conn. 71, 13 Am. Dec. 37; Brown v.
Woodward, 75 Conn. 254, 53 Atl. 112;
Manning v. Chesky, 90 Conn. 647, 98
Atl.' 357.
Georgia. Bates-Farley Savings Bank
V. Dismukes, 107 Ga. 212, 33 S. E. 175.
Illinois. Allen v. Stenger, 74 111. 119;
Highway Commissioners v. Blooming-
ton, 253 III. 164, Ann. Cas. 1913A, 471,
97 N. E. 280.
§1473
Page on Contracjtb
2512
ciples of equity, although the action is one at law.' The plaintiff
may, in most cases, recover at law in assumpsit where he could
have compelled an accounting for the money received by the de-
fendant, had the action been in equity.* If A has in his possession
Tndiaiu. Glascock t. Lyons, 20 Ind.
1, 83 Am. Bee. 290; Indiana Business
CoUege V. Gline (Ind.), 110 N. E. 712.
Maine: Lewis t. Sawyer, 44 Me. 332;
Howe ▼. Glancey, 53 Me. 130; Calais ▼.
Whidden, 64 Me. i240; Either ▼. Pack-
ard, 115 Me. 306, 08 Atl. 020.
Maryland. Mills ▼. Bailey, 88 Md.
320, 41 Atl. 780.
Maasachnaetts. Mason t. Waite, 17
Mass. 560.
Michisan. Walker v. Conant, 65
Mich. 194, 31 N. W. 786. [Decided on
demurrer to petition. On hearing on
the merits no liability to make com-
pensation was found to exist. Walker
V. Conant, 69 Mich. 321, 13 Am. St.
Rep. 391, 37 N. W. 292].
Missouri. Richardson ▼. Drug Co.,
02 Mo. App. 515, 69 S. W. 398.
New Hampshire. Fogg ▼. Worster,
49 K. H. 503.
New York. Roberts v. Ely, 113 N.
Y. 128, 20 N. E. 606.
Oregon. Salem v. Marion County, 25
Or. 449, 36 Pac. 163.
South Carolina. Madden v. Watts,
59 S. Car. 81, 37 S. E. 209.
South Dakota. Siems ▼. Bank, 7 S.
D. 338, 64 N. W. 167; Finch v. Park,
12 S. D. 63, 76 Am. St. Rep. 588, 80
N. W. 155.
Vennont. Colgrove v. Fillmore, 1
Aik. (Vt.) 347.
Washington. Soderberg ▼. King
County, 15 Wash. 194, 55 Am. St. Rep.
878, 33 L. R. A. 670, 45 Pac. 785.
Wisconsin. Ela v. Express Co., 29
Wis. 611, 9 Am. Rep. 619.
i United SUtea. Palmer y. Doull
Miller Co., 233 Fed. 309; Vincennes
Bridge Co. v. Board of County Com-
missioners, 248 Fed. 93; Board of Com-
missioners T. Pollard-Campbell Dredg-
ing Co., 251 Fed. 240.
Alabama. Rush ton ▼. Davis, 127 Ak.
270, 28 So. 476.
Arixona. Copper Belle Min. Co. v.
Gleeson, 14 Ariz. 548, 48 L. R. A. (NJ3.)
481, 134 Pac 285.
Connecticnt Brainard t. Colchester,
31 Conn. 407.
Idaho. Milner v. Pelham, 30 Ida.
594, 166 Pac. 574.
niiaoia. Highway Commissioners v.
Bloomington, 253 IlL 164, Ann. Caa.
1913A, 471, 97 N. £. 280.
Maine. Bither v. Packard, 115 Me.
306, 98 Atl. 929.
Maryland. Cromwell v. Chance
Marine Const. Co., 131 Md. 105, 101
Atl. 623.
Oklahoma. Allsman v. Oklahoma
City, 21 Okla. 142, 16 L. R. A." (N.S.)
511, 17 Ann. Cas. 184, 95 Pac. 468;
Brooks V. Hinton State Bank, 26 Okla.
56, 30 L. R. A. (N.S.) 807, 110 Pac. 46;
Helm Y. Mickleson (Okla.), 170 Pac.
704.
Oregon. Siverson v. Clan ton, 88 Or.-
261, 170 Pac. 933, 171 Pac. 105.
West Virginia. Jackson v. Hough, 38
W. Va. 236, 18 S. E. 575. "An action
of assumpsit for money had and re-
ceived is a remedy equitable in its
nature existing in favor of one person
against another when that other person
has received money either from the
plaintiff or a third person under such
circumstances that in equity and good
conscience he ought not to retain the
same and which ex aequo et bono be-
longs to plaintiff." Merchants', ete.,
Bank v. Barnes, 18 Mont. 335, 337, 56
Am. St. Rep. 586, 47 L. R. A. 737, 45
Pac. 218.
• Palmer y. Doull Miller Co., 233 Fed.
309; Bither v. Packard, 115 Me. 306,
98 Atl. 9*29; Jackson v. Hough, 38 W.
Va, 236, 18 S. £. 575.
2513
Genuine Implied Contracts
§1474
a fond the equitable title to which is in B, and A's only duty in
connection therewith i9 to pay it over to B, B may sue at law for
money had and received.^ B's right at law, if clear, will prevent
B from obtaining relief in equity.* If B has deposited money with
A to be paid to C under certain conditions, and C fails to perform
such conditions and A then refuses to pay such money over to B,
B's remedy is at law and he can not sue in equity.'
Two general classes of questions are presented under the topic
of money had and received. The first concerns the rights of the
parties. It is whether, under the facts, the plaintiff has a right of
recovery from the defendant. The second concerns the form of the
action. It is, whether the proper form of action in contract has
been used, if upon the facts the plaintiff has a right to recover
in some form of action. The answer to the latter question, how-
ever, decides whether the right in question can be classed with
contract rights or not.
Recovery can not ordinarily be had in this form of action if
there is a special contract between the parties. Thus if a note is
given for the loan the right of the lender to recover is on the note
alone.^ However, if X obtains a loan from A through X's agent,
B, and B's note is given therefor, A may ignore the note and sue
X on the contract of loan.^^
§ 1474. Elements of right to recover in this action— Honey or
equivalent must be received* In order to support an action for
money had and received, a person against whom the action is
brought must be shown to have received, either money,^ or some-
TRuBhton T. Davis, 127 Ala. 279, 28
So. 476.
• State Bank ▼. Parker, 69 Fla. 258,
67 So. 916.
• State Bank t. Parker, 69 Fla. 256,
67 So. 915.
M Pettyjohn v. Bank, 101 Va. Ill, 43
S. E. 203.
ff Harper ▼. National Bank, 54 0. S.
425, 44 N. E. 97.
f United States.. Board of Commis-
aioners t. Pollard-Campbell Dredging
Co., 251 Fed. 249.
AUImuiu. Palmer v. Scott, 68 Ala.
380; St. Louis, etc., Co. v. McPeters,
124 Ala. 451, 27 So. 518.
Massachusetts. Palmer ▼. Guillow,
224 Mass. 1, 112 N. E. 493.
Wchigan. Patterson v. Kasper, 182
Mich. 281, L. R. A. 1915A, 1221, 148
N. W. 690.
New York. National Trust Co. ▼.
Gleason, 77 N. Y. 400, 33 Am. Rep.
632; Miller t. Schloss, 218 N. Y. 400,
113 N. E. 337.
Wisconsin. Silkman ▼. Milwaukee,
31 Wis. 555; Huganir v. Cotter, 102
Wis. 323, 72 Am. St. Rep. 884, 78 N.
W. 423.
"The rule is quite elementary that
to enable a person to maintain an
action for money had and receiyed it
§1474
Page on Contracts
2514
thing which is taken as the equivalent of money,* belonging to the
person by whom the action is brought or for his use,*
To allow recovery in this form of action the money paid must
have come to the possession of the person against whom the action
is brought or it must have been paid to his use.^
B had given his wife, X, some money which she claimed to have
invested. Subsequently X forged B's name to a note which X dis-
counted. Subsequently an action was brought against B and X
on this note. X then forged B's name to another note, which X
discounted. A part of the proceeds of this note she applied to pay-
ing off the note sued upon in the first action, and part she applied
to paying certain bills for which her husband was primarily liable.
X told B that the money thus received came from the former
investment of B's money. It was held that A, who had furnished
the money on the second forged note could recover from B that
part of the money applied to the payment of the bills mentioned,
but could not recover that part applied to the payment of the first
forged note, since B was not liable thereon, and the money did not
come into his hands, nor was it paid for his use.' If a public con-
tractor is to be compensated out of the proceeds of assessments he
can not maintain an action against the city for money had and
received if the proceeds arising from the sale of land to satisfy
is necessary for him to establish that
the persons sought to be charged have
received money belonging to him or to
which ' he is entitled. That is the
fundamental fact upon which the right
of action depends. The purpose of
such action fs not to recover damages
but to make the party disgorge, and
the recovery must necessarily be
limited by the party's enrichment from
the alleged transaction." Limited In-
vestment Association v. Investment As-
sociation, 99 Wis. 54, 58, 74 N. W. 633
[quoted in Johnson v. Abresch Co., 109
Wis. 182, 85 N. W. 348].
2 Snapp V. Stanwood, 65 Ark. 222, 45
S. W. 546; Buckeye (Township of) v.
Clark, 90 Mich. 432, 51 N. W. 528;
Matthewson v. Powder Works, 44 N.
H. 289.
'Patterson v. Kasper, 182 Mich. 281,
L. R. A. 1915A, 1221, 148 N. W. 690.
4£ng]And. Falcke v. Scottish Im-
perial Ins. Co., 34 Ch. Div. 234.
Alabama. St. Louis, etc., Co. v. Mc-
Peters, 124 Ala. 451, 27 So. 518.
Florida. Worley v. Johnson, 60 Fla.
294, 33 L. R. A. (N.S.) 639, 53 So.
543.
Michigan. Patterson v. Kasper, 182
Mich. 281, L. R. A. 1915A, 1221, 148
N. W. 690.
New York. National Trust Co. v.
Gleaaon, 77 N. Y. 400, 33 Am. Dec.
632.
Oregon. Ulbrand v. Bennett, 83 Or.
557, 163 Pac. 445.
Wisconsin. Silkman v. Milwaukee,
31 Wis. 555.
S Mechanics' Bank v. Woodward, 74
Conn. 689, 51 Atl. 1084; and see Brown
v. Woodward, 75 Conn. 254, 53 AtL
112.
2515
Genuine Implied Contbacts
§1474
such assessments have not been paid into the treasury.* He may
recover if the money has been paid into the public treasury and
appropriated to another purpose by the public corporation.^ If X
has dealt with a broker, A, through B, and A has tried unsuccess-
fully to apply money which X has advanced to a balance due from
B to A, A can not maintain an action against B for money had and
received to recover the amount which A has been obliged to pay
to X.* This action can not be brought by A against B, who should
have collected B's claim against X, but, by negligence, failed to
do so.' It will not lie against an indorser who is liable only on his
special contract.^* An action for money had and received can not
be maintained against one who is known to the lender to be merely
a surety, receiving none of the money advanced." If A by fraud
has assisted X in selling personalty to B, B can not recover from A
the amount of the purchase price which B has paid to X, if A
received no part thereof.^^ X, who falsely represented that he was
Y's agent, assumed to sell to A a policy which Y had obtained
upon his own life and which had already been mortgaged to B.
A paid the premiums upon such policy. B did not know of the
facts or of A's understanding. On Y's death it was found that the
amount of the policy was not suflBcient to pay B's mortgage. A
was not allowed to recover the amount of such premiums out of the
proceeds of such policy as against B.^* One who has obtained
money by a fraudulent scheme which involves the organization of
a corporation of which he is the sole stockholder and manager, is
liable for money which has been paid to such corporation.'*
No recovery can be had in an action for money had and re-
ceived through mistake, unless either the money or something
equivalent thereto has been in fact received.^' Thus A believed
that he owed B one hundred and fifty dollars. B knew that the
amount was only fifty dollars. In settlement of such claim A
delivered to B a horse which A valued at one hundred and fifty
tSilkman v. Milwaukee, 31 Wis. 555.
7 Board of Commissioners v. Pollard-
Campbell Dredging Co., 251 Fed. 240.
• Miner v. Schloss, 218 X. Y. 400, 113
N. E. 337.
i Jefferson County Savings Bank v.
Hendrix, 147 Ala. 670, 1 L. R. A. (N.S.)
246, 39 So. 295.
liWorley v. Johnson, 60 Fla. 294, 33
L. R. A. (N.S.) 639, 53 So. 543.
11 Arbuckle v. fempleton, 65 Vt. 205,
25 Atl. 1095.
12 Patterson v. Kasper, 182 Mich. 281,
L. R. A. 1915A, 1221, 148 N. W. 690.
H Falcke v. Scottish Imperial Ins. Co.,
34 Ch. Div. 234.
14 Donovan v. Purtell, 216 111. 629, 1
L. R. A. (N.S.) 176, 75 N. E. 334.
1» Hendricks v. Goodrich, 15 Wis. 679.
§1475
Page on Contracts
2516
dollars, and which was worth about that sum. It was held that A
could not recover from B one hundred dollars as money had and
received by mistake^* This case involved the principle that A
could not affirm in part and rescind in part. He could not affirm
the payment so as to treat his original liability as discharged and
yet avoid it as to the terms upon which the payment was made.
In the settlement of a claim between A and a village, an illegal
assessment imposed by the village was credited on A's account, the
village refusing to pay A unless such credit was made. It was
held that this did not amount to a payment by A of the illegal
assessment, but that it was merely a case of A's failing to collect
all that he was entitled to under his original cause of action.
Accordingly, limitations ran from the time A's original claim
against the village for work accrued, and not from the date when
this settlement was made.^^
§ 1475. Beceipt of equivalent of money. It is not necessary
that the person against whom an action for money had and re-
ceived is brought should have received money belonging to, or to
the use of, the plaintiff, for if he has taken something as the
equivalent of the money, he is liable in this action^ One who
takes a note belonging to another as cash may be liable to the real
owner thereof for money had and received.* So where A, B's
agent, accepts from X, from whom he is collecting money for B,
a note signed by B and endorsed by X, as part payment of such
sum, A is liable to B for money had and received.' If he receives
a voucher,* or an order,' as the equivalent of cash, and converts it
II Hendricks v. Goodrich, 15 Wis. 67^.
" Brundage v. Port Chester, 102 N. Y.
494, 7 N. E. 308.
1 Snapp ▼. Stanwood, 65 Ark. 222, 45
S. W. 546 [qualifying, Hutchinson ▼.
Phillips, 11 Ark. 270, on this point, the
syllabus of which restricts such action
to cases where money only has been
received]. Kansas City ▼. Boyd Con-
struction Co., 86 Kan. 213, 120 Pac. 347;
Matthewson v. Powder Works, 44 K*. H.
280; Seavey t. Dana, 61 N. H. 339.
"To maintain assumpsit for money
had and received it must appear that
the defendant received the money due
the plaintiff or something which he had
received as and instead of it, or which
he had actually or presumptively con-
verted into money before suit." Peay
▼. Ringo, 22 Ark. 68, 71 [quoted in
Snapp V. Stanwood, 65 Ark. 222, 45 S.
W. 546].
2 Seavey v. Dana, 61 N. H. 339.
• Snapp V. Stanwood, 65 Ark. 222, 45
S. W. 546.
4 Kansas City ▼. Boyd Construction
Co., 86 Kan. 213, 120 Pac. 347.
i Bavins v. Bank [1900], 1 Q. B. 270;
Bowen v. School District, 36 Mich. 149;
Buckeye (Township of) ▼. Clark, 90
Mich. 432, 51 K. W. 528.
2517 Genuine Implied Contracts § 1476
or its proceeds to his own use, he is liable for money had and
received. If X, a debtor, conveys to his creditor, A, his stock of
goods, and A agrees to pay debts owing by X to B and other
creditors of X, in consideration of such conveyance, A may be
liable to B and such other creditors for money had and received,
where he takes such goods, treats them as the equivalent of money,
and converts them into money.* If A agrees to pay B a certain
sum of money out of the proceeds of the sale of certain agricul-
tural produce, B may, after a reasonable time, maintain an action
against A for money had and received for B's use in the absence of
a showing by A that he has not yet sold such produce, since, after
a reasonable time has elapsed, it will be presumed that such sale
has been made.^ If a payment is made by mistake, recovery in
this form of action may be had if something is delivered which is
taken as money. Thus where a pa3rment is made in small notes,
which were not money and which were illegally issued, but which
were in fact used as money, recovery can be had in such an action.'
So where an agent discharges a principars debt by applying
thereon a debt of the agent's, this is treated as the equivalent of
money.' A by mistake gave a negotiable note to B in settlement
of an account which had already been paid. It was held that this
might be treated as a payment of such account, the note being
taken as money, and might justify a recovery.^'
§1476. Beeeipt of deBnite sum necessary. An action for
money had and received can be maintained only if the defendant
has received a definite sum of money or the equivalent thereof
which is due to the plaintiff.^ If the defendant wrongfully sold
stock in which the plaintiff was interested, together with a note in
which the plaintiff was not interested, for a lump sum of money,
plaintiff could not maintain an action for money had and received,
since he was not able to show the amount which the defendant
received for the stock.^ If an action is brought against a mer-
ehant for money had and received, on the ground that goods
bought by his agent without his authority were delivered at his
tPbtts ▼. Bank, 102 Ala. 286, 14 So. tBeardsIey ▼. Root, 11 Johns. (IT. T.)
658. 464, 6 Am. Dec. 386.
7 Barfield ▼. MeComl», 89 Ga. 799, 16 It Gooding ▼. Morgan, 87 Me. 419.
8. E. 666. 1 French ▼. Robbins, 172 Cal. 670, 158
• Baltimore, etc., Ry. ▼. Faunce, 6 Pac. 188.
Gfll (Md.) 68, 46 Am. Dec 655. 2 French ▼. Robbins, 172 GaL 670, 158
Pac 188.
§ 1476 Page on Contracts 2518
store and sold by him, the evidence must show that he sold such
goods and received the money therefor.* A and B agreed to buy
land on their joint interest, and A was to negotiate the purchase;
B furnished part of the purchase money, and subsequently, on
learning that A's representations that the price agreed upon was
the lowest possible price and did not include any commissions to
A for making the purchase, were false, and that A had an agree-
ment with the vendee, whereby A was to receive a certain amount
of the last payment to be made as his commission, refused to pay
the rest of the purchase price due from him. B was not allowed to
recover for money had and received, where A subsequently com-
pleted the contract and resold the land at a loss.^ A had a con-
tract for the performance of certain work and labor, and X was a
subcontractor. The man whom X employed boarded with B, and
when A paid X's employes A retained in his possession the amount
owing by each for board furnished by B. B had a contract with
X to operate a boarding house for the men at a certain sum per
week, but B had no contract with A binding A to retain the
amount due for such board. A paid the men and retained such
amounts ; but when such men were paid, X owed A for supplies to
an amount in excess of the amount so retained by A. It was held
that B had no right of action against A for money had and re-
ceived, since A had received nothing from any person to the use
of B.» .
If A and B receive money which rightfully belongs to C under
an arrangement by which B is to receive a definite part thereof, it
has been held that B is liable to C only for the amount which he
received.* On the other hand, however, it has been held that C
may recover against A and B jointly under such circumstances.^
A, B and C took part in a forgery, by means of which X was
induced to pay to A a sum of money. It was held that X might
recover from A, B and C for money had and received, if the under-
standing of the wrongdoers was that A was collecting it for their
3 Lesher v. Loudon, 85 Mich. 52, 48 N. Sterling v. Ryan, 72 Wis. 36, 7 Am. St.
W. 278. . Rep. 818, 37 N. W. 572, as a case where
4Blewitt V. McRae, 100 Wis. 153, 75 A had agreed with B to retain such
N. W. 1003. The court held that there money].
had been no rescission in this case, and SUIbrand v. Bennett, 83 Or. 557, 163
that B's remedy was by action against Pac. 445.
A for fraud. 7 Welch v. Beeching, 193 Mich. 338,
• Erickson v. Construction Co., 107 150 N. W. 486.
Wis. 49, 82 N. W. 694 [distinguishing.
2519
Genuine Implied Contracts
§1477
common interests. X's right of recovery was not affected by the
fact that A had appropriated all the proceeds of this crime, and that
B and C had in fact received no part thereof from A.' A, X's
agent, forged A's name on certain stock certificates, sold them to
B, deposited the money in A's name and then embezzled it. It
was held that this was not such receipt by A that B, on being
obliged to return the stock certificates, could maintain an action
against A for such money had and received.'
•
§ 1477. Action not means of recovering damages. The action
for money had and received can not be employed where the real
relief which is sought is the recovery of damages for breach of
contract^ One exception to this principle is the case where the
only thing remaining for the party in default to do was to pay the
money.^ Assumpsit for money had and received can not be made
the means for recovering damages for breach of a contract to erect
improvements for plaintiff's use, upon a right of way conveyed by
plaintiff to defendant;* nor damages for a bailee's selling lum-
ber consigned to him at less than the price agreed upon;* nor
damages for negligence in performing a contract to collect a claim.'
If B sues one to whom B alleges that insurance money has been
paid to the use of B,' B can not recover if the evidence discloses
that no money was had and received, but that B's action is really
for a breach of a contract to effect the insurance. An action for
money had and received will not lie in favor of B against A where
• National Trust Co. v. Gleason, 77 N.
Y. 400, 33 Am. Rep. 632. "To charge
a party in an action of that character
the receipt of money by him directly
or indirectly must be established. His
complicity in the crime is not the cause
of action, but only an item of evidence
tending to establish his interest in the
proceeds." National Trust Co. v. Glea-
son, 77 N. Y. 400, 408, 33 Am. Rep,
632.
• Fay V. Slaughter, 194 111. 157, 88
Am. St. Rep. 148, 56 L. R. A. 564, 62
K. E. 592 [reversing, 94 111. App. 111].
1 Alabama. Smith v. Sharpe, 162 Ala.
433, 136 Am. St. Rep. 52, 50 So. 381.
Maryland. P. Dougherty Co. v. Gring,
89 Md. 535, 43 AtL 912.
New Jersey. Stewart Mfg. Co. v.
Mfg. Co., 67 N. J. L. 577, 52 Atl. 391.
New Mexico. Bushnell v. Coggshall,
10 N. M. 601, 62 Pac. 1101.
Vermont. Royalton v. Turnpike Co.,
14 Vt. 311.
2 Smith V. Sharpe, 1G2 Ala. 433, 136
Am. St. Rep. 52, 50 So. 381; Stewart
Mfg. Co. V. Mfg. Co., 67 N. J. L. 577, 52
Atl. 391.
3Labadic v. Ry., 125 Mich. 419, 84 N.
W. 622.
4 Anderson v. Corcoran, 92 Mich. 628,
52 N. W. 1025.
5 Jefferson County Savings Bank v.
Hendrix, 147 Ala. 670, 1 L. R. A. (N.S.)
246, 39 So. 295.
• Johnston v. Abresch Co., 109 Wis.
182, 85 N. W. 348.
§1478
Page on Contracts
2520
X has done work for A, which should have inured in whole or in
part to B.^
§ 1478. Party who seeks to recover money innst rightfully be
entitled thereto. An action for money had and received can be
brought only by one who shows that he is rightfully entitled to
the money for which such action is brought.^
This action ordinarily lies only in favor of the person who is the
owner of the money which is the subject of the action. If A
receives B's money, X can not maintain an action against A there-
for. Thus where X drew a draft which was subsequently altered,
the amount being raised, and the drawee bank accepted and paid
such raised draft and charged X in its account for the amount of
the draft as raised, X can not recover against A for money had
and received, since A has not received any of X's money.* If A
lends money to X secured by an alleged mortgage and by the terms
of the contract part of such loan is to be used in discharging a
prior alleged mortgage upon such property given by X to B, a
conflict of authority has arisen as to whether such payment to B
is a payment of A's money, in which case A can recover, or a pay-
ment of X's money, in which case A can not recover from B, but
must look to X alone.' If A insures his life in favor of B, and the
insurance company repudiates its liability under the policy, B can
not recover the premiums which A has paid.* The state can not
bring an action against a public service corporation to recover
payments in excess of legal rates which such public service cor-
poration has exacted from private customers.' In the absence of
statute a county can not maintain an action to recover money
I Craig V. Matheson, 32 N. S. .452;
Hassard v. Tomkins, 108 Wis. 186, 84
N. W. 174.
1 Third National Bank v. Rice, 181
Fed. 822, 88 C. C. A. 640, 23 L. R. A.
(N.S.) 1167, 15 Ann. Cas. 460; BaU v.
CUrk, 179 Ky. 455, 206 S. W. 623; Loe
Y. State, 82 O. S. 73, 91 N. E. 982;
Slocum v. Northwestern Nat. Life Ins.
Co., 135 Wis. 288, 14 L. R. A. (N.S.)
1110, 115 N. W. 796.
2 National Bank t. Bank, 122 N. Y.
867, 26 N. E. 355.
9 That the payment is of A's money,
see Grand Lodge Ancient Order of
United Workmen v. Towne, 136 Minn.
72, L. R. A. 1917E, 344, 161 N. W. 403.
That the payment is of X's money,
see Ex pafte Richard, 180 Ala. 580, 61
So. 819 [denying certiorari to Russell
V. Richard, 6 Ala. App. 73, 60 So. 411].
(In this case A paid X and X paid B.)
Walker v. Conant, 69 Mich. 321, 13 Am.
St. Rep. 391, 37 N. W, 292.
4 Slocum V. Northwestern Nat. Life
Ins. Co., 135 Wis. 288, 14 L. R. A.
(N.S.) 1110, 115 N. W. 796.
8 State, ex rel., v. Chicago & Alton
Railroad Co., 265 Mo. 646, L. R. A.
1916C, 309, 178 S. W. 129.
2521
Genuine Implied Contracts
1479
which has been paid to a building contractor out of funds raised
by local assessments upon the property benefited by such improve-
ments.* If A has wrongfully taken X's cattle and has delivered
them, to B, who holds a chattel mortgage thereon, A can not main^
tain an action against B for money had and received after A has
been compelled to pay to X the value of such cattle.' An agent
who has paid his principal's money to a third person by mistake
may maintain an action in his own name to recover such pay-
ment,* on the theory that the agent has a special property in the
money by reason of his possession and that he was liable primarily
for the money to the real owner thereof, who was not bound to
bring an action against the person to whom it had thus been paid.
§ 1479. From whom payment may be recovered. Recovery of
money paid, as a payment made by mistake, can be had only from
the person to whom it was made or to whose benefit it enured
ultimately.^ If A deposits money in a bank to the order of a
county in reliance upon a forged note of such county, A can not
recover from the county unless he is able to show that the money
thus deposited was actually appropriated to the use of the county,
as to the discharge of its valid obligation.* Recovery can be had
from one to whose benefit the payment inured, although it was not
paid to him personally.' If money is paid to one of two joint
claimants under a mistake, recovery can be had against both.*
If A makes a contract to buy B's land, and pays money to B as a
deposit on such contract, thinking that he is buying land from B
and C, A can not recover such deposit from B and C jointly, but
only from B.' Money paid to an agent for his principal may be
recovered if the principal refuses to be bound by the contract under
• Loe V. State, 82 O. S, 73, 91 N. E.
982 [overruled on question of right of
county to bring such action under stat-
utory authority in State, ex rel., v.
Baker, 88 O. S. 165, 102 N. E. 732].
T Third National Bank v. Rice, 161
Fed. 822, 88 C. C. A. 640, 23 L. R. A.
(N.S.) 1167, 15 Ann. Cas. 450.
i Parks y. Fogleman, 97 Minn. 157, 4
L. R. A. (X.S.) 363, 105 N. W. 560;
Kent V. Bomstein, 94 Mass. (12 All.)
342; Stevenson v. Mortimer, 2 Cowp.
805.
iBorn V. Castle, 175 Cal. 680, 167
Pac. 138; Balls v. Haines, 3 Ind. 461;
Hathaway v. Delaware County, 185 N.
Y. 368, 13 L. R. A. (N.S.) '273, 78 N.
E. 153.
2 Hathaway v. Delaware County, 185
N. Y. 368, 13 L. R. A. (N.S.) 273, 78
N. E. 153.
>Cole V. Bates, 186 Mass. 584, 72
N. E. 333.
4 Neil V. Cheves, 1 Bailey (S. Car.)
537.
• Born V. Castle, 175 CaL 680, 16T
Pac. 138.
§1480
Page on Contracts
2522
which the money was paid and the agent still has such money.* The
effect of the alteration of position upon the right of recovery is
considered elsewhere,^
»
§ 1480. Person receiving money most not be entitled in good
conscience to retain it. The right of one person to recover money
which belongs to him, and which is paid to another person, depends
not on whether the person to whom such payment was made
could have compelled it by law if it had not been made voluntarily,
but upon whether the person to whom the money is paid is
entitled in equity and good conscience to retain it.^ Examples of
payments which the payee could not have compelled by law, but
which when made the payor can not recover, are to be found in
gifts and voluntary payments.* This principle is not limited, how-
ever, to cases of payment which are technically voluntary. Where
a widow pays the just debt of the estate of her husband out of the
ISimmonds v. Long, 80 Kan. 155, 23
L. R. A. (N.S.) 553, 101 Pac. 1070.
T See § 1484.
1 England. Bannatyne ▼. Mclver
[1906], 1 K. B. 103.
United States. Sanford y. First Na-
tional Bank, 238 Fed. 298, 151 C. C.
A. 314.
Alabama. Traweek v. Ilagler (Ala.),
75 So. 152.
Illinois. Malkan v. Chicago, 217 IlL
471, 2 L. R. A. (N.S.) 488, 3 Ann. Cas.
1104, 75 N. E. 548.
Iowa. Adair County v. Johnston,
160 la. 683, 45 L. R. A. (N.S.) 753, 142
N. W. 210.
Kansas. Benjamin v. Welda State
Bank, 98 Kan. 361, L. R. A. 1917A, 704,
158 Pac. 65.
Louisiana. Wagnon v. Schick (In re
Schick), 139 La. 347, 71 So. 534.
Massachusetts. Lime Rock Bank v.
Plimpton, 34 Mass. (17 Pick.) 159, 28
Am. Dec. 286; Le Breton v. Pierce, 84
Mass. (2 All.) 8.
Minnesota. Grand Lodge, A. 0. U.
W. V. Towne, 136 Minn. 72, 161 N. W.
403; Houck v. Hubbard Milling Co.,
140 Minn. 186, 167 N. W. 1038.
New Hampshire. Winslow v. Ander-
son (N. H.), 102 Atl. 310.
New Jersey. Whitcomb ▼. Brant, 90
N. J. L. 245, L. R. A. 1917D, 609, 100
Atl. 175.
New Mexico. Elgin v, Gross-Kelly
& Co., 20 N. M. 450, L. R. A. 1916A,
711, 150 Pac. 922.
North Dakota. Dickey County v.
Hicks, 14 N. D. 73, 103 N. W. 423;
Jacobson v. Mohail Telephone Co., 34
N. D. 213, L. R. A. 1916F, 532, 157 N.
W. 1033.
South Dakota. City of Howard v.
Lefler, 38 S. D. 294, 161 N. W. 197.
West Virginia. Hix v. Scott, 80 W.
Va. 727, 94 S. E, 399; Gardner v.
Nichols, 80 W. Va. 738, 93 S. E. 817.
Wisconsin. Steuerwald v. Richter,
158 Wis. 597, 149 N. W. 692.
See however, Tucker v. Denton (Ky.),
15 L. R. A. (N.S.) 289, 106 S. W. 280,
32 Ky. Law Rep. 521. "However
tortiously it (the money) may have
come into his hands, the defendant
can in this form of action set the
plaintiff at defiance if he has the best
right to it." Goddard v. Seymour, 30
Conn. 394, 401.
2 See { 1519.
2523 Genuine Implied Contracts § 1480
assets of such estate which are in her possession, and subsequently
she is appointed administratrix, she can not recover on behalf of
the estate the money thus paid by her without authority where
there are no other creditors whose rights are interfered with, since
the party to whom the money is paid is entitled in good con-
science to retain it; and if such payment had not been made, he
would have had a right to enforce payment from the adminis-
tratrix in her official capacity.' If A received money from X for
the use of B, A is liable to B therefor, even if A could not have
enforced the payment to himself of such money from X, or if he
was not bound to B to receive such money when paid in. Thus A,
a factor, took out insurance on butter which was consigned to him,
and received the premiums therefor from his principal, B. Subse-
quently A claimed that loss was sustained upon B's butter, among
other lots of butter; and the insurance money was paid to A, in
part upon such loss. A was held liable to B for the amount of
such insurance money representing the loss upon B's butter,
although such butter was not in fact damaged; and A was not
bound by a contract with B to procure such insurance.* By mis-
take a public officer was paid his own salary and also the amount
due to his clerks, and he applied the excess over his salary to the
payment of his clerkS, thus discharging the debt from the public
corporation for such services. It was held that the public cor-
poration could not recover such overpayment from such public
official, although it was made improperly in the first instance.' An
employe who believes that he is liable on his bond for all short-
ages, whether due to his negligence or not, and who makes good
a shortage, can not recover such payment;* but his right to
recover such payment is denied without regard to his actual
liability.
An application of this principle is often found in cases of pay-
ment by mistake of fact. Thus A owed B, but B's right of action
was barred by tlje Statute of Limitations. A subsequently paid B
under mistake as to the existence of such defense. It was held that
A could not recover.^ So where A loaned two hundred and eighty
dollars to B and by mistake the note was drawn for two hundred
• Rainwater v. Harris, 51 Ark. 401, IJacobson v. Mohall Telephone Co.,
3 L. R. A. 846, 11 S. W. 583. 34 N. D. 213, L. R. A. 191 6F, 532, 157
• Pish V. Seebei^er, 154 111. 30, 39 N. W. 1033. (Possibly such employe
N. E. 982. was liable personally.) .
• Dickey County v. Hicks, 14 N. D. T Hubbard v. Hickman, 67 Ky. (4
73, 103 N. W. 423. Bush.) 204.
§ 1480 Page on Contracts 2524
and thirty dollars, and B repaid two hundred and eighty dollars
to A, B can not recover the fifty dollars from A as paid nnder a
mistake of fact.' So where a retired army officer on half pay
accepted a position in the diplomatic service, which by statute
deprived him of his rank and pay in the army, and after his diplo-
matic service was ended he performed military duties for which he
received pay, the United States can not recover such pay, since
even if he was not an officer de jure he was de facto, and as such
entitled to compensation.' If the county has repaid assessments
which are invalid but which it could not have been compelled to
repay, the county can not thereafter recover such amounts from
the persons to- whom such payments have been made.^ A, a
grantee of a mortgagor, X, and B, a mortgagee, both believed that
certain land owned by A was covered by a mortgage to B. A made
a payment to B to procure the release of such land from the lien
of stlch mortgage. Subsequently, in a foreclosure suit between
B and X, such payment was credited upon the amount of the
mortgage debt. A majority of the court held that inasmuch as B
had changed his position in reliance ux)on such payment, and his
rights had been fixed by the decree, and A, who had opened the
negotiations, and had asked B to receive the pajonent, was the
more negligent of the two, A could not recover such payment."
A daughter who has made a payment to obtain the discharge of
her parents from a contract for the sale of their land which the
daughter believes to be enforceable, may recover such payment if
such contract was in fact unenforceable because the mortgage did
not comply with the Statute of Frauds ; ^* and the moral obligation
of her parents to perform such contract in spite of the Statute of
Frauds is said not to prevent the daughter from recovering such
pajonent.^'
Another application of this principle is found in pa3rments made
by duress or compulsion of law.^^ Where A had erected buildings
upon the land of B, a minor, under a contract, with B 's father,
whereby A was to erect certain buildings, collecting rents there-
• Foster ▼. Kirby, 81 Mo. 496. ft Tucker ▼. Denton (Ky.), 16 L. R.
• Badeau v. United States, ISO U. B. A. (N.S.) 289, 106 S. W. 280, 32 Ky.
439, 32 L. ed. 997. Law Rep. 521.
ft Adair County ▼. Johnston, 160 1a. 13 Tucker ▼. Denton (Ky.), 32 Ky.
683, 45 L. R. A. (N.S.) 753, 142 N. W. Lav Rep. 521, 15 L. R. A (N.S.) 289,
210. . 106 S. W. 280.
IIRichey ▼. Clark, 11 Utah 467, 40 14 See §§ 1530 et seq.
Pac. 717.
2525
Genuine Implied Contracts
§1481
from as payment, it has been held that after A has erected such
buildings and collected rents to apply on the cost thereof, he is not
liable to 'the minor for such rents received, as it would not be just
to give the minor the benefit of such material and labor without
any compensation therefor, even though the contract is unenforce-
able.^' Taxes which have been paid can not bfe- recovered because
of technical irregularity in the proceedings affecting tlje sub-
stantial rights of the parties, even though such irregularity^ might
have been a ground of resisting the payment in the first instanced*
The same principle applies to money paid on street assessments,
which are technically, but not substantially, invalid." A municipal
corporation which has chapged its plan for paying for a public
improvement so that the contractor receives more than the price
agreed upon, can not recover such extra amount from such con-
tractor, since by reason of such change of plan the contractor lost
certain certificates which would have been issued to him under the
original plan. Accordingly his rights, while more valuable, were
substantially different from those under the original contract.^*
such money from X,^ even if X has not altered his position in reli-
ance upon such payment other than applying such payment to a
§ 1481. Defendant receiving fond from third person. If A's
money has been wrongfully appropriated by B, and B has paid
such money to X, for value and without notice, A can not recover
pre-existing debt.^ If X is acting honestly and in good faith he
can not be compelled to pay such fund, even though he could with
diligence have discovered that B was not the real owner thereof.*
WMriKee v. Prestott, 66 Cal. 622, 6
PW. 379.
ItGoddard v. Seymour, 30 Conn. 394;
Wifltoiann t. Brigbton, 83 Wis. 650, 53
N. W. 911.
HNewcomb v. Davenport, 86 la. 291,
58 N. W. 232; Hopkins v. Butte, 16
Mont. 103, 40 Pac. 171.
» Howard v. Lefler, 38 S. D. 294, 161
N. W. 197.
1 Alabama. Finney ▼. Studebaker
Corporation, 196 Ala. 422, 72 So. 54.
Arkaasas. Oklaboma State Bank ▼.
Bank, 120 Ark. 369, 179 S. W. 609.
Kansas. Benjamin y. Wei da State
Bank, 98 Kan. 361, L. R. A. 1917 A, 704,
168 Pac. 66.
Louisiana. First National Bank v.
Gibert, 123 La. 845, 25 L. R. A. (N.S.)
631, 49 So. 593.
Minnesota. Houck v. Hubbard Mill-
ing Co., 140 Minn. 186, 167 N. W. 1038.
New Hampshire. Winslow y. Ander-
son (N. H.), 102 Atl. 310.
West Viri^a. Gardner y. Nichols,
80 W. Va. 738, 93 S. E. 817.
2 Benjamin y. Welda State Bank, 98
Kan. 361, L. R. A. 1917A, 704, 158 Pac.
65.
3 First National Bank y. Gibert, 123
La. 845, 25 L. R. A. (N.S.) 631, 49 So.
593.
§1482
Page on Contracts
2526
The same principle applies to eases in which B obtains a check or
draft the proceeds of which belong to A, and B transfers such
check or draft to X, who collects it in good faith. Such proceeds
can not be recovered by A.* A tenant who has abandoned leased
premises of which the landlord has taken possession and which the
landlord has^ leased to another tenant at increased rent, can not
rec0V€rifrqpi such landlord the difference between the rent reserved
* in the first lease and the rent reserved in the second lease.'
If X knows of the facts, A may recover such money from X.*
If B collects A's money and deposits it with a bank, X, as a special
deposit in B's name, X is liable for such fund to A if with knowl-
edge of the facts he pays such money over to a creditor of B's who
has attached it as B's debt.^ If B, a public officer, draws a check
upon a public fund payable to himself, and endorses it to X in
payment of B's personal debt to X, the public corporation may
recover such fund from X if he took such check with knowledge
of the facts.* If B has stolen money from A and deposited it in a
bank, X, X is liable to A for payments of such fund made after X
has notice of such theft.'
§ 1482. Payments at tax sale. In many cases purchasers at
tax sales which prove to be invalid seek to recover from the public
corporation the amount of taxes paid at such sale or the amount
of taxes paid upon such property thereafter in reliance upon such
sale.^ The great weight of authority denies the right to recover in
the absence of statute.* The right to recover is denied in some
4 Benjamin v. Welda State Bank, 98
Kan. 361, L. R. A. 191TA, 704, 158 Pac.
65.
I Whitcomb v. Brant, 90 N. J. L. 245,
L. R. A. 1917D, 609, 100 Atl. 176.
6 Cunningham v. Bank, 13 Ida. 167,
121 Am. St. Rep. 257, 88 Pac. 975;
Newbury port v. Spear, 204 Mass. 146,
90 N. E. 522; Hindmarch v. Hoffman,
127 Pa. St. 284, 14 Am. St. Rep. 842,
4 L. R. A. 368, 18 Atl. 14.
7 Cunningham ▼. Bank, 13 Ida. 167,
121 .Am. St. Rep. 257, 88 PftC 976.
• Newburyport v. Spear, 204 Mass.
146, 90 N. E. 522.
3 Hindmarch v. Hoffman, 127 Pa. St.
264, 14 Am. St. Rep. 842, 4 L. R. A.
868, 18 Atl. 14. For a similar ques-
tion in equity, see A^tna Indemnity Co.
V. Malone, 89 Neb. 260, 131 N. W. 200.
1 Harding v. Auditor Cteneral, 136
Mich. 358, 99 N. W. 275.
2 Calif ornia. Loomis y. Los Angeles
County, 59 Cal. 456.
Indiana. Churchman ▼. Indianapolis,
110 Ind. 259, 11 N. E. 301.
Louisiana. Lisso & Brother ▼. Police
Jury, 127 La. 283, 31 L. R. A. (N.S.)
1141. 53 So. 566.
Michigan. Ball ▼. Auditor Qeneral,
133 Mich. 521, 95 N. W. 539.
Nebraska. Barkley v. Lincoln, 82
Neb. 181, 130 Am. St. Rep. 659, 18 L.
R. A. (N.S.) 392, 117 N. W. 898.
New York. Cofi^ ▼. Brooklyn, 116
N. Y. 159, 22 N. B. 227.
2527
Genuine Implied Contracts
1483
cases on the theory that the doctrine of caveat emptor applies;'
while in other jurisdictions the right of recovery seems to be denied
on the ground that the defect in the sale was a matter of record
and that such payment was accordingly made under a mistake of
law.^ If provision is made by statute for repayment in certain
specified cases of void tax sales, recovery can be had in the cases
specified by statute but not in other cases.' By some statutes
recovery can be had from the owner of the .property, who has
received the benefit of such payments.' Contrary to the general
rule, it is sometimes held that the purchaser whose title fails is
entitled to recover payments made in reliance upon such sale on
the ground that such payments have been made under a mistake
and that the purchaser has received nothing in return therefor.^
§1483. Payments at judicial sale. Whether a purchaser at
judicial sale can recover from the judgment creditor in case of
failure of title is a question upon which there has been a conflict
of authority. In some jurisdictions it is said that the doctrine
eaveat emptor applies; that the purchaser buys at his own risk;
and that, accordingly, he can not recover from the judgment credi-
tor the amount which he has paid in,^ and that his remedy is in
equity against the execution debtor whose debt he has paid,^ in
the absence of statute and in cases in which the execution creditor
has not caused a levy to be made upon the specific property in
question.' In other jurisdictions it has been said that the purchase
money does not belong to the execution creditor, since he can not
satisfy his execution against X by seizing the property of Y, but
that it does belong to the purchaser who parted with it by mistake
and without consideration; and, accordingly, the purchaser is
SLisso & Brother v.' Police Jury, 127
La. 283, 31 L. R. A. (N.S.) 1141, 53
So. 566.
4 Coffin V. Brooklyn, 116 N. Y. 169,
22 N. E. 227.
• Stutsman County v. Wallace, 142
U. S. 293, 35 L. ed. 1018; Lindsey v.
Boone County, 92 la. 86, 60 N. W. 173;
Harding v. Auditor General, 136 Mich.
358, 99 N. W. 275.
6 Chapman v. Sollers, 38 O. S. 378.
TBarden v. Columbia County, 33
Wis. 445, 14 Am. Rep, 762.
1 Neal V. Gillaspy, 56 Ind. 451, 26 Am.
Rep. 37; Lewark v. Carter, 117 Ind.
206, 10 Am. St. Rep. 40, 3 L. R. A.
440, 20 N. E. 119; Murphy v. Higgin-
botham, 2 Hill. L. (S. Car.) 397, 2T
Am. Dec. 395.
2Brunner v. Brennan, 49 Ind. 98;
Harrison v. Shanks, 76 Ky. (13 Bush.)
620.
3 The purchaser can not recover from
the sheriff. State v. Prime, 54 Ind.
450.
§ 1484 Page on Contracts 2528
allowed to recover from the execution creditor.* In some juris-
dictions the right of the purchaser at an execution sale to recover
the purchase money from the execution creditor in the case of
failure of title is given by statute.* If the execution creditor has
procured a levy upon the specific property, the title to which fails,
the purchaser may recover from the execution creditor in probably
all jurisdictions.*
m
§ 1484. Party from whom recovery is souglit most be placed
in statu quo. Recovery in an action for money had and received
can not be had against one who can not be put in statu quo,^ unless
he is a wrongdoer. If the person to whom the money was paid has
not incurred any legal liability in reliance upon such payment, it is
not necessary to put him in statu quo.^
A common illustration of this rule exists when money paid to
an agent to be paid over to his principal and by him so paid over
is sought to be recovered from the agent. If B pays money to A
as agent for X, and A pays that money over to X, B can not
recover such money from A if A's agency was disclosed when the
payment was made, and A himself has committed no wrongful act
in inducing or compelling B to pay him the money.* Where a
purchase price of a ward's land was paid to the guardian, and the
guardian remitted the money to his ward, the guardian is not liable
in an action for mondy had and ij^eceived, to a broker suing for
commissions for the sale of such property.* So selectmen of a
4 Piscataquis County v. Kingsbury, 73 Massachiisetts. Palmer v. Guillow,
Me. 326; Dresser v. Kronberg, 108 Me. 224 Mass. 1, 112 N. E. 493.
423, 36 L. R. A. (N.S.) 1218, Ann. Cas. MiimeMU. Grand Lodge A O. U. W.
1913B, 542, 81 Atl. 487. v. Towne, 136 Minn. 72, 161 N. W.
• Hitchcock V. Caruthers, 100 Cal. 100, . 403.
34 Pac. 627; Rosenberger v. Hawker, New York. Hathaway v. Delaware
127 la. 521, 103 N. W. 781; Elling v. County, 185 N. Y. 368, 113 Am. St.
Harrington, 17 Mont. 322, 42 Pac. 851. Rep. 909, 13 L. R. A. (N.S.) 273, 78 N.
I Sanders v. Hamilton 33 Ky. (3 E. 153.
Dana) 550; Hackley v. Swigert, 44 Ky. «Holt v. Ruleau (Vt.), 102 Atl. 934.
(5 B. Mon.) 86, 41 Am. Dec. 256. 3 Elliott v. Swartwout, 35 U. S. (10
1 Alabama. Traweek v.Hagler (Ala.), Pet.) 137, 9 L. ed. 373; Kansas City
75 So. 152. Southern Ry. Co. v. Oglesby (Ark.),
Arkansas. Kansas City Southern 199 S. W. 98; Wilson v. Wold, 21
Ry. Co. V. Oglesby (Ark.), 199 S. W. Wash. 398, 75 Am. St. Rep. 846, 56
98. Pac. 223.
Kentucky. Commonwealth for use 4 Hudson y. Scott, 125 Ala. 172, 28
of Devoe v. Baske, 124 Ky. 468, 11 L. So. 91.
R. A. (N.S.) 1104, 99 S. W. 316.
2529 Genuine Implied Contracts § 1484
town, who in good faith determine the value of a pauper's support
furnished him by the town, which amount under the law he must
refund to the town before he is put on the voting list, are not
liable to him for money had and received, where in good faith they
fix an excessive amount which he pays them and they pay into the
town treasury.' Where property is sold for a sidewalk assessment,
and the proceeds of such sale are by law to be 'paid over to the
contractor entitled thereto, a purchaser at such sale can not recover
from the city to which the money is paid, and he pays it over to
the contractor though the assessment proves to be illegal, and the
purchaser takes nothing by reason of his purchase.* A tax can not
be recovered from a public corporation if no attempt is made to
recover such payment until after such public corporation has paid
such taxes over to the public funds which are entitled thereto if
such taxes are valid.''
If, however, the fact of agency is not disclosed to the person
making the payment, at the time of such payment, the person mak-
ing the payment may recover from the agent to whom he pays the
money, if the facts are such that he could have recovered from the
principal had the payment been made direct to the principal. Thus
where A, an investment company, made a loan for its principal, C,
to B, and B supposed that she was dealing with A alone, and B
makes overpayments to A, by way of usury, which B is permitted
to recover, B may recover from A, though A has forwarded such
payments to C.»
If payment is made under protest, this is sufficient notice to the
person receiving it to make him liable therefor if, under the cir-
cumstances, he would have been liable to refund a payment for his
own benefit, even if he has paid over to his principal the money
thus received.*
If money is paid to a collector of internal revenue for stamps to
be affixed to the manifest of a vessel in order to obtain clearance,
without protest, and without notice to the collector of the port
S Brown v. Harden, 61 N. H. 15 [dis- ^ Commonwealth for use of Devoe v.
tinguishing, Ford v. Holden, 39 N. H. Baske, 124 Ky. 468, 11 L. R. A. (N.S.)
143, where the selectmen were liable 1104, 90 S. W. 316.
for taxes, the payment of which had > Thompson v. Investment Co., 114 la.
been wrongfully exacted as a condi- 481, 87 N. W. 438.
tion precedent to allowing the person 9 Elliott v. Swartw«ut, 35 U. S. (10
so paying them to vote]. Pet.) 137, 0 L. ed. 373.
• Richardson v. Denver, 17 Colo. 398,
30 Pac. 333.
1485
Page on Contracts
2530
from whom clearance was had, sach payment can not be recovered
as having been made by duressj*
If the agent has notice of the rights of the party by whom the
payment was made and the agent has paid the fund over to his
principal, such agent is liable to the person entitled to such fund
if, under such circumstances, he pays such fund over to his prin-
cipal.^^ If the person to whom the money was paid has retained it,
the fact that he received it as agent is immaterial." An agent who
receives money rightfully on behalf of his principal under a con-
tract, but who retains it after he knows that his principal has
failed to perform such contract, is liable to the person by whom
such money was paid."
One who has given a check in exchange for a forged obligation
of a public corporation, which check has been applied by the
public officer who forged such obligation to the payment of his own
debt to such public corporation, may recover the amount of such
check from such public corporation if its claim against the default-
ing public official and his surety has not been impaired in any
way.^* If a county is charged with the duty of collecting and pay-
ing certain taxes, one from whom a tax has been exacted unlaw-
fully can not recover the amount from such county if he makes no
attempt to recover such amount until after such taxes have been
paid out in accordance with law."
§ 1485. Action does not enlarge substantive rights. In allow-
ing an action for money had and received, the law intended to
allow a simple and speedy remedy for a recognized right; but it
did not intend to create a right where there was none already.^
B had been dealing with X, a stock-broker, and the result of the
transaction showed a balance in B's favor. B requested A, X's
agent, for a settlement of that balance, and asked A to pay it. A
10 United States v. N. Y. & Cuba
Mail S. S. Co., 200 U. S. 488, 50 L. ed.
569 [following, Chesebrough v. United
States, 192 U. S. 253, 48 L. ed. 432].
11 Alexander v. Coyne, 143 Ga. 696,
L. R. A. 1916D, 1039, 85 S. E. 831;
Jensen v. Miller, 162 Wis. 546, 156 N.
W. 1010.
12Schorman v. Mclntyre, 92 Wash.
116, 158 Pac. 993.
13 Jensen v. Miller, 162 Wis. 546, 156
N. W. 1010.
14 Hathaway v. Delaware County, 185
N. Y. 368, 13 L. R. A. (N.S.) 273, 78
N. E. 153.
1i Commonwealth for use of Devoe v.
Baske, 124 Ky. 468, 11 L. R. A. (N.S.)
1104, 99 S. W. 316.
1 Monday v. Siler, 47 N. Car. (2 Jones
L.) 389; Mitchell v. Penny, 66 W. Va.
660, 26 L. R. A. (N.S.) 788, 66 8. E.
1003.
2531 Genuine Implied Contracts § 1485
finally made such payment, expecting X to remit the amount to
him at once. X was insolvent, and such amount was never remit-
ted. It was held that A could not recover such amount from B.*
Ay the publisher of a newspaper, made a subscription to a fund for
the relief of the families of certain firemen who had lost their lives
in the discharge of their duty, and published an appeal in his news-
paper for other subscriptions. A number of subscriptions were
made, and the money was paid to A. It was held that the only
child and heir of one of the firemen had no right of action against
A to recover his part of the money so paid in as money had and
received, since under the terms of A's request the disposition of
the fund thus paid in was left to his discretion and judgment.'
While it did not affect the legal rights of the parties, the dispute
arose in this way: plaintiff was a minor, the only son and heir of
one of the firemen for the benefit of whose families the money was
collected. A consulted a legal adviser, and decided to deposit the
plaintiff's share of the fund with a trust company until the plain-
tiff came of age. The lower court made certain orders as to the
disposition of the income of that fund for the. benefit of the plain-
tiff during his minority, and to which orders A did not except. In
the supreme court the plaintiff was the party complaining of error
in the proceedings of the court below, in refusing to turn over the
entire fund to himself 'or his guardian.
Where an officer is holding over as de facto treasurer, his suc-
cessor not having been elected legally, a school district can not
compel him to pay over funds lawfully in his possession by an
action for money had and received.* Since the guardian owes no
duty to his ward to pay over the property in his hands until his
account has been settled by the court which has original juris-
diction of such account, the ward can not maintain an action in
assumpsit to recover his money in the hands of his guardian,
although such guardianship has ceased in law.' If A advances
money to B under a contract by which A is to be repaid only by
B's transferring to A stock in a corporation which was to be
formed to manufacture a machine upon which B was working, if
B could perfect such machine, A can not recover for money had
and received in case such machine proves to be a failure and such
t aippinger v. Starr, 130 Mich. 463, « School District v. Smith, 67 Vt. 566,
90 N. W. 280. 32 Atl. 484.
IHallinan v. Hearst (Cal.), 62 Pac. • Mitchell v. Penny, 66 W. Va. 660,
1063. 26 L. R. A. (N.S.) 788, 66 S. £. 1003.
§ 1485 Page on Contracts 2532
corporation is not formed.* If A obtains money from B, under
circumstances which make him liable to refund, and uses the money
in whole or in part to discharge a valid debt which A owes X, and
X takes without collusion or fraud, B can not recover in an action
against X for money had and received.^ Thus where A borrowed
money of X, and to secure the same he gave a forged note and
mortgage apparently signed by third persons, and subsequently A
borrows money from B and gives another forged mortgage, and
with a part of the money thus borrowed pays the first mortgage to
X, B can not recover from X.* So where A gets money from B by
giving a note to which A signs the name of his principal without
authority, and A uses the money thus obtained to pay debts of his
principal, which A should have paid out of those of X, which
should have been in A's hands but which A in fact had embezzled,
it was held that B could not recover from X for the money thus
used.* So where B, a vendee of land, has a right to rescind the
sale, he can not recover in an action for money had and received
from one who has received no part of the purchase price, except
what was paid to him by the vendor, A, as commission for bring-
ing about the saleJ* So where A gets- money from B by a forged
draft, and with part of the proceeds thereof he discharges a debt
which he owes X, who knows nothing of the forgery, and who
surrenders to A a note endorsed by a third person, B can not
recover from XJ^ So where A, who is shipping hogs under an
arrangement with B, a firm of commission brokers, whereby he
agreed to consign the hogs to B, and draw upon B with each con-
signment, and to use the money thus obtained in paying for the
hogs, it was held that where A took part of this moijey and paid
a debt owing by him to a bank, X, B can not recover such money
from X, although X knew of the arrangement under which the
money was received, since the relation of A to B was that of mere
debtor and creditor." So where X, the cashier of a bank, who was
• Palmer v. Guillow, 224 Mass. 1, 112 10 Limited Investment Association v.
N. E. 493. Investment Association, 99 Wis. 54, 74
T Craft V. R. R., 150 Mass. 207, 5 L. N. W. 633.
R. A. 641, 22 N. E. 920; Walker v. 11 Alabama National Bank v. Rivers,
Conant, 69 Mich. 321, 13 Am; St. Rep. 116 Ala. 1, 67 Am. St. Rep. 95, 22 So.
391, 37 N. W. 292. 580.
• Walker v. Conant, 69 Mich. 321, 13 12Hurlburt v. Palmer, 39 Neb. 168,
Am. St. Rep. 391, 37 N. W. 292. 57 N. W, 1019,
• Craft V. R. R., 150 Mass. 207, 5 L.
R. A. 641, 22 N. E. 920.
2533 Genuine Implied Contracts § 1486
also county treasurer, owes certain taxes to the state as county
treasurer, and draws a draft which he signs as cashier of his bank,
on another bank in which his bank has deposited funds, and for-
wards such draft to the state in payment of the taxes due from him,
which draft is accepted and paid, the bank of which X is cashier
can not recover from the state, although the cashier never paid the
bank for such ^I'ctf t.^' The court held that the fact that the cashier
had signed the draft, was no notice to the state that he was using
the bank's funds for his individual debtJ^ If facts exist which dis-
charge the plaintiff's right of action upon an express contract, the
same facts will prevent him from waiving the express contract,
and suing on an implied contract.^' Thus where A had deposited
money with B to invest, and subsequently A and B had an account-
ing and made a settlement, this accounting will not only bar an
action upon the express contract between A and B, but also will
bar an action for money had and received.^* If A has paid money
to B under such circumstances that he can not recover it from B,
and such payment has discharged a debt due from C to B, A's
right to recover from C can not be litigated in an action brought
by A against B, even if C is made a party thereto." One whose
interest in a trust fund is purely equitable can not maintain an
action at law against one to whom such fund has been paidJ'
§ I486. Classes of rights — ^Receipt of money from third person.
In determining the right of one whose money has been placed in
the hands of another to recover the same, we must distinguish
between two general classes oJ cases. In the first class, the party
who receives the money of another, receives it from a third person
in whose hands it is, without the consent of the real owner thereof.
In the second class of^ cases, the person receiving the money re-
ceives it from the real owner, or from a third person, with the
consent of the real owner. The chief distinction in legal effect,
IS Goshen National Bank v. State, 141 1i Hammer v. Downing, 39 Or. 504,
N. Y. 379, 36 N. E. 316. 64 Pac. 651, 65 Pac. 17, 990, 67 Pac. 30.
14 Goshen National Bank V. State, 141 1* Hammer v. Downing, 39 Or. 504,
N. Y. 379, 36 N. E. 316 fdistinguishing, 64 Pac. 651, 65 Pac. 17, 990, 67 Pac. 30.
Claflin V. Bank, 25 N. Y. 293, where one " Holt y. Thomas, 105 Cal. 273, 38
who took the president's individual Pac. 891; Langevin v. St. Paul, 49
check certified to by him as president Minn. 189, 51 N. W. 817.
was charged with notice that the presi- 1* Monday v. Siler, 47 N. Car. (2
dent had no authority to accept his in- Jones L.) 389.
dividual check on behalf of the bank].
§1486
Page on Contracts
2534
between these two clafises of cases, is this: In the first class, *we
are not embarrassed by the question whether the payment was a
voluntary one. In the second class, in addition to the question of
ownership of the original fund and the right to recover the same,
presented in the first class, we have the further complicating ques-
tion whether the payment was not a voluntary one, since if the
payment was voluntary no recovery can be had, although all the
other facts might be such as to entitle the original owner to
recover.
If A receives money from X which belongs to B, without B's
consent, the general rule is that in the absence of special circum-
stances B may recover such money from A.^ A public officer, as a
sheriff who has retained money which he claims to be due him as
commissions, but which belongs to a board of education, is pliable in
an action for money had and received.* The treasurer of a public
corporation who has deposited public funds in a bank which has
paid him interest upon such deposits must account to the public
corporation for such interest.'
If X pays taxes to a public corporation, A, and a part or all of
such taxes should be paid to another public corporation, B, B may
recover from A the amount of taxes to which B is entitled,* espe-
cially if such payment discharges X from further liability." A
public quasi-corporation,- as a county which receives taxes and
applies them all to its own use when it should pay bonds issued by
a town out of such taxes, is liable to such town therefor.* If a
1 United States. Bayne v. United
States, 93 U. S. 642, 23 L. ed. 997;
United States V. Bank, 96 U. S. 30, 24
L. ed. 647.
Minnesota. Brand v. Williams, 29
Minn. 238, 13 N. W. 42.
New Hampshire. Knapp v. Hobbs,
50 N. H. 476.
New York. Haebler v. Myers, 132 N.
Y. 363, 28 Am. St. Rep. 689, 16 L. R.
A. 588, 30 N. E. 963; Symmers v. Car-
roll, 207 N. Y. 632, 47 L. R. A. (N.S.)
196, 101 N. E. 698.
Vermont. State v. St. Johnsbury, 69
Vt. 332, 10 Atl. 631.
2 Socorro Board of Education v.
Robinson, 7 N. M. 231, 34 Pac. 295.
The same principle applies to fines.
State V. St. Johnsbury, 69 Vt. 332, 10
AtL 531.
?Eshelby v. Board of Education, 66
0. S. 71, 63 N. E. 586.
4 California. Colusa County v. Glenn
County, 117 Cal. 434, 49 Pac. 457.
Nevada. Humboldt County v. Lander
County, 24 Nev. 461, 56 Pac. 228.
New York. Bridges v. Supervisors
of Sullivan County, 92 N. Y. 570;
Strough V. Board of Supervisors, 119
N. Y. 212, 23 N. E. 553.
Oregon. Salem v. Marion County, 25
Or. 449, 36 Pac. 163.
Virginia. Norfolk v. Norfolk County,
120 Va. 356, 91 S. E. 820.
• Norfolk V. Norfolk County, 120 Va.
356, 91 S. E. 820.
I Strough V. Jefferson County, 119 N.
Y. 212, 23 N. E. 652.
2535
Genuine Implied Contracts
§1486
county receives money belonging to other persons without author-
ity, it must refund to such persons.^ Where taxes are paid in to
a county by a sheriff, when they should have been paid to a city,
the city may recover.* Where a county is divided, and the original
county is legally entitled to taxes which were due when the divi-
sion was made, but which had not then been paid, but the state
o£Scials through whose hands such taxes passed, pay a part thereof
to the new county, the original county may recover such taxes
from the new county.* A public corporation may bring an action
of assumpsit against another public corporation which has collected
taxes, part of which should have been paid over to such plaintiff
corporation.^* A public corporation or a public officer who has col-
lected taxes is liable in assumpsit to such public corporations aj
are entitled by law to receive such taxes.^^
A stockholder who receives . dividends when the corporation is
insolvent, and the dividends are paid out of the capital of the cor-
poration, knowing of such condition, may be compelled to repay
such dividends in an action brought by the receiver of the com-
pany.^* Where a school trustee expends money for the actual use
and benefit of towTiship schools, which by law he is required to pay
over to another school corporation, such township is liable to such
corporation for the amount of money thus expended.^* If a wife
has taken money belonging to her husband and paid premiums on
an insurance -policy, taken out by her upon his life without his
authority, the husband may recover the premiums thus paid from
the insurance company.^* The owner of a vessel who has insured
the vessel and goods thereon for the benefit of whom it may con-
cern and who collects such insurance, is liable to the owners of
such goods for the amount of the insurance on such goods/* Where
1 Chapman v. County of Douglas, 107
U. S. 348, 27 L. ed. 378.
• Salem v. Marion County, 25 Or. 440,
3^ Pac. 163. ^
• Colusa County v. Glenn County, 117
Cal. 434, 49 Pac. 457.
W Highway Commissioners v. Bloom-
ington, 253 III. 164, Ann. Cas. 1913A,
471, 97 N. E. 280.
It Colusa County v. Glenn County,
117 Cal. 434, 49 Pac. 467; Highway
Commissioners v. Bloomington, 253 III.
1«4, Ann. Cas. 1913A, 471, 97 N. E.
280; Salem v. Marion County, 25 Or.
449, 36 Pac. 163.
12 Warren v. King, 108 U. S. 389, 27
L. ed. 769; Davenport v. Lines, 72
Conn. 118, 44 Atl. 17.
t3 Center School Township v. State,
ex rel., 150 Ind. 168, 49 N. E. 961 [cit*
ing, Argent i v. San Francisco, 16 Cal.
255; Merrill v. Marshall County, 74 la.
24, 36 N. W. 778].
t4 Metropolitan Life Ins. Co. v.
Trende (Ky.), 63 S. W. 412*.
liSymmers v. Carroll, 207 N. Y. 632,
47 L. R. A. (N.S.) 196, 101 N. E. 698.
§1486
Page on Contracts
2536
the statute provided that property to the value of one thousand
dollars is exempt from administration for the benefit of the widow
and minor children, and such property is delivered to the widow,
a minor child may recover its share from the widow in an action
for money had and received, where the widow refuses to pay to
such child its share of such amounts* A village incorporated under
an unconstitutional act, borrowed money from the state for school
purposes. The county, as the agent of the state, collected from the
village and the township in which it was situated the entire
amount thus borrowed, and paid it to the state, and then collected
another and additional sum as a part of such loan. It was held
that the township could collect from the county the amount thus
collected by the county in excess of the actual loan, the county
having retained such excess of amount, and not having paid it over
to the state."
If X is indebted to 6 and A claims that he is entitled to such
debt and X pays the amount of such debt to A under circum-
stances which leave X still liable to B, it is held in some juris-
dictions that B can not recover such payment from A, since B's
claim against X is not affected by such transaction.^* Where A
gave B a note, which B indorses before maturity to C, and X
brought suit against B and gamisheed A, and A disclosed his
indebtedness to B^ and paid the amount of the indebtedness to
the sheriff, who forwarded it to X, it has been held that C has
no right of action against X on the theory that he had no claim
to the specific fund, his right of action being against A.^* If a
bank makes a payment to a person not entitled thereto, under cir-
cumstances which do not protect the bank as against the person who
ISLanford v. Lee, 119 Ala. 248, 72
Am. St. Rep. 014, 24 So. 578.
17 Milwaukee v. Milwaukee County,
114 Wis. 374, 00 N. W. 447.
It Indiana. Shultz v. Boyd, 152 IndL
166, 52 N. E. 750.
MasBachtiaetta. Moore v. Moore, 127
Mass. 22; Cole v. Bates, 186 Mass. 584,
72 N. E. 333.
Michigan. Corey y. Webber, 06 Mich.
357, 55 N. W. 082; Finn v. Adams, 138
Mich. 258, 4 Am. & Eng. Ann. Cas.
1186, 101 N. W. 533 [citing, Corey v.
Webber, 96 Mich. 357, 55 N. W. 982].
Montana, Merchants' & Miners' Na-
tional Bank v. Barnes, 18 Mont. 335,
66 Am. St. Rep. 586, 47 L. R. A. 737,
45 Pac. 218.
Kew Jersey. Sergeant v. Stryker, 16
K. J. L. 464, 32 Am. Dec. 404.
New York. Butterworth v. Gould, 41
N. Y. 450.
Rhode Island. Richmond v. Read, 83
R. I. 527, 82 Atl. 387.
Virginia. Norfolk v. Norfolk County,
120 Va. 379, 91 S. E. 820.
t« Corey v. Webber, 96 Mich. 357, 55
N. W. 982; Merchants', etc., Bank v.
Barnes, 18 Mont. 335, 56 Am. St. Rep.
586, 47 L. R. A. 737, 45 Pac. 218.
2537
Genuine Implied Contracts
§1486
is rightfully entitled thereto, it is held that the person who is
rightfully entitled can not recover from the person to whom it has
been paid, since his right of action is against the bank.^ If B
was sentenced to imprisonment for life, and A, as guardian of B's
children, collected from X a claim which was due to B, B can
not recover such amount from A, since B's right against X still
exists.^^ If B is the real beneficiary under an insurance policy
and the insurance company has paid the amount of such policy
to A who has claimed under an assignment, B can not recover
such amount from A.^
In other jurisdictions it is held that under these circumstances
B is not bound to compel X to pay such debt to B a second time,
but that he may recover the amount of such payment from A.^
In some jurisdictions in which B is allowed to recover from A,
the fact that A knew at the time that he collected the money from
X that B was entitled thereto, has been referred to as a controlling
fact in determining that B may recover from A.^ If X's note
has been endorsed to B, and A, with knowledge of B's rights,
demands and receives payment of such note from X, B may recover
20 Cole V. Bates, 186 Mass. 584, 72 N.
E. 333.
21 Finn v. Adams, 138 Mich. 258, 4
Ann. Cas. 1186, 101 N. W. 533 [citing,
Corey v. Webber, 96 Mich. 357, 55 N.
"W. 982].
aShultz V. Boyd, 152 Ind. 166, 62
N. E. 750.
23 United States. Bank of the Me-
tropolis v. First National Bank, 19 Fed.
301.
CAlifomia. Colusa County v. Glenn
County, 117 Cal. 434, 49 Pac. 457.
Comiecticnt Goodrich v. Alfred, 72
Conn. 257, 43 Atl. 1041.
GeorgUL Bates-Farley Savings Bank
Y. Dismukes, 107 Ga. 212, 33 S. £. 175.
Illinois. Whitton v. Barringer, 67 111.
551; Allen v. Stenger, 74 111. 119.
Iowa. Homire v. Rodgers, 74 la. 395,
37 N. W. 972.
Minnesota. Brand v. Williams, 29
Minn. 238. 13 N. W. 42; Sibley v. Pine
County, 31 Minn. 201, 17 N. W. 337;
Libby v. Johnson, 37 Minn. 220, 33 K.
W. 783; Landin v. Moorhead National
Bank, 74 Minn. 222, 77 N. W. 35; Quig-
ley V. Welter, 95 Minn. 383, 104 N. W.
236; Stoakes v. Larson, 108 Minn. 234,
121 N. W. 1112; Heywood v. Northern
Assur. Co., 133 Minn. 360, Ann. Cas.
1918D, 241, 158 N. W. 632.
Nevada. Humboldt County v. Lander
County, 24 Nev. 461, 56 Pac. 228.
New York. Bridges v. Supervisors
of SulUvan Co., 92 N. Y. 570; Roberts
V. Ely, 113 N. Y. 128, 20 N. E. 606;
Strough V. Board of Supervisors, 119
N. Y. 212, 23 N. E. 553.
Oregon. Salem v. Marion County^
25. Or. 449, 36 Pac. 163; Wagener v.
United States National Bank, 63 Or.
299, 42 L. R. A. (N.S.) 1135, 127 Pac.
778.
South Dakota. Siems v. Pierre Sav-
ings Bank, 7 S. D. 338, 64 N. W. 167;
Knott V. Kirby, 10 S. D. 30, 71 N. W.
138; Finch v. Park, 12 S. D. 63, 76 Am.
St. Rep. 588, 80 N. W. 155.
24 Heywood v. Northern Assur. Co.,
133 Minn. 360, Ann. Cas. 1918D, 241,
158 N. W. 632.
§1486
Page on Contracts
2538
from A the amount of such payment." If B draws a check upon,
a bank, X, in favor of A, and by mistake as to the amount of
the check X overpays A, B can recover from A the' amount of
such payment.*
If X is indebted to B under circumstances which give B a
property right in a specific fund, and A collects that fund from
X under circumstances which leave X still liable to B, it has been
held that B has an election to sue A or X at his option. If he
sues A, A can not defend on the theory that B has a right of
action against X.^^ If fines are paid into the treasury of a munic-
ipal corporation, and by statute they should have been paid into
the treasury of the county, the county may recover such amounts
from such municipal corporation.* On the other hand, it has been
held that if B sues X, and obtains a judgment, this amounts to an
election, and B can not afterwards maintain an action against A.*
Thus, where A had deposited money in a savings bank, in trust
for his wife, B, and the bank had given a pass-book for such
money, and after the death of A and B, B's executor had demanded
payment, but had been refused because he did not have the pass-
book, and A's executor produced the pass-book and was paid by
the bank, and B's executor sued A's executor and obtained a
judgment, execution upon which was returned because no prop-
erty could be found, and B's executor then sued the bank, it was
held that the first action and judgment amounted to an election,,
and operated as a bar to the second action.*
21 Hey wood v. Northern Assur. Co.,
133 Minn. 360, Ann. Cas. 1918D, 241,
158 N. W. 632.
MWagener v. United States National
Bank, 63 Or. 299, 42 L. R. A. (N.S.)
1136, 127 Pac. 778.
27 Bates-Farley Savings Bank v. Dis-
mukes, 107 Ga. 212. 33 S. E. 175; Cleve-
land V. Jewett, 39 0. S. 271.
"He chose the latter alternative; he
saw fit to ratify the unauthorized col-
lection by the defendant and the un-
authorized payment by the association,
and it does not now lie in the mouth
of the defendant to say, when called
upon to pay over to him the money
which it unlawfully collected upon his
and his assignor's claims against the
building and loan association that his
only remedy is against the association.
• •* • Under such circumstances the
law implies a promise on the part of
the defendant to pay the money over
to the one who was entitled to receive
it." Bates-Farley Savings Bank v. Dis-
mukes, 107 Ga. 212, 218, 33 S. E. 175.
21 Cleveland v. Jewett, 39 0. S. 271.
29 Fowler v. Savings Bank, 113 N. Y.
450, 10 Am. St. Rep. 479, 4 L. R. A.
145. 21 N. E. 172.
30 Fowler v. Savings Bank, 113 N. Y.
450, 10 Am. St. Rep. 479, 4 L. R. A.
145, 21 N. E. 172. The court said that
a different result would have been
reached had this been a special deposit.
2539 Genuine Implied Contracts § 1486
If A collects a fund from B under circumstances which dis-
charge B from liability to X and X is entitled to such fund or
a part thereof as against A, X may maintain an action of assumpsit
against A for money had and received.^^ Since compensation fixed
by law for members of a board is not to be distributed among
them in proportion to the work actually done by each, one mem-
ber may recover from another for money had and received where
such member has collected the salary due to the entire board, but
retained a disproportionate amount under the claim that he had
performed more work than the other member.*
If B has in some way obtained a lien upon a fund or property
belonging to X, and this fund or property is delivered to A, who
takes with full knowledge of B's lien, B can enforce the amount
of his lien in an action against A for money had and received.
Thus, where B seizes a certain property belonging to X on a judg-
ment, and A with knowledge of the judgment induces the sherifip
to sell the attached property and pay the proceeds to him, X can
maintain an action against A for money had and received.'* Where
the sheriff wrongfully pays to A money in his hands which he
should have paid to B, B has an election to sue the sheriff or A.**
Where B obtained a judgment in an action against X, and A claim-
ing a lien on the property, intervenes, and has the attachment
vacated, and A then induces the sheriff to pay him the money
made on such attachment, and on appeal the attachment is held
valid, and B takes judgment against X, and shows an execution
which is returned unsatisfied, X can maintain an action against
A for money had and received.* An assignee of a part of a claim
whose assignment is so made as to give him priority therein, may
recover from a subsequent assignee who has collected the entire
amount of such claim even though such subsequent assignee was
acting in good faith.** If A and his wife, B, have sold property
which they owned jointly, and a note therefor has been given to
f
•1 Norfolk V. Norfolk County, 120 Va. 30 N. E. 963. The court said that
379, 91 S. E. 820. such action could be maintained by
» Stone V. Towne, 67 N. H. 113, 29 "those who would have been entitled
Atl. 637. to the money on the reversal of the
» Finch V. Park, 12 S. D. 63, 76 order, provided it had not been paid to
Am. St. Rep. 588, 80 N. W. 155. the defendants."
S4 Brand v. Williams, 29 Minn. 238, »• Brooks v. Hinton State Bank, 26
13 N. W. 42. Okla. 56, 30 L. R. A. (N.S.) 807, 110
• Haebler v. Myers, 132 N. Y. 363, Pac. 46.
28 Am. St. Rep. 589, 15 L. R. A. 588,
§1486
Page on Contra^cts
2540
Ay A's written account to B showing the amount due to her is such
an acknowledgment as will justify a finding that he promised to
pay her such share of the proceeds of such note when collected.*^
If a check payable to B is forwarded to him, but is stolen by X
before B receives it, and X deposits such check with a bank, A,
which collects the check and pays the proceeds to X, B may re-
cover from such bank in an action for money had and received.*
If A places money in B's hands to be expended for A's support
and B uses only a part thereof for such purpose, A may maintain
an action for money had and received for the unexpended bal-
ance.* Where a de facto oflScer receives his fees or other com-
pensation and retains the same, the liability of the public corpora-
tion to the oflScer de jure is discharged; but the de jure oflScer
may recover such fees from the de facto oflScer as money had and
received.^
A legal right to a definite sum must be shown to enable the
plaintiflP to recover. A and B, each owning stock in a corporation,
agreed jointly to sell their interests to X. By a secret agreement
between X and A, A was to receive additional compensation. B
sued A to recover his share of such amount. It was held that
whatever B's rights might be in an action of deceit, or in a suit in
equity for an accounting, he could not maintain this action.*^
If A holds money in his hands which is claimed by B and X,
and A voluntarily pays such money over to X, A is liable to B
for money had and received if B proves to be the real owner there-
of.^ Where X stole B's money and deposited it with A, who took
it in good faith, but before payment A was notified that the money
was really that of B, A is liable to B for money had and received
if after such notice he pays it to X on X's order .*•
WLurty v. Lurty, 107 Va. 466, 59
S. E. 405.
M Buckley v. Bank, 35 N. J. L. 400,
10 Am. Rep. 249; Shaffer v. McKee, 19
0. S. 526; Fanner v. Bank, 100 Tenn.
187, 47 S. W. 234.
»Flye V. Hall, 224 Mass. 528, 113
N. E. 366.
W Coughlin v. McElroy, 74 Conn. 397,
92 Am. St. Rep. 224, 50 Atl. 1025;
Palmer v. Darby, 64 O. S. 620, 60 N.
E. 626.
Contra by statute, Chubbuck v. Wil-
son, 151 Cal. 162, 12 Ann. Cas. 888,
90 Pac 524. No damages as such
could be recovered. Palmer v. Darby,
64 0. S. 520, 60 N. E. 626.
41 Cummings y. Synnott, 120 Fed. 84,
56 C. C. A. 490. This case impliedly
holds that a right to money in equity
does not always give a right to this
action at law.
42McDuffee v. Collins, 117 Ala. 487,
23 So. 45; Osborn v. Bell, 5 Den. (N.
Y.) 370, 49 Am. Dec. 275; Hindmarch
V. Hoffman, 127 Pa. St. 284, 14 Am.
St. Rep. 842, 4 L. R. A. 968, 18 Atl.
14.
43 Hindmarch v. Hoffman, 127 Pa. St.
284, 14 Am. St. Rep. 842, 4 L. R. A.
368, 18 Atl. 14.
2541
Genuine Implied Contracts
§1487
Where, contrary to law, attorneys' fees are included in the
amount for which property is advertised on foreclosure of a mort-
gage, and the amount of the mortgage and such attorneys' lees is
bid therefor, the mortgagor may recover from the party to whom
such excess amount is paid.^ Thus, if the mortgagee bids in the
property for the amount of the mortgage debt, costs, and such
fees, the mortgagor may recover such surplus from him.** If costs
are included by the sheriff, which he has no right to include, as
where the mortgagee buys the land in, and such costs are paid
over by the sheriff to the county, the mortgagor may recover such
amount from the county.^ If an excessive judgment is rendered,
and the judgment creditor bids in the land for the full amount of
such judgment and costs, and such judgment is subsequently cor-
rected, the judgment debtor may recover such difference as sur-
plus from the judgment creditor.*^
§ 1487. Beceipt of money to discharge specific obligalioii due
another. If X is in some way liable to B, and places money in A's
hands with which A is to pay B's debt, B may enforce such lia-
bility against A if A is not holding such money solely as X's
agent J Thus, if X puts in A's hands money to pay A's debt to
B for goods furnished, B may recover from A.* An arrangement
was made between A, B and X, by which it was agreed that A
was to discount a certain note which X owned, and out of the
proceeds was to pay to B one thousand dollars; in reliance upon
which arrangement, B was to extend credit to X in the sum of
one thousand dollars. B extended such credit, and A refused to
44 Wilkinson v. Baxter's Estate, 97
Mich. 536, 56 N. W. 931.
4iElia8on y. Sidle, 61 Minn. 285, 63
N. W. 730.
4ISoderb€rg v. King County, 15
Wash. 194, 55 Am. St. Rep. 878, 33 L.
R. A. 670, 45 Pac. 785.
47 Mitchell V. Weaver, 118 Ind. 55, 10
Am. St. Rep. 104, 20 N. E. 525.
1 AlalMima. Rockett v. Edmundson,
164 Ala. 478, 51 So. 143.
California. Logan v. Talbott, 59 Cal.
652.
Indiana. Coppage v. Qregg, 127 Ind.
359, 26 N. E. 903.
Michigan, Liesemer v. Burg, 106
Mich. 124, 63 N. W. 990.
Minnesota. Heywood v. Northern
Assurance Co., 133 Minn. 360, Ann. Cas.
1918D, 241, 158 N. W. 632.
New York. Williams v. Fitch, 18 N.
y. 546.
Oklahoma. Martindale v. Shaha, 51
Okla. 670, 151 Pac. 1019.
Oregon. Baker City Mercantile Co.
V. Idaho Cement Pipe Co., 67 Or. 372,
136 Pac. 23.
Pennsylyania. Benner y. Weeks, 159
Pa. St. 504, 28 Atl. 355.
Wisconsin. Sterling y. Ryan, 72 Wis.
36, 7 Am. St. Rep. 818, 37 N. W. 672.
2 Benner y. Weeks, 159 Pa. St. 604,
28 Atl. 355.
§ 1487 Page on Contracts 2542
perform the contract on his part, but discounted the note for his
own benefit. A was held liable to B for money had and received.'
B held a mortgage on certain personal property belonging to X.
X agreed to cause the proceeds of such property to be paid to B
if B would refrain from foreclosure proceedings. X made an
arrangement whereby the purchase price was paid to A under a
contract whereby A was to pay X's debt to B out of such funds.
It was held that B could recover from A.* If A holds money as
X's agent, under instructions to pay B, A is not liable to B as
where he subsequently delivers such money to X on X's demand.'
Where an agent has made sm unauthorized contract on behalf of
his principal, the fact that the agent turns over personal property
other than money to his principal, and reimburses him for any
possible loss by reason of such contract, does not make the prin-
cipal liable to the adversary contracting party in an action for
money had and received. Thus, B held a bill of lading issued by
X, an agent of A, a steamship company, without any authority,
and before the goods were received. X subsequently transferred
his property to A, to protect A against any loss on account of such
bill of lading. B could not recover from A in an action for money
had and received.* If money is delivered to A by B for a specific
purpose, and he refuses to perform the agreement under which it
is received, but undertakes to apply the money to a liability owing
to him by B, A is liable for such money in an action "for money
had and received to the person for whose benefit it was so de-
4)osited. Thus, where A received from C, the agent of B, money,
to be applied upon the purchase price of stock bought by C for B,
and such money yeas furnished by B, A can not apply such money
to a debt due to him from C, even if A does not know when the
money is received that it is B's money .^ B, as sheriff, had incurred
certain expenses in caring for a property seized by him in his
official capacity, and such expenses were included in a bill of costs,
and were collected as a part of the judgment. The entire amount
of the judgment was paid to A, the attorney for C, the successful
party. A credited the entire amount upon his account with C
It was held that B could maintain an action against A for such
expenses, even if B could not prove that A had received this money
tEhrman v. Rosenthal, 117 Gal. 491, sLazard v. Transportation Co., 7S
49 Pac. 460. Md. 1, 26 Atl. 897.
4Coppage V. Gregg, 127 Ind. 359, 26 TBearoe v. Fahmow, 109 Mich. 315,
N. E. 903. 67 N. W. 318.
• Lewis V. Sawyer, 44 Me. 332.
2543
Genuine Implied CoNTRAcre
§1487
under an express agreement to pay B out of such proceeds.* If
money belonging to B, or on which B has a lien, is paid by X to
A, A can not retain such money and apply it to the discharge of
the debt due to him from X.* Thus, where X owns certain cattle,
upon which he had given a lien to a bank, B, of which John D.
Myers was president, and X's agent, under an arrangement with
B, was to sell the cattle and forward the money to a bank, A, of
which John Q. Myers was president, the bank A could not retain
the money and apply it to an indebtedness from that bank to X,
but was liable over to B for such amount^' B held certain re-
ceivership certificates which, by an arrangement between himself
and A, were to have priority over those held by A. It was held
that if A received payment of his certificates to the exclusion of B,
B could maintain an action against A thereforJ^ So where B, a
beneficiary of a life insurance policy taken out by A, had agreed
with A to pay a debt owing by A to X out of such policy, it has
been held that B's executor may maintain an action against A for
the amount of such debtJ' If money which is due from X to A
is paid to B under circumstances which prevent A from enforcing
such claim against X, or which impair A's collateral security, A
may recover such payment from BJ* If X is indebted to A and B
and X pays the amount of such debt to A, B may recover from A
his proportion of such debt.'* If an attorney fee which is due to A
and B is paid to B, A may maintain an action against B for money
had and received to recover his proportion of such fee.'' If X is
the agent of A and B, who are both mortgage creditors of T, and
Y makes a payment to X to apply on his debt to A and X applies
• Knott V. Kirby, 10 S. D. 30, 71 N.
W. 138.
• United States. Central National
Bank v. Ins. Co., 104 U. S. 54, 26 L.
ed. 693; Union Stock Yards Bank v.
Gillespie, 137 U. S. 411, 34 L. ed. 724.
Midiigan. Burtnett v. Bank, 38
Mich. 630.
Nebraska. Cady v. Bank, 46 Neb.
756, 65 N. W. 906; Alter v. Bank, 53
Neb. 223, 73 N. W. 667.
Pennsytvania. Bank v. King, 57 Pa.
St. 202, 98 Am. Dec. 215.
Wyoming. Rock Springs Nat. Bank
▼. Luman, 6 Wyom. 123, 167, 42 Pac.
874, 43 Pac. 514 [reversing, 5 Wyom.
159, 38 Pac. 678].
ttt People's National Bank v. Myers,
65 Kan. 122, 69 Pac. 164.
It Fletcher v. Waring, 137 Ind. 159,
36 N. E. 896.
« Maybury v. Berkery, 102 Mich. 126,
60 N. W. 699.
tSMartindale v. Shaha; 51 Okla. 670,
151 Pac. 1019; Midland Savings & Loan
Co. V. Sutton, 55 Okla. 84, 154 Pac.
1133.
UMartindale v. Shaha, 51 Okla. 670,
151 Pac. 1019.
IS Martindale v. Shaha, 51 Okla. 070,
151 Pac. 1019.
§1489
Page on Contracts
2544
such payment to B's debt, A may recover such amount from B if
B knew of the facts and if A's mortgage had been canceled by
judicial decision.^*
MONEY LOANED
§1488. Money loaned— Necessity of genuine contract A re-
quest to lend money usually implies a genuine promise to repay it ;
and accordingly money which is lent by one at the request of
another may be recovered from the person at whose request it
was lent.^
A request of some sort, either express or implied, is necessary
to authorize recovery in this form of action.* If A lends money
to B and B pays it over to C, A can not recover from C if B was
not acting as C's agent,' unless, by the agreement of all the par-
ties, A gave credit to C* A payment of money by a married
woman to her husband,' or her expenditure of money on his realty,*
does not prima facie amount to a loan.
The action can not be brought unless money was lent.'' It can
not be brought by one who has lent a bond to another to recover
the value of the bond.* If A borrows money from B, B may recover
in the common counts in assumpsit.*
§1489. Against whom action will lie. If money is lent by
one person in reliance upon a genuine contract by another person
II Midland Savings & Loan Co. v. Sut-
ton, 55 Okla. 84, 154 Pac. 1133.
I Ens^land. Stevenson v. Hardie, W.
Bl. 872.
California. Brown v. Spencer, 163
Cal. 589, 126 Pac. 493.
Connecticut. Mechanics' Bank v.
Woodward, 74 Conn. 689, 51 Atl. 1084.
Hinnesota. Wintermute v. Stinson,
16 Minn. 468..
Montana. Clarkson v. Kennett, 17
Mont. 563, 44 Pac. 88.
Oregon. Devlin v. Moore, 64 Or. 464,
130 Pac. 46.
West Virginia. Hix v. Scott, 80 W.
Va. 727, 94 S. E. 399.
Wisconsin. Whitman v. Lake, 32
Wis. 189.
SCummings v. Long, 25 Minn. 337.
8Di Orio v. Venditti, 39 R. I. 101, 97
Atl. 599.
,4Di Orio v. Venditti, 39 R. I. 101, 97
Atl. 599.
iSpruance v. Equitable Trust Co.
(Del. Ch.), 103 Atl. 577; Stone v. Cur-
tis, 115 Me. 63, 97 Atl. 213.
• Spruance- v. Equitable Trust Co.
(Del. Ch.), 103 Atl. 577.
7 Waterman v. Waterman, 34 Mich.
490.
• Waterman v. Waterman, 34* Mich.
490.
9 Hix V. Scott, 80 W. Va. 727, 94 S.
£. 399.
2545
Genuine Implied Contracts
§1490
to repay such loan, ft is immaterial whether the money is lent to
the person who requests the loan,^ or whether it is paid to another
person at his request.'
While the action will lie against the primary debtor whether
the money was paid to him or to another at his direction,' it will
not lie against a guarantor/
VI
MONEY LAID OUT AND EXPENDED
§1490. Money paid. If A pays B's debt upon B's request,
either express or implied, A may recover from B if the circumstances
are such as to show a fair understanding that such money should be
BepaidJ A genuine request is necessary to enable A to recover,*
apart from cases in which considerations of humanity and decency.
are involved,' and apart from cases in which A is obliged to make
such payment to protect his own interests.* The action of assumpsit
will lie ; and the common count for money laid out and expended for
1 California. Brown v. Spencer, 163
Cal. 589, 126 Pac. 493.
Connecticnt. Mechanics' Bank v.
Woodward, 74 Conn. 689, 51 Atl. 1084.
Minnesota. Wintermnte v. Stinson,
16 Minn. 468.
Oregon. Devlin v. Moore, 64 Or. 464,
130 Pac. 46.
Wisconsin. Whitman v. Lake, 32 Wis.
189.
I Stevenson v. Hardie, W. Bl. 872;
aarkson v. Kennett, 17 Mont. 563, 44
Pac. 88.
3 See ante, note 1.
4 Douglass v. Reynolds, 32 U. S. (7
Pet.) 113, 8 I. Cfl. 626.
1 United States. Riggs v. Lindsay,
11 U. S. (7 Cranch.) 500, 3 L. ed. 419.
Arkansas. Donaghey v. Williams,
^ 123 Ark. 411, 185 S. W. 778.
Georgia. Howard v. B^hn, 27 Ga.
174.
Iowa. Littleton Savings Bank v.
Land Co., 76 Ta. 660, 39 N. W. 201;
In re Barnes' Estate, 177 la. 122, 158
N. W. 754.
Kentucky. Armstrong v. Keith, 26
Ky. (3 J. J. Mar.)/ 153, 20 Am. Dec.
131.
Louisiana. Powell v. Lawhead, 13
La. Ann. 627.
Massachusetts. Wheeler v. Young,
143 Mass. 143, 9 N. E. 531.
Minnesota. Rosemond v. Register
Co., 62 Minn. 374, 64 N. W. 925;
Kosanke v. Kosanke, 137 Minn. 115
[sub nomine. In re Kosanke*8 Estate,
162 N. W. 1060].
Nebraska. Grand Island Mercantile
Co. V. McMeans, 60 Neb. 373, 83 N. W.
172.
New Jersey. Rodman v.- Weinberger,
81 N. J. L. 441, 79 Atl. 338.
New York. Albany v. McNamara,
117 N. Y. 168, 6 L. R. A. 212, 22 N. E.
931.
Texas. Lee v. Stowe, 57 Tex. 444.
West Virginia. Bartlett v. Bank of
Mannington, 77 W. Va. 329, 87 S. E.
444.
2 Donaghey v. Williams, 123 Ark. 411,
185 S. W. 778. See § 1520.
3 See §§ 1521 et seq.
4 See { 1542.
§ 1491
Page on Contracts
2546
the use of the defendant at his request may be used.* Thus where the
president and general manager of a corporation takes up a debt
of the corporation, in part with his, individual funds, and in part
with funds furnished by a stockholder, they may join in an action
against the corporation for money thus furnished,* If A, the agent
of a railroad company, delivers freight to B upon B's promise to
pay the freight charges thereon, and B does not make such ^pay-
ment, and as a result thereof A is obliged to pay such amount to
the company, it being contrary to the rules of the company to
deliver the freight until the charges were paid, A may recover
from B.^ A carrier of imports may pay the duties thereon and
claim a lien on the property therefor.* A payment to a third
person made on request may be recovered even if made under a
special contract which proves unenforceable. Thus the directors
and a majority of the stockholders in a corporation agreed with A,
a stockholder, that A should spend a certain amount of money in
developing a mine belonging to the corporation and receive com-
pensation in stock. The contract was set aside by the court; but
as the performance was beneficial to the corporation it was held
that A could recover from the corporation the money thus ex-
pended.* If A expends money on B's account at X's request, A
has no right to recover from B unless X was authorized by B to
make such request.^*
vn
USE AND OCCUPATION
§ 1491. Assumpsit for occupation under genuine but informal
contract. One who is in possession of the land of another under
a genuine agreement by which he is to pay for such use and occu-
pation, but not under a valid formal lease, is liable in assumpsit
for use and occupation.^ This action will lie where possession was
BBartlett v. Bank of Mannington, 77
W. Va. 329, 87 S. E. 444.
tRosemond v. Register Co., 62 Minn.
374, 64 N. W. 925.
7 Grand Island Mercantile Co. v. Mc-
Means, 60 Neb. 373, 83 N. W. 172.
I Wabash R. R. v. Pearce, 192 U. S.
179, 48 L. ed. 397.
9 Jones V. Green, 129 Mich. 203, 05
Am. St. Rep. 433, 88 N. W. 1047.
10 Little Bros. Fertilizer & Phosphate
Co. V. Wilmott, 44 Fla. 166, 32 So. 808;
Allen V. Bobo, 81 Miss. 443, 33 So. 288.
1 England. Phipps v. Sculthorpe, 1
B. & Aid. 50.
Arkansas. Cooley v. Ksir, 105 Ark.
307, 43 L. R. A. (N.S.) 527, 151 S. W.
254. .
California. Hidden v. Jordan, 57
Cal. 184.
2547
Genuine Implied Contracts
§1491
taken under an oral lease,' or under a lease of public land which
the public officials had no authority to make.' It is not necessary
that an express contract be entered into under which possession is
taken. Use and occupation will lie if possession was taken under
a genuine implied contract for paying for such use and occupation.*
Where possession is taken under a contract other than one for the
sale of such realty, an action for use and occupation will lie.' Thus
where a railroad construction compiEiny took possession of the work-
ing plant of certain contractors, claiming the right so to do under
the contract on the ground of contractor's default, and asserting
such right by means of an injunction, it was held that after it was
adjudged that the construction company did not possess such right,
it was liable to the contractor for a reasonable compensation for
the use of such plant.*
A mortgagee, who purchases at foreclosure sale, and enters into
rightful possession, and who upon redemption by the mortgagor
within a year from the date of such sale, is liable for rents during
the period of his occupation, is liable to the mortgagee for such
rents collected in an action for money had and received.^ If A
holds over after the expiration of a lease, B who lives with A and
who iissists A in operating a boarding house, receiving no com-
pensation therefor, is not liable for use and occupation on the
theory that A and B were occupying th^ premises jointly.*
Kentucky. Crouch v. Briles, 30 Ky.
(7 J. J. Mar.) 253, 23 Am. Dec. 404.
Nebraska. Rosenberg v. Sprecher, 74
Neb. 176, 103 N. W. 1045, 105 N. W.
293.
Ohio. Moore v. Beasley, 3 Ohio 294;
Wilson V. Trustees, 8 Ohio 174.
Oklahoma. Rodman v. Davis, 34
Okla. 766, 127 Pac. 411.
Rhode Island. McCardell v. Miller,
22 R. I. 96, 46 Atl. 184.
Virginia. Sutton v. Mandeville, 15
Va. (1 Munf.) 407, 4 Am. Dec. 549.
Use and occupation will not lie where
possession was taken wrongfully. See
§§ 1512 et seq.
1 Moore v. Beasley, 3 Ohio 294.
8 Wilson V. Trustees, 8 Ohio 174.
4 England. Wheatley v. Boyd, 7
£zch. 20.
Arkansas. Cooley v. Kfiir, 105 Ark.
307, 43 L. R. A. (X.S.) 527, 151 S. W.
254.
Kentncky. Crouch v. Briles, 30 Ky.
(7 J. J. Mar.) 255, 23 Am. Dec. 404.
Massachusetts. Little v. Pearson, 24
Mass. (7 Pick.) 301, 19 Am. Dec. 289.
Michigan. Dwight v. Cutler, 3 Mich.
566, 64 Am. Dec. 105.
Oklahoma. Rodman v. Davis, 34
Okla. 766, 127 Pac. 411.
Rhode Island. McCardell v. Miller,
22 R. I. 96, 46 Atl. 184.
5 P. P. Emory Mfg. Co. v. Rood, 182
Mass. 166, 65 N. E. 58.
SChamplain Construction Co. v.
O'Brien, 117 Fed. 271.
TSiems v. Bank, 7 S. D. 338, 64 N.
W. 167.
• Austin V. Whittle, 178 Mass. 155»
59 N. E. 636.
§1492
Page ox Contracts
B548
§1492. Aflsnmpnt for occupation of realty uxider a formal
lease. An action for use and occupation would not lie at cpmmon
law, if the occupant was holding by a formal lease under sealJ
At modern law the same principle applies, where the occupant
holds by a formal lease which is enforceable and contains an ex-
press covenant to pay rent. An occupant who enters under a
formal lease, may be liable for use and occupation, if for any
reason the lease itself proves untoforceable. Thus, where a tenant
was partially evicted by his landlord, and his landlord had sued in
debt and failed to recover because of such partial eviction,* it was
held that he might sue the tenant on a quantum meruit account
in assumpsit for the beneficial use which the tenant had.' If a
lease under seal has been subsequently modified or varied in legal
effect, in any other way whatever than by another instrument
under seal, the resulting obligation is treated in law as a simple
obligation, and not a specialty. Accordingly, an action in assumpsit
can be brought upon such an obligation in a proper case, and the
fact that the original lease was under seal does not prevent this
form of action. Thus, where by statute the election of a city to
take for public use part of any land under lease, discharges such
lease as to the part taken, but leaves it valid as to the residue,
and upon such election the city acquires legal title in the part
taken, a tenant holding uii^er a sealed lease is liable after such
election in an action for the use and occupation of the residue.*
If A holds property under a perpetual lease from B, and A sells
to X, subject to the annual rent reserved, and X recognizes B's
rights in such property, the law implies a promise by X to B to
pay the rent ; and accordingly, assumpsit will lie.* A statute allow-
ing assumpsit on sealed contracts makes it possible to maintain
assumpsit on a written lease under seal.*
1 Reade v. Johnson, Cro. Eliz. 242, 1
Leon. 155; Green v. Harrington, Hob.
284, Hutt. 34; Brett v. Read, Cro. Car.
343, W. Jones 329; Codman v. Jenkins,
14 Mass. 93.
J Meredith Association v. Twist-Drill
Co., 66 N. H 539, 30 Atl. 1119.
9 Meredith Association v. Twist-Drill
Co., 67 N. H. 450, 39 Atl. 330.
4McCardell v. Miller, 22 R. I. 96, 48
Atl. 184.
• Derrick v. Luddy, 64 Vt. 462, 24
Atl. 1050; Dalton v. Laadahn, 30 Mich.
349; Conklin v. Tuttle, 52 MTch. 630,
18 N. W. 391; Beecher v. Duffield, 97
Mich. 423, 56 N. W. 777.
8 Dalton V. Laudahn, 30 Mich. 349;
Beecher v. Duffield, 97 Mich. 433, 56 N.
W. 777.
CHAPTER XLIV
QUASI-CONTRACT OR CONSTRUCTIVE CONTRACT
I. GENERAL NATURE
§ 1403. Quasi-contracts.
§ 1494. Historical use of term "quasi-contract."
f 1405. Historical reason for confusion between implied contract and quasi-
contract.
§ 1406. Fictitious character of promise in quasi-contract.
§ 1407. Confusion in terms at modern law.
§ 1408. -Practical importance of distinction between contract and quasi-contract.
§ 1409. Distinction between contract and quasi-contract in procedure — ^Attach-
ment.
f 1500. Statute of limitations.
§ 1501. Statutes conferring jurisdiction.
1 1502. Set-off and counterclaim.
§ 1503. Classification of quasi-contracts.
II. WAIVER OF TORT
i 1504. Waiver i>f tort— Nature and theory of doctrine.
1 1505. Conversion of money.
§ 1506. Conversion of personalty which is then converted into money.
§ 1607. Conversion of personalty which is not converted into money— Original
taking wrongful — ^Assumpsit denied.
§ 1508. Original taking rightful.
§ 1500. Assumpsit allowed without regard to nature of original taking.
§ 1510. Wrongful sale of realty.
§ 1511. Appropriation of realty without compensation.
§ 1512. Wrongful occupancy of real property.
§ 1513. Liability of trespasser in assumpsit.
§ 1614. Other fcirms of occupancy excluding liability in contract,
f 1515. Work and labor obtained by tort.
m. QUASI-CONTRACTUAL RIGHTS ARISING NEITHER FBOSA
CONTRACT NOR FROM TORT
A. VOLUNTABY PAYMENTS, 8EBVICES, ETC.
i 1516. Services rendered voluntarily without request.
S 1517. Services rendered by finder of lost property.
§ 1518. Services rendered to preserve animals,
f 1510. Receipt of money from real owner— Voluntary paymanta.
1 1620. Money paid for use of another— Voluntary payment*
2540
Page on Contracts 2550
B. PATIOSNTS, 8EBTICE8, ETC. — SPECIAL CASES OF HUMANITT, DB0KNOT| ETC.
§ 1521. Serricea rendered in emergency to preserve human life.
§ 1522. Funeral expenses.
§ 1523. Liability of husband for wife's necessaries.
§ 1524. Liability of parent for necessaries of minor child.
§ 1525. Liability to third person of one who has contracted to furnish support.
§ 1526. Support of paupers.
§ 1527. Support of persons under quarantine, etc
C. INVOLUNTABT PAY1CEI7TS IN 6ENEBAL
f 1528. Involuntary payments.
§ 1529. Payment by one not beneficial owner.
O. PATKENTS XTSDER COHPT7L8ION
§ 1530. Payment under duress and undue influence— Oeneral nature.
§ 1531. Elements of compulsion.
§ 1532. What compulsion justifies recovery — In general,
g 1533. Payment extorted by imprisonment.
§ 1534. Payment extorted by wrongful detention of goods.
§ 15^5. Payment to remove cloud from title to realty.
§ 1536. Civil action as compulsion — ^Failure to invoke protection of law.
§ 1537. Legal process as compulfiion.
§ 1538. Breach of contract as duress.
§ 1539. Other forms of duress.
§ 1540. Dilemma not duress.
§ 1541. Unfair advantage as duress.
§ 1542. Payment of another's debt to protect one's interests.
§ 1543. Payment by party secondarily liable.
§ 1544. Recovery of payments made on judgments.
§ 1546. Application of foregoing principles to taxes, assessments for local improve-
ments and license fees.
§ 1546. Protest.
§ 1547. Necessity of demand.
S. PAYMENT OBTAINED BT FRAUD
§ 1548. Payment obtained by fraud — General principles.
§ 1549. Payment obtained by fraud — Specific illustrations.
f 1550. Who may recover and from whom.
F. PAYMENT BY MISREPBESENTATTON
1 1551. Payment by misrepresentation.
O. PAYMENT UNDER MISTAKE OF FACT
1 1552. Payment under mistake of fact.
§ 1553. Elements of mistake of fact — Unconscious ignorance or forgetfulness.
§ 1554. Mistake as to essential element.
§ 1555. Mistake as to evidence.
§ 1556. Illustrations of mistake of fact.
2551 QrASi or Constructive Contract § 1493
§ 1557. Mistakes in computation.
§ 1558. Recovery of payment on forged instrument.
§ 1559. Recovery of payment causing overdraft.
§ 1560. Negligence of party making payment — ^Held not to bar recovery.
1 1561. Negligence held to bar recovery.
§ 1562. Innocent payee must be placed in statu quo.
S 1563. Mistake need not be mutual.
H.. PAYMENT BY MISTAKE OF LAW
§ 1564. Payment by mistake of law.
S 1565. Illustrations — Total failure of consideration.
§ 1566. Doctrine that payment by mistake of law may be recovered.
§ 1567. Mistake of law coupled with other operative facts.
GENERAL NATURE
§X493. Quasi-contracts. When we deduct the express con-
tract and the genuine implied contract from the rights upon which
in the latest development of the common law, an action ex con-
tractu could have been brought, we find that we have left remain-
ing a number of rights.^ These rights consist of combinations of
facts to which the law attached an obligation without regard to
the agreement of the parties thereto, and frequently in defiance of
the intentions of one or both of such parties, which obligation
could be enforced by an action ex contractu, and generally by the
action of assumpsit.' This type of liability is merely ''an implica-
tion of law that arises from the facts an(J circumstances inde-
pendent of agreement or presumed intention."' Since an action
1 For a discussion of the nature of contract. The term itself implies that
quasi-contracts as distinguished from the obligation or duty is not a con-
genuine implied contracts, see High- tractual one." Sibley v. Connecticut,
way Commission v. Bloomington, 253 89 Conn. 682, 96 Atl. 161.
111. 164, Ann. Cas. 1913A, 471, 97 N. E. 3Pracht v. Daniels, 20 Colo. 100, 103;
230 36 Pac. 845. ''There is some confusion
2Harty Bros. & Harty Co. v. Pol- in the statement of the law applicable
akow, 237 111. 559, 86 N. E. 1085; Peo- to what are frequently called implied
pie V. Dummer, 274 111. 637, 113 N. E. contracts, arising from the fact that
934; Miller v. Schloss, 218 N. Y. 400, obligations generally different have
1 13 N. E. 337 ; Morse v. Kenney, 87 Vt. been classed as such, not because of
445, 89 Atl. 865; Underbill v. Rutland any real analogy, but because where
R. Co., 90 Vt. 462, 98 Atl. 1017. the procedure of the Common Law pre-
'The term quasi-contract describes a vails, by the adoption of a fiction in
situation where there is an obligation pleading— that of a promise where
or duty arising by law upon which the none in fact exists or can in rea-
same remedy is given as would be given son be supposed to exist — the favor-
if the obligation or duty arose out of ite remedy of implied assumpsit could
§1493
Page on Contracts
2552
ex contractu lay to protect and enforce such a rights it is called
be adopted. This was so in that large
class of cases, where suit is brought to
recover monej paid by mistake or has
been obtained by fraud. Here it is
said the law implies a promise to repay
the money, when it was well under-
stood that the promise was a mere
fiction, and in most cases without any
foundation whatever in fact. The same
practice was adopted where necessaries
had been furnished an insane person or
a neglected wife or child. In all these
cases no true contract exists. They
are, by many authors, termed quasi-
contracts, a term borrowed from the
civil law. In all these cases no more
is meant than that the law imposes a
civil obligation on the defendant to re-
store money so obtained, or to com-
pensate one who has furnished neces-
saries to his wife or child, where he
has neglected his duty to provide for
them, or, by reason of mental infirm-
ity, is unable to obtain them for him-
self. But contracts that are true con-
tracts are frequently termed implied
contracts, as, where from the facts and
circumstances, a court or jury may
fairly infer, as a matter 6f fact, that a
contract existed between the parties,
explanatory of the relation existing
between them. Such implied contracts
are not generically different from ex-
press contracts; the difference exists
simply in the mode of proof. Express
contracts are proved by showing that
the terms were expressly agreed on by
the parties, whilst in the other case the
terms are inferred as a matter of fact
from the evidence offered of the cir-
cumstances surrounding the parties,
making it reasonable that a contract
existed between them by tacit under-
standing. In such cases no fictions are,
or can be, indulged. • The evidence must
satisfy the court and jury that the
parties understood that each sustained
to the other a contractual relation; and
that by reason of this relation the de-
fendant is indebted to the plaintiff for
services performed or for goods sold
and delivered. In the leading case of
Hertzog v. Hertzog, 29 Pa. St. 4fi&, the
distinction is clearly stated by Judge
Lowrie. After quoting from Black-
stone, and observing that his language
is open to criticism^ he says: 'There is
some looseness of thought in supposing
that reason and justice ever dictate
any contracts between parties, or im-
pose such upon them. All true con-
tracts grow out of the intentions of
parties to transactions, and are dic-
tated only by their natural and accord-
ant wills. When the intention is ex-
pressed, we call the contract an ex-
press one. When it is not expressed,
it may be inferred, implied, or
presumed, from circumstances really
existing, and then the contract thus
ascertained is called an implied one.
• • • It is quite apparent, there-
fore, that radically different relations
are classified under the same term,
and this often gives rise to indistinct-
ness of thought. And this was not at
all necessary; for we have another
well-authorized technical term, exactly
adapted to the office of making the
true distinction. The latter class are
merely constructive contracts, while
the former are only implied ones. In
one case the contract is a mere fiction,
a form imposed in order to adapt the
case to a given remedy; in the other it
is a fact legitimately inferred. In one
the intention is disregarded; in the
other it is ascertained and enforced.
In one the duty defines the contract;
in the other the contract defines the
duty.*" Columbus, etc., Ry. v. Gaff-
ney, 65 O. S. 104, 113; 61 N. E. 152
[quoting Hertzog v. Hertzc^, 29 Pa.
St. 468].
"In many cases where there is no
contract, the law upon equitable
grounds imposes an obligation often
called quasi-contractual. Such obliga-
2553 Quasi or Constructive Contract § 1493
a contract implied in law,^ a contract created by law,* a constrac-
tive contract,* or a quasi-contract.^
tions are not contracts in the proper
Bense, since they are created hy law
and not hy the parties. In such so-
called contracts the law creates a fic-
titious promise for the purpose of al-
lowing the remedy by action of as-
sumpsit. Though created by law and
clothed with the semblance of a con-
tract, the obligation is not a contract
at all. The proper term for such obli-
gations is 'quasi-contract/ a term
borrowed from the Roman law. Tl^ey
are called 'quasi-contracts' because, as
the term implies, they are not con-
tracts at all, but have a semblance of
contract in that they may be enforced
by an action of assumpsit. Much of the
apparent confusion in the cases arises
from a failure to distinguish clearly
between implied contracts in fact and
contracts implied in law, or construc-
tive contracts." Morse v. Kenney, 87
Vt 445, 89 Atl. 865.
^A quasi or constructive contract
rests upon the equitable principle that
a person shall not be allowed to enrich
himself unjustly at the expense of an-
other. In truth, it is not a contract
or promise at all. It is an obligation
which the law creates, in the absence
of any agreement, when and because
the acts of the parties or others have
placed in the possession of one person
money, or its equivalent, under such
circumstances that in equity and good
conscience he ought not to retain it,
and which ex aequo et bono belongs to
another. Duty, and not a promise or
agreement or intention of the person
sought to be charged, defines it. It is
fictitiously deemed contractual, in or-
der to fit the cause of action to the
contractual remedy." Miller v. Schloss,
218 N. Y. 400, 113 N. E. 337.
"It is a mistake, in the technical
sense, to speak of the contract as one
implied by law. There are such con-
tracts. They arise where there is a
legal duty to respond in money which
by a legal fiction may be enforced as
upon an implied promise. In such case
there is no element of contract strictly
so called. There is only the duty to
which the law fixes a legal obligation
of performance as in case of a promise
inter partes. So it is called in the
books a quasi-contract. There are im-
plied contracts in the strict sense of
the term. In this case we are dealing
with the subject of implied contracts
in such sense. Such a contract re-
quires, the same as an express contract,
the element of mutual meeting of
minds and of intention to contract.
The two species differ oirty in methods
of proof. One is established by proof
of expression of intention, the other
by proof of circumstances from which
the intention is Implied as a matter of
fact. The implication arises upon legal
principles and is conclusive in the ab-
sence of something efiiciently displac-
ing it, as a presumption of law. Un-
like the latter, it being an implication
of fact though springing into existence
as matter of law, it is rebuttable."
Wojahn v. National Union Bank, 144
Wis. 646 (666), 129 N. W. 1068.
♦ Brown's Estate v. Stair, 25 Colo.
App. 140, 136 Pac. 1003; Underbill v.
Rutland R. Co., 90 Vt 462, 98 Atl.
1017.
(Highway Commissioners v. Bloom-
ington, 253 IlL 164, Ann. Cas. 1913A,
471, 97 N. E. 280; People v. Dummer,
274 111. 637, 113 N. E. 934; Bishop on
Contracts, cji. VIII.
• Miller v. Schloss, 218 N. Y. 400, 113
N. E. 337.
7 Brown's Estate v. Stair, 25 Colo.
App. 140, 136 Pac. 1003; Highway Com-
missioners v. Bloomington, 253 111. 164,
Ann. Cas. 191 3 A, 471, 97 N. E. 280;
Miller v. Schloss, 218 N. Y. 400, 113 N.
E. 337.
§1494
Page on Contracts
2554
No genuine promise was supposed to exist in fact, but the duty
was fictitiously deemed to be contractual in order to fit the cause
of action to a contractual remedy.*
If liability in quasi-contract is to be explained on the theory
of a fictitious promise, the presumption that such promise was
made must be conclusive.* Accordingly, if a joint liability is shown,
a joint promise will be presumed.^* The term "quasi-contract" is
not applied to statutory duties or liabilities,^^ such as the duties or
rights of public ofiScers," on which a contract action does not lie.
§1494. Historical use of term ''quasi-cofntract/' The term
** quasi-contract" is of considerable antiquity in English law, al-
though its actual use is quite recent and is still less common than
it should be. Bracton undoubtedly based his de Legibus et Con-
suetudinibus Angliae on the plea rolls of the King's courts as far
as they furnished material for the specific subject under discussion.
When this material failed he adapted civil laws as best he could
to the English situation, following Azo's Summa very closely wher-
ever it was practicable. When Bracton reached this subject, how-
ever, the plea rolls of the King's courts failed him, as they would
have failed him if he had written many years later. On this point
Azo, too, failed him, for Azo's treatment of this subject in his
Summa is chiefiy a series of references to his code. Accordingly,
Bracton resorted to Justinian's Institutes; and finding there a dis-
cussion of obligations quasi ex contractu,^ which possibly bewil-
i Highway Commissioners v. Bloom-
ington, 253 111. Id4, Ann. Cas. 19I3A,
471, 97 N. E. 280; People v. Dusen-
bury, 77 N. Y. 144; Miller v. Schloss,
218 N. Y. 400, 113 N. E. 337; Morse v.
Kenney, 87 Vt. 445, 89 Atl. 865.
SHumbird v. Davis, 210 Pa. St. 311,
59 Atl. 1082.
lOHumbird v. Davis, 210 Pa. St 311,
69 Atl. 1082.
11 Sibley v. State, 89 Conn. 682, 96
Atl. 161.
12 Sibley v. State, 89 Conn. 682, 96
Atl. 161.
1 "In addition to the classes of con-
tracts which have been named, let us
also consider those obligations which
are known not to arise out of contract
in the proper sense of the term, but
nevertheless do not arise out of a
wrong and accordingly appear to arise
out of contract so to speak (quasi ex
contractu). Thus, if one man has
managed the business of another dur-
ing the 1atter*s absence, each can sue
the other by the action on uncom-
missioned agency; the direct action
being available to him whose business
was managed, the contrary action to
him who managed it. It is clear that
these actions can not properly be said
to originate in a contract, for their
peculiarity is that they lie only where
one man has come forward and man-
aged the business of another without
having received any commission so to
do, and that other is thereby laid under
a legal obligation even though he
2555
Quasi or Constructive Contract § 1494
dered him as much as it helped him, he reproduced it in this form :
"As we have already discussed obligations which arise ex con-
tractu, we must now discuss obligations which arise quasi ex con-
tractu. And it must be understood that actions arise quasi ex con-
tractu, as in unauthorized agency, wardships, partition of property
knows nothing of what haB taken
place. The reason of this is the gen-
eral convenience; otherwise people
might be summoned away by some
sudden event of pressing importance,
and without commissioning any one to
look after and manage their affairs, the
result of which would be that during
their absence those affairs would be
entirely neglected; and of course no
one would be likely to attend to them
if he were to have no action for the
recovery of any outlay he might have
incurred in so doing. Conversely, as
the uncommissioned agent, if his man-
agement is good, lays his principal
under a legal obligation, so too he is
himself answerable to the latter for an
account of his management; and herein
he must show that he has satisfied the
highest standard of carefulness, for to
have displayed such carefulness as he
is wont to exercise in his own affairs
is not enough, if only a more diligent
person could have managed the busi-
ness better. Guardians again, who <;an
be sued by the action on guardian-
ship, can not properly be said to be
bound by contract, for there is no con-
tract between guardian and ward; but
their obligation, as it certainly does
not originate in delict, may be said
to be quasi-contractual. In this case
too each party has a remedy against
the other; not only can the ward sue
the guardian directly on the guardian-
ship, but the guardian can also sue
the ward by the contrary action of tfce
same name, if he has either incurred
any outlay in managing the ward's
property, or bound himself on his be-
half, or pledged his own property as
security for the ward's creditors.
"Again, where persons own property
jointly without being partners, by hav-
ing, for instance, a joint bequest or
gift made to them, and one of them
is liable tq be sued by the other in a
partition suit because he alone has
taken its fruits, or because the plain-
tiff has laid out money on it in neces-
sary expenses: here the defendant can
not properly be said to be bound by
contract, for there has been no con-
tract made between the parties; but
as his obligation is not based on delict,
it may be said to be quasi-contractual.
The case is exactly the same between
joint heirs, one of whom is liable to
be sued by the other on one of these
grounds in an action for partition of
the inheritance. So, too, the obliga-
tion of an heir to discharge legacies
can not properly be called contractual,
for it can not be said that the legatee
has contracted at all with either the
heir or the testator: yet, as the heir
is not bound by a delict, his obliga-
tion would seem to be quasi-con-
tractual. Again, a person to whom
money not owed is paid by mistake
is thereby laid under a quasi -contract-
ual obligation; an obligation, indeed,
which is 80 far from being contractual,
that, logically, it may be said to arise
from the extinction rather than from
the formation of a contract; for when
a man pays over money, intending •
thereby to discharge a debt, his pur-
pose is clearly to loose a bond by
which he is already bound, not to bind
himself by a fresh one. Still, the per-
son to whom money is thus paid is
laid under an obligation exactly as if
§1494
Page on Contracts
2556
owned in common, the distribution of an inheritance, an action
based upon a will, an action to recover money paid when it is not
justly due, and actions of this sort."*
Bracton's recognition of quasi-contract as a topic to be discussed
in a treatise on English law was undoubtedly premature as far as
the law of the King's courts was concerned. Bracton wrote long
before the Statute of Westminster Second, and accordingly long
before the action of trespass on the case was recognized by the
King's courts, to say nothing of its development into the action
of assumpsit. His statement of the law on this point had no rela-
tion to the actions which were recognized in the King's courts or
to the substantive law which was enforced thereby. While there
were a number of rights which were enforced by the action of debt
and which we would term quasi-contractual since they did not
originate in the agreement of the parties, these rights were prob-
ably not thought of by any one in Bracton's day as related in any
way to quasi-contracts. When the courts have not reached any
theory of contract, it is much too early to expect a theory of quasi-
contract. It is possible that rights of this sort were recognized to
some extent in the local courts; but so few of the records of these
courts are available that it is unsafe to make generalizations from
the material to which we have access. Each court seems to have
felt free to find its own law without regard to the law of the other
courts; and an occasional recognition of a right of this sort by
one court does not. make it safe to infer that such a right would
have been recognized by the local courts generally.
Whether Bracton's statement as to the law of obligations quasi
ex contractu have much effect upon the development of English
he had taken a loan for consumption,
and therefore he is liable to a condic-
tion. Under certain circumstances
money which is not owed, and which is
paid by mistake, is not recoverable;
the rule of the older lawyers on this
point being that wherever a defendant's
denial of his obligation is punished by
duplication of the damages to be re-
covered— as in actions under the lex
Aquilia, and for the recovery of a
legacy — he can not get the money back
on this plea. The older lawyers, how-
ever, applied this rule only to such
legacies of specific suma of money as
were given by condemnation; but by
our constitution, by which we have
assimilated legacies and trust bequests,
we have made this duplication of dam-
ages on denial an incident* of all actions
for their recovery, provided the legatee
or beneficiary is a church, or other
holy place honored for its devotioB
to religion and piety. Such legacies,
although they may be paid when they
are not due, can not be recovered."
in Institutes, Title 27. (Adapted from
Moyle's translation.)
2 Bracton Book III, 2 f lOf, lOOb;
Twiss's edition, VoL II, 118.
2557 Quasi or Constructive Contract § 1495
law may also be doubted. His influence had died out and his book
had become obsolete before the action of assumpsit had become
established. At the same time his book always remained a classic
of its day; and those who read it would find that there were
rights enforced in an action in personam which were neither tort
nor genuine contract.
§ 1495. Historical reason for confusion between implied con-
tract and quasi-contract. As has already been said, the action of
assumpsit was at first limited to express promises.^ It was gradu-
ally extended without much regard to consistency first to one
type of genuine implied contract and then to another.' While
this process was going on we find that at the same 'time debt, and
to some extent, assumpsit were being used to enforce rights of
action which were neither tort nor genuine contract, and which
we would class as quasi-contract if we were applying our modem
ideas to the law of that day. At the sime time, it probably did
not occur to the men who were recognizing and enforcing these
rights that they were nothing but rights based on promises. A debt
was looked upon as a debt without the slightest regard to the facts
which created the duty to* pay a fixed and liquidated sum of
money. The test of the -debt was the nature of the duty itself
and not its source or origin. If -assumpsit was extended to in-
clude rights which did not arise on genuine contract, these rights
were grouped with those which arose out of a genuine implied
contract and they were always called implied contracts. This con-
fasion was increased by the text writers who vied with the courts
in grouping under the heading 'implied contract" rights which
arose out of genuine implied contract, and those which had no
connection with contract. Blackstone says that contracts implied
by law are ''such as reason and justice dictate and which there-
fore the law presumes that every man has contracted to perform ;
and upon this presumption makes him answerable to such persons
as suffer by his non-performance."^ Under this general heading
Blackstone groups judgments, forfeitures, penalties, work and
labor, goods sold without an agreement as to the price, money had
and received indudii^ig money obtained by mistake, oppression and
the like, money laid out and expended at the request of the de-
fendant, aceounts stated, the duty of one who takes an oflce» em-
I8ee (27. td BUck. Com. 168. -
iSee i§fi9 el seq.
§1496
Page on Contracts
2558
ployment or trust, to perform his work with integrity and diligence
and skill/ implied warranties as to title and quality of goods sold,
and an implied promise not to defraud the adversary party to a
transaction.^ The authority of Blackstone in the United States
has made his definition of an implied contract a favorite one in
American courts ; * even with courts which recognize the difference
between the genuine contract and the constructive contract. The
confusion between the genuine implied contract and the quasi-
contract was intensified by rule of common law pleading which
required a declaration in assumpsit to allege a promise even though
no promise was in fact ever made and which treated as insufiScient
a declaration which alleged all the facts which created the liability
if it did not also allege the fictitious promise of the defendant.*
Under the Code of Civil Procedure it is not necessary to allege a
promise if no promise was in fact made; but it is sufficient to
allege the facts which create liability without also alleging the
fictitious promise.^
§ 1496. Fictitious charaeter of promise in quasi-contract. The
fiction of a promise was at first of great help in enabling the courts
4 3 Black. Com. 158 to 165.
BOttumwa Mill & Construction Co.
V. Manchester, 139 la. 334, 115 N. W.
911.
• Eng;Iaiid. Carter v. Goddard, Cro.
Eliz. 79; Lee v. Welch, 2 Strange 793;
Buckler v. Angel, I Lev. 164, 1 Sid. 246,
1 Keb. 878.
Alabama. HilFs Administrator ▼.
Nichols, 50 Ala. 336.
niinois. Massachusetts Mutual Life
Ins. Co. V. Kellogg, 82 111. 614.
Maine. Coffin v. Hall, 106 Me. 126,
75 Atl. 385.
Massadmaetts. Avery t. Tyringham,
3 Mass. 160, 3 Am. Dec. 105.
Michigan. Hoard v. Little, 7 Mich.
468.
New York. Candler v. Rossiter, 10
Wend. (N. Y.) 487.
Vermont Douglass ▼. MorrisviUe, S4
Vt. 302, 79 AtL 391.
West Virginia. Wheeling Mold &
Foundry Co. v. Wheeling Steel & Iron
Co., 62 W. Va. 288, 67 S. E. 826.
''it is true that there is nothing in
that count that amounts to an express
promise by the defendant to pay al-
though there are allegations of abun-
dant evidence of quasi promise to pay.
But that is not enough. There should
have been an averment of assumpsit
super se or its equivalent, for assump-
sit without assuming is no assump-
sit"
7 California. Brown v. Crown Gold
Milling Co., 150 Cal. 376, 89 N. W. 86.
Indiana. Cox v. Peltier, 159 Ind. 355,
65 N. E. 6.
Minnesota. Solomon v. Vinson, 31
Minn. 205, 17 N. W. 340.
Nebraska. Ball v. Beaumont, 59 Neb.
631, 81 N. W. 858.
North Dakota. Weber v. Lewis, 19
N. D. 478, 84 L. R. A. (N.S.) 364, 126
N. W. 105.
Oregon. Waite ▼. WiUU, 42 Or. 288,
70 Pac. 1034.
Wisconmn. Potter v. Van Norman,
73 Wis. 339, 41 N. W. 524.
2559
Quasi or CoisrsTRucTivE CoNTRAcf § 1496
to develop law while professing to follow precedent, and it met
with general praise,^ except from the ultra-conservatives, who
objected to the development, and accordingly objected to the fic-
tion, not because it was a fiction, but because it was a means of
development; The fictitious character of the promise was noted
soon after the development of these actions began.* If facts exist
which impose a duty of a sort for which an action in assumpsit
would lie, a genuine promise to perform such duty is not neces-
sary.*
To-day the fiction of the promise is rather a clog on further
development and a cause of confused thinking; and the confusion
arising from the use of this fiction has caused it to be criticized
sharply.* We should have outgrown the need for fictions in law,
especially a fiction with which the law has had three centuries to
become acquainted. We should discard the metaphysical notion
of a promise, and treat these obligations, as in truth they are, as
legal duties which are neither contracts nor torts, whatever their
origin may have been.
1 "Great benefit arises from a liberal
extension of the action • • ♦ be-
cause the charge and defense in this
kind of action are both governed by the
true equity and conscience of the case."
Longchamp v. Kenny, 1 Dougl. 137.
See to the same effect, Todd v. Bett-
ingen, 109 Minn. 493, 124 N. VV. 443;
Hey wood v. Northern Assur. Co., 133
Minn. 360, Ann. Cas. 1918D, 241, 158
N. W. 632.
J "The notion of promises in law was
a metaphysical notion, for the law
makes no promise but where there is
a promise of the party." Starke v.
Cheesemen, 1 Ld. Raym. 538.
See also, Heywood v. Northern Assur.
Co., 133 Minn. 360, Ann. Cas. 1918D,
241, 158 N. W. 632.
3 People V. Dummer, 274 111. 637, 113
N. E. 934; Fidelity Savings Bank v.
Reeder, 142 la. 373, 120 N. W. 1029;
Miller v. Schlosa, 218 N. Y. 400, 113
N. E. 337.
4 "To say that the law supplies the
privity and the promise is but to in-
dulge in legal fiction. There is no
place for fiction in modern law. At
a time when it was thought that no
new right could be recognized unless
it could be enforced through some old
form of procedure, a fiction which un-
dertook to clothe a newly-recognized
right with the semblance of the garb
of an old one, may have served a pur-
pose, but fictions of the law never did
deceive, nor can they now serve any
real useful purpose. They should not
be allowed to help or to hurt any man's
cause, but should be discarded as the
archaic contrivances which they are. If
a man has suffered a wrong which on
recognized principles of right and jus-
tice the law ought to redress a remedy
should be given him, otherwise not. It
seems to us better to say with frank-
ness that neither privity nor promise
is required at all, and to say, as was
said by Mitchell, J., in Sibley v. County
of Pine, 31 Minn. 201, 17 N. W. 337:
'The obligation ♦ ♦ ♦ to repay
* * • arises from the moral obliga-
tion, resting upon every person, ♦ ♦ ♦
to make restitution where they have
§1497
Page on Contracts
2560
§1497. Oonfnskm in tflrms at modem law. The confosion
between the different meanings of implied contract persists at
modern lawJ The agreement of the parties may be reached in
part by their words and in part by their acts.^ A loose use of
terms still continues and causes a confusion not necessary, al-
though probably it does not cause as great a confusion in ideas.
Acts and conduct of the parties which show that they are intend-
ing to enter into a genuine agreement, have been explained on the
theory that the law Implies a contract from such acts and conduct.'
A contract in which the agreement of the parties is ascertained
from their acts has been called an express contract.*
Quasi-contracts are still classed with contracts for the historical
reasons already given, even if the facts show affirmatively that
there was no real agreement between the parties.* Occasionally
the courts still sp6ak of a contract which is implied by law, but
the obligation of which the party never intended to assume.* A
^'personal contract" in admiralty means a contract which is made
received without consideration the
money of another, which they have no
right to retain.* " Heywood v. Northern
Aasur. Co., 133 Minn. 360, Ann. Gas.
1918D, 241, 158 N. W. 632.
1 ''There is no distinction between
contracts implied by law from the
existence of a plain legal obligation,
without regard to the intention of the
parties, or even contrary thereto, and
contracts implied, in fact, from acts or
circumstances indicating the mutual in-
tention." Harty Bros. v. Polakow, 237
111. 559 (565), 86 N. E. 1085.
2 See §§ 108 et seq., and 188 et seq.
I Rains v. Weiler, 101 Kan. 204, L. R.
A. 1917F, 571, 166 Pac. 235.
4 In re Oldfield's Estate (Bowie ▼.
Trowbridge), 175 la. 118, L. R. A.
1916D, 1260, Ann. Gas. 1017D, 1067, 156
N. W. 977. "Express contracts which
are proved by the declaration and con-
duct of the parties and other circum-
stances, all of which are explainable
only upon the theory of a mutual
agreement, are often called, although
not with entire accuracy, implied con-
tracts; and this distinction will explain
the ambiguity of som^ authorities and
the apparent contrariety of others."
Hinkle v. Sage, 67 0. S. 256, 263, 65
N. E. 990.
I "It must be remembered, that the
promise upon which the action rests,
is not the direct act of the parties,
but a promise which the law implies
from the facts, on the theory that a
party is willing and undertakes to do
what he ought to do. Undoes not
militate against the promise which the
law implies that the facts are incon-
sistent with the intent or promise to
pay over. ♦ • • While it may seem
illogical for the law to imply a promisB
on the part of one whose conduct and
declarations clearly disprove any inten-
tion to promise, still it is constantly
done. It is one of the fictions of the
law which it eeems convenient, if not
necessary, to retain until the courts
adopt the doctrine that such contracts
are created by law, rather than implied
by it." Siems v. Bank, 7 S. D. 338,
342, 64 N. W. 167.
• Chudnovski v. Eckels, 232 HI. 312,
83 N. £. 846.
2561 QiTASi OR Constructive Contract § 1499
by the person to be bound as distinguished from a contract which
is said to be imputed to such person.^
Many cases, however, insist upon the distinction between gen-
uine implied contract and quasi-contract**
§1498. Practical importance of distinction between contract
and quasi-contract. In discussing genuine implied contracts, the
questions usually presented are: (1) What presumptions of law
arise on the facts in evidence! (2) What inferences of fact will
the law permit to be drawn therefrom! (3) Do positive rules of
law negative the presumption of a genuine agreement which would
otherwise be drawn from the facts which are in evidence? In
constructive contracts the questions usually presented are: (1)
Under the facts does any liability of the defendant to the plain-
tiff exist? (2) If there is a liability, could it be enforced
in an action ex contractu? The latter question is of little im-
portance to-day in jurisdictions where the common-law forms of
actions have been abolished as far as concerns the actual right
of recovery,^ although it is still of practical importance where
matters of procedure are involved.*
§1499. Distinction between contract and quasi-contract in
procedure— Attachment. The question of the propriety of class-
ing quasi-contract with implied contract at modern law arises to
a large extent out of statutory provisions which refer to contract
or debt without indicating whether the word is used in the com-
mon-law sense of any obligation which can be enforced by an
action ex contractu, or whether it is used in its modern-law sense
of a right arising out of an agreement of the parties. Since quasi-
contracts were originally grouped with implied contracts because
the same procedure and the same form of action was used in both
eases, there is a strong tendency to treat quasi-contract as in-
cluded in the term- ''contract" where this term is used in a
7 Benner Lme v. Pendleton, 217 Fed. New York. Miller v. Schlosa, 218
497, 133 C, C. A. 349. N. Y. 400, 113 N. E. 337.
• minois.^ Highway Commissioners v. Vermont. Morse v. Kenney, 87 Vt.
Bloomington, 253 HI. 164, Ann. Cas. 445, 89 Atl. 865.
1913A, 471, 97 N. E. 280; People y. WisconsiiL Wojalin ▼. National
Dummer, 274 IlL 637, 113 N. E. 934. Union Bank, 144 Wis. 646, 129 N. W.
Montana. Schaeffer v. Miller, 41 1068.
Mont. 417, 137 Am. St. Rep. 746, 109 1 See || 1504 et seq.
Pac. 970. 2 See || 1499 et seq.
§1499
Page on Contracts
2562
Statute which deals with procedure and which attempts to divide
rights in contract from rights in tort for the purpose of indicating
the procedure in each kind of action. In statutes wh*ich provide
for attachment, the right to attach property is frequently limited
to actions arising out of ^contract. Under such statute it is clear
that the right to attach property exists in an action upon a
genuine implied contract,^ especially if the statute refers to con-
tracts express and implied. Whether such a statute includes quasi-
contractual obligations is a question upon which there has been a
division of authority. Where the statutes provide that attachment
may issue in an action upon a contract, but not in an action upon
a tort, there is a strong tendency to group actions on quasi-con-
tract with actions on contract, since they are not tort actions, ex-
cept as to those quasi-contracts in which the injured waives the
tort and sues in assumpsit.* Accordingly it is generally held that
attachment may issue in an action iji quasi-contract.' This is
especially clear where the quasi-contractual right arose out of a
contract in the first instance, although the right is not measured
by the terms of the contract,* as where the action is brought to
recover the consideration paid under a contract which has not
been performed by the party to whom such payment was made.'
The right is also clear where the liability is imposed by statute
upon those who enter into a contract or succeed to rights which
are acquired by contract,* such as the statutory liability of a
stockholder in a corporation.^ Under attachment statutes a quasi-
1 Simpson v. McCarty, 78 Cal. 175,
12 Am. St. Rep. 37; Flagg v. Dare, 107
Cal. 482, 40 Pac. 804.
2 See §§ 1504 et seq.
9 United States. Nevada Co. v.
Farns worth, 89 Fed. 164.
Colorado. Adams v. Clark, 36 Colo.
65, 10 Am. & Eng. Ann. Cas. 774, 85
Pac. 642.
lUinois. May v. Disconto Gesell*
achaft, 211 111. 310, 71 N. E. 1001.
Kansas. Lipscomb v. Citizens' Bank,
66 Kan. 243, 71 Pac. 583.
Maryland. Downs v. Baltimore, 111
Md. 674, 41 L. R. A. (N.S.) 255, 19
Am. & Eng. Ann. Cas. 644, 76 Atl. 861.
Michigan. Farmers' National Bank
V. Fonda, 65 Mich. 533, 32 N W. 664.
Oregon. Hanley y. Combe, ^ Or.
400, 87 Pac 143.
South Dakota. First National Bank
V. Van Vooris, 6 S. D. 548, 62 N. W.
378.
Texas. El Paso National Bank v.
Fuchs, 89 Tex. 197, 34 S. W. 206.
Vermont Elwell v. Martin, 32 Vt.
217.
Wisconsin* Barth v. Graf, 101 Wis.
27, 76 N. W. 1100.
4 Santa Clara Valley Peat Fuel Co.
V. Tuck, 53 Cal. 304.
i Santa Clara Valley Peat Fuel Co.
V. Tuck, 53 Cal. 304; Hanley v. Combs,
48 Or. 409, 87 Pac. 143.
B Adams v. Clark, 36 Colo. 65, 10 Am.
& Eng. Ann. Cas. 774, 85 Pac. 642.
T Adams v. Clark, 36 Colo. 65, 10 Am.
& Eng. Ann. Cas. 774, 85 Pac. 642.
2563
Quasi ob Constructive Contract
1500
contractual right ^hich originates in tort, but which the injured
party may treat as a contract for the purpose of maintaining
assumpsit at common law, has been grouped with contracts.* Un-
der a statute which authorizes an attachment in an action to
recover a **debt," an attachment may issue in an action upon a
quasi-contractual right,* such as an action to recover money which
has been obtained upon forged vouchers.^* It has, however, been
said without discussion that an attachment can not be had in a
quasi-contractual obligation which arises in tort,^^ as in an action
brought by A, an employer, against B, who has won A's money
from A's clerk at gambling.
§1500. Statute of limitations. The statutes of limitations
frequently prescribe one period of limitations for an action on a
written contract, another period of limitations for an action on a
contract not in writing, whether express or implied, and another
period of limitations for an action on a tort. Whether an action
in quasi-contract is an action upon an implied contract within the
meaning of this statute^ is a question upon which there is a conflict
of authority. In many jurisdictions certain forms of quasi-con-
tractual liability at least are held to be within the terms of such
a statute.^ In some of these cases the quasi-contractual right arose
out of a contract, although it was not measured thereby,' such
as a quasi-contractual right for something of value furnished un-
der an attempted contract which proved invalid because it was
too indefinite.* This principle, however, has also been applied to
quasi-contractual rights which do not arise out of contract,* such
• Dowm Y. Baltimore, 111 Md. 674,
41 L. R. A. (N.S.) 266, 19 Am. & Eng.
Ami. Gas. 644, 76 Ail. 861; Barth ▼.
Graf, 101 Wia. 27, 76 N. W. 1100.
t Morgan's Louisiana & T. R. & S. S.
Co. T. Stewart, 110 La. 392, 44 So. 138.
1* Morgan's Louisiana & T. R. & S. S.
Co. V. Stewart^ 119 La. 392, 44 So. 138.
tl Babcock v. Briggs, 52 Cal. 502.
1 United States. Carrol ▼. Green, 92
U. S. 509, 23 L. ed. 738.
Geor|;U. Cooper v. Claxton, 122 Ga.
596, 50 S. E. 399.
Idaho. Lincoln County ▼. Twin Falls
North Side Land & Water Co., 23 Ida.
433, 130 Pac. 788.
Kentucky. Postal Telegraph Cable
Co. V. Newport, 160 Ky. 244, 169 S.
W. 700.
Massachusetts. Lamb ▼. Clark, 22
Mass. (5 Pick.) 193.
Nebraska. Reeves ▼. Nye, 28 Neb.
671, 44 N. W. 736.
2 Cooper ▼. Claxton, 122 Ga. 596, 50
S. E. 399.
S Cooper V. Claxton, 122 Oa. 696, 50
S. E. 399.
4 Lincoln County ▼. Twin Falls North
Side Land A Water Co., 23 Ida. 433,
130 Pac 788; Lamb v. Clafk, 22 Mass.
(5 Pick.) 193; Reeves v. Nye, 2B Neb.
571, 44 N. W. 736.
§1500
Page on Contracts
2564
as an action to recover an unpaid balance of statutory fees,' or
an action to recover money which has been obtained wrongfully,*
or an action to recover in assumpsit for goods wrongfully con-
verted.^ A liability which is inferred by law from an express
contract is regarded as a contract liability within the meaning of
such a, statute.* Some statutes of limitations, it may be added,
provide expressly for express or implied contracts which arise
out of written contracts.* In other jurisdictions a quasi-contractual
action is not governed by the period of limitations which is pro-
vided by statutes for actions upon contracts.* A statutory right
of a municipal corporation to enforce exoneration against a wrong-
doer for a tort for which the city has been compelled to respond
in damages is not an action on a contract within the meaning of
the statute of limitations.^^ This conjflict of authority, however,
can be reconciled to a considerable extent by a careful consider-
ation of the terms of the different statutes and of the nature of
the different quasi-contractual rights involved. If the statute of
limitations does not confine its classification of rights of action to
contract and tort, but if it also creates a special class of obliga-
tions other than contracts, quasi-contractual rights may be re-
garded as included within this class and not within the class of
contracts." If the statute provides expressly for certain classes
of quasi-contractual rights, such express provisions, of course,
control." If the quasi-contractual right is created by statute, and
the statute of limitations imposes the same period for an action
• Lincoln County v. Twin Falls North
Side Land & Water Co., 23 Ida. 433,
130 Pac. 786.
SLamb v. Clark, 22 Mass. (5 Pick.)
193.
T Reeves v. Nye, 28 Neb. 571, 44 N.
W. 736.
• Arnett ▼. Howard, 166 Ky. 458, 161
S. W. 531.
• Lindblom v. Johnston, 92 Wash. 171,
158 Pac. 972.
ItSi^laiid. Jones ▼. Pope, 1 Wil-
liam's Saunders, 37, 1 Sid. 306, 2 Keb.
93, 1 Lev. 191; Talory v. Jackson,
Croke Car. 513.
Coimecticiit. Baker v. Lee, 52 Conn.
145; Cromwell v. Savage, 85 Conn. 376,
82 Atl. 972.
Georgia. Lane v. Morris, 10 6a. 162.
Kentucky. Bank of U. S. v. Dallam,
34 Ky, (4 Dana) 574.
Ifississippi. Musgrove v. Jadmon, 59
Miss. 390.
New Hampshire. Wilson v. Towla,
19 N. H. 244.
Hew York. Pease v. Howard, 14
Johns. (N. Y.) 479.
11 Louisville v. CDonaghue, 157 Ky.
243, 162 S. W. 1110.
l2Schaeffer v. Miller, 41 Mont. 417,
137 Am. St. Rep. 746, 109 Pac 970;
Butte V. Goodwin, 47 Mont. 155, Ann.
Cas. 1914C, 1012, 134 Pac. 670.
IS West V. Pry, 134 la. 675, 11 L. B.
A. (N.8.) 1191, 112 N. W. 184.
2565 QtxAsi or Constructive Contract § 1501
upon an implied eontract or upon a liability imposed by statute,
the question of the eontractual nature of such liability is imma-
teriaL^^ Even if a tax is made a debt by statute, it is not to be
regarded as within the meaning of a prior statute of limitations
which fi^ed a certain period for actions on account or for debt.^*
§ 1501. Statutes conferring jurisdiction. Under statutes which
confer jurisdiction upon certain courts, jurisdiction in cases arising
out of ** contract*' is frequently conferred. Whether such a stat-
ute confers jurisdiction in quasi-contract is a question upon which
there is again a divergence of authority which can be reconciled
only in part by considering the nature of the quasi-contractual
right and the general context of the statute in question. Statutes
which confer upon the United States Court of Claims, or upon
District Courts, jurisdiction to hear and determine cases upon any
contract, express or implied, with the government of the United
States, confer upon such court jurisdiction to hear cases which
arise out of genuine contract, whether express or implied, and
jurisdiction to hear and determine cases arising in quasi-contract,
except those in which it is sought to waive the tort and to sue in
quasi-contract for reasonable compensation. The evident policy
of the Statutes of the United States to prevent actions in tort from
being brought against the United States prevents the person who
is injured by a tort from bringing such action by resorting to
assumpsit on the theory that he has waived the tort.^
The liability of a stockholder of a foreign corporation under a
statute which makes each stockholder individually and personally
liable for his proportion of the debt and liabilities of the corpora-
tion, is so far contractual that such liability may be enforced out-
side of such state in the courts of the United States.* A statutory
lien under a mechanic's lien law is a contract within the meaning
of the statute which gives jurisdiction to a court of ^'all actions
on contracts, express or implied," excepting a specific amount.*
Conversely, an action by the owner of a patent against a licensee
for the violation of his license contract is not a patent case under
federal statutes if the owner of the patent has waived the tort
tt Mount V. Lakeman,, 21 O. S. 643; I See 1 1861.
Perry County v. Railroad, 48 O. S. 451, 2 Thomas v. Matthiessen, 282 U. 8.
2 K. E. 854. 221, 58 L. ed. 577.
II Cromwell ▼. Savage, 85.Comi. 876, SHarty Bros. & Harty Co. ▼. Pola-
82 Atl. 972. kow, 237 lU. 559, 86 N. E. 1065.
f§ 1503 Page on Contracts 2566
for the violation thereof and has brought an action upon the
breach of such contract.*
§ 1502. Set-off and connterclaim. Statutes which provide for
set-off or counterclaim frequently restrict such right to a case in
which the defendant in an action upon contract wishes to file a
set-off or counterclaim upon a contract right against the plaintiff.
Under such statute it is held by the great weight of authority
that the defendant may file a set-off or a counterclaim upon any
quasi-contractual right which he has against the plaintiff, includ-
ing a right which arises out of a tort, but which tlje defendant
may enforce against the plaintiff by waiving the tort and suing
in assumpsit.^ In some jurisdictions, however, the right of set-off
or counterclaim is denied, under the local statutes there in force,
upon quasi-contractual claims.^
§ 1503. Classification of qTUud-eontraots. In attempting to con-
struct a classification of quasi-contracts, we are met with the
difiiculty that in the development of quasi-contract rights they were
grouped on the basis of the form of action which lay to protect
such rights; and that when we attempt to separate the general
notion of quasi-contract from its special relation to the separate
forms of action, we are destroying the historical basis for classify-
ing it with contracts at all. In analyzing quasi-contractual rights
a double problem arises. In the first place, care must be taken
to determine whether any cause of action exists without regard
to its form. If it is found that a right of action exists, it must
then be determined whether under common-law procedure such
right can be protected and enforced by a contract action; and in
solving this question it must be noted that the fact that an action
in tort might be brought is not of itself conclusive, since in some
4 Henry v. Dick Co., 224 U. S. 1, 56 Oregon. Casner v. Hoskins, 64 Or.
L. ed. 645. 254, 128 Pac. 841, 130 Pac. 55.
1 United States. Allen v. United Texas. Cato v. Philips, 28 Tex. 101.
States, 84 U. S. (17 Wall.) 207, 21 L. ^Virginia. Tidewater Quarry Co. v.
ed. 553. Scott, 105 Va. 160, 115 Am. St. Rep.
Kansas. Challiss v. Wylie, 35 Kan. .864, 8 Ann. Cas. 736, 52 S. E. 835.
506, 1 1 Pac. 438. Wisconsin. Norden v. Jones, 33 Wis.
MissomL Gordon v. Bnmer, 49 Mo. 600, 14 Am. Rep. 782.
670. 2Richey v. Bly, 115 Ind. 232, 17 N.
S. 296; Woods v. Ayres, 39 Mick 845.
2567 Qfasi or Constructive Contract § 1503
cases the injured party might elect between tort and contract.^
To outline quasi-contractual rights, as they exist at modem law, is
not easy, since modem law in many jurisdictions has abolished the
form of action upon which the peculiar character of quasi-contract
at common law depended. To analyze and classify quasi-con-
tractual rights in connection with a discussion of contracts brings
into relief the fact that in many cases quasi-contract is a mere
appendage to contract and that it is a special and convenient
remedy in many cases in which the right of the parties originates
in contract. Quasi-contract includes rights which are based on
the so-called contracts of record,* on various customary' and
statutory * duties, independent of the actual agreement of the par-
ties and on the broad and vague principle of unjust enrichment.
The quasi-contractual rights which are explained by the general
maxim that no one should be enriched at the loss of another and
to the wrong of such other, **Jure naturae aequum est, neminem
cum alterius detrimento et injuria fieri locupletiorem, " which is
so broad as to include almost any case in which unfair dealing
appears and so vague as to give no help in solving cases as they
^rise, may be divided into three general classes: Some of these
rights arise out of contract, but they are not measured by con-
tract. Other rights arise out of tort, but at common law could
be protected and enforced by an action ex contractu. A third
class of rights did not arise from contract and did not arise from
tort. These are the true quasi-contractual rights. The other rights
which are explained by the doctrine of unjust enrichment, so
called, are really remedies given for other kinds of rights. In
the last class, the very nature of the right as well as the nature
of the remedy therefor, depends upon doctrines of quasi-contract.
The quasi-contractual rights which arise out of a contract, but which
are not measured thereby, may arise out of a contract which is
void, voidable or unenforceable for some reason, ab initio. Con-
tracts which are either void or voidable because of facts which
affect the offer and acceptance, such as attempted contracts which
are so uncertain that they can not be enforced as contracts,* or
apparent contracts Vhich are ^ither void or voidable because of
mistake,*, misrepresentation,^ fraud,* duress,* or undue influence,^*
t See if 1504 et eeq. • See | 278.
2 See 11149. 7 See S 372.
SSee i§ 56 et seq. > See f 342.
4 See |§ 66 et seq. * See f § 504 et eeq.
• See 1107. 10 See |§ 477 et eeq.
§ 1503 Page on Contracts 2568
create rights which are grouped with quasi-contracts. Under the
classification of common law, contract is the only place for such
rights. They are not true contractual rights because in most of
the cases the intention of the parties is ignored and in many cases
it is defied by the courts. They are rights which must, however,
be enforced and protected to avoid injustice, and as the remedy
for these rights is, as a rule, some form of assumpsit, they are
classed with quasi-contract. If the attempted contract lacks valu-
able consideration, quasi-contractual rights do not ordinarily arise.
If the contract is defective because of its subject-matter, quasi-
contractual rights often arise if the subject-matter is void, but
not illegal.^^ If, on the other hand, the subject-matter is illegal,
quasi-contractual rights do not arise if the parties are equally at
fault, since the law would leave such parties in the position in
which they had placed themselves,^^ except where the legislature
gives a statutory right of action as a means of preventing the
formation and performance of such contract.^' In some jurisdic-
tions an additional exception is made in cases in which the illegal
act is not performed and in which it is thought that illegality can
be prevented better by allowing a recovery in quasi-contract than
by denying such right. If the parties are not equally at fault, a
quasi-contractual right is usually recognized in contracts of this
sort.^^ If a contract is unenforceable by reason of the statute of
frauds, the party who has performed can recover the value of his
performance on the theory of quasi-contracts since otherwise he
will be left without a remedy." Whether the party who is in
default can recover on the theory of quasi-contract depends in
part on whether such a contract is regarded as absolutely void or
as merely unenforceable, and in part upon the question whether
a party to an enforceable contract who is in default can recover
on the theory of quasi-contract" If a contract is invalid because
one of the parties thereto lacks capacity to make a binding con-
tract, a remedy in quasi-contract id often given to allow recovery
of the value of the performance under such a contract. Bights of
this sort are considered in connection with the effect of genuine
11 See 1 1071. Frauds upon cases of this sort^ see
12 See II 1061 et seq. 1 1414.
1> See If 1072 et seq. For a discuBsion of the right of a
14 See 11090. party in default to recover on the
W See 1 1413. theory of quasi-contract in enforceaUe
15 For the effect of the Statute of contracts, see ch. LXXXVUL
2569 Quasi or Constrijctive Contract § 1504
contracts of such parties, such as infants,^^ the insane and the
imbecile,^* the drunkards,** the married women,* partnerships,**
principals with reference to the transactions of their agents,^ par-
ties in fiduciary capacities,^ 'private corporations,^ public corpora-
tions," and governments." On the other hand, quasi-contractual
rights may arise out of a contract which was originally valid, but
which has in some way been discharged by subsequent facts, such
as impossibility," breach," and alteration." Other forms of dis-
charge, such as performance, payment, new contract, merger, and
the like, or other facts which give to one of the parties a defense
which he may interpose against the other if he wishes, such as
bankruptcy or the lapse of time fixed by the period of limitations,
•do not from their nature give rise to quasi-contractual rights. In
many cases the common law permitted one who had been injured
by the tort of another whereby the wrongdoer acquired money,
other property, the benefit of services, and the like, from the in-
jured party, to treat such wrong as a contract and to maintain a
contract action thereon." The remaining class of quasi-contractual
rights does not arise out of -contract or out of tort. It consists
of cases in which payment and the like has been obtained with-
out the assistance of a prior contract by mistake, fraud, misrepre-
sentation, duress and the like.'* In other cases, as in the burial
of the dead, considerations of public decency require the perform-
ance of the duties imposed by law without necessarily waiting to
obtain the consent of the person upon whom such duty is imposed."
n
WAIVER OF TORT
§1504. Waiver of tort— Nature and theory of doctrine. At
the original English common law, an injured person who brought
suit in a contract, action was not allowed to show an injury which
really amounted to a tort as a means of proving the allegations
n See SS 1617 et Beq. 24 See 1 2002.
II See li 1637 et aeq. 21 See { 1958.
19 See S 1653. 21 See |§ 1860 et seq., and 1876.
» See § 1683. 27 See ch. LXXYIII.
21 See SI 1710 et seq. 21 See ch. LXXXW.
22 See S 1764 et seq. 29 See ch. LXXXV.
21 See §§1811, 1816, 1821, 1827, and 90 See SS 1^04 et seq.
1881. 91 See 8S 1530 et seq.
92 See §§1521 et seq.
§1504
Page on Contracts
2570
of his complaint.^ In the early part of the eighteenth century
the English courts began to hold that in some cases it was possible
for the injured party to maintain an action in implied contract
on an injury which really amounted to a tort.^ This principle has
been extended and developed at modem law.'
The doctrine of the waiver of tort carries us beyond the limits
of genuine contracts. It is really not one of substantive law at
all, but one of adjective law. It determines the right of an in-
jured party to elect between the remedies given by the action in
tort and in contract. The exact limits of the extent of this doc-
trine at modem law, are very indefinite. Different jurisdictions
have very different views on the question of what cases fall within
it. In discussing the various classes of cases brought under this
doctrine, we will therefore begin with those on which there is the
least divergence of authority.
The extent to which it has been developed has depended to a
large extent upon the common count which it was sought to use.
Although no logical reason can appear for distinguishing between
them, the courts at a rather early period were quite willing to
extend the money counts, such as the count for money had and
received, to cases in which money had been obtained by means of '.
a tort. They have been less willing to extend the count for goods
1 Phillips V. Thompson, 3 Lev. 101.
2Lainine v. Dorrell, 2 Ld. Raym. 1216
[decided 1705 A. D.].
''It is clear the plaintiff might have
maintained detinue or trover for the
debentures; but when the act that is
done is in its nature tortious, it is hard
to turn that into a contract, and against
the reason of assumpsits. But the
plaintiff may dispense with the wrong,
and suppose the sale made by his con-
sent, and bring an action for the money
they were sold for, as money received
to his use.'* Lamine v. Dorrell, 2 Ld.
Raym. 1216.
3 United States. Reynolds v. New
York Trust Co., 188 Fed. 611, 110 C.
C. A. 409, 39 L. R. A. (N.S.) 391.
California. Hoare v. Olann (Cal.),
168 Pac. 346.
Iowa. Jewell v. Nuhn, 173 la. 112,
Ann. Gas. 1918D, 358, 155 N. W. 174.
Eanus. Garrity v. State Board of
Administration, 99 Kan. 695, 162 Pac
1167.
Michigan. McDonald v. Young, 198
Mich. 620, 165 N. W. 678.
Montana. Young v. Bray, 54 Mont.
415, 170 Pac. 1044.
New Hampshire. Seavey v. Dana, 61
N. H. 339; Smith v. Smith, 43 N. H.
536.
Oregon. La Grande National Bank
V. Oliver, 84 Or. 582, 165 Pac. 682.
Washington. Wylde v. Schoening, 96
Wash. 86, 164 Pac. 752.
Vermont First National Bank v.
Bamforth, 90 Vt. 75, 96 Atl. 600. An
allegation that the action is brought
"on the theory of a breach of contract"
while novel, does not prevent the appli-
cation of the doctrine of waiver of tort,
if the facts justify it. Katz v.
Mathews, 216 N. Y. 701, 110 N. E. 426.
2571 Quasi or Constructive Contract § 1504
sold and delivered, to cases in which goods have been obtained by
means of a tort. They have been apparently still less willing to
allow the count for work and labor to be extended to cases of this
sort ; and they have absolutely refused to permit the count for use
and occupation to be used in cases in which the possession of
realty was taken wrongfully/
Since the doctrine of suing in implied contract upon a tort is
really a case of election of remedies, the election of one remedy
when complete bars the other.' Where A converted B's lumber
and B sued A in the United States court in assumpsit and lost,
since both were aliens, it was held that B could not sue A in the
state court in trespass, since the first action was an election to
waive the tort and to treat the transaction as a contract.* Where
several persons detach machinery, and carry it away, and an ac-
tion is subsequently brought against two of such persons in as-
sumpsit, and judgment is obtained, the injured party can not
subsequently sue the remaining wrongdoers in tort.^ If B entices
A's son, X, away from home and induces X to work for B, and A
brings an action against B in assumpsit, A can not dismiss such
action after the jury has disagreed and bring an action against
B in tort, since the original action was a final election.* The action
against a wrongdoer on an implied contract, lies to recover the
value of property taken wrongfully from the real owner and
received by the wrongdoer.* One of several joint wrongdoers is
liable in tort, but he can not be held in implied contract if he
did not receive the property converted, or the proceeds thereof.*
Even where the injured party may recover for the value of prop-
erty which has been appropriated by the wrongdoer, he can re-
cover only the value of such property and not the value of prop-
erty which has been injured by the wrongdoer, but which has not
been converted to the use of the wrongdoer;" nor can he recover
from the wrongdoer money which by the fraud of such wrong-
4 See SS l'^12 et seq. • Thompson v. Howard, 31 Mich. 309.
• Thompson v. Howard, 31 Mich. 300; 9 Kyle v. Chester. 42 Mont. 522, 37
Terry v. Munger, 121 N. Y. 161, 18 Am. L. R. A. (N.S.) 230, 113 Pac. 749.
St. Rep. 803, 8 L. R. A. 216, 24 N. E. 10 Ward v. Hood, 124 Ala. 570, 82 Am.
272, St. Rep. 205, 27 So. 245; Bates- Farley
SKield V. Burton, 49 Mich. 53, 12 N. Sav. Bank v. Disroukes, 107 Ga. 212, 33
W. 906. S. E. 175.
7 Terry v. Munger, 121 N. Y. 161, 18 H Kyle v. Chester, 42 Mont. 522, 37
Am. St. Rep. 803, 8 L. R. A. 216, 24 N. L. R. A. (N.S.) 230, 113 Pac. 749.
E. 272.
§1504
Page on Contracts
2572
doer the injured party has paid to a third person." If A negli-
gently drives B's animals upon a railway track, where they are
killed by a train, B can not waive the tort and maintain a con-
tract action against A in order that an attachment may issue.^'
If A by fraud induces B to sell property to C, A is not liable to
B in assumpsit.^*
So the amount of recovery is limited to the value of the prop-
erty appropriated by the wrongdoer and not by the damage done
to the owner of the property. If A removed sand from B's land
with B's acquiescence, both parties, however, laboring under a
mistake of fact and thinking that the land came within the limits
of the property sold by A to B, B may recover from A in assumpsit
for the value of the sand thus converted.^'
The right to waive tort and to sue in contract is complicated
by the provisions of the Code of Civil Procedure and of the Prac-
tice Acts to the effect that the declaration or petition must set
forth the facts which constitute plaintiff's cause of action. A
provision of this sort undoubtedly permits plaintiff to allege the
facts upon which he relies for his right to recover without alleging
the fictitious promise.^* Whether such provisions permit plaintiff
to make use of the common counts without setting forth all the
facts of the tort upon which he bases his right to recover, is a
question upon which there is a conflict of authority. In some
jurisdictions it is said that the receipt of money and the like is
the essential fact which must be alleged and it is not necessary
to go into the details of the method by which it was received. In
such jurisdictions a petition or declaration which in effect uses
the language of the common counts is sufficient to justify the ad-
mission of evidence showing that the defendant received money
and the like which belonged to the plaintiff through fraud or
other tort.^^ In other jurisdictions it is held that such allegations
do not advise the defendant of the facts upon which the plaintiff's
cause of action is based and do not give him such information as
12 Patterson v. Kasper, 1S2 Mich. 2SI,
L. R. A. 1915A, 1221, 148 N. W, 690.
19 Kyle ▼. Chester, 42 Mont. 522, S7
L. R. A. (N.S.) 230, 118 Pac. 749.
14 Patterson v. Kasper, 182 Mich. 2S1,
L. R. A. 1915A, 1221, 148 N. W. 690.
« Merri wether v. Bell (Ky.), 58 S.
W. 987. The measure of damages will
not be the injury done to the property;
but the value of the eand taken.
It Brown v. Crown Gold MilKng Co.,
150 Cal. 376, 89 Pae. 86; Farron ▼.
Sherwood, 17 N. Y. 227; Potter ▼. Van
Norman, 73 V^is. 339, 41 N. W. 524.
17 Minor v. Baldridge, 123 Cal. 187, 55
Pac. 783; Orannis v. Hooker^ 29 V^ia.
65.
2573
Quasi or CoNSTRUcrrivE Contract § 1504
will enable him to prepare his ease. For this reason it is held in
these jurisdietions that the eommon eounts can not be used where
the plaintiff wishes to waive the tort^*
liMoser ▼. Pugh-Jenklm Furnitnre
Co. ada.), L. R. A. 1918F, 437, 173
Pac 639; Truro ▼. Passmore, 38 Mont.
544, 100 Pac. 966; Buchanan r. Beck,
15 Or. 563, 16 Pac. 422.
The general rule is well settled that,
where a party seeks to recover on the
ground of fraud, the particular facts
constituting the fraud must be def-
initely and positively alleged. Brown
V. Bledsoe, 1 Ida. 746 ; Abrams v. White,
11 Ida. 497, 83 Pac. 602; Kemmerer V.
Pollard, 15 Ida. 34, 96 Pac. 206; Bresh*
ears v. Callender, 23 Ida. 348, 131 Pac.
15; Kerns v. Washington Water Power
Co., 24 Ida. 525, 135 Pac: 70; Wilson
V. Baker Clothing Co., 25 Ida. 378, 50
L. R. A. (NJS.) 239, 137 Pac. 896.
"The right, if any, of respondent to
recover is predicated upon fraud which
she failed to allege. 3ut it is con-
tended that the above rule has no ap-
plication to this form of action, and
that proof that the money was obtained
by fraud is admissible under a simple
common-law count for money had and
received. Two of the cases relied upon
1^ respondent, while containing some
language that seems to bear this con-
fltruction, are not in point, for in those
cases the facts constituting the fraud
were set forth in the complaint. Stout
▼. CamthersVille Hardware Co., 131
Mo. App. 520, 110 S. W. 619; Humbird
▼. Davis, 210 Pa. St. 311, 60 Atl. 1082.
The case of Qranm»'v. Hooker, 29
Wis. <{5, also relied upon by respondent
and which appears to be in point, has
been ably criticised by the supreme
eouri of Montana in the case of Truro
▼. Passmore, 88 Mont. 644, 100 Pac.
906. The California decisions sustain-
ing causes of action set forth by the
oommon-law counts are abo eriticiced
in the latter case, wherein it is pointed
out that some of the most able judges
of the California court, while feeling
bound by the precedents established in
that court, have not hesitated to criti-
cize the reasoning of the precedents.
The following language, used by the
supreme court of Montana, is particu-
larly in point: 'The common counts
have been superseded by our system of
code pleading. A complaint, under this
latter system, must contain a state-
ment of the facts constituting the cause
of action in ordinary and concise lan-
guage. Bev. Codes, { 6532. If the
phraseology of any common count is
adequate in the particular case to bring
the pleader within the code rule, then
his pleading is sufficient; otherwise, it
is not. Where a pleader elects to em-
ploy the language of a common count,
he subjects himself to the rules govern-
ing the construction and sufficiency of
complaints under the codes; that is to
say, if a common count will, in fact,
state his cause of action in ordinary
and concise language, it is good. If it
will not, it is bad.' Truro v. Pass-
more, supra.
"It should be noticed that 1 6532, Re-
vised Codes of Montana, referred to in
the latter case, contains the same re-
quirement as our own Revised Codes,
{•4168, namely, that the complaint
must contain 'a statement of the facts
constituting the cause of action, in
ordinary and concise language.'
^n the case at bar, from the evi-
dence, it appears that the respondent's
right, if any, to recover depends wholly
upon proof of fraudulent representa-
tions. The particular facts constituting
the fraud ehould have been specifically
alleged. A defendant who is to be
§1506
Page ON Contracts
2574
§1505. Conversion of money. If B converts A*8 money to
his own use, A may sne B therefor in an action for money had
and received.^ This action may be brought even if B's conver-
sion was a tort in connection with a contract * and even if it
amounted to larceny,' or embezzlement.* If X, who is A's agent,
has made a secret profit on a transaction between A and B, A
may recover from X on assumpsit for the amount of such profit.*
A patient may show that his physician had a contract with the
surgeon by whom the operation was performed for dividing the
fee of the surgeon for the purpose of reducing the amount to be
recovered by such surgeon to the amount charged by him for his
own services.* If B has induced A to advance money to B by
fraud, A may recover as for money lentJ
§ 1506. Conversion of personalty which is then converted into
money. If B has converted A's chattels, other than money, to his
own use, and B has sold them and received the money therefor,
called upon to meet a cause of action
based upon his alleged fraud has a
right to know in advance the particular
acts and th'ings giving rise to the fraud.
A common count for money had and
received is silent as to every such fact,
and can not operate to put a defendant
upon notice as to what he is expected
to meet, and is not sufficient to state
a cause of action based wholly upon the
defendant's alleged fraud." Moser v.
Pugh- Jenkins Furniture Co. (Ida.), L.
R. A. 1918F, 437, 173 Pac. 639.
1 England. Hassar v. Wallis, 1 Salk.
28.
Indiana. State v. Mutual Life Ins.
Co., 175 Ind. 59, 42 L. H. A. (N.S.) 25«,
93 N. E. 213.
Kansas. Lipscomb v. Citizens' Bank,
06 Kan. 243, 71 Pac 583.
Oregon^ La Orande National Bank
V. Oliver, 84 Or. 582, 165 Pac. 682.
Pennsylvania. Humbird v. Davis,
210 Pa. St. 311, 59 Atl. 1082. See
ii 1473 et seq.
2 England. Howard v. Wood, 2 Lev.
246; Neate v. Harding, 6 Exch. 349.
United States. Burgoyne v. Mc-
Killip, 182 Fed. 452, 104 C. C. A 690.
Indiana. State v. Mutual Life Ins.
Co., a75 Ind. 59, 42 L. R. A (N.S.) 256,
93 N. E. 213.
Iowa. Craig v. Craig Estate, 167 la.
340, 149 N. W. 464.
Michigan. Billig ▼. Goodrich (Mich.),
1*65 N. W. 647.
Virginia. Lawson's EzV v. Lawson,
57 Va. (16 Gratt.) 230, 80 Am. Dec.
702.
' * Guernsey v. Davis, 67 Kan. 378, 7^
Pac. 101; Howe v. Clancey, 63 Me.
130.,.
Contra, Drury v. Douglas, 35 Vt. 474.
In this case B delivered money to A
to carry to X. A appropriated it. It
was held that /assumpsit would not lie.
4 Lipscomb v. Citizens' Bank, 66 Kan.
243, 71 Pac. 683.
I Humbird v. Davis> 210 Pa. St. 311,
69 Atl. 1082.
IMcNair v. Parr, 177 Mich. 327, 143
N. W. 42.
7 Sanders v. Ragan, 172 N. Car. 612,
L. R. A. 1917B, 681, 90 S, E, 777.
2575
Quasi ok Constructive Oontract § 1506
A may maintain an aation against him for money had and re-
ceived,^ even if the original conversion amounted to larceny.* II
B has converted A's personalty other than money and has sold
it to X, A may maintain an action against B for money had and
received, hut not for goods sold.*
A's right to maintain an action against B for money had au(?
received has been explained upon the theory of ratification; anc
it has been said that A ratifies B's sale to X and thus makes B
A's agent to eflPect such sale and to receive the money therefor
which B is then bound to pay overto A.* This theory of ratifica-
tion is unnecessary fiction. B's liability is absolutely independent
of his action as A's agent; and in most cases B is not attempting
to act as A's agent. The fact that B has received the proceeds of
1 England. Longchamp v. Kenticy, 1
DougL 137.
United States. Reed v. Weule, 176
Fed. 660, 100 C. C. A. 212.
Alabama. Griel v. PoIIak, 105 Ala.
249, 16 So. 704; Bettis v. McNider, 137
Ala. 58S, 97 Am. St. Rep. 59, 34 So. 813;
Howton V. Mathias, 197 Ala. 457, 73
So. 92.
CaUfoniia. Halleck v. Mixer, 16 Cal.
574.
Georgia. Woodruff v. Zaban, 133 Ga.
24, 134 Am. St. Rep. 186, 17 Am. &
Eng. Ann. Gas. 974, 65 S. E. 123.
Idaho. Ditteraore v. Gable Milling
Co., 16 Ida. 298, 133 Am. St. Rep. 98,
101 Pac. 593; Davidson Grocery Co. v.
Johnston, 24 Ida. 336, Ann. Gas. 1915G,
1129, 133 Pac. 929.
Blinois. Gushman v. Hayes, 46 III.
145.
Iowa. Moses v. Arnold, 43 la. 187,
22 Am. Rep. 239; J. J. Smith Lumber
Co. V. Scott County Garbage Reducing
& Fuel Co., 149 la. 272, 30 L. R. A.
(N.S.) 1184, 128 N. W. 389.
MassachQsetta. Robinson v. Bird,
158 Mass. 357, 35 Am. St. Rep. 495,
33 N. E. 391.
Michigan. Tolan v. Hodgeboom, 38
Mich. 625; Nelson v. Kilbride, 113 Mich.
637, 71 N. W. 1089; Brown v. Foster,
187 Mich. 35, 100 N. W. 167.
Missouri. Koch v. Branch, 44 Mo.
542, 100 Am. Dec. 324.
New Jersey. Dallas v. Koehler Sport-
ing Goods Co., 86 N. J. L. 651, 92 Atl.
356.
North Carolina. Scottish, etc., Co. v.
Brooks, 109 N. Car. 698, 14 S. E. 315;
White V. Boyd, 124 N. Gar. 177, 32 S.
E. 499.
Pennsylvania. Pryor v. Morgan, 170
Pa. St. 568, 33 Atl. 98.
Rhode Island. Whipple ▼. Stephens,
25 R. I. 563, 57 Atl. 375.
Tennessee. Huffman v. Hughlett, 79
Tenn. (11 Lea) 549.
Vermont. Hutchinson v. Ford, 62 Vt.
97, 18 Atl. 1044. Question not decided
in French v. Robbing, 172 Gal. 670, 158
Pac. 188.
2 Shaw V. Coffin, 58 Me. 254, 4 Am.
Rep. 290.
3 Jones v. Hoar, 22 Mass. (5 Pick.)
28.1; Allen v. Ford, 36 Mass. (19 Pidc.)
217; Brown v. Holbrook, 70 Mass. (4
Gray) 102; Nield v. Burton, 49 Mich.
53, 12 N. W. 906; Winchell v. Noyes,
23 Vt. 303.
4Lamine v. Dorrell, 2 Ld. Raym.
1216; Lyon v. Clark, 129 Mich. 381, 88
N. W. 1046; Elliott v. Jackson, 3 Wis,
649.
§ 1507 Page on Contracts 2576
A's property should impose upon B the duty of paying it over to
A upon demand; and this is enough to enable A to maintain an
action for money had and received.
Where X delivers to A, as his agent, to sell upon commission,
certain tobacco Ji^hich really belongs to B, and A sells this tobacco
at auction, delivers it to the purchaser, collects the money, and
pays it to X, with full knowledge of B's rights in such tobacco,
B may maintain an action against A for money had and received.*
So, if A, a treasurer of a corporation, B, fraudulently issues cer-
tificates of B's stock in excess of his authority, and such certifi-
cates are so intermingled with the genuine stock that they can
not be distinguished from it, and A appropriates the money thus
received for his own use, B may recover from A in an action for
money had and received.* So, if B cuts timber from A's land
and sells it, B may recover from A for money had and received, if
the question of the title to the realty is not involved.' B, a cred-
itor of Y, secured an attachment and seized certain property as
T's. X, claiming as vendee from T, maintained an action against
B in trespass for the value of the property, and recovered a judg-
ment against him, which B satisfied. A, a subsequent attaching
creditor, had the property sold under tiie attachments, and received
the money therefor. B may recover such amount from A.' If A
sells B's property on credit, it has been held that B may recover
from him for money had and received after the term of credit
has expired.' If one who has received the property of another and
has held it for so long a time that a presumption may arise that
he has sold it, he may be liable in an action for money had and
received; but within a shorter period of time the action will not
lie.^* If A, who is already married, represents himself to B as a
single man, and thus induces B to marry him and A receives the
rent of B's realty, B may recover such rent from A on learning
of his fraud.^'
§ 1507. Conversion of personalty which is not converted into
money — Original taking wrongful — ^Assumpsit denied. If A has
» White V. Boyd, 124 N. Car. 177, 32 t Grid v. Pollak, 105 Ala. 249, 16
S. E. 495. So. 704.
• Rutland Ry. Co. v. Haven, 62 Vt. •Burton Lumber Co. v. Wilder, 108
39, 19 Atl. 769. Ala. 669, 18 So. 552.
T Guarantee, etc., Co. v. Investment t« Moody v. Walker, 89 Ala. 619, 7 Soi
Co., 107 La. 251, 31 So. 736; Nelson v. 246.
Kilbride, 113 Mich. 637, 71 N. W. 1089. flHaseer v. Wallis, 1 Salk. 28,
2577
Quasi or Constructive Contract § 1507
converted B's property to his own use, but has kept the property
in his possession, and has not sold it, there is a divergence of
authority upon the question of whether he can recover from A
upon an implied contract. Some authorities hold that B can not
maintain an action in assumpsit against AJ If the wrongdoer has
not sold the goods which he has converted, an action for money
had and received can not be brought.^
This view is probably correct enough if we consider the liature
of averments in an action for money had and received, and the
total failure of proof that must follow in such cases. When we
consider, however, that the entire action is brought upon a fiction,
there seems no good reason for restricting the fiction arbitrarily
in cases of this sort. In some jurisdictions this distinction seems
to be recognized, and while an action for money had and received
will not lie where the party converting the property to its own
use still retains it, an action in account will lie.' "The owner
of goods in the possession of another party, who without legal
excuse refuses to deliver them to the owner on demand, may sue
in tort for a conversion, or he may waive the tort and treat the
wrongdoer as a purchaser and sue and recover upon account for
their value."* In these cases, however, possession of the property
in question passed with the consent of the owner; a fact which
in many jurisdictions gives a right to maintain assumpsit.*
In many jurisdictions, however, it is held that the real owner
of the property converted can not recover from the wrongdoer in
any form of action in implied contract, if the wrongdoer has not
sold the property and received the proceeds thereof, and the original
taking is unlawful.* The count for goods sold and delivered can
1 Ball Engineering Co. v. White, — U.
a — , 63 L. ed. — , 39 Sup. Ct. 393;
Castelo v. United States, 51 Ct. CI.
221; Snodgrass v. Coulson, 90 Ala. 347,
7 So. 736; Southern Ry. Co. v. Attalla,
147 Ala. 653, 41 So. 664; Woodruff y.
Zaban, 133 6a. 24, 17 Am. & Eng. Ann.
Cas. 974, 65 S. E. 123; Southern By.
Ga ▼. Roberson, 186 6a. 146, 71 S. E.
129.
SPritchard ▼. Ford, 24 Ky. (1 J. J.
Ifar.) 543; Quimby y. Lowell, 89 Me.
547, 36 Atl. 902; Hagar v. Norton, 188
Mass. 47, 73 N. E. 1073.
^Pharr v. Bachelor, 3 Ala. 237; Brad-
field y. Patterson, 106 Ala. 397, 17 So.
536.
4 Bradfield v. Patterson, 106 Ala. 397,
401, 17 So. 536.
• See § 1508.
5 United States. Castelo v. United
States, 51 Ct. CI. 221.
Alabama. Miller y. King, 67 Ala.
575; Smith v. Jemigan, 83 Ala. 256, 3
So. 515; Southern By. Co. ▼. Attalla,
147 Ala. 653, 41 So. 664; Calhoun
County Y. Art Metal Construction Co.,
152 Ala. 607, 44 So. 876.
§1507
Page on Contracts
2578
not, in these jurisdictions, be used where the taking was wrong-
ful^ Thus, if the wrongdoer has the property in his possession, as
where he converted wood to his own use and made a fence out
of it,* or if he has bartered it for other personal property,' assump-
sit will not lie. On this theory, in an action for money had and
received, the real owner can not recover if he can not show the
amount received by the wrongdoer on such saleJ* It has been
said that to allow assumpsit in such cases would abolish all dis-
tinctions between actions ex contractu and those ex delicto."
But even where this theory obtains it is not necessary that pay-
ment should be actually received in money. If the property con-
verted has been sold at a value estimated in money, he is liable
in an action for money had and received even if he subsequently
receives something other than money in discharge of the obliga-
tion due to him by reason of such sale." A wrongdoer who has
taken a negotiable instrument for goods which he has wrongfully
converted and which he has sold, is liable for money had and
received."
Arkansas. Chamblee ▼. McKenzie, 31
Ark. 155.
Georgia. Barlow v. Stalworth, 27 Ga.
517 ; Woodruff ▼. Zaban, 133 Ga. 24, 17
Ann. Cas. 974, 65 S. E. 123; Southern
Ry. Co. V. Roberson, 136 Ga. 146, 71
S. E. 129.
Illinois. Johnston v. Salisbury, 61
111. 316; Kellogg ▼. Turpie, 93 III. 265,
34 Am. Rep. 163.
Iowa. Moses v. Arnold, 43 la. 187,
22 Am. Rep. 239.
Maine. Androscoggin Water Power
Co. V. Metcalf, 65 Me. 40; Quimby v.
Lowell, 89 Me. 547, 36 Atl. 902.
Massachusetts. Allen v. Ford, 36
Mass. (19 Pick.) 217.
Michigan. Tolan v. Hodgeboom, 38
Mich. 624; Tuttle v. Campbell, 74 Mich.
652, 16 Am. St. Rep. 652, 42 N. W. 384;
St. John V. Iron Co., 122 Mich. 68, 80
N. W. 998; McCormick Harvesting
Machine Co. v. Waldo, 128 Mich. 135,
87 N. W. 55.
Nevada. Carson River Lumber Co.
V. Bassett, 2 Nev. 249.
New Hampshire. Allen v. Wood-
ward, 22 N. H. 544; Smith v. Smith,
43 N. H. 536.
Pemisylvama. Bethlehem v. Perse-
verance Fire Co., 81 Pa. St,. 445; Willett
V. Willett, 3 Watts (Pa.)' 277.
Vermont. Kidney v. Persons, 41 Vt.
386, 98 Am. Dec. 595.
Wisconsin. Elliott v. Jackson, 3 Wis.
649.
7 Berkshire Glass Co. v. Wolcott; 84
Mass. (2 All.) 227, 79 Am. Dec. 781.
tFolsom V. Cornell, 150 Mass. 115,
22 N. E. 705.
• Kidney v. Persons, 41 Vt. 386, 98
Am. Dec. 595.
10 Glasscock v. Hazell, 109 N. Car.
145, 13 S. E. 789.
11 Kidney v. Pereons, 41 Vt. 386, 98
Am. Rec. 595.
12 Fuller V. Duren, 36 Ala. 73, 76 Am.
Dec. 318; Miller v. Miller, 24 Mass.
(7 Pick.) 133, 19 Am. Dec. 264.
laWhitwell V. Vincent, 21 Mass. (4
Pick.) 449, 16 Am. Dec 355.
2579
Quasi or Constructive Contract
1508
§ 1508. Original taking rightfuL A different rule prevails in
some states where the original taking is lawful, and with the con-
sent of the real owner, and there is a subsequent unlawful con-
version. If A obtains possession rightfully, as where B delivers
property to A voluntarily,, and A subsequently refuses to return
it, or pay for it, B may maintain assumpsit.' In such cases the
owner who waives tort has been allowed to use the count for goods
sold and delivered.^ If a bailee converts property to h^s own use,
the bailor may waive tort, and sue in assumpsit.* If A's property
is sold with A's consent, and the price therefor is paid to B, B
must account therefor to A in an action for money had and re-
ceived. Thus, where certain stock was sold and the money was
received by B, it was held a question of fact for the jury whose
stock it was; and if the stock belonged to A, B would have to
account to A for such money.* So, where A forwarded butter to
a certain commission merchant, B, in the regular course of busi-
ness, and B sold the same and received payment therefor, A may
compel B to pay over such money to him after deducting com-
missions.' So, if A, the owner of one-half of a patent right, has
sold his entire patent right to a stranger, and received the money
therefor, B, the owner of the other half, may maintain an action
against A for one-half of such proceeds.* So, a tenant in common
who collects more than his share of the rents and profits of the
realty owned in common, is liable to the other tenant in common
in assumpsit.'' So, if one tenant in common mines and sells coal.
1 United States. Reynolds v. New
York Truflt Co., 188 Fed. 611, 110 C. C.
A. 409, 39 L. R. A. (N.S.) 391.
Geotgia. De- Loach Mill Manufactur-
ing Co. ▼. Standard SawmiU Co., 125
6a. 377, 54 S. E. 157.
Indiana. State ▼. Beck, 175 Ind. 312,
93 N. E. 664.
Michigan. Tuttle y. Campbell, 74
Mich. 652, 16 Am. St. Rep. 652, 42 N.
W. 384; Ginsburg y. Lumber Co., 85
Mich. 439, 48 N. W. 952; Newman v.
Olney, 118 Mich. 545, 77 N. W. 9;
Grinnell v. Anderson, 122 Mich. 533, 81
K. W. 329; McDonald y. Young, 198
Mich. 620, 165 N. W. 678.
Ohio. Barker y. Cory, 15 Ohio 9.
1 Woodward y. Suydam, 11 Ohio 360.
3 United States. Reynolds v. New
York Trust Co., 188 Fed. 611, 110 C.
C. A. 409, 39 L. R. A. (N.S.) 391.
Georgia. Ford y. Atlantic Compress
Co., 138 Ga. 496, Ann. Gas. 19I3D, 226,
75 S. E. 609.
Indiana. State y. Beck, 175 Ind. 312,
93 N. E. 664.
Michigan. Newman y. Olney, lll3
Mich. 545, 77 N. W. 9.
Ohio. Barker v. Cory, 15 Ohio 9.
4Shouldice v. McLeod's Estate, 130
Mich. 444, 90 N. W. 288.
• Tucker y. Utley, 168 Mass. 415, 47
N. E. 198,.
C Currier y. HalloweU, 158 Mass. 254,
33 N. E. 497.
T Hudson V. Coe, 79 Me. 83, 1 Am. St.
Rep. 288, 8 Atl. 249.
1509
Page ox Contracts
2580
and there is no dispute as to his right to do so, as to the amount
of the coal mined, or as to his right to sell it at that price, but
the only dispute is as to the amount which the other co-tenant is
entitled to receive, the latter may maintain an action against the
former.' If A quarries stone on B'^ land, and takes it away, and
either sells it or uses it, A is liable to B in assumpsit, not for the
amount of the damage done to B's property, but for the value of
the property thus converted by A.' Where a commission mer-
chant sold goods contrary to orders, the principal was allowed to
treat the commission merchant as the purchaser and to sue for
goods soldJ* In this case, however, the original possession of the
goods was taken rightfully under a contract. If possession has
been taken under a contract, a wrongdoer who has converted such
personalty is entitled to such deductions as the contract gave him;
and the owner of the property can not prevent the wrongdoer
from deducting such items by suing in tort." If A stored oil with
B, B is entitled to storage charges and certain allowances for
evaporation provided for by the contract; and if B converts such
oil he is entitled to deduct such items from the value of the oil
and A can not prevent him from making such deductions by suing
in trover.^*
§ 1509. Assumpsit allowed without regard to Batnre of origi-
nal taking. Another line of authorities, greater numerically, and
treating the fiction of implied contract more rationally, allow the
real owner to recover from the wrongdoer, even where the wrong-
doer has not sold the property, and without i*eference to the origi-
nal acquisition of possession, whether with or without the consent
of the rightful ownerj Where this theory obtains it is, of course,
immaterial whether the property has been bartered or sold on
credit, since the liability on the common counts in assumpsit exists
« Winton Coal Co. v. Coal Co., 170 Pa.
St. 437, 33 Atl. 110.
i Downs V. Finnegan, 58 Minn. 112,
49 Am. St. Rep. 488, 59 N. W. 981.
M Woodward v. Suydam, 11 Ohio 360.
11 Cow Run Co. V. Lehmer, 41 O. S.
384.
11 Cow Run Co. V. Lehmer, 41 0. S.
384.
1 United States. Reed v. Weule, 176
Fed. 660, 100 C. C. A. 212; Reynolds
V. New York Trust Co., 188 Fed. 611,
110 C. C. A. 409, 39 L. R. A. (N.S.)
391.
Califoniia. Roberts v. Evans, 43 Cal.
380; Bechtel ▼. Chase, 156 Cal. 707, 106
Pac. 81; Hoare v. Glann (CaL), 168
Pac. 346.
Illinois. Toledo, etc., Ry. v. Chew,
67 111. 378.
Indiana. Jones v. Gregg, 17 Ind. 84;
Morford v. White, 53 Ind. 547.
2581
Quasi or Constructive Contract § 1509
even if the property converted has not been sold at all. Under
this theory assumpsit will lie where the wrongful act consists in
making use of property, and not in attempting to deprive the
owner of it permanently. Thus, A was to work for B for a year,
giving B his entire time. Instead, A used B's team on A's busi-
ness. It was held that B could recover a reasonable compensation
for such use from A, on the theory of an implied promise, even if
A in fact did not intend to pay therefor.* Where X, who was
the manager of one gas company and the president of another,
wrongfully turned the gas from the pipes of one of such com-
panies into the pipes of the other, it was held that the company
whose gas was thus taken could maintain assumpsit against the
company by which it was thus taken.'
If the taking was rightful, the person who takes such property
can not be compelled to pay therefor on the theory of contract.*
If A delivered to B a picture of A's wife under a contract by
which B was to paint a portrait and B without authority paints
two portraits, A is not liable to B for the value of the second por-
trait of which he takes possession.*
If a licensee of a patent has violated the conditions of his
license, th% owner of the patent may waive the tort and bring an
Kansas. Washbon v. Linscott State
Bank, 87 Kan. 698, 125 Pac. 17; Garrity
▼. State Board of Administration, 99
Kan. 695, 162 Pac 1167.
Kentvcky. Erersole v. Moore, 66 Ky.
(3 Bush.) 49.
Hissoiixi. Gordon v. Bmner, 49 Mo.
670.
Montaiuu Galvin t. Mill Co., 14
M'^nt. 506, 37 Pac. 366; Tancey v.
Northern Pacific Ry., 42 Mont. 342, 112
Pac. 533; Ivey v. La France Cbpper Co.,
45 Mont 71, 121 Pac. 1061.
New Jersey. Moore t. Richardson,
68 N. J. L. 305, 53 Atl. 1032.
Hew York. Terry v. Munger, 121 N.
T. 161, 18 Am. St. Rep. 803, 8 L. R.
A. 216, 24 N. E. 272.
OUo. Barker v. Cory, 15 Ohio 9.
Oregon. Crown Cycle Co. t. Brown,
39 Or. 285, 64 Pac. 451.
Pennsyhrtaia. McCuUough v. Ford
Natural Gas Co., 213 Pa. St. 110, 62
Atl. 521.
Tennessee. Kirkman v. Philips, 54
Tenn. (7 Heisk.) 222; McCombs ▼.
Guild, 77 Tenn. (9 Lea) 81.
WasUnBton. Wylde ▼. Sehoening, 96
Wash. 86, 164 Pac. 752.
West Virginia. Maloney v. Barr, 27
W. Va. 381.
WlBConsin. Walker v. Duncan, 68
Wis. 624, 32 N. W. 689; Heber v.
Heber's Estate, 139 Wis. 472, 121 N.
W. 328.
2Stebbins v. Waterhouse, 58 Conn.
370, 20 AtL 480»
3McCu11ough V. Ford Natural Gas
Co., 213 Pa. St. 110, 62 Atl. 521.
4KIug ▼. Sheriffs, 129 Wis. 468, 116
Am. St. Rep. 967, 7 L. R. A. (N.S.) 362,
9 Ann. Cas. 1013, 109 N. W. 656.
• Klug V. Sheriffs, 129 Wis. 468, 116
Am. St. Rep. 967, 7 L. R. A. (N.S.) 362,
9 Ann. Cas. 1013, 109 N. W. 656.
§1510
Page on Contracjts
2582
action upon the contract under which the licensee was permitted
to use such article;* but such waiver prevents the case from be-
ing a patent case under the federal statutes which regulate patent
casesJ The fact that a patented article is used does not create a
liability to pay royalties on the theory of contract,* even if the
patentee knows of. such use.' The fact that the United States has
made use of an invention which was patented by a treasury
employe does not impose a liability upon the United States which,
in the absence of specific statute, can be enforced in the court
of claims; ^'-^ at least if the United States officials in charge of such
department and bureau did not understand that the inventor ex-
pected payment for such use of his invention." Since a United
States official could not be restrained from making use of an in-
vention in connection with the discharge of his public duties," on
the ground that such restraint would not be affected by a suit
against the United States,'^ an employe of the United States whose
invention was thus appropriated by the United States had no
practical redress.
In some cases it has been said that the owner of personalty may
waive the tort and sue in assumpsit if the wrongdoer has appro-
priated to his own use the property which he has conv^rted,^* but
that he can not waive the tort and sue in assumpsit if the wrong-
doer has merely withheld the property which he has converted.^*
§ 1510. Wrongful sale of realty. If a mortgagor has a right
to redeem realty he may maintain an action for money had and
received against the mortgagee to recover the difference between
the mortgage debt and the amount which the mortgagee has re-
ceived from the sale of such mortgaged realty.^
• Henry v. Dick Co., 224 U. S. 1, 56
L. ed. 645.
7 Henry v. Dick, Co., 224 U. S. 1, 56
L. ed. 645.
• May V. Western Lime Co., 65 Wash.
696, 44 L. R. A. (N.S.) 333, 118 Pac.
895.
• May V. Western Lime Co., 65 Wash.
696, 44 L. R. A. (N.S.) 333, 118 Pac.
805.
tOHarley v. United States, 198 V. S.
229, 49 L. ed. 1029.
It Harley v. United States, 198 U. S.
229, 49 L. ed. 1029.
12 International Postal Supply Co. t.
Bruce, 194 U. S. 601, 48 L. ed. 1134.
t^ International Postal Supply Co. v.
Bruce, 194 U. S. 601, 48 L. cd. 1134.
14 Roberta v. Moss, 127 Ky. 657, 17 L.
R. A. (N.S.) 280, 106 S. W. 297; Downs
V. Finnegan, 58 Minn. 112, 49 Am. St.
Rep. 488, 59 N. W. 981.
II Reynolds v. Padgett, 94 Ga. 347, W
S. E. 570.
1 Dow V. Bradbury, 110 Me. 249, 44
L. R. A. (N.S.) 1041, 85 Atl. 8©6.
2583
Quasi or Constructive Contract § 1511
If an action may be brought for money had and received to
cover the value of land which has been sold by another, such right
of action accrues when the money is paid to the person who makes
such sale and not from the time when such property is taken
wrongfully or when the sale is made.^ Accordingly the period of
limitations runs from the time of such payment and not from the
time of the sale.'
§ 1511. Appropriation of realty without compensation. If land
has been taken by a corporation which has authority to appro-
priate it by proceedings in eminent domain, and the owner of such
land can not recover possession thereof by ejectment or any similar
action, he may assume that such corporation has aequired the land
in eminent domain and may sue on the theory of an implied con-
tract to pay the reasonable value of the land thus taken.^ Such
an action may lie against a railway corporation,^ or against the
United States in the court of claims.' If land has not been appro-
priated so as to exclude the original owner thereof from posses*
sion, he can not maintain an action on the theory of an implied
contract on the ground that the government contemplates making
some use of such realty/ The fact that the United States has
built a battery which can fire. guns over A's land, does not entitle
A to maintain an action in the court of claims on the theory of an
implied contract by the United States to take such land and to
pay for it if the United States has not fired guns across A's land
for several years and will rarely do so except in case of war.* If
by statute the executor has a right to possession of realty with-
out regard to the sufficiency of the personal property to pay the
debts, the executor may maintain an action for money had and
received to recover from one who has taken from the court the
2 Perry v. Smith, 31 Kan. 423, 2 Pac
784.
* Perry ▼. Smith, 31 Kan. 423, 2 Pae.
784.
i United States v. Oreat Falla Manu-
faetoring Co.^ 112 U. S. 645, 28 L. ed.
846; Boise Valley Constr. Co. v.
Kroeger, 17 Ida. 384, 28 L. R. A. (K.S.)
068, 105 Pac. 1070; Eyre y. Faribault,
121 Minn. 233, L. R. A. 1917A, 685, 141
K. W. 170.
2 Boise Valley Constr. Co. v. Kro^^t>
17 Ida. 384, 28. L. R. A. (N.S.) 968,
105 Pac. 1070.
. ^United States v. Great Falls Manu-
facturing Co., 112 U. S. 645, 28 L. ed.
846.
4Peabody v. United States, 231 U. S.
530, 58 L. ed. 351; Portsmouth Harbor
Land & Hotel Co. v. United States, —
U. S. — , 63 L. ed. ■— , 39 Sup. Ct. 399.
• Peabody v. United States, 231 U. S.
530, 58 L. ed. 351 ; Portsmouth Harbor
Land & Hotel Co. v. United States, —
U. S. », 63 L. ed. — , 39 Sup. Ct. 399.
§1512
Page on Contracts
2584
proceeds of realty belonging to the decedent of such administrator
which has been paid into court in eminent domain proceedings.*
If a railroad company enters upon B's land and permanently
appropriates it as a part of its right of way, and B acquiesces
therein, B may recover against the railroad company in indebitatus
assumpsit.''
§ 1512. Wrongful occupancy of real property. If the tort
complained of consisted in adverse possession of real property,, or
any form of possession thereof without the consent of the true
owner, the common law did not allow such tort to be waived and
an action in assumpsit for use and occupation to be broiight.
Assumpsit could not be made the means of trying the title to landJ
Accordingly, an action in assumpsit could not be brought unless
there was either an express or an implied contract between the
owner and the possessor creating the relation of landlord and
tenant' Where decedent ^s widow occupies the homestead after
the period fixed by statute for her occupancy had expired, the
heir can not recover from her in an action for the rent thereof.'
One who holds wrongful possession, adverse to that of the real
owner, can not be held liable in an action for use and occupation.*
• Eyre v. Faribault, 121 Minn. 233, L.
R. A. 1917A, 685, 141 N. W. 170.
7 Chattanooga, etc., Ry. v. Town Co.,
80 6a. 732, 16 S. E. 308; Boise YaUey
Constr. Co. v. Kroeger, 17 Ida. 384, 28
L. R. A. (N.S.) 968, 105 Pac 1070.
IBurdin v. Ordway, 88 Me. 375, 84
Atl. 175; Boston v. Binney, 28 Mass.
(11 Pick.) 1, 22 Am. Dec. 353.
2 Alabama. Grady v. Ibach, 94 Ala.
152, 10 So. 287.
California. O'Conner t. Corbitt, 3
Cal. 370.
Georgia. Atlanta, etc., Ry. ▼• Me-
Han, 110 Ga. 543, 35 S. E. 634.
Kentucky. WaUer v. Morgan, 57 Ey.
(18 B. Mon.) 136.
Maine. Emery v. Emery, 87 Me. 281,
32 Atl. 900.
Nebraska. Phoenix Ins. Co. v. Hoyt
(Neb.), 91 N. W. 186; Janouch ▼. Pence
(Neb.), 93 N. W. 217.
New York. Collyer ▼. Collyer, 113 N.
Y. 442, 21 N. E. 114.
North Carolina. Panlcon ▼. Johnston,
102 N. Car. 264, 11 Am. St. Rep. 737,
9 S. E. 394.
Ohio. Butler v. Cowles, 4 Ohio 205,
19 Am. Dec. 612; Richey v. Hinde, 6
Ohio 371 ; Cincinnati v. Walls, 1 O. S.
222; Mitchell v. Pendleton, 21 O. S. 664.
Vermont. Blake v. Preston, 67 Vt.
613, 32 Atl. 491.
Wisconsin. Ackerman v. Lyman, 20
Wis. 454.
See Assumpsit for Use and Occupa-
tion, by James Barr Ames, 2 Harvard
Law Review, 377; 3 Select Essays in
Anglo-American Legal Historv, 259
(299).
S Emery v. Emery, 87 Me. 281, 32
Atl. 900.
4 (Georgia. Williams v. Hollis, 19 Ga.
813; Atlanta, etc., Ry. v. McHan, 110
6a. 543, 35 S. E. 634.
Maine. Richardson v. Richardson, 72
Me. 403.
Massachusetts. Bigelow v. Jones, 27
Mass. (10 Pick.) 161.
Michigan. Henderson v. Detroit, 61
Mich. 378, 28 N. W. 133.
Minnesota. Hartman v. Weiland, 36
Minn. 223, 30 N. W. 815.
k
2585
Quasi or Constructive Contract § 1512
In some cases in whieli the owner of realty has been denied the
right to waive tort and sue in assumpsit emphasis has been placed
upon the fact that he has elected to treat the possessor as a
wrongdoer by bringing ejectment against him as a trespasser.* It
has been said that use and occupation for mesne profits would
lie for a period preceding the demise laid in the declaration in
the action of ejectment,* but not for a period subsequent to such
demise.^ One who has elected to treat another in possession of his
land as a wrongdoer for the purpose of bringing an action of
ejectment, can not treat him as in possession during the same
period of time under an implied contract for use and occupation.*
One who has had adverse possession of a ferry which belongs to
another, is not liable to the true owner in assumpsit for use and
occupation.*
Where the person in wrongful adverse possession collects rents
of the property, it has been held that he is not liable to the real
owner for money had and received. Thus, one in possession under
an invalid tax deed has been held not to be liable in this form
of action.* A railroad company took some of A's land for a
right of way. Subsequently, A sold his property to B. It was
held that B could not maintain an action against the railroad com-
pany for use and occupation." Neither could B in this case sue
as A's assignee in trespass, since such a claim could not be as-
signed. A vendee in possession under a contract of sale is not, on
breach of such contract, liable for use and occupation,^' even if
New Hampaldie. Barron v. Marab,
63 N. H. 107.
New York. Stockwell v. Phelps, 84
N. Y. 363, 90 Am. Dec. 710.
Ohio. Butler ▼. Cowles, 4 Ohio 205;
Bichey v. Hinde, 6 Ohio 371; Cincin*
oati ▼. Walk, 1 O. S. 222; Mitchell T.
Pendleton, 21 O. S. 664.
Vermont. Watson ▼. Brainard, 33
Vt. 88.
'niie disseizor is a trespasser and
can not be treated as a tenant. The
tort can not be waived for the purpose
of trying the title to lands in an action
of assumpsit." Richardson v. Richard-
son, 72 Me. 403, 408 [quoted in Phoenix
Ins. Co. y. Hoyt (Neb.), 91 N. W. 186].
SSinnard v. McBride, 3 Ohio 264.
9 Sumard y. McBride, 3 Ohio 264.
TSinnard y. McBride, 3 Ohio 264.
CSinnard y. McBride, 3 Ohio 264;
Butler y. Cowles, 4 Ohio 205.
• Clncinnat: v. Walls, 1 O. S. 222.
to Phoenix Ins. Go. ▼. Hoyt (Neb.), 91
N. W. 186.
11 Allen y. R. R., 107 Ga. 838, 33 S.
E.696.
12 Indiana. Nanoe ▼. Alexander, 49
Ind. 516.
Kentndcy. Jones ▼• Tipton, 32 Ky.
(2 Dana) 295.
Maine. Bishop ▼. Clark, 82 Me. 532^
20 Atl. 88.
Massachusetts. little y. Pearson, 24
Mass. (7 Pick.) 301, 19 Am. Dec. 289.
Vermont. Hough y. Bixge, 11 Vt
190, 34 Am. Dec 682.
§ 1513 Page on Contracts 2586
the contract is subsequently rescindedJ^ If a person in possession,
who has made a contract to purchase the land, did not enter into
possession under such contract of purchase, this principle does not
apply. Thus A, the owner and mortgagor of a piece of land, and
B, A's son, were living together on the mortgaged premises. C,
the owner of the mortgage, agreed with B that C should fore-
close the mortgage, buy the property in, and convey it to B. C
performed the contract as far as foreclosure and buying in were
concerned. B remained in possession, but did not perform the
contract on his part and it was subsequently rescinded. It was
held that B was liable to C in an action for use and occupation.^*
So, if the person in possession under a contract of sale has agreed
to pay rent in case of rescission, this principle has no application.
A transferred property to B under an agreement made betweein
their respective husbands, by which A was to take the property
back or obtain a purchaser therefor if B was dissatisfied with the
purchase ; and in such case B was to. pay for the use and occu-
pation of the land. B, after accepting the deed, became dissatis-
fied, and reconveyed the property to A. It was held that B could
not take advantage of the contract made on her behalf by her
husband for reconveyance, and avoid liability for use and occu-
pation." If the vendor under a contract of sale retains possession,
the vendee can not recover from him in an action for use and
4
occupation.^* By statute in some jurisdictions an action for use
and occupation may be brought where the premises are wrong-
fully occupied, even though there is no agreement, express or im-
plied, for the payment of rent." Under the code of civil procedure,
the court sometimes does not attempt to say whether the action
in which relief is given would have been at common law an action
for rent or for use and occupation."
The true ow^ner of realty can not bring assumpsit against one
who has bought crops from a holder by adverse possession."
§ 1513. Liability of trespasser in assumpsit. One who enters
upon land, not as an adverse claimant thereof, but as a mere tres-
is Belger v. Sanchez, 137 Cal. 614, 70 17 Parkinson v. Shew, 12 S. D. 171,
Pac. 738. 80 N. W. 189.
14 Lynch v. Pearson, 125 Cal. 21, 57 ItVan Bnint v. Calder, 167N. Y.458,
Pac. 676. 60 N. E. 755.
II Van Brunt V. Calder, 167 N. Y. 458, UFaiilcon v. Johnston, 102 N. Oar.
60 N. E. 755. 264, 11 Am. St. Rep. 737, 9 S. B. 394.
It Greenup v. Vernor, 16 III 26.
2587
Quasi or Constructive Contract § 1513
passer, and who severs something of value from the realty and
converts it into personalty, may be held liable in assumpsit wher-
ever he could have been held in assumpsit had the property thus
converted been personalty originally^ The title to realty is not
involved under such a state of facts ; and, accordingly, if assumpsit
could have been brought in case the property, which has thus been
converted by the wrongdoer to his own use, had been personalty
in the first instance, the fact that it was realty originally does not
prevent the owner from resorting to assumpsit. If a trespasser,
not under claim of right and not holding by adverse possession,
has removed coal * or timber * or a valuable fossil * from the realty,
the owner of such realty may maintain assumpsit for its value.
One whose property has been occupied by ancTther, may recover
therefor, even after coiNeying such property to a third person.'
If the acts of such trespasser amount to adverse possession, or
are under a claim of right, the question of title is involved and
assumpsit will not lie.*
1 England. Powell ▼. Rees, 7 Ad. &
El. 426.
United States. Phelps v. Church, 90
Fed. 683, 40 C. C. A. 72.
California. Halleck v. Mixer, 16 Cal.
574.
Kansas. <3arrity v. State Board of
Administration, 99 Kan. 695, 162 Pac.
1167.
Kentucky. Roberts v. Moss, 127 Ky.
657, 17 L. R. A. (N.S.) 280, 106 S. W.
297.
Maine. Whidden v. Seelye, 40 Me.
247, 63 Am. Dec. 661 (obiter).
Minnesota. Downs v. Finnegan, 58
Minn. 112, 49 Am. St. Rep. 488, 59 N.
W. 981.
North Carolina. Brady v. Brady, 161
N. Car. 324, 44 L. R. A. (N.S.) 279, 77
& £. 235.
West Virginia. Parks v. Morris, 63
W. Va. 51, 59 S. E. 753; Wilson v.
Shrader, 73 W. Va. 105, 79 S. E. 1083.
2PoweU Y. Rees, 7 Ad. & El. 426;
Wilson V. Shrader, 73 W. Va. 105, 79 S.
E. 1083. .
3 California. Halleck v. Mixer, 16 Cal.
574 (obiter, as the relief which was
sought was replevin).
Kentucky. Roberts v. Moss, 127 Ky.
657, 17 L. R. A. (N.S.) 280, 106 S. W.
297.
Maine. Whidden v. Seelye, '40 Me.
247, 63 Am. Dec. 661 (obiter, as trover
was brought).
North Carolina. Brady v. Brady, 161
N. Car. 324, 44 L. R. A. (N.S.) 279,77 S.
E. 235.
West Virginia, Parks v. Morris, 63
W. Va. 51, 59 S. E. 753.
4 Assumpsit will lie for the value of
''an eighteen million year old lizard."
Garrity v. State Board of Administra-
tion, 99 Kan. 695, 162 Pac. 1167 (obiter
in part, as the action failed because it
was brought against a branch of the
state; see || 1877 et seq.
• Bowie V. Herrmg, 116 la. 209, 89 N.
W. 976.
(Downs V. Finnegan, 58 Minn. 112,
49 Am. St. Rep. 488, 59 N. W. 981;
Parks V. Morris, 63 W. Va. 61, 59 S. E.
753. See § 1512.
§ 1515
Page on Contracts
2588
§ 1514. Other forms of occupancy excluding liability in con-
tract. One who is in possession under a contract by which he is
to have the use of the premises in question gratuitously, can not
be held liable in an action for use and occupation.^ An action of
assumpsit for use and occupation will not lie against one who
does not sustain the relation of tenant, even though such person
may have lived upon such real property in a subordinate relation
to the tenant. Thus, where A had made a lease to B, and B's
granddaughter, X, lived with B on the premises, not paying rent
or board, it was held that A could not recover from X in an
action for use and occupation.* Under a statute providing that
the expenses of the family shall be chargeable on the property of
the husband and wife, or either of them, and permitting either joint
or several actions to be brought against them, it has been held
that where a lease is made to the husband a joint action for use
and occupation may be brought against husband and wife.'
§1515. Work and labor obtained by tort. Upon the ques-
tion of the right of one the benefit of whose labor has been
obtained by another through a tort to waive his right of action in
tort and to sue in assumpsit, making use of the count for work
and labor, we find a conflict of authority. In some jurisdictions
it seems that the right to waive tort and sue in assumpsit is lim-
ited to cases in which one party is enriched by receiving property
or the proceeds thereof which in equity and good conscience be-
long to another, and that the doctrine of waiver of tort has no
application to benefits of any other sort. In these jurisdictions,
if A has obtained the benefit of B's services by means of some
tort, B can not maintain an action of assumpsit on the count for
work and labor against A.^ Where this theory obtains A is not
liable to B in assumpsit for work and labor if he has compelled
B to work for him by duress.* A convict who has been compelled
1 Chicago V. Milling Co., 106 111. 580,
63 N. E. 1043 [affirming, 97 111. App.
651]. (Even if such contract is in-
valid.)
2 Austin ▼. Whipple, 178 Mass. 155,
59 N. E. 636.
9 Walker v. Houghteling, 107 Fed.
619, 46 C. C. A. 512.
1 SIoss Iron and Steel Co. v. Harvey,
116 Ala. 656, 22 So. 994; Patterson y.
Prior, 18 Ind. 440, 81 Am. Dec 367
(see Patterson v. Crawford, 12 Ind. 241,
to the effect that the remedy is in
tort) ; Cooper v. Cooper, 147 Mass. 370,
9 Am. St. Rep. 721, 17 N. E. 892;
Graham ▼. SUnton, 177 Mass. 321, 58
N. E. 1023; Thompson v. Bronk, 126
Mich. 455, 85 N. W. 1084. .
2 Sloss Iron and Steel Co. v. Harrey^
116 Ala. 656, 22 So. 994; Patterson ▼.
2589
Quasi or Constructivb Contract § 1515
to work contrary to the statutes which fix his rights and duties,
can not recover in assumpsit from the contractor for whom he
was compelled to work.' His remedy is in tort.* A convict who
has been compelled to work on Sundays and holidays for the
person hiring him has been denied the right to recover from such
person on an implied contract, even though the statute specifically
provided that a convict should not be compelled to work on Sun-
days and holidays.* One who has been imprisoned under a void
sentence can not recover in assumpsit from a contractor for whom
he was compelled to work.* The denial of the right of the convict
to recover from the contractor may be justified in some of the
cases on the theory that the contractor did not himself exercise
the compulsion, but that the compulsion was exercised by the state
with whom the contractor had an agreement for the service of
such convict and to whom the contractor had paid compensation.
The right of one the benefit of whose services has been obtained
through tort, is not limited, however, to cases for which an ex-
planation can be offered. In cases in which A has procured B's
services by fraud, B has not been allowed to recover reasonable
compensation from A in an action in assumpsit for work and
labor.^
A represented to B that he had adopted her as his daughter,
and thus he induced her to render domestic services for him. It
was held that she could not recover for work and labor.* If a
man represents himself as single and thus induces a woman to
marry him, live with him, and perform domestic services for him,
it has been held that she can not recover in assumpsit for such
services, and that her remedy is in tort.*
The reasons which have led the courts to refuse to permit tort to
be waived and assumpsit to be brought in cases in which the
plaintiff seeks to use the count for work and labor, are not logical,
but as far as they exist are historical. The money counts were
Prior, 18 Ind. 440, 81 Am. Dec. 367;
Thompson v. Bronk, 126 Mich. 455, 85
N. W. 1084.
tSloBs Iron and Steel Co. v. Harvey,
116 Ala. 656, 22 So. 994; Patterson v.
Prior, 18 Ind. 440, 81 Am. Dec 367;
Thompson v. Bronk, 126 Mich. 455, 86
N. W. 1084.
4 Patterson ▼. Crawford, 12 Ind. 241.
S SIoss Iron and Steel Co. v. Harvey,
116 Ala. 656, 22 So. 994.
C Thompson v. Bronk, 126 Mich. 455,
85 N. W. 1084. ""
7 Graham v. Stanton, 177 Mass. 321,
58 N. £. 1023.
• Graham v. Stanton, 177 Mass. 321,
58 N. E. 1023.
• Cooper V. Cooper, 147 Mass. 370, 9
Am. St. Rep. 721, 17 N. E. 892.
§1515
Page on Contracts
2590
the first to be uaed, and subsequently the counts for goods sold
and delivered were allowed in many jurisdictions.^' The count
for work and labor is from the nature of things less frequently
used than the other counts, and accordingly it appeared some-
what later in time and has been treated in a more unfriendly
manner than the counts for money or for goods sold. In a num-
ber of jurisdictions, however, courts have refused to be bound by
such inadequate historical consideration; and they have applied
logically the theory that a tort may be waived and assumpsit
may be brought wherever the defendant is unjustly enriched at
the plaintiff's expense by reason of his wrong.^^ A convict who
has been compelled to work in a manner not authorized by law
has been permitted to recover in assumpsit from the contractor
who received the benefit of his labor.'* If A has induced B to
perform services for him by fraudulently inducing her to believe
that she was treated as a member of the family and that no charge
was being made for board and lodging, B, on discovering that A
has made a charge against her for board and lodging, may recover
in assumpsit for the value of her services.^' If a man represents
himself as single and induces a woman to marry him, it is held
in many jurisdictions that on discovering his fraud she may waive
the tort and sue in assumpsit to recover the reasonable value of
the services which she rendered for him in such relation.'* If B
has enticed A's son, X, away from home and induced X fo work
for B, it seems that A may waive the tort and sue in assumpsit,'*
since it has been held that if A sues in assumpsit and the jury
MSee §§ 1441 et seq., and §§ 1509 et
eeq.
11 Arkansas. Oreer v. Critz^ 53 Ark.
247, 13 S. W. 764.
Georgia. Schmitt v. Schneider, 109
Ga. 628, 35 S. E. 145.
Lonlsiaiia. Fox v. Dawson, 8 Mart.
(La.) 94.
Kinnesota. Boardman ▼. Ward, 40
Minn. 399, 12 Am. St. Rep. 749, 42 N.
W. 202.
Misaoiixi. Higgins ▼. Breen» 9 Mo.
497.
North CaroliiUL Sanders ▼. Bagan,
172 N. Car. 612, L. R. A. 1917B, 681,
00 S. E. 777.
New Jersey. Knott v. Knott (N. J.
Eq.),51 Atl. 15.
12 Greer v. Critz, 53 Ark. 247, 13 S.
W. 764.
1> Boardman v. Ward, 40 Minn. 399,
12 Am. St. Rep. 749, 42 N. W. 202.
. 14 Georgia. Schmitt v. Schneider, 109
Ga. 628, 35 S. E. 145.
Louisiana. Fox v. Dawson, 8 Mart.
(La.) 94.
Missovxi. Higgins ▼. Breen, 9 Mo.
497.
New Jersey. Knott v. Knott (N. J.
Eq.), 51 AtL 15.
North Carolina. Sanders ▼. Ragan,
172 N. Car. 612, L. R, A. 1917B, 681,
90 S. E. 777.
If Thompson ▼. Howard, 81 Mich. 309.
2591
QiTASi OR Constructive Coxtract § 1516
disagrees, he can not dismiss such action and sue in tort, since his
action in assompsit was a final election as between tort and con*
tract."
m
QUASI-CONTRACTUAL RIGHTS ARISING NEITHER FROM
CONTRACT NOR FROM TORT
I
A. VOLUNTARY PAYMENTS, SERVICES, ETC.
§ 1516. Servicer rendered voluntarily without request. In the
absence of an emergency which makes immediate action necessary
to preserve life or to preserve public decency and the like, one
who has performed services for another can not recover for such
senrices in the absence of a genuine contract even if such services
prove beneficial to thb person for whom they are rendered, and
although he accepts such benefits, at least if he has no choice
between accepting and rejecting such benefits^ If A renders
services in preserving or protecting B's property, without B's
request or assent, either express or implied, A can not recover
for the value of such services from B.* If A renders legal services
for B, under a contract with B, he can not recover compensation
for such services from the United States, although as a result of
his services the United States acquired title to public land which
had been conveyed by fraud or mistake.' If A renders legal
IS Thompson v. Howard, 31 Mich. 309.
innited States,. Coleman v. United
States, 152 U. S. 96, 38 L. ed. 368.
Arkansas. Bercher v. Gunter, 95 Ark.
155, 128 S. W. 1036.
Maine. Wadleigh v. Katahdin Pulp
& Paper Co., 116 Me. 107, 100 Atl. 150.
Michigaxi. Lange v. Kaiser, 34 Mich.
317.
New Hampshire. Stavrelis v. Zach-
arias, — N. H. — , 106 Atl. 306.
Hew Jersey. Force v. Haines, 17 N.
J. (2 Harr.) 385.
Hew York. Bartholomew v. Jackson,
20 Johns. (N. Y.) 28, 11 Am. Dec. 237.
OUahonuL Watts v. Houston
(Okla.), 165 Pac. 128.
Pennsylvania. Mayer v. Rhoades,
135 Pa. St. 601, 20 Atl. 158.
Texas. Willis v. Jones, 11 Tex. 594.
Vermont. Morse v. Kenney, 87 Vt.
445, 89 Atl. 865.
If a co-tenant constructed an im-
provement upon the realty owned in
common, full compensation is ordinarily
made to him if, on partition, the land
on which such improvements are located
is set off to him, and if the improve-
ments do not increase the value of the
residue. Farley v. Stacey, 177 Ky. 109,
1 A L. R. 1181, 197 S. W. 636.
2 Bartholomew v. Jackson, 20 Johns.
(N. y.) 28, 11 Am. Dec. 237; Glenn v.
Savage, 14 Or. 567, 13 Pac. 442; Morse
V. Kenney, 87 Vt. 445, 89 AtL 865.
3 Coleman v. United States, 152 U. S.
96, 38 L. ed. 368.
§1516
Page on Contracts
2592
services for some of testator's heirs in contesting a will and as a
result of his services the will is refused admission to probate, A
can not recover compensation from the heirs who did not assent
to the agreement between A and the remaining heirs, even if they
have received the share of testator's estate which they would not
have received if such will had not been contested/
The rule that voluntary acceptance of benefits shows an implied
promise to pay therefor,* applies only where the party for whom
the services are rendered is free to take their benefit or to reject it.
If the services are of such nature that he has no choice but to
accept them, he can not be said to accept them voluntarily. Such
acceptance, therefore, creates no liability.* If A recovers from X
a fund which belongs to B, A can not compel B to compensate him •
for such services.'' If an attorney is retained by unauthorized
agents of a church to prefer charges againsi: a clergyman, and he
prefers such charges and prosecutes the case and procures the
suspension of such clergyman from the ministry by reason of such
charges, his services are not so accepted by the church as to make
it liable to him, by a resolution that by reason of such suspension
such clergyman should be required to leave the parsonage owned
by the church.* So one who voluntarily acts as janitor can not
recover though the occupant of the building is benefited thereby.*
So if work is done in putting a heating plant in a building under
a special contract, and the contract is not performed and what
has been done can not be removed without injury to the building,
no recovery can be had for such work.^* So if a building has been
repaired,^^ or painted,^* 'or if a stone base has been built under an
iron fence, and the fence has been painted,^* or a bridge has been
constructed,^* or a street laid down,^* and the contract under which
4 Watts V. Houston (Okla.), 165 Pac.
128.
i See §§ 1442 et seq.
• Houston Oil Co. y. Texas, 250 Fed.
572 ; Parshley v. Church, 147 N. Y. 583,
30 L. R. A. 574, 42 N. E. 15; Riddell
V. Ventilating Co., 27 Mont. 44, 69 Pac
241. (Decided under a statute which
substantially reenacts the common law
rule as far as the particular case is
concerned.) '
7 Houston Oil Co. v. Texas, 250 Fed.
572.
• Parshley v. Church, 147 N. Y. 583,
30 L. R. A. 574, 42 N. E. 15.
• Cleveland County v. Seawell, 3
Okla. 281, 41 Pac. 592.
M Riddell v. Ventilating Co., 27 Mont.
44, 69 Pac. 241.
11 Davis V. School District, 24 Me.
349.
12 Ginther v. Shultz, 40 O. S. 104.
13Zottman v. San Francisco, 20 Cal.
96, 81 Am. Dec 96.
14 Buchanan Bridge Co. v. Campbell,
60 O. S. 406, 54 N. E. 372.
IB Detroit v. Paving Co., 36 Mich. 335.
2593 Quasi or Constructive Contract § 1517
the services have been rendered is either unenforceable,^* or has
not been performed," the owner of such real property has no
choice but to make use of the property upon which such work has
been done, and therefore his making use of such property is not
an acceptance of such services so as to create a liability to pay
therefor. Some cases, however, do not seem to enforce this dis-
tinction. Thus where A placed a bathtub, washbowl and other
plumbing in B's house under a contract with whose terms he did
not comply, and A makes use of the house with such plumbing in
it, A is liable for such plumbing in quantum meruitJ* So where
A constructs a system of waterworks for a city under a contract
to furnish one with a capacity of two hundred and fifty thousand
gallons a day and the system actually furnished has a capacity of
only fifty thousand gallons a day, and the city makes use of the
system actually constructed, it is liable therefore* But in these
last cases it may be that under the particular facts the party
accepting the services may be held to have had the option to
accept or not.
If A renders services in saving B's property without B's knowl-
edge or assent, A can not recover therefor; and the fact that B
retains and uses the property thus saved is not such an acceptance
of A's services as to make B liable therefor.^ Thus where A
voluntarily repaired a broken levee on B's land without B's re-
quest, A can not -recover from B for such work.'^ In a leading
case, A was about to burn over some stubble, and he notified B,
whose wheat was stacked near the field to be burned over, to re-
move such wheat. B promised to do so, but neglected it. While
the stubble was burning the wind changed, and B's wheat was
threatened with destruction. A saved it, B knowing nothing of
the matter until afterwards. It was held that A could not recover
from B for his services.^
§1517. Services rendered by finder of loet property. One
who finds lost property is not entitled to a reward therefor in the
liZottman v. San Francisco, 20 Cal. 19 Sherman v. Connor, 88 Tex. 35, 29
M, 81 Am. Dec. 96; Buchanan Bridge S. W. 1053.
Co. V. Campbell, 60 O. S. 406, 54 N. E. » Watson v. Ledoux, 8 La. Ann. 68.
•72. 21 New Orleans, etc., Ry. v. Turcan,
nOinther y. Shultz, 40 0. S. 104. 46 La. Ann. 155, 15 So. 187.
nOroes ▼. Creyts, 139 Mich. 672, 90 22 Bartholomew v. Jackson, 20 Johns.
N. W. 689. (N. Y.) 28, 11 Am. Dec 237.
§1518
Page on Contracts
2594
absence of a specific agreement for such reward.^ On the other
hand, he is said not to be liable for negligence in caring for the
thing which he has found.* If the finder has expended time or
money in reclaiming lost property, it has been said that he may
recover compensation therefor.' It has been held that one who
recovers a runaway slave for another may recover compensation
for his expenditure of time and money which contributed to the
recovery of such slave.^ If A finds B's boat adrift and takes it
ashore and makes necessary repairs, and B then replevins such
boat, A may recover reasonable compensation for repairing such
boat and for keeping it.' The finder can not assert a lien for
expenses.* The correctness of the result reached in some of these
cases seems very doubtful. The act of the finder in taking the
lost property may prevent the owner from finding it himself; and
in some of these cases the owner is obliged to pay for services
which have been rendered in preserving the property which he
could have performed himself if the property had not been taken
into the possession of the finder. On the other hand, a modifica-
tion of the common-law rules with reference to rewards for lost
property and with reference to the duty of the finder to take
afiirmative steps to ascertain the owner, would prevent consider-
able economic waste and would furnish inducements to the finder
to refrain from wrongful appropriation of the property thus found.
«
§1518. Services rendered to preserve animals. If A feeds
and cares for an animal belonging to B, it is held in some juris-
dictions that A can not recover from B in assumpsit unless the
circumstances show a real understanding between A and B that
B should pay therefor,^ or, at least, unless it is shown that no one
else would take care of the animal.* If B has declared that he
does not own such animal and will not be responsible for its ex-
penses, A can not recover.' The result of such decisions is, in
1 Watts V. Ward, 1 Or. 86, 62 Am.
Dec. 299.
2Mulgrave v. Ogden, Cro. Eliz. 219.
JReeder v. Anderson, 34 Ky. (4
Dana) 193; Chase v. Corcoran, 106
Mass. 286. See to the same effect,
obiter in Nicholson v. Chapman, 2 H.
Bl. 254, and Amory v. Flyn, 10 Johns.
(N. Y.) 102, 6 Am. Dec. 316.
4Reeder *v. Anderson, 34 Ky. (4
Dana) 193.
i Chase v. Corcoran, 106 Mass. 286.
6 Nicholson v. Chapman, 2 H. Bl. 254;
Henly v. Walsh, 2 Salk. 686.
1 Morse v. Kenney, 87 Vt. 445, 89 Atl.
865.
2Mathie v. Hancock, 78 Vt. 414, 63
Atl. 143.
3Earle v. Coburn, 130 Mass. 596;
Keith V. De Bussigney, 179 Mass. 255,
60 N. E. 614; Morse v. Kenney, 87 Vt.
445, 89 At]. 865.
J
2595
Quasi or Constructive Contract § 1519
many cases, to give to B the choice between letting the animal
starve to death or feeding it at his own expense. In the case of
the wife and children of one who is charged with their support,
recovery for the value of such support can be had by one who has
furnished it when the husband or father has failed to do so/
Should the case of animals be controlled by the principles* which
apply to the preservation of inanimate property, or should the
fact that animals suffer from want of food, as well as deteriorate
in value, be sufficient to justify a departure from the ordinary
rules of law? If provision were made generally for feeding de-
serted animals by some public officer at the expense of their owner,
it might be proper to hold that the duty of A, on finding that B
has 'left his animals without food, is to report that fact to the
proper officer, and not to feed them at B's expense. If no such
provision is made, the only humane rule is to permit A to feed
them, and to allow him to recover the expense thereof from B,
and this rule has been adopted in some jurisdictions,* even where
B has denied such liability in advance.*
§1519. Beceipt of money from real owner— ^Voluntary pay-
ments. If A, a person of full legal capacity, pays money to B with
the intent that it should become B*s property, and no operative
facts, such as mistake, misrepresentation, fraud, non-disclosure,
duress, or undue influence exist, which might make the transaction
voidable, A can not recover such payment from B. Another and
more common form of stating the same principle is that a volun-
tary payment made with full knowledge of the facts can not be
recovered.^ The same principle applies where money is paid by
4 See §§1523 et seq.
i Great Northern Kailway ▼. Swaf-
field, L. R. 9 Exch. 132; Todd v. Martin,
4 Cal. (unrep.) 805, 37 Pac. 872.
(Great Northern Railway v. Swaf-
field, L. R. 9 Exch. 132.
1 United States. Little v. Bowers,
134 U. S. 547, 33 L. ed. 1016; United
States V. Edmondston, 181 U. S. 500, 45
L. ed. 971; Camden Iron Works v.
United States, 50 Ct. CI. 191; The
Kicanor, 40 Fed. 361; The Agathe, 71
Fed. 528.
Alabama. Prichard t. Sweeney, 109
Ala. 651, 19 So. 730.
Arkansas. Crenshaw v. Collier, 70
Ark. 5, 65 S. W. 709.
California. Bucknall v. Story, 46 Cal.
589, 13 Am. Rep. 220; Harralson v.
Barrett, 99 Cal. 607, 34 Pac. 342; Holt
V. Thomas, 105 Cal. 273, 38 Pac. 891.
Coonecticnt. Skelly v. Bank, 63 Conn.
83, 38 Am. St. Rep. 340, 19 L. R. A.
599, 26 Atl. 474.
Florida. Jefferson County v. Hawk-
ins, 23 Fla. 223, 2 So. S62.
lUiniois. Macon County v. Foster, 133
111. 496, 23 N. E. 615; lUinois Glass Co.
V. Chicago Telephone Co., 234 111. 535,
18 L. R. A. (N.S.) 124, 85 N. E. 200;
Burlock V. Cook, 20 111. App. 154.
§1519
Page on Contracts
259Q
X to B for A, and in A's presence.* The fact that a formal protest
is made when the payment is made does not prevent it from being
voluntary.' If A has voluntarily paid an illegal tax to a county
and subsequently the county has voluntarily repaid the amount
of such tax to A, the county can not recover from A the amount
Indiana. Connecticut, etc., Ins. Co.
▼. Stewart, 95 Ind. 588.
Iowa. Bailey v. Paullina, 69 la. 463,
29 N. W. 418; Manning v. Poling, 114
la. 20, 83 N. W. 895, 86 N. W. 30;
Adair County v. Johnston, 160 la. 683,
45 L. R. A. (N.S.) 753, 142 N. W. 210.
Kansas. Cumming Harvester Co. ▼.
Sigerson, 63 Kan. 340, 65 Pac. 639.
Kentucky. Tyler. v. Smith, 57 Ky.
(18 B. Mon.) 793; Williams v. Shel-
boume, 102 Ky. 579, 44 S. W. 110.
Louisiana. New Orleans, etc., Co. v.
Improvement Co., 109 La. 13, 94 Am.
St. Rep. 395, 33 So. 51.
Massachusetts. Regan v. Baldwin,
126 Mass. 485, 30 Am. Rep. 689; Massa-
chusetts Mutual Life Ins. Co. v. Green,
185 Mass. 306, 70 N. E. 202.
Michigan. Tompkins v. Hollister, 60
Mich. 485, 34 N. W. 651; Francis v.
Hurd, 113 Mich. 250, 71 N. W. 682;
Warren v. Federal Life Insurance Co.,
198 Mich. 342, 164 N. W. 449.
Minnesota. Carson v. Cochran, 52
Minn. 67, 63 N. W. 1130.
Missouri. Morley v. Carlson, 27 Mo.
App. 5.
Nebraska. Nebraska, etc., Ins. Co.' v.
Segard, 29 Neb. 354, 45 N. W. 681.
New Jersey. Koewing v. West
Orange, 89 N. J. L. 539, 99 Atl. 203.
New York. Flynn v. Hurd, 1J8 N.
y. 19, 22 N. E. 1109; Redmond v. New
York, 125 N. Y. 632, 26 N. E. 727.
North Carolina. Howard v. Life As-
sociation, 125 N. Car. 49, 45 L. R. A.
853, 34 S. E. 199; Pardue v. Absher,
174 N. Car. 676, 94 S. E. 414.
North Dakota. Rising v. Tollerud,
34 N. D. 88, 157 N. W. 696; Jacobson
▼. MohaU Telephone Co., 34 N. D. 213,
L. R, A. 1916F, 532, 157 N. W. 1033.
Ohio. Brumbaugh v. Chapman, 45 0.
S. 368, 13 N. E. 584.
Oregon. Gabel v. Armstrong, 88 Or.
84, 171 Pac. 190.
Pennsylvania. Oil Well Supply Co.'
V. Bank, 131 Pa. St. 100, 18 Atl. 936.
Tennessee. Hubbard v. Martin, 14
Tenn. (8 Yerg.) 498.
Texas. Ladd v. Mfg. Co., 53 Tex.
172.
Vermont. Gibson v. Bingham, 43 Vt,
410, 6 Am. Rep. 289.
West Virginia. Beard v. Beard, 25
W. Va. 486, 52 Am. Rep. 219.
Wisconsin. Gage v. Allen, 89 Wis.
98, 61 N. W. 361. "The ultimate fact
to be reached in this case is the state
of mind under which the payments
were made. If they were made volun-
tarily, with a full knowledge of all the
facts and without fraud or imposition,
they are beyond reclamation. If, on
the other hand, the money was ex-
torted from the appellee * * • or
if fraud or imposition was practiced
upon him, he is entitled to recover his
money back for the plain jeason that
the payment was involuntary." Ligonier
(Town of) V. Ackerman, 46 Ind. 652,
658, 15 Am. Rep. 323 [quoted, HoUings-
worth V. Stone, 90 Ind. 244],
2 Rogers v. Garland, 8 Mackey (D.
C.) 24.
» United SUtes. Little v. Bowers,
134 U. S. 547, 34 L. ed. 1016.
California, McMillan v. Richards, d
Cal. 365, 70 Am. Dec. 655.
Indiana. Patterson v. Cox, 25 Ihd.
261.
Iowa. Anderson v. Cameron, 122 la.
183, 97 N. W. 1085.
2597
Quasi or Constructive Contract § 1519
of sach payment.* A mortgagee who has redeemed property which
has been sold at an auction sale to satisfy a prior judgment, can
not recover the amount thus paid in if the title fails because of
facta which such mortgagee knew when he redeemed the property,*
even if, by reason of such failure of title, the property passes to
the purchaser at such judicial sale to whom the mortgagee has
paid such redemption money.* If A, with full knowledge of all
the facts, pays excessive assessments to an insurance company, he
can not recover such assessments.^ An insurance company which
pays the amount of insurance after loss with full knowledge of all
the material facts, can not recover the money thus paid, as on the
ground that the loss was on property not covered by the policy ; •
nor can they maintain an action against a vessel on which the
cargo insured was carried, for damages, on the theory that the
loss was due to the negligence of those in charge, after paying the
amount apportioned as the insurance -company's share due for
salvage.' A was a stockholder in a corporation which was about
to increase its capital stock, and had a legal right to subscribe
for a certain amount of such new stock at par. The corporation
refused to receive his subscription unless he paid a bonus for the
right to subscribe. It was held that he could not recover the
amount thus paid in, since he had an adequate remedy.^* He could
have tendered the true value of the stock, and on refusal of the
corporation to deliver the stock to him, he could maintain the ac-
tion against the corporation for the difference between the par
value and the market value of such stock. Where the statute pro-
vides for arbitration to estimate the value of improvements made
(Commissioners of) Waba*
vnsee County v. Walker, 8 Kan. 431.
Hiddgaa. Detroit v. Martin, 34 Mich.
170, 22 Am. Rep. 512.
Nebra^luu McBride y. Lathfop, 24
Neb. 93, 38 N. W. 32.
North Dakota. Wessel v. Mortgage
Co., 3 N. D. 160, 44 Am. St. Rep. 529,
54 N. W. 922.
Ohio. Marietta v. Slocomb, 6 0. S.
471.
Penasyhraiiia. De La Cnesta ▼. Ins.
Co., 136 Pa. St. 62, 658, 9 L. R. A. 631,
20 AtL 505.
4 Adair County v. Johnston, 160 la.
688, 45 L. R. A. (N.S.) 753, 142 N. W.
210.
S Copper Belle Min. Co. v. Gleeson, 14
Ariz. 548, 48 L. R. A. (N.S.) 481, 134
Pac 285.
• Copper Belle Min. Co. v. Gleeson, 14
Ariz. 548, 48 L. R. A. (N.S.) 481, 134
Pac 285.
7 Howard v. Ins. Association, 125 N.
Car. 49, 45 L. R. A. 853, 34 S. E. 199.
i Nebraska, etc., Ins. Co. v. Segard,
29 Neb. 364, 45 N. W. 681. "
• The Nicanor, 40 Fed. Z%1,
«De La Cuesta v. Ins. Co., 136 Pa.
St. 62, 658, 9 L. R. A. 631, 20 AtL
505.
§1520
Page on Contracts
2598
upon realty, to be paid for by one who is redeeming the land from
an execution sale, the voluntary payment of an excessive amount
for improvements by such redemptioner without arbitration, can
not be recovered." If a wife pays a debt of her husband's after
his death out of money which she receives on an insurance policy
on his life, payable to her, she can not recover such payments*
An inmate of a soldiers' and sailors' home, who agrees to pay
over a part of his pension to such home, and does pay it over,
can not subsequently recover, though the home could not have
compelled such payment^' A owes B a note on which the in-
terest is payable in advance, and A pays such interest in ad-
vance; and subsequently A voluntarily pays the note before ma-
turity. A can not recover the proportionate part of such interest
paid by him.^* So where B has executed a mortgage which con-
tains a provision that the mortgagor shall pay the tax on the
mortgage debt, and under the law he is thereby relieved from
liability to pay interest upon such mortgage debt, he can not re-
cover the amount of interest from the mortgagee after paying it
voluntarily.^' If taxes unlawfully assessed are paid with full
knowledge of the facts, and without duress, or legal compulsion,
the money- thus paid can not be recovered,^* unless there is a statu-
tory provision therefor." If a public officer voluntarily pays over
to the public treasurer fees which he has a legal right to retain
for his personal benefit, he can not recover such payments." If
A is the agent of B to sell stock, and A as such agent makes a
sale to X, and takes the check of X in payment, and sends B his
personal check, A can not recover from B, although the cheek
which A receives from X proves to be worthless."
§ 1520. Money paid for use of another— Voluntary pajrment.
Money paid voluntarily to the use of another can not be recovered
11 Pritchard v. Sweeney, 109 Ala. 651,
19 So. 730.
12 Tompkins v. HoUister, 60 Mich. 485,
34 N. W. 651.
ISBryson v. Home, etc., 168 Pa. St.
352, 31 Atl. 1008; Brooks v. Hastinga,
192 Pa. St: 378, 43 Atl. 1075.
14 Skelly V. Bank, 63 Conn. 83, 38 Am.
St. Rep. 340, 19 L. R. A. 599, 26 Atl.
474.
ISHarrakon v. Barrett, 99 Cal. 607,
34 Pac. 342.
1* Durham v. Board, 95 Ind. 182;
Indianapolis v. Vajen, HI Ind. 240, 12
N. E. 311.
ITDonch V. Lake County, 4 Ind. App.
374, 30 N. E. 204.
« Selby V. United States, 47 Fed. 800.
WPepperday v. Bank, 183 Pa. St 619,
63 Am. St. Rep. 769, 39 L. R. A. 629,
38 Atl. 1030.
2599
Quasi or Constructive Contract
1520
unless there is a promise, either express or implied, to repay it.^
If A voluntarily pays B's debt to C, with full knowledge of the
facts, under no compulsion, and without B's previous request or
subsequent ratification, A can not recover the money thus paid
from B as money paid to B's use.^ If an agent pays a note t>f his
principals out of his own money, without their authority, he can
not collect .from one of the makers who does not assent to such
payment.' If without compulsion or to protect his own interests
A has paid taxes upon B's property, A can not recover such pay-
ment from B.* The fact that B promised to repay to A the amount
of taxes thus paid by A upon learning of the fact of such pay-
ment, does not impose any liability upon B, since no consideration
1 England. Jenkins t. Tucker, 1 H.
BI. 90.
Alabama. Kenan v. Holloway, 16
Ala. 53, 50 Am. Dec. 162; Murphree
Ins. Agency v. Pinnington (Ala.), 78
So. 854.
Kentucky. Noble v. Williams, 150
Ky. 439, 42 L. R. A. (N.S.) 1177, 150
S. W. 507; Maryland Casualty Co, v.
Givens, 177 Ky. 131, 197 S. W. 497.
Massachiisetts. Massachusetts Mut-
ual Life Ins. Co., v. Green, 185 Mass.
306, 70 N. E. 202.
Minnesota. Helm v. Smith Fee Co.,
76 Minn. 328, 79 N. W. 313.
New Hampshire. Contoocook Fire
Precinct v. Hopkinton, 71 N. H. 574,
53 Atl. 797.
Hew York. Flynn v. Hurd, 118 N.
Y, 19, 22 N. E. 1109; Pittsburgh- West-
moreland Coal Co. V. Kerr, 220 N. Y.
137, 115 N. E. 465.
Ohio. People's, etc.. Bank v. Craig,
63 O. S. 374, 52 L. R. A. 872, 59 N.
E. 102.
Vermont. Lamonda v. Parizo, 90 Vt.
381, 98 Atl. 980.
West Virginia. Cnimlish v. Improve-
ment Co., 38 W. Va. 390, 45 Am. St.
Rep. 872, 23 L. R. A. 120, 18 S. E. 456.
Wisconsin. Sanderson v. Cream City
Brick Co., 110 Wis. 618, 86 N. W. 169.
2 Alabama. Murphree Ins. Agency v.
Pinnington (Ala.), 78 So. 854.
Arkansas. Donaghey v. Williams^
123 Ark. 411, 185 S. W. 778.
Kentucky. Noble v. Williams, 150
Ky. 439, 42 L. R. A. (N.S.) 1177, 150
S. W. 507; Maryland Casualty Co. v.
Givens, 177 Ky. 131, 197 S. W. 497.
Minnesota. Kosanke v. Kosanke, 137
Minn. 115, 162 N. W. 1060.
New York. Flynn v. Hurd, 118 N. Y.
19, 22 N. E. 1109; Pittsburgh- West-
morel and Coal Co. v. Kerr, 220 N. Y.
137, 115 N. E. 465.
Ohio. People's and Drovers' Bank ▼»
Craig; 63 0. S. 374, 52 L. R. A. 872,.
59 N. E. 102.
South Carolina. Kershaw County v.
Camden, 33 S. Car. 140, 11 S. E. 635.
Vermont. Lamonda v. Parizo, 90 Vt.
381, 98 Atl. 980.
West Virginia. Cnimlish v. Improve*
ment Co., .38 W. Va. 390, 45 Am. St.
Rep. 872, 23 L. R. A. 120, 18 S. E.
456. The right of a married woman to
recover payments for family necessa-
ries from her husband's estate is said
to depend on whether she made such
payments as a contribution or whether
she made it expecting her husband to
repay her. Kosanke v. Kosanke, 137
Minn. 115, 162 N. 'W. 1060.
3 People's, etc., Bank v. Craig, 63 0.
S. 374, 52 L. R. A. 872, 59 N. E. 102.
4 Massachusetts Mutual Life Ins. Co.
v. Green, 18d Mass. 306, 70 H. E. 202.
§1520
Page on Contracts
2600
for such promise existed.' If A through a mistake of fact pays
taxes upon B's land, A may recover from B the amount of the
taxes thus paid.* A lessee who has paid taxes on the leased prop-
erty which the lessor should have paid, but has not done so at
lessor's request nor because lessor has refused to pay such taxes,
can not recover for such taxes from lessor where he has for years
paid the full amount of the rent without demanding repayment
for such taxes, or deducting the amount thus paid from the rent.^
So a remainderman who has the property assessed to him instead
of to the life tenant and has paid taxes thereon with the knowl-
edge of the life tenant, but not at his request, can not recover from
him the amounts thus paid.® One having no interest in realty
which could be affected by a tax is a volunteer as to taxes paid
by him and can not recover.*
If taxes on B's land are paid by A under mistake of fact, A
may recover from B. Thus where B had acquired title by adverse
possession, and A, the original owner, not knowing of such ad-
verse possession, continues to pay taxes on such realty, B may
recover from A the amount thus paid.^* If A who is in possession
of realty pays taxes thereon believing that he is the owner and
such realty is subsequently adjudged to be B's, A may recover
from B the amount of taxes thus paid.^^ A grantee under a forged
deed who has paid taxes upon the realty described therein, be-
lieving that he is the true owner, may recover the amount of such
taxes from the true owner, at least if he was not negligent in the
transaction.^' So if A is legally liable for taxes which as between
B and A it is B's duty to pay, A may recover from B the amounts
so paid.^*
A teacher who has paid the rent of the school building and
who has furnished supplies for the school without the request of
S Massacliuseits Mutual Life Ins. Co.
V. Green, 185 Mass. 306, 70 N. E. 202.
• Goodnow V. Stryker, 61 la. 261, 16
N. W. 486 [no federal question in-
volved, Wells V. Goodnow's Administra-
tor, 150 U. S. 84, 37 L. ed. 1007];
Merrill y. Tobin, 82 Is. 529, 48 N. W.
1044; Govern v. Russ, 125 la. 188, 100
K W. 325.
T Western, etc., Ry v. State (Ga.), 14
L. R. A. 438.
• Huddleson v. Washington, 136 CaL
514, 69 Pac. 146.
SRushton V. Burke, 6 Dak. 478, 43
N. W. 815.
IS Merrill v. Tobin, 82 la. 529, 48 N.
W. 1044.
It Goodnow V. Stryker, 61 la. 261, 16
N. W. 486 [no federal question in-
volved. Wells V. Goodnow, 150 U. S. 84,
37 L. ed. 1007].
12 Govern v. Russ, 125 la. 188, 100
N. W. 325.
» See i 1542.
2601 Quasi or Constructive Contract § 1520
the board of education in order to prevent the school from being
dosed, can not recover from the board of education the amount
thus paid.^^
If the claim which A pays to C is not one which could have
been enforced against B legally, it is still clearer that A has no
right to recover from B in the absence of previous request or sub-
sequent ratification. Thus B had ordered cabbages to be shipped
to A by C, a common carrier, in a ventilated fruit car not to be
iced. The car was not iced when forwarded from the place of
shipment; but at some time in the transit it was iced, probably by
C's agents, without authority from B. A paid to C the charges
for icing the car. It was held that A could not recover from B
for such payment.^' B had agreed to deliver four hundred cords
of wood to A, to be transported by A to Milwaukee. When B
came to deliver such wood to be loaded, he found that about sixty
cords of wood, of such grade that it did not comply with the terms
of the contract, was piled in front of the wood which he intended
to ship under his contract. In order to save the cost of handling
this sixty-cord load twice, B agreed with C, the captain of the
vessel, to transport this load of wood to B's dock at Milwaukee.
C, however, instead of doing this, delivered this sixty-cord load of
other wood to A at A's yard. A refused to accept this load of
wood under the contract, but paid to C the freight for such trans-
X)ortation. It was held that A could not recover such amount
from B.«
If A voluntarily pays B's debt to C, and B refuses to reimburse
A, A can not recover such payment from C." Thus, where a
married woman voluntarily delivers notes which belong to her
separate estate in payment of her husband's debt, she can not
subsequently recover the notes or the proceeds thereof fi:om the
person to whom they are delivered in payment.^*
The rule that one who voluntarily pays the debt of another,
can not recover from such other,- has no application where, instead
of pa3ring the debt, the person who advances the money takes the
assignment of the claim. A trust company, B, had arranged with
U Noble ▼. Williams, 150 Ky. 439, 42 n Boyer v. Richardson, 52 Neb. 156,
L. R. A. (NJ3.) 1177, 150 S. W. 507. 71 N. W. 981.
11 Earl V. Commission Co., 70 Ark. 61, is Gillespie ▼. Simpson (Ark.), 18 8.
66 8. W. 148. W. 1050.
IS Sanderson v. Brick Co., 110 W\b,
618, 86 N. W. 169.
§ 1521 Page on Contracts 2602
a packing company, C, that C should keep a certain deposit with
B, and that B should pay for tickets which were issued for the pay-
ment of live stock bought by C. C's deposit with B was not to
be used in payment of such advances, but B was to forward to C
a statement of the money thus advanced, and C was to remit the
amount thereof to B. Subsequently, the trust company asked A, a
bank, to advance money to pay these tickets. A did so, taking
the assignment of the tickets. B subsequently became insolvent.
It was held, as between A and C, that A had a right to recover
from C the amount advanced by A upon such tickets which were
assigned over to A.^*
Money which is paid for the use of another without previous
request and not under circumstances which would entitle the party
making such payment to recover from the person for whose benefit
it was paid without an express promise, may be recovered if such
payment was ratified after it was made.*
Equity denies the right of subrogation to one who has paid an-
other's debt, not under compulsion and without prior request or
subsequent ratification.^^ One who has paid the promissory note
of another by mistake can not be subrogated to the rights of the
payee ;^ and he can not secure title thereto after such payment
by having the payee endorse such note to him.^
B. PAYMENTS, SERVICES, ETC.— SPECIAL CASES OP HOTfANITY,
DECENCY, ETC.
§1521. Services rendered in emergency to preserve hnman
life. A case in which considerations of humanity control, and
enable one who has rendered services without request to recover
therefor, is found where medical or surgical attention is rendered
to one who is injured or taken ill so that he is unconscious and
unable either to request or forbid the rendition of such services.
In cases of this sort, the courts are confronted with the alternative
of requiring the injured person to pay reasonable compensation
for services rendered to him, or of saying that all who render
services do so as a matter of charity or in reliance upon the gen-
's Sioux National Bank v. Packing Miss. 91, 55 Am. St. Rep. 486, 19 So.
Co., 63 Ped. 805. 100; Charnock v. Jones, 22 S. D. 132,
MDonaghey v. Williams, 123 Ark. 16 L. R. A. (N.S.) 233, 115 N. W. 1072.
411, 185 S. W. 778. M Charnock v. Jones, 22 S. D. 132. 16
t1 Ronton V. Cameron, 205 111. 50, 68 L. R. A. (N.S.) 233, 115 N. W. 1072.
N. E. 800; Matteson v. Dent, 112 la. 23 Charnock v. Jones, 22 S. D. 132, 16
551, 84 N. W. 710; Good v. Golden, 73 L. R. A. (N.S.) 233, 115 N. W. 1072.
2603 Quasi or Constructive Contract § 1522
erosity of the person for whom such services are rendered. While
there is little authority upon this question, from the nature of the
ease it is held that the interest of the person who is injured re-
quires the law to impose^ a liability upon him for reasonable com-
pensation for such medical and surgical services.^ The fact that
the surgical operation which is necessary under the circumstances
does not result in saving his life, does not prevent the surgeon
from recovering reasonable compensation.^ Like considerations
apply where A is chargeable with B's support and B is injured
or taken ill under circumstances which make it apparently neces-
sary to furnish medical or surgical attention at once without noti-
fying A or obtaining his consent. Under such circumstances it is
held that if X furnishes medical or surgical services to B he may
recover from A.' Where A refused to support his slave, B, and X
supported such slave, it was held that X could not recover — but
on the theory that it was X's duty to give notice to the public
authorities who were charged with the support of paupers.* The
principles which permit recovery in cases of this sort seem to have
no application to services which are rendered for the preservation
of property,' even if such services prevent suffering of domestic
animals.'
§ 1522. Funeral expenses. Certain duties imposed by law are
of such character as to be easily evaded contrary to the policy of
the law, if the general principles forbidding recovery in cases of
voluntary payments, services or furnishing gc^ds are applied.
These cases form an exception to these general principles. The
common feature of these exceptional cases is that from their na-
ture strong reasons of public policy demand prompt action, and
to secure this action in eases of the neglect or omission of the
person primarily liable, any other person tcking such action may
recover therefor from the person or fund primarily liable. In
cases of the latter class, the person to whom support is furnished
often would perish or hold his existence only on the precarious
tenure of charity if obliged to await the result of a direct action
1 Cotnam ▼. Wisdom, 83 Ark. 601, 119 STryon v. Dornfeld (Benson Hospital
Am. St. Rep. 157, 12 L. R. A. (N.S.) Association v. Dornfield), 130 Minn. 198,
1090, 13 Ann. Cas. 25, 104 S. W. 164. L. R. A. 1915E, 844, 153 N. W. 307.
2 Cotnam v. Wisdom, 83 Ark. 601. 119 4 Force v. Haines, 17 N. J. L. 38&.
Am. St. Rep. 157, 12 L. R. A. (N.S.) iSee §{ 1516 et seq.
1090, 13 Ann. Cas. 25, 104 S. W. 164. • See S 1^18.
§1522
Page on Contracts
2604
to compel the person legally liable for such support to perform his
legal duty even if an appropriate action existed in every case.
While the common law was strongly inclined to treat one who had
made payments on behalf of another as an intermeddler and to
deny him the right to recover from the person on whose behalf he
made such payments unless he could show that he was authorized
by such person, or that he had been compelled in some way to
make such payments in order to protect his own interests, the
considerations of humanity and decency in cases of this sort over-
come this strong tendency of the common law and permit recovery.
A right of action in implied assumpsit is given to the person fur-
nishing such support* Since the common-law remedy in such cases
was an action in general assumpsit, these rights of action are
classed with implied contract, though there is usually no genuine
agreement. Funeral expenses form a prominent class of cases
illustrating this general principle. In the absence of an executor
or administrator, or his omission to act, a third person who pays
for funeral expenses or renders them because of the necessities
of the particular case and not as an officious intermeddler, may
recover from the decedent's estate a reasonable compensation
therefor.^ Thus the widow may recover the amount expended by
her for grave clothes and undertaker's expenses for the burial of
her husband.* So a son of the deceased, who not knowing that
the latter had any property, bought a cemetery lot which was
larger than necessary, but there was nothing to show that a smaller
lot could have been bought, may be reimbursed out of his parent's
estate.' So one who furnishes a reasonable amount of flowers at
decedent's funeral, at the request of the decedent's sister-in-law,
who had been acting as his housekeeper, may recover therefor out
of decedent's estate.^ Funeral expenses paid by one before ap-
lEoglaiid. Jenkins v. Tucker, 1 H.
B1. 90.
Iowa. Foley v. Brocksmit, 119 la.
457, 97 Am. St. Rep. 324, 60 L. R. A.
571, 93 N. W. 344.
Maine. Fogg v. Holbrook, 88 Me. 169,
33 L. R. A. 660, 33 Atl. 792.
Massachusetts. Marple y. Morse, 180
Mass. 508, 62 N. E. 966.
Michigan. Booth ▼. Radford, 87
Mich. 357, 24 N. W. 102.
New Jersey. 'Sullivan v. Homer, 41
N. J. Eq. 299. 7 Atl. 411.
North Carolina. Ray v. Honeycutt,
119 N. Car. 510, 26 S. E. 127.
Ohio. McClellan v. Filson, 44 0. S.
184, 5 N. E. 861.
Rhode Island. O'Reilly v. Kelly, 22
R. I. 151, 50 L. R. A. 483, 46 Atl. 681.
2 France's Estate, 75 Pa. St. 220.
3 Marple v. Morse, 180 Mass. 508, 62
N. E. 966.
♦ O'Reilly V. Kelly, 22 R, I. 151, 50
L. R. A. 483, 46 Atl. 681.
2605
Quasi or Constructive Contract § 1522
pointment of an administrator should be credited upon his debt
due to decedent, and may be set off against such debt in a sub-
sequent suit by the administrator.^ So if A, an executor of B's
will, pays the funeral expenses of C, a legatee under C's will, who
dies in poverty, A may credit such payment on C's legacy.* A
different question arises where a husband pays his wife's funeral
ft
expenses and seeks reimbursement out of her estate. At common
law the husband was liable for these expenses, and in paying them
he was discharging his own legal obligation. Accordingly, he
could not be reimbursed out of his wife's estate;^ and if her
executor has paid such expenses he may deduct them from the
husband's share of his wife's estate,' as money paid out to the
husband's use.*
In some states statutes have made funeral expenses a debt of
the decedent's estate, and have provided for their payment. Un-
der such statutes some courts have held that a husband who pays
the funeral expenses of his wife is entitled to reimbursement out
of her estate.* Without deciding this question, it has been held
that a son who pays his mother's funeral expenses and who is
afterwards appointed her executor, may credit himself with such
expenses in his account as against the objection of his sister that
such expenses should have been paid by the husband of the
decedent.** In other jurisdictions it has been held that the statute
which made funeral expenses a debt of the estate was not intended
to modify the common-law duty of the husband to pay the funeral
expenses of his wife out of his own estate ; and accordingly if he
pays her funeral expenses out of his own estate, he can not be
reimbursed out of her estate.**
The estate of the deceased wife is liable by such statute even if
the ultimate liability rests upon her husband.** If the corpse were
• Phillips V. Phillips, 87 Me. 324, 32
Atl. 963.
i Wilson ▼. Staats, 33 N. J. Eq. 524.
T Matter of Weringer, 100 Cal- 345,
34 Pac. 829; Staple's Appeal, 52 Conn.
425; Waesch's Estate, 166 Pa. St. 204,
30 Atl. 1124.
• Brand's Executor v. Brand, 100 Ky.
721, 60 S. W. 704.
• Skillman v. Wilson, 146 la. 601, 140
Am. St. Rep. 295, 125 N. W. 343; Con-
stantinides v. Walsh, 146 Mass. 281, 4
Am. St. Rep. 311, 15 N. E. 631; Morris-
sey ▼. Mulhem, 168 Mass. 412, 47 N. E.
407; Monlton v. Smith, 16 R. I. 126, 27
Am. St. Rep. 728, 12 Atl. 891.
ISMcaelland y. Filson, 44 O. S. 184,
58 Am. Rep. 814, 5 N. E. 861.
IlKetterer v. Nelson, 146 Ky. 7, 3T
U R. A. (N.S.) 754, 141 S. W. 409;
Phillips V. Tolerton, 9 0. N. P. (N.8.)
565, 20 O. D. (N.P.) 249 [affirmed by
circuit court in memorandum opinion,
which was affirmed by si preme court
without report, Phillips v. Tolerton, 82
O. S. 403, 92 N. E. 1121].
12 Gould ▼. Moulahan, 53 N. J. Eq.
341, 33 Atl. 483.
1523
Page on Contracts
2606
to remain unburied until the person primarily liable for funeral
expenses were compelled to do his duty, it would be an outrage
to public decency even if an appropriate action for that purpose
existed. Hence a right of action in assumpsit is given to the per-
son who buries the corpse or pays for the funeral expenses. This
right of action is accordingly limited to cases where the person
primarily liable either omits to act voluntarily or is so situated
that he has no opportunity to act. One who intermeddles officiously
can not recover. Thus where a stranger took possession of money
of the decedent and out of that fund paid the funeral expenses,
he can not set off such expenses as a credit in an action against
him by the executor of the decedent."
§ 1523. Liability of husband, for wife's necessaries. Another
class of cases illustrating this general principle exists where one
who furnishes necessaries to a wife whose husband refuses or
omits to supply them may recover from him.^ While the liability
of the husband for his wife's necessaries is often explained on the
theory of the wife's implied agency as if it were a genuine implied
contract, it is wider than that. A husband who does not furnish
his wife with necessaries in consequence of which she becomes a
public charge, is liable to the public corporation which furnishes
her support as a pauper.^ If the husband does not supply his wife
with necessaries, he is liable even if the circumstances negative
his assent, as where he deserts her,' or drives her away,* or if she
has become insane and he fails to support her.'
13 Shaw V. Hallihan, 46 Vt. 389, 14
Am. Rep. 628. ^
1 California. St. Vincent's Hospital
V. Davis, 129 Cal. 20, 61 Pac. 477.
Connecticut. St. John's Parish ▼.
Bronson, 40 Conn. 75, 16 Am. Rep. 17.
Idaho. Edminston v. Smith, 13 Ida.
645, 121 Am. St. Rep. 294, 14 L. R. A.
(N.S.) 871, 92 Pac. 842.
Indiana. Rariden v. Mason, 30 Ind.
App. 425, 65 N. E. 554.
Maine. Thorpe ▼. Shapleigh, 67 Me.
235; Beaudette v. Martin, 113 Me. 310,
93 Atl. 758.
Massachusetts. Eames v. Sweetser,
101 Mass. 78.
Missouri. Dorrance v. Dorrance, 257
Mo. 317, 165 S. W. 783.
New York. Frank v. Carter, 219 N.
Y. 35, L. R. A. 19irB, 1288, 113 N. E.
549.
Ohio. Howard v. Whetstone Town-
ship, 10 Ohio 365; Trustees* of Spring-
field V. Demott, 13 Ohio 104.
West Virginia. Martin v. Beuter, 79
W. Va. 604, 91 S. E. 452,
2 Howard v. "Whetstone Township, 10
Ohio 365; Trustees of Springfield ▼.
Demott, 13 Ohio 104.
SPrescott V. Webster, 175 Mass. 316,
56 N. E. 577; East v. King, 77 Miss.
738, 27 So. 608; Trustees of Springfield
V. Demott, 13 Ohio 104.
4 Cunningham v. Reardon, 98 Mass.
538, 96 Am. Dec. 670; Howard v. Whet-
stone Township, 10 Ohio 365.
• Martin v. Beuter, 79 W. Va. 604, 91
S. E. 452.
2607
Quasi or Constructive Contract § 1523
The fact that necessaries are furnished to the wife against the
husband's will does not aflfect his liability therefor.' He is liable
even if she is incapable of acting as agent, as where she is insaneJ
The husband is liable where the circumstances show that the party
furnishing the necessaries had no intention of contracting with
the husband, as where he does not know that the woman is mar-
ried, as long as he does not furnish necessaries on the exclusive
credit of the woman.* The liability of the husband is therefore
quasi-contractual; and while in many cases there is no doubt a
genuine understanding between the husband and the person who
furnishes the necessaries for the wife, that the husband shall pay
for them, his liability exists in the absence of any such mutual
understandipg.
The fact that a married woman has made an express promise
to pay for necessaries which are furnished to her, does not relieve
the husband from liability;' and under such facts both are liable
if a married woman has capacity to bind herself by an express
contract.^ The fact that the married woman has property of her
own does not defeat her husband's liability for her necessaries as
long as such necessaries are not furnished on her credit aloneJ^
The husband is not liable unless he has refused to furnish his wife
with necessaries," and to make provision therefor. A husband who
has furnished his wife with an adequate allowance in money, is
not liable for goods which she has bought upon his credit, even if
such goods would have been necessaries for which he would have
been liable if he had not furnished her with money."
Even if the husband and wife have separated, he is not liable
to third persons for her support as long as he has made a reason-
able provision therefor." So if a husband is willing to support
SRaynes v. Bennett, 114 Mass. 424;
Sodowsky v. Sodowsky, 51 Okla. 689,
162 Pae. 390.
7 St. Vincent*8 Institution v. Davis,
129 Cal. 20, 61 Pac. 477.
• St. Vincent's Institution v. Dayis,
129 Cal. 20, 61 Pac. 477.
SEdminston v. Smith, 13 Ida. 645,
121 Am. St. Rep. 294, 14 L. R. A. (N.S.)
871, 92 Pac. 842.
lOEdminston v. Smith, 13 Ida. 645,
121 Am. St. Rep. 294, 14 L. R. A. (N.S.)
871, 92 Pac. 842.
11 Ott V. Hentall, 70 N. H. 231, 51 L.
R. A. 226, 47 Atl. 80.
12 Bergh v. Warner, 47 Minn. 250, 28
,Am. St. Rep. 362, 50 N. W. 77; S. E.
Olson Co. V. Youngquist, 76 Minn. 26,
78 N. W. 870; McCreery v. Martin, 84
N. J. L. 626, 47 L. R. A. (N.S.) 279,
Ann. Cas. 1916'A, 1, 87 Atl. 433.
13 McCreery v. Martin, 84 N. J. L.
626, 47 L. R. A. (N.S.) 279, Ann. Cas.
1915A, 1, 87 Atl. 433.
14 Crittenden v. Schermerhom, 39
Mich. 661, 33 Am. Rep. 440; Harshaw
§1523
Page on Contracts
2608
an insane wife, and demands her custody in good faith, the au-
thorities of an asylum who refuse to surrender her can not there-
after recover front himJ* However, if the husband refuses to allow
his wife to live with him, she is not bound to receive support at a
place indicated by him, but may select any reasonable place where
the expense of her support is not disproportionate to her hus-
band's income and he is bound to support her there.^* A common-
law husband will not be liable for his wife's necessaries if she left
him without his aggression or if he excluded her from his dwell-
ing because of her aggression." The opposite result, however, has
been reached under a statute which provides that the wife can not
be excluded from the homestead. Under such a statute it has
been held that a husband who, even on justifiable ground, excludes
his wife from the homestead, is liable for her necessaries^* Many
states have similar statutes with reference to the right of the
husband or wife to dwell in the homestead even if owned by the
other; and if this decision is followed the general common-law
rule will be abrogated.
The common-law rules as to the right of persons who have
furnished a wife with necessaries to recover from the husband, dx)
not apply in proceedings for divorce and alimony; and in many
cases an allowance may be given to a wife for alimony under
circumstances which would preclude third persons who had fur-
nished her with necessaries from recovering the value thereof from
the husband.
The husband is not liable unless the goods furnished are neces-
saries." What are necessaries is in many cases a relative term,
depending oil the social standing, financial condition and style of
▼. Merryman, 18 Mo. 106; Cory v. Cook,
24 R. I. 421, 53 Atl. 315; Hunt v.
Hayes, 64 Vt. 89, 33 Am. St. Rep. 917,
16 L. R. A. 661, 23 Atl. 920.
list. Vincent's Institution v. Davis,
129 Cal. 17, 61 Pac. 476.
It Kirk V. Chinstrand, 85 Minn. 108,
66 L. R. A. 333, 58 N. W. 422.
n Colorado. Denver Dry Goods Co.
V. Jester, 60 Colo. 290, L. R. A. 1917A,
967, 152 Pac. 903.
Maine. Peaks v. Mayhew, 94 Me.
571, 48 Atl. 172.
Michigan. Middlebrook v. Slocum,
152 Mich. 286, 116 N. W. 422.
Nebraska. Belknap v. Stewart, 38
Neb. 304, 41 Am. St. Rep. 729, 56 N. W.
881.
Wisconsin. Morgenroth v. Spencer,
124 Wis. 564, 102 N. W. 1086.
It Baker v. Oughton, 130 la. 35, 106
N. W. 272.
Its. E. Olson Co. V. Youngquist, 72
Minn. 432, 75 N. W. 727 [affirmed, 76
Minn. 26, 78 N. W. 870] ; Bush & Lane
Piano Co. v. Woodard (Wash.), 175
Pac. 329; Shuman v. Steinel, 129 Wis.
422, 116 Am. St. Rep. 961, 7 L. R. A.
(NJ8.) 1048, 109 N. W. 74.
2609
Quasi or Constructive Contract § 1523
living of the parties. It undoubtedly includes board, lodging and
necessary clothing," medical attendance of a regular physician,^^
services of a dentist,^ and in proper cases, services of an attorney
where necessary for her protection, especially where her husband
prefers unfounded charges against her.^ Legal services in a
divorce suit, however, are in many jurisdictions fixed by the court
before which the divorce is pending and are provided for by an
allowance of alimony.** Reasonable funeral services for burying
the body of a married woman are necessaries chargeable against
her husband." A set of books is not a necessary for which the
husband may be held liable unless he authorized his wife to pur-
chase the books or ratified the sale subsequently." A piano is not
a necessary,'^ especially if it is not received by the family or used
by them."
Money loaned to a married woman and by her expended for
necessaries is not treated as a necessary at common law and^her
husband is not liable therefor." But in equity- one who has loaned
money to a married woman may recover from her husband so
much thereof as has been actually expended by her for necessaries
at a reasonable price, if the circumstances are such that he could
have recovered for the necessaries had he furnished them directly
to her." But this rule has been held not to apply where the hus-
band has by reason of sickness been unable to furnish necessaries
to his wife ; *^ and has been denied altogether." The principle
here involved is analogous to that controlling in loans to an in-*
fant."
aOltman ▼. Yoet, 62 Minn. 261, 64
N. W. 564.
SIBevier v. Galloway, 71 111. 517;
Tebbetts v. Hapgood, 34 N. H. 420.
22 Freeman v. Holmes, 62 6a. 556.
2tConant v. Burnham, 133 Mass. 503,
43 Am. Rep. 532.
M Williams t. Monroe, 57 Ky. (18 B.
Moh.) 514; Wolcott v. Patterson, 100
Mich. 2-27, 43 Am. St. Rep. 456, 24 L.
R. A. 629, 68 N. VT. 1006; Wescott v.
Hinckley, 56 N. J. L. 343, 29 Atl. 154.
21 Sears ▼. Giddey, 41 Mich. 590, 32
Am. Rep. 168, 2 N. W. 917; Gleason t.
Warner, 78 Minn. 405, 81 N. W. 206.
2SShuman ▼. Steinel, 129 Wis. 422,
11« Am. St. Rep. 961, 7 L. R. A. (N.S.)
1048, 109 N. W. 74.
27 Bush & Lane Piano Co. v. Woodard
(Wash.), 175 Pac. 329.
21 Jones-Rosquist-Killen Co. v. Nel-
son, 98 Wash. 539, 167 Pac. 1130.
29 Knox V. Bushnell, 3 C. B. N. S. 334;
Zeigler v. David, 23 Ala. 127; Marshall
V. Perkins, 20 R. I. 34, 78 Am. St. Rep.
841. 37 Atl. 301.
» Harris v. Lee, 1 P. Wms. 482; Ken-
yon V. Farris, 47 Conn. 510, 36 Am.
Rep. 86.
21 Leuppie v. Osbom, 52 N. J. Eq. 637,
29 Atl. 433.
22 Skinner ▼. Tirrell, 159 Mass. 474,
38 Am. St Rep. 447, 21 L. R. A. 673,
34 N. E. 892.
31 See I 1592.
§1524
Page on Contracts
2610
Where alimouy lias been allowed and paid a husband is not
liable to persons who thereafter furnish his wife with necessaries.**
As long as they are living together as husband and wife, a man
is liable for the necessaries of a woman whom he holds out to the
world as his wife.* Differing from the liability of a husband for
necessaries furnished to his wife, the liability of the man under
the circumstances ceases with his separation from his reputed
wife.**
■
§ 1524. Liability of parent for necessaries of minor child« An-
other class of cases in which a volunteer may recover for reasons
of humanity exists where one who supplies necessaries to a minor
child whose parent refuses or omits to supply them, is permitted
to recover from such parent^
If the child is living with his parent, such parent has a wide
discretion as to the style of living to be adopted by his family.
He* is, therefore, liable only in a very clear case of omission to
supply necessaries, unless he has authorized his child to buy the
goods for which suit is brought or has expressly or impliedly
agreed to pay therefor.* A father who is confined in the peni-
tentiary for life is still liable for the support of his minor child.'
The fact that a parent has ** emancipated" his child by permitting
him to keep his wages, does not relieve the parent from liability
84 Bennett v. OTallon, 2 Mo. 69, 22
Am. Dec. 440; Hare ▼. Gibson, 32 0. S.
33, 30 Am. Rep. 568.
3S Watson V. Threlkeld, 2 Esp. 637;
Frank v. Carter, 219 N. Y. 35, L. R.
A. 1917B, 1288, 113 N. E. 540.
89Munro v. De Cbemant, 4 Carapb.
215.
1 Kentucky. Hamilton v. Preston,
166 Ky. 61, 178 S. W. 1146; Huffman v.
Hatcher, 178 Ky. 8, L. R. A. 1918B, 484,
'198 S. W. 236.
Michigan. Finn v. Adams, 138 Mich.
258, 4 Am. & Eng. Ann. Cas. 1186, 101
N. W. 533.
Minnesota. Lufkin v. Harvey, 131
Minn. 238, L. R. A. 1916B, 1111, Ann.
Cas. 1917D, 583, 154 N. W. 1097; Beig-
ler V. Chamberlin, 138 Minn. 377, L.
R. A. 1918B, 215, 165 N. W. 128.
New York. ' De Bra u were v. De Brau-
were, 203 N. Y. 460, 38 L. R. A. (N.S.)
508, 96 N. E. 722.
Ohio. Pretzinger v. Pretzinger, 45
0. S. 452, 15 N. E. 471.
2 Connecticut. Copboy v. Howe, 59
Conn. 112, 22 Atl. 35.
Illinois. Gotts v. Clark, 78 111. 229.
Minnesota. Lufkin v. Harvey, 131
Minn. 238, L. R. A. 1916B, 1111, Ann.
Cas. 1917D, 583, 154 N. W. 1097.
New Hampshire. Farmington v.
Jones, 36 N. H. 271.
New York. Van Valkinburgh v. Wat-
son, 13 Johns. (N. Y.) 480, 7 Am. Dec.
395.
Pennsylvania. McLaughlin v. Mc-
Laughlin, 159 Pa. St. 489, 28 Atl. 302.
8 Finn v. Adams, 138 Mich. 258, 4
Am. & Eng. Ann. Cas. 1186, 101 N. W.
533.
J
2611
Quasi or Constructive Contract
1524
for necessaries with which the child is not furnished.* If the child
has left his parent's home with the consent of such parent, neces-
saries furnished such child constitute a liability against the parent
if the child is not in fact provided with them.' Thus, A's minor
daughter, B, was by A's permission living apart from A and sup-
porting herself. She fell sick and X attended her as a physician.
B did not know of her illness and the circumstances were such as
to make it impracticable to notify him. It was held that X could
recover from B.' If the child has left his father's home, without
the consent of the father, the question of the latter 's liability '
turns on whether the father's wrongful act caused the child to
leave, or whether such child left without legal excuse. If a minor
abandons his father's home without his father's being at fault,
the father is not liable to third persons who furnish such child
with necessaries'.^ If the child is compelled to leave home by the
wrongful act of the parent, the latter is liable to third persons
who furnish such child with necessaries.*
If a decree of divorce does not in terms provide for maintenance
for minor children, and the father does not support them, it is
held in many jurisdictions that if the mother supports the children
after the decree of divorce, she may recover reasonable com-
pensation from the father,' especially if he has abandoned the
children.^' In some jurisdictions it is held that if the custody of
the children is given to the wife and the decree of divorce makes
no provision for the maintenance of the children, she can not
4 Cooper V. McNamara, 92 Ta. 243, 60
N. W. 522; Lufkin v. Harvey, 131 Minn.
238, L. R. A. 1916B, 1111, Ann. Cas.
19irD, 583, 154 N. W. 1097; Hunycutt
V. Thompson, 159 N. Car. 29, 40 L. R.
A. (y.S.) 488, Ann. Cas. 1913E, ^8,
74 S. E. 628.
5 Cooper V. McNamara, 92 la. 243, 60
X. VV. 522.
• Porter v. Powell, 79 la. 151, ?8
Am. St. Rep. 353, 7 L. R. A. 176, 44 N.
W. 295.
7 Hunt V. Thompson, 4 111. 17^, 36
Am. Dec. 538; Glynn v. Glynn, 94 Me.
465, 48 Atl. )05; Angel v. MeLellan, 16
Mass. 28, 8 Am. Pec. 118.
t Stanton v. WillaoK: 3 Day. (Conn.)
37, 3 Am. Dec. 255.
9 Colorado. Desch v. Desch, 55 Colo.
79, 132 Pac. 60.
Kansas. Rogers v. Rogers, 93 Kan.
U4, L. R. A. 1915A, 1137, 143 Pac. 410.
Minnesota. Beigler v. Chamberlin,
138 Minn. 377, L. R. A. 1918B, 215, 165
N. W. 128.
Maryland. Alvey v. Hartwig, 106
Md. 254, 11 L. R. A. (N.S.) 678, 14 Ann.
Cas. 250, 67 Atl. 132.
Vermont. StockweB v. Stockwell, 87
Vt. 424, 89 Atl. 478.
Washington. Schoennauer v. Schoen-
naner, 77 Wash. 132, 137 Pac. 325.
10 Beigler v. Chamberlin, 138 Minn.
377, L. R. A. 1918B, 215, 165 N. W.
128.
§1524
Page on Contracts
2612
recover reasonable compensation for their support from their
m
father ; " her remedy, if any, being to apply to the court which
rendered the decree of divorce for an order compelling the father
to support the children. It has been suggested that the mother
may recover compensation for the support of the children after a
decree of divorce which awarded their custody to her if she was
not the aggressor ; " but that if she was the aggressor and if the
father is willing to support the children, she can not compel him
to pay for their necessary support even if the custody of such
children was awarded to the motherJ^ If the father is found to
be an improper person to have custody of the child and the
maternal grandfather is accordingly appointed guardian of the
child, the maternal grandfather may recover from the father for
necessaries which are furnished to the child if the father omits
to furnish such necessaries^*
What are necessaries depends on the financial ability, social
standing and style of living assumed by the parents of the child.
In clear cases it may be a matter of law that certain things are
or are not necessaries. Thus a father was held not liable for
services rendered without his knowledge in tutoring his son during
vacation, the son living at home.« If dependent on surrounding
facts it is for the jury to determine, as whether a commercial
education furnished to a child whose father had abandoned his
family without cause '• was a necessary. A parent is liable for
reasonable funeral expenses of his child, even if such child leaves
an estate."
In some cases the liability of a father to third persons for the
support of his minor children has been said not to exist in any
case in the absence of statutory provision therefor.^*
In all jurisdictions the liability of the parent is limited in the
absence of contract on his part, express or implied, or some stat-
11 Stone V. Duffy, 219 Mass. 178, 106
N. E. 595; Bondies v. Bondies, 40 Okla.
164, 136 Pac. 1089.
12 Pretzinger v. ^Pretzinger, 46 0. S.
452, 15 N. E. 47l!
13 Fulton V. Fulton, 62 0. S. 229, 29
L. R. A. 678, 39 N. E. 729.
14 Huffman v. Hatcher, 178 Ky. 8, L,
R. A. 1918B, 484, 198 S. W. 236.
II Peacock v. Linton, 22 R. I. 328, 63
L. R. A. 192, 47 Atl. 887.
«Cory V. Cook, 24 R. I. 421, 53 Atl.
315.
IT Rowe V. Raper, 23 Ind. App. 27, 77
Am. St. Rep. 411, 64 N. E. 770.
It Murphy v. Ottenheimer, 84 111. 39,
25 Am. Rep. 424; Holt v. Baldwin, 46
Mo. 2B5, 2 Am. Rep. 615; Freeman t.
Robinson, 38 N. J. L. 383, 20 Am. Rep.
399; Jackson v. Mull, 6 Wyom. 66, 42
Pac. 603.
2613 Quasi or Constructive Contract § 1526
utoiy provisioiiy to the support of his minor children, and he is
not liable for necessaries furnished to his adult children^*
Where slavery existed a master was liable for necessaries fur-
nished to a slave whom such master had not furnished with neces-
saries. Thus a master who drives his slave away is liable to a
physician who cares for such slave while sick, even if the master
forbids him to care for such slave.^
§1525. Liability to third person of one who has contracted
to furnish support. Cases sometimes arise in which A is bound to
support B by reason of a contract between A and B and not
because of any relation existing between A and B outside of such
contract. In cases of this sort, A fails to support B and X there-
upon supports B and seeks to recover from A reasonable com-
pensation for such support. Upon the question of X's right to
recover, there is a conflict of authority. It has been held that
X may recover under such circumstances,^ on the theory that since
A was bound to provide for B, the services and supplies furnished
to B by X were advantageous to A and might be considered in
law as having been rendered at his request.** In other jurisdic-
tions, however, the opposite result has been reached and X has
.been denied a right of action against A,' gn the theory that A's
liability is exclusively upon his contract to B and that X can not
assume the performance of such contract and thus become A's
creditor against A's will.*
§ 1526. Support of paupers. The duty of supporting paupers
which rests upon public corporations and quasi-corporations is a
creature of statute. In passing such statutes the legislature in-
tended to set forth fully and completely the duty and liability of
such public organizations. Accordingly, in the absence of statutory
provision therefor, no recovery can be had from the public cor-
poration which is liable for such support, but neglects to furnish it,
It White ▼. Mann, 110 Ind. 74, 10 N. iPor8yth\ Ganaon, 6 Wend. (N. Y.)
E. 620; Blacbley v. Laba, 63 la. 22, 558, 21 Am. Dec. 241.
50 Am. Rep. 724, 18 N. W. 658. SMatheny v. Cheater, 141 Ky. 790,
atPairchild ▼. Bell, 2 Brev. (S. Car.) 133 S. W. 754; Moody v. Moody. 14
129, 8 Am. Dec. 702. Me. 307; Savage v. McCorklc, 17 Or.
1 Porayth ▼. Qanson, 5 Wend. (N. Y.) 42, 21 Pac. 444.
558, 21 Am. Dec. 241. 4 Moody v. Moody, 14 Me. 307.
§1526
Page on Contracts
2614
by any person furnishing such support,^ whether a natural person,*
or another public corporation.' While many statutes give such
right of recovery, either to a private person,* or to a public cor-
poration,' such right of action is limited by the terms of the
statute giving it, and does not exist unless such terms are com-
plied with.* Thus where the remedy given by statute is an action
for money laid out and expended, this means an action in as-
sumpsit, not in case, and a pleading will be construed to be in
assumpsit if it states facts sufficient to show such liability, even
if no express promise is alleged.' Where a town is given a right
to recover for support which it furnishes, no recovery can be had
1 Gilligan v. Grattan, 63 Neb. 242, 88
N. W. 477; Patrick v. Baldwin, 10»
Wis. 342, 53 L. R. A. 613, 85 N. W.
274 [overruling in effect Mappes v.
Iowa County, 47 Wis. 31, 1 N. W. 359].
2 Indiana. Morgan County v. Seaton,
122 Ind. 621, 24 X. E. 213.
Massachiisetts. t>'Keefe v. Northamp-
ton, 145 Mass. 115, 13 N. E. 382.
Rhode Island. Caswell v. Hazard, 10
R. I. 490.
Vermont. Macoon v. Berlin, 49 Vt.
13.
Wisconain. Patrick v. Baldwin, 109
Wis. 342, 53 L. R. A. 613, 85 N. W.
274 [overruling in effect Mappes v.
Iowa County, 47 Wis. 31, 1 N. W. 359].
3 Bristol v. New Britain, 71 Conn. 201,
41 Atl. 548; Marlborough v. Framing-
ham, 54 Mass. (13 Met.) 328; Strafford
County V. Rockingham County, 71 N.
H. 37, 51 Atl. 677; Millcreek Township
▼. Miami, 10 Ohio 375.
4 Wile V. Southbury, 43 Conn. 53;
Wing V. Chesterfield, 116 Mass. 353;
Blodgett V. Lowell, 33 Vt. 174; Trus-
tees V. Ogden, 5 Ohio 23.
5 Iffinois: Bristol v. Fox, 159 111. 500,
42 N. E. 887.
Iowa. Clay County v. Palo Alto
County, 82 la. 626, 48 N. W. 1053.
Maine. Auburn v. Lewiston, 85 Me.
282, 27 Atl. 159.
Massachnsetts. Reading v. Maiden,
141 Mass. 580, 7 N. E. 21.
Ohio. Trustees of Williamsburg ▼.
Trustees of Jackson, 11 Ohio 37; Com-
missioners of Ashland Co. v. Directors
of Richland County Infirmary, 7 O. S.
65.
Pennsylvania. Taylor Township v.
Shenango Township, 114 Pa. St. 394, 6
Atl. 475.
Utah. Ogden City v. Weber County,
26 Utah 129, 72 Pac. 433.
Vermont. Charleston v. Lunenburgh,
23 Vt. 525; Chittenden v. Stockbridge,
63 Vt. 308, 21 Atl. 1102.
Wisconsin. Portage County v. Nesh-
koro, 109 Wis. 520, 85 N. W. 414.
I Massachnsetts. Palmer t. Hamp-
den, 182 Mass. 511, 65 N. E. 817.
Nebraska. Newark Township v.
Kearney County, 99 Neb. 142, 155 N.
W. 797.
New Hampshire. Louden v. Merri-
mack County, 7L N. H. 573, 53 Atl.
906.
Ohio. Millcreek Township v. Miami
Township, 10 Ohio 375; Commissioners
of Ashland Co. v. Directors of Rich-
land County Infirmary, 7 0. S. 65.
Vermont. Topham v. Waterbury, 73
Vt. 185, 50 Atl. 860; Danville v. Hart-
ford, 73 Vt. 300, 50 Atl. 1082; Rutland
V. Chittenden, 74 Vt. 219, 52 Atl. 426.
7 Woodstock v. Hancock, 62 Vt. 348,
19 Atl. 991.
2615 Quasi or Constructive Contract § 1527
for support furnished through the voluntary subscription of pri-
vate individuals.' In some few states, however, it seems to be
held that a statute providing that a pauper is to be supported at
the expense of a public corporation, imposes a liability on such
corporation in favor of persons furnishing necessaries to a pauper
at least after the public corporation has notice of the needs of such
pauper and thereafter omits to furnish such necessaries.* The
statute which imposes liability upon a public corporation for the
support of a pauper usually makes such liability depend upon
notice to such public corporation of the fact that the person for
whose support it is sought to recover is a pauper and is destitute.
Under such statutes no recovery can be had for support furnished
before such notice was given.^* Under a statute which requires
notice to the public corporation in order to impose a liability upon
it for the support or care of a pauper, st question is sometimes
presented as to the rights of the parties where a sudden emer-
gency arises which makes it impracticable to give such notice.
Upon this point there is a conflict of authority. The weight of
authority seems to be that if the statute itself contains no excep-
tion, the courts can not create an exception because of such
emergency.^^ On he other hand, it has been held that a fair con-
struction of such a statute requires notice only where it is prac-
ticable to give notice; and that where the emergency is such that
great suffering or possible death will follow if the parties wait to
give notice, recovery may be had for services rendered without
giving notice."
Under some statutes the allowance of the claim is in the dis-
cretion of certain specified public authorities," and the courts will
not review their exercise of such discretion."
§ 1527. Support of persons under quarantine, etc. The power
of public bodies which are charged with the duty of protecting
• Orland ▼. Penobscot, 97 Me. 29, 53 H Cantrell v. Gark County, 47 Ark.
AtL 830. 239, 1 S. W. 200; French v. Benton, 44
• Eckman v. Brady Township, 81 N. H. 28.
Mich. 70, 45 K. W. 502. To the same 12 Board of Commissioners of Sheri-
effect see Perry County v. Du Quoin, dan County v. Denebrink, 15 Wyom.
99 HI. 479. 342, 9 L. R. A. (N.S.) 1234, 89 Pac. 7.
ItMillcreek Township v. Miami D Trustees v. White, 48 O. S. 577, 29
Township, 10 Ohio 375; Commissioners N. E. 47.
of Ashland County t. Directors of Rich- 14 Trustees v. White, 48 O. S. 577, 29
land County Infirmary, T 0. S. (15. N. E. 47.
. § 1528 Page on Contracts 2616
public health to pay for the expenses of physicians, support of
persons under quarantine, and the like, depends upon the authority
conferred upon them by statute; and for the same reason the
liability of such public body to pay reasonable compensation for
such services and support depends on statutory provisions. If no
contract has been made for the services of a physician, the public
body is not liable therefor in quasi-contract in the absence of a
statute imposing such liability^ Such public body is not liable
for the support of a person who is quarantined outside of the pest-
house,^ unless such person is a pauper and the public body is
liable for his support in any event by statutory provisions' or
unless liability therefor is imposed by statute.* If a servant at a
hotel is taken ill with smallpox and is quarantined, the hotel can
not recover from the city for the expense of nursing and caring
for her or for the destruction of infected goods with the consent
of the owner.' If the patient is confined in the pest-house, the
primary liability for his care rests on the public body.*
C. INVOLUNTARY PAYMENTS IN GENERAL
§1528. Involuntary payments. The general doctrine forbid-
ding recovery of voluntary payments has, of course, no application
to payments which are not voluntary. The general rule is, that
if A receives money belonging to B, which is not paid voluntarily
by B, A is bound in law to repay it.' Thus, where A was arrested
upon a charge of stealing, and brought before B, a trial justice,
and B took from A the money which A had upon his person and
which was alleged to be the stolen money, and A is discharged
upon a preliminary hearing, A can recover such money from B.*
So, if an agent of an express company induces a bank to send
money by express to a fictitious firm, which money the agent
receives as agent for the express company, and which he em-
1 Dykes v. Commissionera of Stafford 8 Kollock v. Steirenfl Point, 37 Wia.
County, 86 Kan. 697, 121 Pac. 1112; 348.
Kellogg v. St. George, 28 Me. 256; Pet- tLabrie v. Manchester, 59 N. H. 120,
tengill V. Amherst, 72 N. H. 103, 54 47 Am. Rep. 179.
Atl. 944. iPemberton v. Williams, 87 IlL 15;
JCreier v. FitswiUiam, 76 N. H. 382, Carter ▼. Riggs, 112 la. 246, 83 N. W.
83 Atl. 128. 905; Mason ▼. Prendergast, 120 N. Y.
8 See 11526. 536, 24 K. E. 806; Motz v. Mitchell,
4 Clinton v. Clinton County, 61 la. 91 Pa. St. 114.
205, 16 N. W. 87. 8 Welch v. Gleaaon, 28 S. Car. 247, 6
S. E. 599.
2617
Quasi or Consteuctive Contract
1529
bezzles, the bank can recover from the express company in an
action for money had and received.' The classes of payments
which are not voluntary may for the most part be grouped under
two general heads: payment by mistake, and payment by duress
or compulsion of law. These topics will be discussed in the fol-
lowing sections.
§ 1529. Payment by one not beneficial owner. If one person
has in his hands money of which another person *is the bene-
ficial owner, a payment by the holder of such money to a third
person is not such a voluntary payment by the real owner thereof
as to prevent him from recovering it if it is made without his
authority and if not m payment of a claim justly due from him.^
The principle of voluntary payments does not apply where the
recovery is sought by one having a beneficial interest in the money
paid, and the payment was not made by him, but by some one
acting as his trustee, agent, and the like, and acting in excess of
his authority, and the person receiving the money knew -that the
person paying it was acting in such capacity. Thus, where an as-
signee for the benefit of creditors pays debts out of priority, the
creditor who receives the money and notes out of the trust estate
is liable to the creditors to whom such money should have been
paid.^ Money of a principal, paid by his agent without authority,
may be recovered by his principal' from the person to whom it
was paid.' Thus if a bank cashier pays his own debt by entering
the amount thereof as a credit on the pass-book of his creditor,
and such creditor draws checks against such credits and the checks
are paid, the bank may recover the amount of such checks from
such creditor;^ so if the cashier of a bank gives the draft of the
bank in payment of his own debt, the receiver of the bank may
9 Southern Express Co. v. Bank, 108
Ala. 517, 54 Am. St. Rep. 191, 18 So.
664. In order to recover, it is not
necessary that the bank surrender a
draft which purports to be signed by
such fictitious and non-existent firm
with a bill of lading attached thereto.
Ilndependent School District v. Col-
lins, 15 Ida. 536, 98 Pac 857; Smith
▼. Tilton, 116 Me. 311, 101 Atl. 722;
Stone T. Bevans, 88 Minn. 127, 97 Am.
St Rep. 506, 92 K. W. 520; Franklin
National Bank v. Newark, 96 0. S. 453,
L. R. A. 1918E, 676, 118 N. E. 117.
2 Dickie v. Northup, 24 N. S. 12-1.
S Rogers v. Batchelor, 37 U. S. (12
Pet.) 221, 9 L. ed. 1063; Dob v. Halsey,
16 Johns. (N. Y.) 34, 8 Am. Dec. 293;
Ulbrand v. Bennett, 83 Or. 557, 163 Pac.
445; Mt. Verd Mills Co. v. McElwce
(Tenn. Ch. App.), 42 S. W. 465.
4Hier v. Miller, 68 Kan. 258, 63 L.
R. A. 952, 75 Pac. 77.
§1529
Page on Contracts
2618
recover from such creditor.' Accordingly, payments of public
money form an exception to the ordinary rules as to voluntary
payments and payments made under mistake of law, since tha pay-
ments are always made by public ofl5cers, and not by the public,
which is really beneficially interested in such money. Thus, money
which is paid out by public oflBcers in violation of the law, may
be recovered from the person to whom it is paid.* The fact that
the payment was voluntary on the part of the officer does not
prevent the public from recovering.^ A government may recover
money paid by a public officer under an erroneous construction of
the law, and without any legal authority therefor.* So if money
is paid out by a public officer upon a contract, which the corpora-
tion represented by him had no power whatever to make,* or if
money is paid upon a contract in excess of the amount due there-
on,^* or upon a claim which the corporation had no power under
■ Campbell v. Bank, 67 N. J. L. 301,
91 Am. St. Rep. 438, 51 Atl. 497.
• Arkantas. Weeks v: Texarkana, 50
Ark. 81, 6 S. W. 504.
Idaho. Independent School District
v. Collins, 15 Ida. 535, 98 Pac. 857.
Illinois. McLean v. Montgomery
County, 32 111. App. 131.
Indiana. Snelson v. State, 16 Ind.
29.
Iowa. Heath v. Albrook, 123 la. 559,
98 N. W. 619.
Minnesota. Stone v. Bevans, 88
Minn. 127, 97 Am. St. Rep. 506, 92 N.
W. 520.
Mississippi. Adams v. Power Co., 78
Miss. 887, 30 So. 58.
Missouri. State, ^x rel., Barker' t.
Scott, 270 Mo. 146, 192 S. W. 90.
New Jersey. DemaYest v. New Barba-
does, 40 N. J. L. 604.
New .York. People v. Fields, 58 N.
Y. 491; (Board, etc., of) Richmond
County V. Ellis, 59 N. Y. 620.
Ohio. Vindicator Printing Co. v.
State, 68 0. S. 362, 67 N. E. 733; State,
ex rel., v. Baker, 88 O. S. 165, 102 N.
E. 732; State, ex rel., v. Maharry, 97 O.
S. 272, 119 N. E. 822.
Virginia. Commonwealth v. Field, 84
Va. 26, 3 S. E. 882.
Washington. Tacoma v. Lillis, 4
Wash. 797, 18 L. R. A 372, 31 Pac.
321.
Wisconsin. Frederick v. Douglas
County, 96 Wis. 411, 71 N. W. 798.
7 Alabama. Demopolis ▼. Marengo
County, 195 Ala. 214, 70 So. 275.
Idaho. Independent School District
V. Collins, 15 Ida. 535, 98 Pac. 857.
Minnesota. Stone v. Bevans, 88
Minn. 127, 97 Am. St. Rep. 506, 92 N.
W. 520.
Missouri. State, ex rel.. Barker v.
Scott, 270 Mo. 146, 192 S. W. 90.
New York. Ft. Edward v. Fish, 156
K. Y. 363, 50 N. E. 973.
• United States v. Bank, 40 U. S. (15
Pet.) 377, 10 L. ed. 774; McElrath v.
United States, 102 U. S. 426, 26 L. ed.
189; Wisconsin, etc., R. R. v. United
States, 164 U. S. 190, 41 L. ed. 399.
SChaska v. Hedman, 53 Minn. 525,
55 N. W. 737; Griffin v. Shakopee, 53
Minn. 528, 55 N. W. 738.
10 State, ex rel., v. Baker, 88 0. S.
165, 102 N. E. 732; State, ex rel., ▼.
Maharry, 97 O. S. 272, 119 N. £. 822.
2619
Quasi or Constructive Contract § 1529
any circumstances to allow,^^ such payment may be recovered. Ac-
cordingly, if a public officer draws money from the public treas-
ury,'^ as his compensation,^' such as his salary,'* or fees collected
by him from the public treasury without authority of law,'* such
payments may be recovered in an action for money had and re-
ceived. The fact that money paid to a state officer as compensa-
tion for services was paid upon the advice of the attorney general,
does not prevent the recovery thereof, if unauthorized by law ; '•
nor does the fact that the payment was made voluntarily, with full
knowledge of the facts and without fraud," or under a mistake
of law,'* even if such mistake is shared by the officer to whom
payment is made, who takes in good faith.'' The right to recover
public money is especially clear where the officers who have or-
dered payment of the claim, have done so fraudulently, and in
order to convert the money to their own benefit,® or have other-
wise acted fraudulently.*' Even an order of court authorizing the
payment of such illegal fees is no defense to an action to recover
them if ^ade in a proceeding to which the public corporation is
not a party .^ A public corporation may recover interest from a
bank upon an illegal deposit of public funds in such bank."
If a public officer renders services to the corporation which he
represents, outside of thos^ appropriate to his official position,
and which could have been rendered as well by a private indi-
vidual, money paid him for such services can not be recovered in
It Ward V. Barnum, 10 Colo. App. 496,
52 Pac. 412.
12 Ada County v. Gess, 4 Ida. 611,
43 Pac. 71; Huntington County ▼.
Heaston, 144 Ind. 583. 55 Am. St. Rep.
192, 41 N. E. 457. 43 N. E. 651; St.
Croix County v. Webster, 111 Wis. 270,
87 N. W. 302.
13 Weeks v. Texarkana, 50 Ark. 81,
6 S. W. 504; Council Bluffs^v. Water-
man, 86 la. 688, 53 N. W. 289; Union
County V. Hyde, 26 Or. 24, 37 Pac. 76.
14 Ellis V. Board, etc., 107 Mich. 528,
65 N. W. 577; Allegheny County v.
Grier, 179 Pa. St. 639, 36 Atl. 353;
Tacoma v. LiUis, 4 Wash. 797, 18 L.
R. A. 372, 31 Pac. 321.
11 Camden v. Varney, 63 N. J. L. 325,
43 Atl. 889; Union County v. Hyde» 26
Or. 24, 37 Pac. 76,
1* Commonwealth v. Norman (Ky.),
50 S. W. 225.
IT Camden v. Varney, 63 N. J. L. 325,
43 Atl. 889.
M Ellis V. Board, etc., 107 Mich. 528,
65 N. W. 577.
1» Allegheny County v. Grier, 179 Pa.
St. 639, 36 Atl. 353.
20 Land, etc., Co. v. Mclntyre, 100
Wis. 245, 69 Am. St. Rep. 915, 75 N.
W. 964.
21 Frederick v. Douglas County, 96
Wis. 411, 71 N. W. 798.
a Union County v. Hyde, 26 Or. 24, 37
Pac. 76.
23 Franklin National Bank ▼. Newark,
96 O. S. 453, L. R. A. 1918E, 676, 118
N. E. 117.
§1530
Page on Contracts
2620
the absence of a statute, provided the transaction is free from
fraud.^ If a statute specifically forbids a contract between a
public corporation and a trustee thereof, money which is paid
under an illegal contract to a trustee may be recovered by the
corporation.?
The right to recover public money is especially clear in cases
where payment is made under a mistake of fact.^ Thus, where
an excessive bill is presented for public printing, and printers
appointed pursuant to the statute to examine the account certify
to its correctness under a mistake of fact, such payment may be
recovered." Public money, however, can be recovered only from
one to whom it was paid, or for whose benefit it was paid. Thus, a
county can not recover from one who holds county bonds, which
constitute an over-issue, interest paid upon such bonds to a prior
holder thereof.* So where town officers acting for the public at
large and not for the town alone, collected school taxes and paid
them disproportionately, the school district which was entitled
to a part of such taxes can not maintain assumpsit against the
town.* In some jurisdictions, however, it is held that payments
of public money to public ofScers made under a mutual mistake of
law can not be recovered.*
If an agent is acting within the scope of his authority in making
the payment, such payment can not be recovered unless it could
have been recovered if made by the principal in person,**
D. PAYMENTS UNDER COMPULSION
§ 1530. Payment under duress sad undue influence— Oeneral
nature. The nature of duress as affecting the validity of contracts
ttTacoma v. Lillis, 4 Wash. 797, 18
L. R. A. 372, 31 Pac. 321.
V IndepeiKlent School District t. Col-
lina, 15 Ida. 535, 98 Pac. 857.
M Haralson County v. Golden, 104 Ga.
19, 30 S. E. 380.
« Worth V. Stewart, 122 N. Car. 258,
29 S. E. 579.
M Taylor v. Daviess County (Ky.),
32 S. W. 416.
»Weybridge School District v.
Bridgeport, 63 Vt. 383, 22 Atl. 570,
M Painter ▼. Polk County, 81 la. 242,
25 Am. St. Rep. 489, 47 N. W. 65. A
similar view seems to be guardedly
entertained in LasaUe County v. Milli-
gan, 34 111. App. 346, decided partly
on a question of fact and partly with
the expectation of review by the su-
preme court. This has been said to
be the common law rule; but recovery
was aUowed under a specific statutory
provision therefor in Vindicator Print-
ing Co. V. State, 68 0. S. 362, 67 N. E.
733.
t1 Petty V. United Fuel Gas Co., 76
W. Va. 268, 85 S. E. 523.
2621
Quasi or Constructive Contract § 1530
entered into by reason thereof has already been discussed^ The
nature of duress as determining the right of a party making pay-
ments to recover them is largely governed by the same rules as
those by which the right to avoid contracts is determined, but for
historical reasons the law is more ready to give relief against
duress in case of recovery of payments than in executory con-
tracts. If payments are made under what the law regards as
duress, they are not within the doctrine of voluntary payments,
and may be recovered in the absence of special circumstances.^ In
some respects, however, as we shall see later, the right to recover
payments was broader at common law than the right to avoid con-
taracts and by some authorities the right to recover payments made
under compulsion of law has been treated as a ground of recovery
distinct from any form .of duress. The principles of equity which
control in the action for money had and received and in other
remedies in case of quasi-contract, permitted recovery of money
paid under compulsion when such compulsion would not have been
regarded as technical duress.' The payment can be recovered (yily
if it is contrary to equity and good conscience for the defendant
to retain the money.*
No reason appears, however, for continuing at modem law a dis-
tinction between these three forms of duress, the basis of which
was purely historicaL As our law develops, fundamental ideas
ISee ch. XVm.
2 United SUtes. Swift Co. v. United
States, 111 U. S. 22, 28 L. ed. 341.
Colorado. Aduns v. Schiffer, 11 Colo.
15, 7 Am. St. Rep. 202, 17 Pac. 21.
Indiana. Stanley ▼. Dunn, 143 Ind.
4S5, 42 N. £. 006.
Iowa. Carter v. Riggs, 112 la. 246,
83 N. W. 905; Anderson ▼. Cameron,
122 la. 183, 97 N. W. 1085.
Massadmsetts. Sweet v. Kimball,
106 Mass. 332, 55 Am. St Rep. 406,
44 K. E. 243; Silsbee y. Webber, 171
Mass. 878, 50 N. E. 555.
mOdgan. Cribbs v. Sowle, 87 Mich.
340, 24 Am. St. Rep. 166, 49 N. W.
587.
Minnetota. Joannin v. Qgilvie, 49
Minn. 564, 32 Am. St. Rep. 581, 16 L. R.
A 876, 52 N. W. 217.
New York. Briggs v. Boyd, 56 N. Y.
289.
North Carolina. Adams t. Reeves,
68 N. Car. 134, 12 Am. Rep. 627.
Ohio. Reinhard v. Columbus, 49 O.
S. 267, 31 N. E. 36.
PeunsylTania. Fillman v. Ryon, 168
Pa. St. 484, 32 Atl. 89.
Washington. Bertsehinger v. Camp-
bell, 99 Wash. 142, 168 Pac. 977.
Wisconsin. Guetzkow ▼. Breese, 96
Wis. 691, ^ Am. St. Rep. 83, 72 N. W.
45; Coon ▼. Metzler, lei Wis. 328, L.
R. A. 1916B, 667, 154 N. W. 377.
3 Nelson ▼. Nelson, 99 Neb. 456, 156
N. W. 1036.
4 Wilbur V. Blanchard, 22 Ida. 517,
126 Pac. 1069.
V
§ 1530 . Page on Contracts 2622
should be treated in the same way, whether they originated at law
or in equity.
Historically, the doctrine of duress began developing at three
different points: Duress was invoked at law in order to avoid
liability upon an executory contract.* Duress was invoked in
equity as a means of avoiding executory contracts and executed
transactions.' Duress was also invoked at common law as a fact
which showed that the payment of money not justly due was not
voluntary. Accordingly, it was invoked as a means of recovering
a payment of money which was not justly due. The fact that the
doctrine of duress appeared in different tribunals and at different
periods of time caused it to assume different forms when it first
appeared. The rigid nature of the common law made it difficult
to . escape liability except f o]> the most extreme forms of duress.
The tendency of equity was rather to regard the justice of the
transaction rather than its outward form and to give relief wher-
ever an unfair advantage ,was taken.
The right to recover payments made under compulsion was not
recognized at early common law. Like other quasi-contractual
rights, its recognition at common law came at a later period when
under the influence of equity the courts were recognizing and en-
forcing rights which had hitherto been unrecognized or which at
most had served as a foundation by way of consideration for an
express promise. The theory that payments made under compul-
sion could be recovered appeared in the common law at so late a
period that from the very outset the ideas of equity had enormous
influence upon th6 idea of duress or compulsion as a ground for
recovering payments. Equitable principles control, therefore,
rather than technical common-law notions, as in other cases
where the action for money had and received is brought.' The
adoption of the test of the effect of duress upon the mind of the
party who is subjected thereto,* is obliterating the distinction be-
tween duress and undue influence in the law of quasi-contract, just
as it is obliterating it in the law of contract. A payment made
under undue influence may be recovered,* even though the circum-
stances fall short of technical duress or compulsion. Payment made
under threat of a civil action may be recovered where the person
■ See SM81 et seq. ISee §1531.
• See §§ 437 et seq., and 1480 et seq. I Ingalls v. Miller, 121 Ind. 188, 22
TSee 1.1480. N. £. 995.
2623
Quasi or Constructive Contract § 1531
making the payment is aged, illiterate and weak-minded, and his
mind is in fact overpowered by- such threatsJ^
The special classes of cases which involve the question of what
is, and what is not, such duress as to permit of recovery of pay-
ments, will be discussed in the following sections.
§1531. Elements of compolsion. As in the case of duress
which is relied upon as a ground for avoiding a contract,^ the
question of the standard by which the existence of duress is to be
determined has been a troublesome one. The original common-law
theory that the external standard of the brave and courageous
man, and subsequently of the ordinarily brave man, must deter-
mine the existence of duress, has been repeated in cases in which
it has been sought to recover money paid under duress or com-
pulsion.^ It has been said that a payment can not be recovered
unless the threat was such as would create a fear which was suf-
ficient to overcome the will of a man of ordinary firmness and
constancy.^
In other jurisdictions, and probably by the great weight of
modem authority, the external standard is ignored for practical
purposes, however much it may be asserted by the courts in obiter ;
and the test for the existence of duress for which a payment may
be recovered is the eflEect of the wrongful act or the threat upon
the mind of the person from whom such pa3nDient has been ex-
torted wrongfully.* As in many cases of duress for which it is
sought to avoid a contract, there is frequently no practical differ-
ence between these two standards, since there is no evidence to
10Ingall8 T. Miller, 121 Ind. 188, 22
N. E. 995.
ISee S482.
2 Campbell v. Chabot, 115 Me. 247,
98 AtL 746.
S Campbell y. Chabot, 115 Me. 247,
98 AtL 746.
4 Coon V. Metzler, 161 Wis. 328, L.
R. A. 1916B, 667, 164 N. W. 377.
'duress is a relative, rather than
a positive, term. Much depends on
the situation of the parties, their re-
lations to each other, physical and
mental strength, and all the surround-
ing circumstances. Acts which might
fall far short of duress under certain
conditions might be ample under other
conditions. There are no arbitrary and
unbending rules which can be applied
in every case to determine the ques-
tion. True, the person claiming duress
must be so strongly influenced that
his acts are not the result of his own
will, but the threats which would ac-
complish that result in one case might
be entirely insufficient in another."
Coon v. Metzler, 161 Wis. 328, L. R.
A. 1916B, 667, 154 N. W. 377.
See also, Galusha v. Sherman, 105
Wis. 263, 47 L. R. A. 417, 81 N. W.
495.
§ 1531
Page on Contracts
2624
show that the person who was subjected to such duress or com-
pulsion was below the normal in courage, firmness and constancy;
and accordingly the courts have a right to. assume that he is a
normal person of ordinary courage.
A payment can not be recovered on the ground that it was made
under duress or compulsion unless the duress or compulsion is
exerted by the person to whom the payment is made or unless he
knowingly takes advantage of duress or compulsion.*
If A makes a payment to B because of fear of C, A can not
recover such payment from B if B and C were not acting in col-
lusion.' A payment made with full knowledge of the facts by an
employe to an employer to reimburse the employer for a shortage
in the accounts of the employe which was due to a subordinate of
such employe, can not be recovered as having been made through
duress, although such employe may have made such payment be-
cause of fear that if such payment were not made the bonding
company would prosecute criminally.^
A payment can not be recovered on the ground that it was made
by duress unless the duress actually exists when the payment is
made.' The fact that the duress or compulsion was exerted at
some period before the time that the payment was made, does not
prevent the recovery of such payment if such duress or compul-
sion continued to exist at the time that the payment was made.'
The fact that the person upon whom such duress has been exer-
cised has had an opportunity to obtain legal advice and to think
over the transaction, does not show as a matter of law that such
duress had ceased to exist.^'
If the party who made such payment was subject to compul-
sion and duress at one time, but he was not subject thereto at the
time that he made such payment, he can not recover such pay-
ment by reason of such compulsion or duress.^^ If a note is ob-
• Brumagim v. Tillinghast, IS Cal. 265,
79 Am. Dec. 176; Taylor v. Kelleher,
43 Colo. 424, 97 Pac. 253.
iJacobson v. Mohall Telephone Co.,
34 N. D. 213, L. R. A. 1916F, 532, 157
N. W. 1033.
TJacobson v. Mohall Telephone Co.,
34 N. D. 213, L. R. A. 1916P, 532, 157
N. W. 1033.
• Baldwin Co. v. Savage, 81 Or. 379,
159 Pac. 80; Schultz v. Culbertson, 49
Wis. 122, 4 N. W. 1070.
• Nelson v. Leszczynski -Clark Co., 177
Mich. 517, 143 N. W. 606; Heckman v.
Swartz, 64 Wis. 48, 24 N. W. 473.
It Coon V. Metzler, 161 Wis. 328, L.
R. A. 1916B, 667, 154 N. W. 377.
11 Campbell v. Chabot, 115 Me. 247,
98 Ail. 746; Baldwin Co. v. Savage, 81
Or. 379, 159 Pac. 80; Wolff v. Bluhm,
95 Wis. 257, 60 Am. St. Rep. 115, 70
N. W. 73; Bennett v. Luby, 112 Wis.
118, 88 N. W. 37.
2625
Quasi or Constructive Contract § 1532
tained by duress and such note is paid voluntarily after such
duress has ceased to operate, such payment can not be reeoyered.^'
Voluntary payments after duress has ceased to exist are said to
operate as a ratification of the entire transaction.^'
Since one can not be compelled to repay money which in equity
and good conscience he is entitled to retain,^* a payment of money
which is justly due and owing from the person who makes the
payment to the person to whom such payment is made, can not be
recovered, although such payment was made under compulsion.^*
If an appeal bond in a criminal proceeding is enforceable, al-
though such criminal proceeding is based upon a void ordinance,
one who has been fined under such a void ordinance can not re-
cover from the municipal corporation to which such money was
paid by the surety on the appeal bond, although such surety has
compelled the accused to reimburse himJ* If, however, one who
owes a just debt is compelled to deliver something of value in ex-
cess of the amount justly due, he may recover the difference be-
tween the reasonable value of the property which he is compelled
to surrender and the amount which is justly due."
§1532. What compulsion justifies recovery— In general In
cases in which the standard of the ordinarily firm man has been
assumed^ it has been said that to constitute duress there must in
general be at least apparent liability of person or property to
seizure,^ and in the absence thereof mere protest against paying
can not make it payment under duress.^ It is said that a payment
is not under duress unless there is an immediate or urgent neces-
sity therefor, or unless such payment is made to release person or
12 Baldwin Co. v. Savage, 81 Or. 379,
159 Pac. 80.
19 Campbell t. Chabot, 115 Me. 247,
98 Ail. 746.
14 See i 1480.
II Colorado. Curley t. Marble, 61
Colo.. 6, 155 Pac. 334.
Connecticiit McVane v. Williams,
50 Conn. 548.
Idaho. Wilbur v. Blanchard, 22 Ida.
517, 126 Pac. 1069.
New Jersey. Mee v. Montclair, 84
N. J. L. 400, 86 Atl. 261.
New York. Richmond ▼. Union
Steamboat Co., 87 N. Y. 240.
liCurley v. Marble, 61 Colo! 6, 155
Pac. 334.
"Wilbur V. Blanchard, 2g Ida. 517,
126 Pac. 1069.
1 Lamson v. Boyden, 57 111. App. 232 ;
Minneapolis, etc., Co. v. Cunningham,
59 Minn. 325, 61 N. W. 329; De la
Cuesta V. Ins. Co., 136 Pa. St. 02, 658,
9 L. R. A. 631, 20 Atl. 505.
2 See 11546.
§ 1533
Page on Contracts
2626
property from detention or to prevent immediate seizure of person
or property.'
A threat of imprisonment which is made by a public officer who
has authority, or apparent authority, to enforce such threats, is
duress if a payment is induced thereby/ A threat of criminal
prosecution which will result in imprisonment may amount to
duress.'
§ 1533. Payment extorted by imprisonment. The elements of
duress of imprisonment are substantially the same for purposes of
recovering payments as for avoiding contracts/ Money unlawfully
extorted by imprisonment, used as a means of extortion, whether
such imprisonment * was lawful or not, or by threats of immediate
imprisonment,' may be recovered. Thus money paid by one wrong-
fully arrested to secure his release,* or where an officer without
authority of law takes a cash deposit to secure the appearance of
a prisoner,* may be recovered. So property surrendered by one
under threat of imprisonment if he does not surrender such property,
may be recovered.* Even if the arrest or threatened arrest is
itself lawful, money paid thereunder may be recovered if such
9 Union Pacific Railroad Co. ▼. Com-
missioners, 98 U. S. 541, 25 L. ed. 196;
Little V. Bowers, 134 U. S. 547, 33 L.
ed. 1016;, United States v. New York
& Cuba Mail Steamship Co., 200 U. S.
488, 50 L. ed. 569.
• Coon V. Metzler, 161 Wis. 328, L.
R. A. 1916B, 667, 154 N. W. 377.
i Bertschinger v. Campbell, 99 Wash.
142, 168 Pac. 977; Coon v. Metzler, 161
Wis. 328, L. R. A. 1916B, 667, 154 N.
W. 377.
1 See ch. XVIII.
2niinois. Schommer v. Farwelt, 56
111. 542.
Eentncky. Voiers v. Stout, 67 Ky.
(4 Bush.) 572.
New Hampshire. Richardson ▼. Dun-
can, 3 N. H. 508.
Ohio. Reinhard v. Columbus, 49 O.
S. 257, 31 N. E. 35.
PemLsylvania. Fillman y. Ryon, 168
Pa. St. 484, 32 Atl. 89.
Wisconsin. Heckman v. Swartz, 64
Wis. 48, 24 N. W. 473.
Wyoming. And see Hontz v. Uinta
County, 11 Wyom. 152, 70 Pac. 840;
where the right to recover a fine im-
posed by a justice who had no final
jurisdiction was held to depend on that
question whether such payment was
made to procure release from imprison-
ment, it could be recovered; but if
merely to avoid inconvenience in the
district court to which an appeal had
been allowed, it could not.
9 Baldwin v. Hutchison, 8 Trid. App.
454, 35 N. E. 711; Foss v. Whitehouse,
94 Me. 491, 48 Atl. 109; Deshong v.
New York, 176 N. Y. 475, 68 N. E.
880; Bertschinger v. Campbell, 99 Wash.
142, 168 Pac. 977. (Recovery allowed
under statute defining extortion.)
4 Sweet v. Kimball, 166 Mass. 332,
55 Am. St. Rep. 406, 44 N. E. 243.
• Reinhard v. Columbus, 49 0. S. 257,
31 N. E. 35.
• Pryor v. Morgan, 170 Pa. St. 568,
33 Atl. 98.
2627
Quasi or Constructive Contract § 1533
arrest was used as a means of extorting sach payment.^ If, how-
ever, the imprisonment is lawful and is not made the means of
extortion, it does not of itself constitute duress, and does not
afford a basis for recovery of 'payments.*
In jurisdictions in which it is said that a threat in order to
amount to duress must be such as to overcome the will of a man
of ordinary firmness, the fact that a warrant has issued is material
in determining whether a threat of imprisonment amounts to
duress or not.' A threat of imprisonment not immediate is ordi-
narily not duress,^® and money paid thereunder can not ordinarily
be recovered as paid under duress;^' but under special circum-
stances, as where the person to whom the threat is made and
against whom- it is directed is old, weak and infirm, a payment
extorted by such threats may be recovered." Since duress may
exist where the arrest of a third person in certain relations to the
promisor or payor is made or threatened," such payment may be
recovered." Thus money extorted from a wife by a threatened
imprisonment of her husband, as under circumstances which
would injure his health," may be recovered. Thus where a hus-
band was threatened with lawful arrest when in broken health
and about to go to Europe with his wife in the hope of regaining
health, and arrest and detention would produce a serious effect
upon his physical condition, a payment made^by his wife to pre-
vent such arrest is made under duress and may be recovered."
The mere fear of future imprisonment without any threat thereof
is not such duress as to enable the party who has made the pay-
ment to recover it."
TWilliford v. Eason, 110 Ark. 303,
161 S. W. 498; Morse v. Woodworth,
155 Mass. 233, 27 N. E. 1010, 29 N. E.
525; Richardson v. Duncan, 3 N. H.
508; Heckman v. Swartz, 64 Wis. 48,
24 N. W. 473.
• Fillman v. Ryon, 168 Pa. St. 484,
32 Atl. 89; Meachem v. Newport, 70
Vt. «7, 39 Atl. 631.
• Campbell v. Chabot, 115 Me. 247, 98
Atl. 746.
ItSee t488.
11 St. Louis, etc, R. R. t. Thomas,
85 III. 464; HineB v. Hamilton Co., 93
Ind. 260; Hilbom v. Bucknam, 78 Me.
482, 57 Am. Rep. 816, 7 Atl. 272; Claflin
V. McDonough, 33 Mo. 412, 84 Am. Dec.
54.
WCribbs v. Sowle, 87 Mich. 340, 24
Am. St. Rep. 166, 49 N. W. 587.
13 See § 499.
14 Gorrings v. Reed, 23 Utah 120, 90
Am. St. Rep. 692, 63 Pac. 902; Schulta
V. Culbertson, 49 Wis. 122, 4 N. W.
1070, 46 Wis. 813, 1 N. W. 19.
II Adams v. Bank, 116 N. Y. 606, 16
Am. St, Rep. 447, 6 L. R. A. 491, 23
N. E. 7.
. 1» Adams v. Bank, 116 N. Y. 606, 15
Am. St. Rep. 447, 6 L. R. A. 491, 23
N. E. 7.
HFelton v. Gregory, 130 Mass. 176.
§1534
Page on Contracts
2628
§1534. Payment extorted 1^ wrongful detentton of goodi.
The original common-law rules of duress did not allow a eontract
to be avoided if the person entering into it was induced to do so
by a wrongful detention of goods.^ It was more just in allowing
recovery of payments extorted by such detention. If A's personal
property is unlawfully detained by B, a payment made by A to
obtain possession of such property is not a voluntary payment and
may be recovered.^ Thus where goods are illegally seized under
apparent authority of a writ of sequestration;' or a fish-trap is
unlawfully seized by a fish warden;* or logs are seized under an
illegal claim for toll;' or a ship is detained for an illegal demand
for tonnage;' or a cargo is detained for an illegal demand for
demurrage;^ or payment illegally exacted as tariff is paid to get
possession of goods imported into this country,' as where the cus-
toms officials threaten to add a penalty if the tariff demanded is
not paid;' or goods are seized on an unfounded claim and a lien
is asserted thereon,^' payments made to obtain possession of such
1 See 1 485.
. 1 EngUnd. Atlee y. Backhouse, 3 M.
& W. 633.
United States. Maxwell v. Griswold,
51 U. S. (10 How.) 242, 13 L. ed. 405;
Oceanic Steam Navigation Co. v. Stran-
ahan, 214 U. S. 320, 53 L. ed. 1013.
Geotgia. Du Van v. Norris, 110 Ga.
947, 47 S. E. 212.
lUinois. Spaids ▼. Barrett, 57 III. 280,
11 Am. Rep. 10.
Indiana. Lafayette, etc., Ry. v. Patti-
eon, 41 Ind. 312.
Kentucky. Hamilton v. Kentucky
Title Savings Bank & Trust Co., 159
Ky. 680, L. R. A. 1915B, 498, 167 S.
W. 898.
Maine. Chamberlain y. Reed, 13 Me.
357, 29 Am. Dec. 506.
Minneaota. Fargusson v. Winslow,
34 Minn. 384, 25 N. W. 942.
Netoaaka. Weber ▼. KirkendaU, 44
Neb. 766, 63 N. W. 35; Nelaon v, Nel-
son, 90 Neb. 456, 156 N. W. 1036.
New Mexico. Cadwell v. Higgin-
botham, 20 N. M. 482, 151 Pac. 315.
New York, Briggs v. Boyd, 56 N. Y.
289; Scholey v. Mumford, 60 N. Y. 498.
Oregoik Siverson v. Clanton, 88 Or.
261, 170 Pac. 933, 171 Pac. 1051. (De-
cided under special statute.)
South Carolina. Rigga v. Wileon, 30
S. Car. 172, 8 S. E. 848.
Tezaa. Taylor v. Hall, 71 Tex. 213,
9 S. W. 141.
Utah. Buford v. Lonergan, 6 Utah
301, 22 Pac. 164 [affirmed in 148 U. S.
581, 37 L. ed. 569].
3 Clark v. Pearce, 80 Tex. 146, 15 S.
W. 787.
4 Siverson v. Clanton, 88 Or. 261, 170
Pac. 933, 171 Pac. 1051.
i Carson, etc, Co. v. Patterson, 33
Cal. 334; Chase v. Dwinal, 7 Greenl.
(Me.) 134, 20 Am. Dec. 362.
0 Ripley v. (Selston, 9 Johns. (N. Y.)
201, 6 Am. Dec. 271.
7 Fargusson v. Winslow, 34 Minn.
384, 25 N. W. 942.
• Elliott V. Swartwout, 35 U. S. (10
Pet.) 137, 9 L. ed. 373; Erhardt v.
Winter, 92 Fed. 918.
• Robertson v. Frank Bros. Co., 132
U. S. 17, 33 L. ed. 236.
IB Chamberlain v. Reed, IS Me. 357,
:n Am. Dec. 506.
2629
Quasi or Constrtjctivb Contract § 1534
goods may be recovered. Such a payment is made tinder ''moral
compulsion. " ^^ So where A has delivered a printing press to B
under a contract of sale by the terms of which it is to remain A's
property until B pays the entire purchase price, and B's landlord,
X, takes possession thereof, a payment by A to X to get posses-
sion of such machine may be recoveredJ^
In some opinions, especial stress is laid on the fact that great
hardship or serious inconvenience will result to the person whose
property is detained unless he can get possession of it, and his
right to rec6ver payments made by him to get possession of such
goodsJ' The fact that the goods which are unlawfully detained
are perishable tends to show that such unlawful detention amounts
to duress.^^ If B causes an attachment to be levied upon perish-
able goods which belong to A, and A pays to B the amount for
which such atta,chment has been levied, A may recover the differ-
ence between the amount thus paid and the real debt which was
owing from him to BJ' The detention of goods by custom house
officials may amount to duress for which payments in excess of
the legal duty may be recovered.^* If property perishable in its
nature or liable to deterioration is withheld, payment to obtain
possession thereof and to avoid damage has been held to be made
under duress, as where cattle are withheld from the owner," or
where oysters have been taken on a writ of attachment wrongfully
obtained.^* Where a cargo of grain is withheld on an unjust claim
for demurrage, and the consignee will be put to serious incon-
venience if the cargo is not delivered, a payment of such demur-
rage may be recovered.^* The right to recover money paid to
liberate one's tools of trade has been placed on similar grounds.*
Elimination of these cases, however, leaves a respectable number
of authorities in support of the proposition that money paid to
regain possession of goods which have been unlawfully taken
11 Chamberlain ▼. Reed, 13 Me. 357,
29 Am. Dec. 506.
12Whitlock Machine Co. ▼. Holway,
92 Me. 414, 42 AtL 799.
IIFarguMon ▼. Winslow, 34 Minn.
384, 25 N. W. 942.
14 Robertson v. Frank Bros. Co., 132
U. S. 17, S3 L. ed. 236; Spaids v.
Barrett, 57 III. 289, 11 Am. Rep. 10.
II Spaids V. Barrett, 57 III. 289, 11
Am. Rep. 10.
IS Robertson ▼. Frank Bros. Co., 132
U. S. 17, 33 L. ed. 236.
ITBuford V. Lonergan, 6 Utah 301,
22 Pac. 164 [affirmed in 148 U. S. 581,
37 L. ed. 569].
18 Spaids ▼. Barrett, 57 111. 289, 11
Am. Rep. 10.
llFarguBson v. Winslow, 84 Minn.
384, 25 N. W. 942.
20 Cobb V. Charter, 32 Conn. 358, 87
Am. Dee. 178.
§1534
Page on Contracts
2630
from the owner, without his having opportunity to be heard in
court, may be recovered.
In some jurisdictions, the unlawful detention of goods may
amount to duress, although such goods are not perishable.^ If A
detains B's non-perishable goods until B pays an amount which
A claims as demurrage, such detention amounts to duress of goods
for which B may recover the difference between the amount thus
paid and the amount actually due.^ Where A, an office;", had
attached B's bank notes and refused to redeliver them unless B
allowed him to keep some as an alleged reward, and X, another
officer, was about to attach them, and B allows A to keep some of
them as he had demanded, B may recover such amount from A
as paid under duress.^ If B detains A's personalty and A being
unable to find who has it or where it is, pays money to X to be
used in order to secure the release of such goods, A may recover
such payment from B after such goods have been returned to A.'^
The weight of authority is that payments made to prevent a
threatened wrongful seizure of personalty are made under duress
and may be recovered.* Recovery of such payments has been
allowed, although such wrongful seizure may not be regarded as
technical duress,** at least if such threatened wrongful seizure will
cause hardship to the owner of such goods." Thus if a justice
renders a void judgment, the case not being within his jurisdiction,
and subsequently execution issues and the judgment debtor, being
sick and in mental distress on account of the recent death of mem-
bers of her family, paid such execution to avoid a threatened levy,
it was held that she might recover from the judgment creditor who
received the money.* So money paid to avoid a threatened wrong-
ful distraint of personalty may be recovered.* So where a sheriff
11 Du VaU V. Norris, 119 Ga, 947, 47
S. E. 212; Fargusson v. Winfllow, 34
Minn. 384, 26 N. W. 942.
22 Fargusson v. Winslow, 34 Minn.
384, 25 N. W. 942.
23Lovejoy v. Lee, 35 Vt. 430.
24 Du Vail ▼. Norris, 119^ Ga. 947,
47 S. E. 212.
21 England. Hills v. Street, 5 Bing.
37.
United States. Robertson v. Frank
Bros. Co., 132 U. S. 17, 33 L. ed. 236.
Iowa. Chambliss v. Hass, 125 la.
484, 68 L. R. A. 126, 3 Am. & Eng!
Ann. Cas. 16, 101 N. W. 153.
Michigan. Cox v. Weleber, 68 Mich.
263, 13 Am. St. Rep. 339, 36 N. W. 69.
Texas. Taylor v. Hall, 71 Tex. 218,
9 S. W. 141.
21 Nelson v. Nelson, 99 Neb. 456, 156
N. W. 1036.
27 Nelson v. Nelson, 99 Neb. 456, 158
N. W. 1036.
21 Hollingsworth t. Ston^ 90 Ind. 244.
2« Hills V. Street, 5 Bing. 37.
Cpntra, Colwell v. Peden, 3 Watts
(Pa.) 327, where a bona fide distress
was held not to be duress.
J
2631 Qtjasi or Constructive Contract § 1534
holding an execution threatened to levy -unless an excessive amount
were paid by the debtor, and the debtor paid the amount de-
mandedy he may recover such excess from the sheriflf.*^ Duress by
threatened seizure of goods has been limited very sharply by some
authorities to cases where the danger of seizure was imminent. In
case of pajrments to an officer the test of the right to recover
them if not* justly due has been held to be whether or not the
officer has apparent power to seize or 'levy on the property which
he is threatening to take.^^ Where this limitation on the doctrine
of duress of goods prevails, something more than the possible
deprivation of goods in the future is necessary to amount to duress
of goods.*^ Thus where a chattel mortgage with power of sale had
been given to secure payment of the price of com sold by the
mortgagee to the mortgagor, a payment of the full amount of the
purchase price, though some of the com is never delivered, can
not be recovered, though made because of a threat of the mort-
gagee to sell the mortgaged property under the power of sale.^
A payment of a debt secured by a chattel mortgage can not be
recovered although the amount of such debt is not disputed, if
the creditor did not threaten to make use of such chattel mortgage
to enforce such payment and if the debtor did not claim that he
made such payment to release such goods.^
Outside of questions of abuse of legal process in seizing person
or property, a lawful act does not amount to duress, although by
such act a person is induced to make a payment which he is not
willing to make. As a result, the detention of goods must be
unlawful in order to amount to compulsion. The party making
payment must do everything necessary to entitle him to the prop-
erty detained if he wishes to recover excess payments. This prin-
ciple has been carried so far that a payment of excessive freight
charges to obtain possession of goods can not be recovered where
the consignee did not tender the amount actually due, which
amount he knew, and demand the property.* In this case payment
was made to an agent on his statement that the company would
refund any excessive charges. Such agent did not, however, have
authority to bind his principal by a contract to refund. Where A
• Snail V. State, 43 Ind. 359. »Vick v. Shinn, 4& Ark. 70, 4 Am.
« Taylor v. Hall, 71 Tex. 213, 9 S. St. Rep. 26, 4 S. W. 60.
W. 141. 14 Lamb v. Rathburn, 118 Mich. 666,
ttLamb v. Rathburn, 118 Mich. 666, 77 N. W. 268.
77 N. W. 268. IB Gulf City Construction Co. v. Ry.,
121 Ala. 621, 25 So. 579.
§1535
Page on Contracts
2632
moyed his office to B's stQckyards, as tenant at will, B agreeing
to charge no rent, and B then charged rent, which A paid because
all the offices at such yards belonged to B, no duress exists.*
§ 1535. Payment to remove cloud from title to realty. Duress
of property need not always involve detention of personalty how-
ever. If the unlawful acts of one person cast a cloud on the title
of another to realty, a payment made to remove sack cloud may
be made under duress.^ Thus a payment made to prevent a
threatened sale for taxes which would cast a cloud on the title to
realty;* or a payment to clear title to realty from a pretended
mechanic's lien, so as to raise a new loan to take up an overdue
mortgage and other pressing claims,' where the party making such
payment had no other means of raising money than by mortgaging
such realty, or payment extorted by threatening to sell realty
under a power of sale contained in a mortgage ; * or payment of
an amount over and above the true amount of a mortgage debt;*
or an unlawful payment of attorney fees exacted as a condition
precedent to redemption,' may be recovered. But payment of a
judgment while proceedings in error were pending because the
judgment was a lien on the realty of the judgment debtor, who
was in financial distress and could not raise money except by a
loan on such realty and such loan could be obtained only by pay-
ing such judgment has been held to be a voluntary payment.'' So
where A gave B a mortgage in the form of a deed to secure his
M Minneapolis, etc, Co. v. Cunning-
ham, 59 Minn. 325, 61 N. W. 929.
(Ending such tenancy at will was
''nothing more than defendant would
have had a legal right to do.")
1 Shane v. St. Paul, 26 Minn. 543,
6 N. W. 349; Joannin v. OgiWie, 49
Minn. 564, 32 Am. St. Rep. 581, 16 L.
R. A. 376, 62 N. W. 217; American
Baptist Miseionary Union v. Hastings,
67 Minn. 303, 69 N. W. 1078; Bowns
V. May, 120 N. Y. 357, 24 N. E. 947;
Poth V. New York, 161 N. Y. 16, 45
N. E. 372; Montgomery y. Cowlitz, 14
Wash. 230, 44 Pac. 259.
SSee 11545.
3 Joannin v. Ogilyie, 49 Minn. 664,
32 Am. St. Rep. 581, 16 L. R. A. 376,
52 N. W. 217.
4 Close V. Phipps, 7 Man. & O. 586;
MoMurtrie v. Keenan, 109 Mass. 185.
VCazenove v. Cutler, 61 Mass. (4
Met.) 246; David City First National
Bank v. Sargeant, 65 Neb. 594, 59 L.
R. A. 296, 91 N. W. 695; Union Cent.
Life Ins. Co. v. Erwin, 44 Okla. 768,
143 Pac. 1126.
• Klein v. Bayer, 81 Mich. 233, 45
N. W. 991.
Contra, where the mortgage had been
discharged by a tender of the full
amount of the mortgage debt. Wessel
V. Mortgage Co., 3 N. D. 160, 44 Am.
St. Rep. 529, 54 N. W. 922.
7 Hipp V. Crenshaw, 64 la. 404, 20
N. W. 492. (Hence the proceedings
in error were dismissed.)
» t
2633
Quasi or Constructive Contract § 1536
debt to B, and B then refused to recognize A's rights or consent
to A's selling his rights in such realty unless paid a large sum of
money over and above A's indebtedness to B, and threatened pro-
longed litigation if A did not make such payment, and A had no
other way of paying his debt except by the sale of such realty, it
was held that A paid such additional sum under duress and could
recover it.' In all these cases no opportunity for a judicial hearing
was given before the title was apparently encumbered or affected.
It has been said that an apparent lien which amounts to a
cloud upon the title but which does not involve the immediate
possession of the realty, is not duress or compulsion for which a
payment may be recovered.* If a judgment has been obtained in
a manner not authorized by law but not by fraud, a payment of
such judgment which was made to prevent a threatened fore-
closure sale of such realty can not be recovered, even if such judg-
ment was an apparent cloud, as long as there was no danger to
possession.^
Wrongful acts which do not cast a cloud on the title to realty
do not amount to duress of realty." Thus a threatened sale for
illegal taxes, where the purchaser has the burden of proving every
step necessary to make out a valid sale,^* or a threatened sale of
the land of one person on an execution issued against another,^'
do not cast a cloud on the title and hence payment by reason
thereof is not made under duress.
§ 1536. Civil action as compulsion— Failure to invoke protec-
tkm of law. The principle that a lawful act does not constitute
duress in the absence of special circumstances find illustration in
the commencement of a civil action. The mere threat of a civil
action is not duress or legal compulsion; and a payment made by
reason of such threat can not be recovered.^ The same principle
i First National Bank v. Sargeant,
65 Neb. 504, 91 N. W. 595.
• Gold-Stabeck Loan A Credit Co. ▼.
Kinney, 33 N. D. 495, 167 N. W. 482.
II Gold-Stabeck Loan & Credit Co. v.
Kinney, 33 N. D. 495, 157 N. W. 482
[distinguifihing. Murphy y. Caaselman,
24 N. D. 336, 139 N. W. 802].
11 Stover T. Bowman, 45 III. 213;
Bayies y. Galveston, 16 Tex. Ciy. App.
13, 41 a W, 145.
llDavies v. Galveston, 16 Tex. Civ.
App. 13, 41 S. W. 145.
II Stover V. Mitchell, 45 HI. 213.
ICaHfomU. Holt v. Thomas, 105
Cal. 273, 38 Pac. 891; Burke v. Gould,
105 Cal. 277, 38 Pac. 733.
Indiana. Ligonier v. Ackerman, 46
Ind. 552, 15 Am. Rep. 323.
Iowa. Muscatine v. Packet Co., 46
la. 185; Paulson v. Barger, 132 la. 547»
109 N. W. 1081.
§1536
Page on Contracts
2634
applies where a civil action has been instituted ; ^ and, accordingly,
payment of money on service of summons is not payment under
duress and can not be recovered.' Indeed, if any defense to such
cause of action exists, the threatened action is the very means
provided for by law for determining its validity. Thus if an action
in replevin,* or attachment;' or a seizure in admiralty for non-
payment of an alleged claim for wharfage;' or an action against
a corporation for the appointment of a receiver ; ^ or an action by
a receiver to enforce a stock liability;' or a foreclosure suit;' or
a foreclosure of a statutory lien which the lessor has upon the
lessee's property,^' is either begun or threatened it does not of
itself amount to duress. Thus where an overdue note given by A
to B bore interest at ten per cent., but B had agreed in writing
that it should bear only eight per cent, after maturity, and B
subsequently sues in foreclosure and demands ten per cent, interest,
A should set up such agreement as a defense. If he pays the full
Keatacky. Hamilton v. Kentucky
Title Sav. Bank & Trust Co., 159 Ky.
680, L. R. A. (N.S.) 1915B, 498, 167
S. W. 898.
Looisiaiia. New Orleans, etc., R. R.
V. Improvement Co., 109 La. 13, 94 Am.
St. Rep. 395, 33 So. 61.
Maine. Parker v. Lancaster, 84 Me.
612, 24 Atl. 952.
Massachusetts. Preston v. Boston,
29 Mass. (12 Pick.) 7; Benson v. Mon-
roe, 61 Mass. (7 Cush.) 125, 54 Am.
Dec. 718; Morse v. Woodworth, 165
Mass. 233, 27 N. E. 1010, 29 N. E.
526.
Oregon. Siverson v. Clanton, 88 Or.
261, 170 Pac. 933, 171 Pac. 1051.
Pennsylvania. Peebles v. Pittsburgh,
101 Pa. St. 304, 47 Am. Rep. 714. "To
pursue or threaten to pursue the usual
legal steps for the collection of a debt
in the manner provided by law does
not constitute duress of property."
Burke v. Gould, 105 Cal. 277, 283, 38
Pac. 733. See, however, Welch v. Beech-
ing, 193 Mich. 338, 159 N. W. 486.
2 Dawson v. Mann, 49 la. 596 ; Benson
V. Monroe, 61 Mass. (7 Cush.) 125, 54
Am. Dec. 716; Brummitt v. McGuire,
107 N. Car. 351, 12 S. E. 191; Beard
V. Beard, 25 W. Va. 486, 52 Am. Rep.
219.
9 Hamlet v. Richardson, 9 Bing. 644;
Marriot v. Hampton, 7 T. R. 269.
"Money paid under pressure of legal
process can not be recovered.^' Moore
V. Fulham [1895], 1 Q. B. 399.
4 Brummitt v. McGuire, 107 N. Car.
351, 12 S. E. 191.
5 Benson v. Monroe, 61 Mass. (7
Cush.) 125, 54 Am. Dec. 716.
• New Orleans, etc., R. R. v. Im-
provement Co., 109 La. 13, 94 Am. St.
Rep. 396, 33 So. 51. The wharfage fees
were held legal in Now Orleans, etc.,
R. R. V. Improvement Co., 75 Fed. 309,
21 C. C. A. 364.
^ Dustin v. Farrelly, 81 Mo. App. 380.
• Holt V. Thomas, 105 Cal. 273, 38
Pac. 891.
• Burke v. Gould, 105 Cal. 277, 38 Pac.
733; Savannah Savings Bank v. Logan,
99 Ga. 291, 25 S. E. 692; Vereycken v.
Vanden-Brooks, 102 Mich. 119, 60 N.
W. 687; Shuck v. Loan Association,
63 S. Car. 134, 41 S. E. 28.
11 Paulson V. Barger, 132 la. 547, 109
N. W. 1081.
2635
Quasi or Constructive Contracjt § 1537
amount, including interest at ten per cent., he can not recover the
diflference." The fact that the creditor who demands payment of
installments which are in arrears has a right to declare the entire
debt due, does not amount to such duress that , the debtor can
recover a premium which he has paid to the creditor to induce the
creditor to accept the payment of the entire debt, including the
installments not yet due and to release the security."
If the person who claims to have been compelled to make a
payment is in a situation in which he could invoke the protection
of the law without subjecting: himself to serious inconvenience
or injury, and instead of invoking the protection of the law
he prefers to make the * payment which he now seeks to re-
cover, it is held that such payment is not made under duress and
that it can not be recovered.^' If the person who makes such
payment is in a position to protect his rights by obtaining a
restraining order,^* or by obtaining the vacation of a judgment,^'
or by taking an appeal,^* or by giving a bond which he is able to
give," such payments are not made under duress and can not be
recovered. Since the existence of duress in each case is a question
of fact, the results of the foregoing cases may be justified on the
theory that the undisputed evidence showed that the party who
made the payment was not in. fact under any compulsion but made
such payment voluntarily rather than resort to the proper means
of securing legal protection.
§ 1537. Legal process as compulsion. If the property of one
is seized on legal process procured by another in good faith and
**in pursuit of the ordinary remedy afforded by law,*'^ a payment
made to procure the release of such property is not made under
duress and can not be recovered if the right of recovery rests on
that ground alone.^ Thus if A resides in one state and his property
ItVereycken v. Vanden-Brooks, 102
Mich. 119, 60 N. W, 687.
12 Hamilton v. Kentucky Title Sav.
Bank & Trust Co., 159 Ky. 680, L. R.
A. 1916B, 498, 167 S. W. 898.
13 Manning v. Poling, 114 la. 20, 83
N. W. 8»5, 86 N. W. 30; D'Aloia v.
Summit, 89 N. J. L. 154, 97 Atl. 722;
Gold-Stabeek Loan A Credit Co. v. Kin-
ney, 33 N. D. 495, 157 N. W. 482.
14 Manning v. Poling, 114 la. 20, 83
N. W. 895, 86 N. W. 30.
II Gold-Stabeck Loan & Credit Co. ▼.
Kinney, 33 N. D. 495, 157 N. W. 482.
liD'AIoia V. Summit, 89 N. J. L.
154, 97 Atl. 722; Gold-Stabeck Loan
& Credit Co. v. Kinney, 83 N. D. 495;
157 N. W. 482.
17 Turner v. Barber, 66 N. J. L. 496,
49 Atl. 676.
1 Kohler v. Wells, 26 Cal. 606.
2 "It will not do to hold that a pay-
ment secured by none but the means
provided by the law itself is a com-
§1537
Page on Contracts
2636
is duly attached by B in another on a claim which B in good faith
believes to be a just one, a payment by A to B to settle such claim
and to procure the release of such attachment can not be re-
covered.' So if property is taken in good faith upon an attachment
which is not issued simply to hold the property until another
attachment can be levied, but is intended as a regular means of
securing a just debt, and the first attachment is dismissed because
the defendant is misnamed, and a second attachment issues under
which the ofScer continues to hold the attached property, he is not
liable in assumpsit because he did not return the attached property
to the owner before levying the second attachment/ A fraudulent
use of legal process may amount to duress however.' If goods are
seized by legal process and a payment is thus extorted such pay-
ment is made by compulsion.' If an attachment is levied not in
good faith, but on a claim known to be unfounded for the purpose
of extorting a payment, such payment if made to procure the
release of such goods is *'by compulsion," ^ and may be recovered,
especially if made by one who is unable with reasonable diligence
to learn the facts.' A payment made to prevent the levy of an
unlawful writ of execution may be recovered though no property
has been seized.' If A has given to B A's promissory note without
consideration but in the absence of mistake, duress, and the like,
A can not recover from B the amount which A has been obliged to
pay to X, a bona fide holder, to whom B has transferred such note
before maturity ; ^' at least if A has not notified B before B had
negotiated such note, that A elected to repudiate it.^^ If B has
executed and delivered a negotiable instrument to A, in whose
hands it is unenforceable by reason of lack of full capacity, and A
sells such negotiable instrument to X, a bona fide holder, who
pulsory or coerced one, there being no
element of fraud or other ingredient
of oppression in the case." Dickerman
y. Lord, 21 la. 338, 343, 89 Am. Dec.
679.
3Kohler v. Wells, 26 Cal. 606; Dicker-
man V. Lord, 21 la. 338, 89 Am. Dec
579.
4 Brady ▼. Royce, 180 Mass. 553, 62
N. E. 960.
iPitt V. Coomes, 2 Ad. & £1. 459;
Oadaval (Duke of) ▼. Collins, 4 Ad. &
El. 858; Colwell v. Peden, 3 Watts
(Pa.) 327.
• Hopkinson v. Sears, 14 Vt. 494, 39
Am. Dec. 236.
7 Chandler v. Sanger, 114 Mass. 364,
19 Am. Kep. 367.
• Adams v. Reeves, 68 N. Car. 134, 12
Am. Rep. 627.
• Kaiser v. Barron, 153 CaL 474, 95
Pac. 879.
« Dickinson v. Carroll, 21 N. D. 271.
37 L. R. A. (N.S.) 286, 130 N. W.
829.
11 Dickinson v. Carroll, 21 N. D. 271,
37 L. R. A (N.S.) 286, 130 N. W.
829.
2637 Quasi or Constructive Contract § 1538
enforces the instrument against B, B may recover from A. Thus
where a city issues bonds to a corporation, in payment of an ultra
vires subscription by the city to the capital stock of such corpora-
tion, and the corporation delivers the bonds to a bona fide pur-
chaser in whose hands they are enforceable against the city, the
city may maintain an action against the corporation for the pro-
ceeds of such bondsJ^
A entered into a contract with B for the sale of real property,
by the terms of which contract A reserved as his own a building
thereon. Subsequently, at B's request, A made to X a warranty
deed for such property with full covenants of warranty, X having
purchased B's rights in such contract. X claimed the building by
force of the deed, and B was obliged to pay X the value of such
improvements for the privilege of removing them. It was held that
A could recover from B the amount thus paid, since B got the
benefit thereof in the additional price received by him on sale of
his interests in such property.^'
§1538. Breach of contract as duress. A payment which is
made to induce the adversary party to perform a contract is ordi-
narily not made under duress, and it can not, therefore, be re-
covered.^ Thus excessive payments made to induce an irrigation
company to continue to furnish water ;^ or payments made to
induce a vendor to deliver future installments of coal according to
his contract, the pajnnents being the contract price for the coal
already delivered which was held not to be of the quality required
by the contract;' or payments made to an agent of what he
claimed to be the balance due him from his principal to induce
him to deliver butter which was not the principal's until it was
delivered,* can none of them be recovered. So a contractor can not
recover a payment made by him as due on a forfeiture for failure
to complete the work in accordance with the terms of the contract
on the theory that it was made under duress, although the board
of public works, to whom it was made, would not notify the
council that the work had been accepted until this payment had
been made, and until such notice the council would not appropriate
n Geneseo y. Natural Gas Co., 55 2 Steck v. Irrigation Co., 4 Colo. App.
Kan. 358, 40 Pac. 655. 323, 35 Pac. 919.
13 Edmunds v. Depper, 97 Ky. 661, > Armstrong v. Latimer, 165 Pa. St.
31 S. W. 468. 398, 30 Atl. 990.
ISmithwick ▼. Whitley, 152 N. Car. 4 Hubbard y. Mills, 46 Vi. 243.
360, 67 S. E. 913.
§ 1538 . Page on Contracts 2638
the amount due the contractor.' Under some circumstances, how-
ever, a refusal to perform a contract may have so disastrous an
effect upon the business of the adversary party that a payment
made hy him to induce performance of such contract may be held
to be made under compulsion. Thus where a theatrical perform-
ance had been advertised, and a short time before it was to begin
the actor refused to go on unless he was paid the full amount of an
item in dispute between himself and the manager, it was held that
a payment of such amount by the manager was made under "a
species of constraint," and could be recovered.*
A strike or a boycott is likely to be accompanied by physical
violence; and even if physical violence is absent, a manufacturer
or a business man may be prevented from engaging in business
more effectively, for practical purposes, by a strike or a boycott
than by any available physical violence. Accordingly, money which
is paid by a manufacturer or a business man under threat of a
strike or boycott which will interfere with his business is paid
under compulsion, and if it is not justly due it may be recovered.'
A manufacturer who is obliged to pay money to a labor union in
order to induce its members not to refuse to handle his product
on the ground that he has sold to dealers whom they regard as
unfair, may be recovered, since it was paid by compulsion.* B, a
building contractor, who was constructing a church in Boston,
sent some stone to New York to be cut. For this he was fined five
hundred dollars by an association of stonemasons. B refused to
make such payment, and the association threatened to cause a
strike among B's workmen unless such amount was paid. On B's
continued refusal the association caused a strike, which lasted for
some time. B was unable to procure laborers competent to com-
plete such job, and he finally paid this amount in order to have the
strike declared off. Subsequently he brought suit against the
association and those who had handled the check by which such
payment was made and received the money therefor. The lower
• Laidlaw v. Detroit, 110 Mich. 1, 67 7 March v. Bricklayers' & Plasterers'
N. W. 967. But similar facts in the Union No. 1, 79 Conn. 7, 4 L. R. A.
formation of a contract have been held (N.S.) 1198, 6 Ann. Cas. 848, 63 Atl.
to constitute duress. See §492. 291.
• Dana v. Kemble, 34 Mass. (17 Pick.) •March v. Bricklayers' & Plasterers'
646. In this case the judgment in Union No. 1, 79 Conn. 7, 4 L. R. A.
favor of the manager was reversed on (N.S.) 1198, 6 Ann. Cas. 848, 63 AtL
the ground of failure of proof, and a 291.
new trial ordered.
2639
Quasi or Constructive Contract § 1539
court held that B had no right of action. For this the supreme
court reversed the judgment of the lower court, holding that B
had a right of action, although they where undecided whether it
was in tort or in assumpsit.'
Under modern conditions of life it is ordinarily impossible to
use a building which is not supplied with water, gas, electricity,
and the like. Payment of illegal charges for water,^* or gas,^^
made under threat of cutting off the supply if such illegal charge
is not paid, or payment of an illegal water license charge,^^ or an
illegal charge for rent of a gas meter,^' made under like circum-
stances, may be recovered. If the rates which an irrigation com-
pany may charge are not fixed by statute, such a company may
charge only reasonable rates; and if it demands rates in excess of
a reasonable amount and threatens to refuse to furnish water if
such amount is not paid, such payment is made by compulsion and
the difference between the amount paid and a reasonable rate may
be recovered.^*
§ 1539. Other forms of duress. While .duress or legal com-
pulsion generally . involves person or tangible property, it is not
limited thereto. If a public ofiScer unlawfully demands fees for
the performance of a public duty, and his failure to perform such
public duty will result in great inconvenience and possible loss to
the person upon whom such demand is made, payment of such
fees is to be regarded as being made under duress.^ Thus payment
made by force of a statute afterward held unconstitutional, re-
quiring a certain payment as a condition precedent to the jurisdic-
tion of the probate court in administering an estate,^ such as a
iCarew v. Rutherford, 106 Mass. 1,
8 Am. Rep. 287. This case was sub-
sequently settled, and was not tried a
second time.
1i Chicago V. Northwestern Mutual
Life Insurance Co., 218 111. 40, 1 L.
R. A. (N.S.) 770, 75 N. E. 803; Panton
V. Duluth, etc., Co., 50 Minn. 175, 36
Am. St. Rep. 635, 52 N. W. 527; St.
Louis Brewing Association ▼. St. Louis,
140 Mo. 419, 37 S. W. 525, 41 S. W. 911.
11 Indiana, etc., Co. v. Anthony, 26
Ind. App. 307, 58 N. E. 868.
l2We8tlake v. St. Louis, 77 Mo. 47,
46 Am. Rep. 4.
13 Capital, etc., Co^ v. Gaines (Ky.),
49 S. W. 462.
14 Salt River Valley Canal Co. v.
Nelssen, 10 Ariz. 9, 12 L, R. A. (N.S.)
711, 16 Am. Cas. 796, 85 Pac. 117.
1 Trower v. San Francisco, 152 Cal.
479, 15 L. R. A. (N.S.) 183, 92 Pac
1025; Malin v. LaMoure County, 27 N.
D. 140, 50 L. R. A. (N.S.) 997, Ann.
Cas. 1916C, 207, 145 N. W. 582.
2 Trower v. San Francisco, 152 Cal.
479, 15 L. R. A. (N.S.) 183, 92 Pac.
1025; Mearkle v. Hennepin Co., 44
Minn. 540, 47 N. W. 165; Malin v. La-
Moure, 27 N. D. 140, 50 L. R. A. (N.S.)
997, 145 N. W. 582.
§1540
Page on Contracts
2640
fee demanded hy the clerk for filing inventories and appraisements
of the estate of a decedent which by law were to be filed within a
specified time and in case of failure to file which inventories and
appraisement the administrator was liable to be removed,' may be
recovered. The owner of a vessel who purchases revenue stamps
in order to affix them to the manifest and thus to obtain a clear-
ance can not recover such payment from the collector if no protest
was made to him when the stamps were purchased and if no pro-
test was tnade to the collector of the port from whom clearance
was had.*
If a payment is made when the party who makes it has the
alternative between making it and resorting to legal proceedings
to protect his rights which would involve an injurious delay, such
payment is to be regarded as made under compulsion.*
§ 1540. Dilemma not duress. The mere fact that one makes a
payment when in doubt as to his legal rights and afraid of imperil-
ing them if he refuses payment does not constitute duress.^ The
fact that the person who makes the payment is uncertain as to his
legal rights, and pays for revenue stamps because he fears .the
consequences of omitting them,^ or pays an invalid tax because he
does not know whether it is valid or not, and fears that he will
lose a discount if such tax is not paid promptly,' or pays a sum of
• Trower v. San Francisco, 152 Cal.
479, 15 L. R. A. (N.S.) 183, 92 Pac.
1025.
4 United States v. Cuba Mail S. S.
Co., 200 U. S. 488, 50 L. ed. 569 [fol-
lowing, Chesebrough v. United States,
192 U. S. 253, 48 L. ed. 432].
i Alabama. Mobile & M. R. Co. v.
Steiner, 61 Ala. 559.
California. Trower v. San Francisco,
152 Cal. 479, 15 L. R. A. (N.S.) 183,
92 Pac. 1025.
Illinois. Chicago v. Northwestern
Mutual Life Insurance Co., 218 IlL 40,
1 L. R. A. (N.S.) 770, 75 N. E. 803;
Cook County v. Fairbank, 222 111. 578,
78 N. E. 895.
Minnesota. State, ex rel., v. Nelson,
41 Minn. 25, 4 L. R. A. 300, 42 N. W.
548; Mearkle v. Hennepin County, 44
Minn. 546, 47 N. W. 165.
North Dakota. St. Anthony & D.
Elevator Co. v. Bottineau County, 9 N.
D. 346, 50 L. R. A. 262, 83 N. W. 212;
Malin v. LaMoure County, 27 N. D. 140,
50 L. R. A. (N.S.) 997, Ann. Gas. 1916C,
207, 145 N. W. 582.
1 United States v. New York & Cuba
Mail Steamship Co., 200 U. S. 488, 50
L. ed. 569; Pardue v. Absher, 174 N.
Oar. 676, 94 S. E. 414; De La Cuesta
V. Ins. Co., 136 Pa. St. 62, 658, 9 L.
R. A. 631, 20 Atl. 505.
2 United States v. New York & Cuba
Mail Steamship Co., 200 U. S. 488, 50
L. ed. 569.
3 Atchison, Topeka & Santa Fe Ry.
V. Humboldt, 87 Kan. 1, 41 L. R. A.
(N.S.) 175, 123 Pac. 727; Louisville v.
Becker, 139 Ky. 17, 28 L. R. A. (N.S.)
1045, 129 S. W. 31L.
2641 Quasi or Constructive Contract § 1541
money as to bonus for the privilege of subscribing for stock,
althoagh he has a legal right to such subscription without making
such payment, because he fears that if he does not make such
payment he will be debarred from making such subscription,^ is
held not to amount to compulsion in any of these cases.
This is merely an illustration of a mistake of law. The party
paying does not know whether he is bound by law to pay or not,
and to save his rights he makes payment. In such case, if he was
not bound by law to pay, he has paid under a mistake of law, and
can not recover. If he was bound by law to pay, he has done only
what he should have done and can not recover. The practical
working out of these rules show, however, that there is something
lacking in the rules themselves or in their underlying pi^nciples
on the one side, or in their practical application on the other. A
greater freedom in recovering payments made under a mistake of
law and in securing a judicial declaration of rights in advance is
necessary to avoid practical injustice.
§ 1541. Unfair advantage as duress. Payments made by one
who is not on terms of practical equality with the person to whom
such payments are made are looked upon, not as voluntary pay-
ments, but as payments made under compulsion.^ Where A de-
mands from B payment of tolls which are not legally due, under
threat of drawing off water from a dam used by B, a step which
would interfere with B's business seriously, and to avoid such
action B pays such tolls, he may recover such payment.* A, a
section foreman of a railroad, extorted money from B, one of the
section hands, by showing B a written order from A's superior, X,
directing A to discharge every man who would not pay over ten
dollars. In order to keep from being discharged, B paid such
amount. It was held that B could recover from A,' The fact that
A had transmitted such money to'X, did not relieve him from the
liability to account to B therefor. A pension attorney who charges
and collects a fee in excess of that fixed by federal statute for
obtaining a pension is liable for such excess to the person by whom
4De La Cuesta v. Ine. Co., 136 Pa. Co., 183 N. Y. 163, 2 L. R. A. (N.S.)
St. 62, 9 L. R. a. 631, 20 Atl. 505. 574, 75 N. E. 1124; Bertschinger v.
IBither v. Packard, 115 Me. 306, 98 Campbell, 99 Wash. 142, 168 Pac. 977.
Atl. 929; State, ex rel., v. Chicago & 2 Lehigh, etc., Co. v. Brown. 100 Pa.
Alton Railroad Co., 265 Mo. 646, L. St. 338.
R. A. 1916C, 309, 178 S. W. 129; Kil- 3Bocchino v. Cook, 67 N. J. L. 46T,
Patrick v. Germania Life Insurance ol Atl. 487.
§ 1541 Page on Cqntracts 2642
such payment is made.* Where insurance was effected in the
names of lessor and lessee jointly and on loss, proof of loss must
be made by both, and the lessor takes advantage of the finan-
cial necessities of the lessee to exact a payment out of the lessee's
share of the insurance of an amount which is not due to the lessee,
such payment may be recovered as made under duress.' A pay-
ment which is obtained by taking advantage of extreme financial
necessity may be regarded as a payment induced by duress or com-
pulsion; and such payments may be recovered if they were not
originally due.* If a mortgage debtor is required to pay a bonus
which is not authorized by law in order to secure the discharge
of a mortgage upon his payment of the mortgage debt after fore-
closure proceedings upon such mortgage have been begun, such
payment is made under compulsion and it may be recovered.^ A
refusal of a vendee to accept a deed unless revenue stamps are
afSxed thereto is not duress ; and the vendor who buys such stamps
from the revenue collector without protest and without notifying
him of their intended use can not recover ,from him.' In some
jurisdictions it is held that payments of usurious interest are neces-
sarily made under compulsion, and hence may be recovered, even
though the contract has been fully performed, and there is no
statute specifically providing for recovery.' A common carrier and
a shipper do not stand upon terms of equality. The shipper is
usually under a practical compulsion to have his property trans-
ported at once. He does not know, and he has no means of com-
municating with the ofiicers of the road whose business it is to fix
the charges for transportation. Accordingly, payment by a shipper
of an unreasonable charge, or one in excess of the amount fixed
by law is not looked upon as one of voluntary payment, and the
shipper may recover,^ even if no protest is made at the time of
4 Hall V. Kimmer, 61 Mich. 269, 1. tChesebrough v. United States, 192
Am. St. Rep. 575, 28 N. W. 96. U. S. 253, 48 L. ed. 432.
IGuetzkow Bros. Co. v. Breese, 96 'Bexar, etc., AsBOciation v. Robm-
Wis. 691, 65 Am. St. Rep. 83, 72 N. son, 78 Tex. 163, 22 Am. St. Rep. 36,
' W. 45. ■ , 9 L. R. A. 292, 14 S. W. 227. See § 1079.
• Either v. Packard, 115 Me. 306, 98 10 Alabama. Mobile, .etc., Ry. v.
AtL ^9; Kilpatrick v. Germania Life Steiner, 61 Ala. 559.
Insurance Co., 183 N. Y. 163, 2 L. R. lUiiiois. Chicago, etc., R. R, v. Coal
A. (N.S.) 574, 75 N. E. 1124. Co., 79 111. 121.
7 Kilpatrick v. Germania Life Insur- Indiana. Lafayette, etc., R. R. ▼.
ance Co., 183 N. Y. 163, 2 L. R. A. Pattison, 41 Ind. 312; Chicago, etc., Ry.
(N.S.) 574, 75 N. E. 1124. v. Wolcott, 141 Ind. 267, 50 Am. St.
Rep. 320, 39 N. E. 451.
2643
Quasi or Constructive Contract § 1541
the overpayment^' If a railway company has obtained an injunc-
tion against the enforcement of rates which were fixed by a rail-
way commission, shippers who have been obliged to pay the orig-
inal rates may recover the difference between such rates and the
rates which were fixed by such commission after such injunction
is dissolved." Where by law charges must be uniform, a shipper
who has been obliged to pay regular rates while other shippers
have received rebates, may recover the difference between the rates
paid by him and what he would have been obliged to pay had he
received the same rebateJ' So if the carrier has paid to one
shipper a proportion of the freight charges paid by another shipper,
a competitor of the former, the latter may recover such amount
from the former." But it has been held that under a statute per-
mitting the refunding of excessive charges for freight an action
can not be brought to compel such refunding."
A private individual and a public oflBcer do not ordinarily stand
upon an equal footing." One who has entered into a contract with
a telephone company by which he has agreed to pay rates in
excess of those fixed by its charter and who makes payments in
accordance with such contract, can not recover back the difference
between the rates thus paid and the rates as fixed by charter."
The fact that a public official can be compelled by a proceeding
in mandamus to perform certain public services for which he is
attempting to exact an unlawful fee, does not prevent his demand
for such fee from amounting to compulsion if the person upon
whom such demand is made will be placed in a position in which
North Carolina. Hiltpn Lumber Co.
V. Atlantic Coast Line R. Co., 141 N.
Car. 171, 8 L. R. A. (N.S.) 225, 5a S.
E. 823.
Ohio. Peters v. R. R., 42 O. S. 275,
51 Am. Rep. 814; Brundred v. Rice,
49 0. S. 640, 32 N. E. 169.
Vermont. Beckwith v. Friable, 32
Vt. 559.
West Virginia. West Virginia, etc.,
Co. V. Sweetzer, 25 W. Va. 434.
11 Louisville, etc., Ry. v. Wilson, 132
Ind. 517, 18 L. R. A. 105, 32 N. E.
311; Hilton Lumber Co. v. Atlantic
Coast Line R. Co., 141 N. Car. 171, 6
L. R. A. (N.S.) 226, 53 S. E. 823.
12 State, ex rel., v. Chicago & Alton
Railroad Co., 265 Mo. 646, L. R. A.
1916C, 300, 178 S. W. 129.
13 Cook V. Ry., 81 la. 561, 25 Am.
St. Rep. 512, 9 L. R. A. 764, 46 N. W.
1080.
M Brundred v. Rice, 49 O. S. 640, 34
Am. St. Rep. 589, 32 N. E. 169.
lIRandle v. Abeel, 88 Fed. 719.
ICMarcotte v. Allen, 91 Me. 74, 40
L. R. A. 185, 39 Atl. 346; American
Steamship Co. v. Young, 89 Pa. St. 186,
33 Am. Rep. 748.
17 Illinois Glass Co. y. Chicago Tele-
phone Co., 234 III. 535, 18 L. R. 'A.
(N.S.) 124, 85 N. E. 200.
§ 1541 Page on Contracts 2644
he may suffer serious loss if such public service is not performed.^*
Accordingly, a payment demanded and received of a public ofBcer,
under color of ofSce, may be recovered by the private person mak-
ing such payment, even if he makes it under a mistake of law.
Thus where A lived in a county attached for certain purposes to
another at the time that certain taxes were levied, but subsequently
reorganized as a separate county before such taxes were paid, and
A pays his taxes to the treasurer of such other county, A may
recover such taxes from such county J' So a postmaster who
exacts an unauthorized fee for -delivering letters may be made to
refund such payment in an action for money had and received.*
If the public ofScer receives fees to which he is not entitled, and
he knows that the person paying them is ignorant of the law and
makes such payments because he thinks he is bound by law to pay
, them, his act in receiving such pajnnent without informing the
other person of his rights is looked upon as a fraud, and the party
making such payments may recover them.^^ Whenever a payment
made in ignorance of the law is induced by the fraud or imposition
of the other party and especially if the parties are not on an equal
footing, an action to recover it back is maintainable.^ Payment
made to a public oflSeer by a private citizen for services which the
oflScer was not required to render as a part of his public duty, can
not be recovered. Thus if an auditor makes a special charge for
services in preparing a bond which he is not required by his office
to do, a payment therefor can not be recovered.^ The legislature
has power to change the common-law rule that money paid under
mistake of law can not be recovered, and may give a right of
action against a public officer who collects, from a private person,
fees to which he is not entitled by law.^^ If legal and illegal
charges are so blended by the officer making them, that the legal
can not be separated from the illegal, he may be liable to pay all
fees thus received.* A borrowed money from a school fund. The
county auditor made an illegal demand for a payment as a penalty
as delinquent interest. A paid such amount into the county treas-
IBTrower v. San FranciBco, 162 CaL . 22Marcotte v. AUen, 91 Me. 74, 40
479, 15 L. R. A. (N*S.) 18a, 92 Pac. L. R. A. 185, 39 Atl. 346.
1025. a Eley v. Miller, 7 Ind. App. 529, 34
II Fremont, etc., Ry. v. Holt County, N. E. 836.
28 Neb. 742, 45 N. W. 163. W Benson v. Christian, 129 Ind. 535.
n Barnes v. Foley, 5 Burr. 2711. 29 N. E. 26.
21 Marcotte v. Allen, 91 Me. 74, 40 » Benson v. Christian, 129 Ind. 635,
L. R. A. 185, 39 Atl. 346. 29 N. £. 26.
2645 Quasi. OR Constructive Contract §1542
ury. The county attorney was paid for his services in obtaining
snch payment out of the county revenue funds. It was held that
A could not recover from any of these officers; since the auditor,
•who had demanded the payment, did not receive it, the treasurer
who received it did not exact it ; and the county attorney was not
paid out of such funds,^
§ 1542. Payment of anofher's debt to protect one's Interests.
If ,A is obliged to pay B's debt in order to protect A's property
interests, A's payment is not voluntary and he may recover from
BJ If the debt which B owes, and upon which B is primarily
liable, is a lien upon A's property, and A is obliged to pay such
lien to protect his interest in the property, he may recover from B.*
If two different tracts of land owned by different owners are
encumbered by a blanket mortgage and the owner of one of such
tracts is obliged to pay the mortgage to protect his interest, he
may have contribution in equity from the owner of the other tract.'
Where property subject to an assessment was conveyed, and the
grantor had promised as a part of the consideration to pay the
assessments due thereon, and he does not make such pa3anents, and
by reason thereof the grantee is obliged to pay such assessments,
he may recover from the grantor, on the theory of an implied con-
tract in an action for money paid, and need not sue on the express
contract to pay the assessment/ So if a court has by decree found
that A is holding stock for B, subject to a lien in favor of A for
advances which he has made to B, on account of such stock, A
may recover from B for assessments made upon the stock by the
corporation and paid by A to the corporation to preserve his
interest in it, and his right to recover from B is not defeated by
his taking an apeal from such decree.' So if a lessee to protect
his interest is obliged to pay taxes on the leased realty he may
recover from his lessor.' So if a lessee covenants in the lease to
2> Coleman r. Goben, 16 Ind. App. 346, 1 Gleason v. Dyke, 39 Mass. (22 Pick.)
45 N. E. 194. 390; Hunt v. Amidon, 4 Hill (N. Y.)
lExall ▼. Partridge, 8 T. R. 308; 345, 40 Am. Dec. 283.
Post V. Gilbert, 44 Conn. 9; Gleason 3 Sawyer v. Lyon, 10 Johns. (N. Y.)
T. Dyke, 39 Mass. (22 Pick.) 390; La 32.
Paul ▼. Haywood, 113 Minn. 376, 32 4 Post v. Gilbert, 44 Conn. 9.
L. R. A. (N5.) 368, Ann. Cas. 1912A, • Irvine v. Angus, 93 Fed. 629, 35 C.
274, 129 N. W. 763. C. A. 501.
See also, Bovey-Sbute Lumber Co. v. B Vermont, etc., Ry. v. Ry., 63 Vt.
Itanen' & Merchants' Bank ,— N. D. 1, 10 L. R. A. 562, 21 Atl. 262, 731.
—, 173 N. W. 456.
§ 1542 Page on Contracts 2646
pay taxes on the leased realty, and does not do so, the lessor may
pay such taxes and recover from the lessee or his assignee, even
after the lessor has conveyed his interest by a deed containing a
covenant against encumbrances.' If improvements placed upon
realty by a lessee may be removed under the terms of the lease and
no provision is made for the payment of taxes thereon, the lessor
may recover from the lessee the proportion of the taxes levied
upon the improvement after he has been obliged to pay the entire
amount of taxes in order to prevent the realty from being sold at
a tax sale.* The party paying such liens can not recover unless
the payment is necessary to protect his interests. So a mortgagee ,
who pays taxes on the realty mortgaged to enable him to negotiate
his mortgage, and who subsequently transfers the mortgage to the
mortgagors, releasing the mortgage debt, can not recover from
them the amount thus expended as taxes.' The tax thus paid must
be on the property in which the person paying it owns an interest
or he can not recover. So where a first mortgagee foreclosed and
made the assignee of a second mortgage^ a party to the suit, but
the interest of the second mortgagee had been sold for taxes and
had been bought in by the state, the first mortgagee can not after
buying in the realty and paying to the state the amount for which
such second mortgage had been sold with costs, recover such
amount from such assignee.^* It has been said that one who has
purchased realty which was once encumbered by a mortgage can
not pay a tax upon such mortgage, although the mortgagee re-
fuses to make such payment and although the mortgage has been
paid and the tax is a lien upon the realty.^^ In such a case the
right to maintain an action for money had and received is denied
on the ground that there is no contractual relation between the
partiesJ^ In order to enable A to recover from B for pajang a
debt of B's, which was a lien upon A's property, the lien must be
a valid debt of B's, and must also be a lien upon A's property.
Thus if a grantee takes by a warranty deed, with a covenant
against encumbrances, he can not recover from his grantor for
7 Wills V. Summers, 45 Minn. 90, 47 10 Canadian, etc., Co. v. Boas, 136
N. W. 463. Cal. 419, 69 Pac. 18.
8 La Paul v. Hey wood, 113 Minn. 376, 11 William Ede Co. v. Heywood, 163
32 L. R. A. (N.S.) 368, Ann. Cas. Cal. 615, 22 L. R. A. (N.S.) 662, 96
1912A, 274, 129 N. W. 763. Pac. 81.
• Keraenbrock v. Muff, 29 Neb. 630, 12 William Ede Co. v. Heywood, 16a
45 N. W. 778. Cal. 615, 22 L. R. A. (N.S.) 662, 96
Pac. 81.
2647
Quasi or Constructive Contract § 1542
payment of a void tax assessed against such property.^' So A held
the legal title to realty, and A, B and C each had a third of the
beneficial interest therein. C bought in the property at a tax sale,
taking a deed thereto in his wife's name. X, a judgment creditor
of A, redeemed the land to protect his interest. X can not recover
from B, since one co-owner can not acquire interests as against
another at a tax sale, and C's right to recover from B for his share
of the taxes thus paid was restricted to the balance, if any, due on
the accounts of eacb as to the property owned in common." If
A induces B to enter into a contract for the sale of land by false
representations as to the identity of A, B being induced to believe
that he is dealing with X, and B avoids such contract, A can not
recover the amount which he has paid to redeem such land from a
tax sale.^* A conveyed realty to B, who took possession and paid
taxes. Subsequently the conveyance was set aside on the theory
that it was intended as a will. It was held that equity and good
conscience required payment of such taxes, and that slight circum-
stances were sufficient from which to infer a promise to pay,"
implying a promise to pay, recovery could be had.
If one co-tenant has paid more than his share on account of the
property which they own in common," such as a payment for
repairs," he may recover from the other co-tenants for their pro-
portional share of such payments. In Massachusetts it is held that
no action lay at common law, either in England or in Massachu-
setts, by which one co-tenant could enforce contribution against
another for repairs which were made without the assent of the
other ; " although if such repairs were made with the assent of
all the tenants in common, one who has paid out more than his
share for such repairs may recover in quasi-contract from the
13 Balfour y. Whitman, 89 Mich. 202,
60 N. W. 744.
ULindley t. Snell, 80 la. 103, 45 K.
W. 726.
11 Ellsworth y. Randall, 78 la. 141,
16 Am. St. Rep. 425, 42 J^. W. 629.
10 Smith T. Roundtree, 185 111. 219,
66 N. E. 1130 [affirming, 85 111. App.
^ 161]. (This case, however, falls short
of holding that in the absence of some
cireumstances implying a promise to
pay, recovery could be had.)
IT Alabama. Strother's Adm'r v. But-
ler, 17 Ala. 733.
Connecticut. Fowler y. Fowler, 60
Conn. 256.
Illinois. Haven v. Mehlgarten, 19 HL
91.
MasMchusetts. Gwinneth v. Thomp-
son, 26 Mass. (9 Pick.) 31, 19 Am.
Dec. 350.
Vennont Paine v. Slocum, 66 Vt»
504.
1< Haven v. Mehlgarten, 19 HI 91.
10 Calvert v. Aldrich, 99 Mass. 74.
§1543
Page on Contracts
2648
other tenants in common, as long as the title to land is not brought
into question."
One who has an interest in a fund in common with others, and
who incurs expenses in recovering or in preserving such fund, may
be compensated out of the fund.*^
§1543. Payment by party secondarily liable. If A has, at
B's request, incurred a liability by reason of which A is subse-
quently bound to pay a debt to C upon which B was primarily
liable, A may recover from B for such payment, although B did
not expressly request A to make such pa3nnent. If a party, such
as a surety, is liable primarily to the creditor, but as between him-
self and the principal debtor the debt should have been paid by
the' principal debtor and such surety is obliged to pay such debt,
he may recover the amount thereof from the principal debtor.*
This right of recovery does not, however, rest on express contract
of any sort between the parties. One surety who has paid more
than his proportionate share of the debt may recover from his
co-sureties.^ In order to amount to a payment by compulsion or
duress, no further constraint is necessary than the legal obligation
which the surety has undertaken by signing in such capacity.' The
surety's right of action accrues when he makes such payment; and
the period- of limitations begins to run from that time.*
If two persons are jointly liable and one of them is obliged to
pay the entire amount of such obligation, he may enforce a con-
so Gwinneth V. Thompson, 26 Mass.
(9 Pick.) 31, 19 Am. Dec. 350.
21 Trustees v. Greenough 105 U. S.
627, 26 L. ed. 1157.
I United States. Hall v. Smith, 46
TJ. S. (5 How.) 96, 12 L. ed. 66.
Califonda. Curtis ▼. Parks, 56 Cal.
106.
Florida. Chamberlain v. Lesley, 39
Fla. 452, 22 So. 736.
Kentucky. Kennedy v. Gaddie (Ky.),
32 S. W. 408.
Masaachusetts. Gibbs v. Bryant, 18
Mass. (1 Pick.) 118.
Montana. Merchants' National Bank
▼. Opera House Co., 23 Mont. 33, 76
Am. St. Rep. 499, 45 L. R. A. 285, 67
Pac. 446.
New York. Blanchard t. Blanchard,
201 N. Y. 134, 37 L. R. A. (N.S.) 783,
94 K. E. 630.
Wisconsin. Fanning t. Murphy, 126
Wis. 538, 4 L. R. A. (N.S.) 666, 6 Ann.
Cas. 435, 105 N. W. 1056.
2 Berlin v. New Britain School So-
ciety, 9 Conn. 175; Rushworth v. Moore,
36 N. H. 188; Aldrich v. Aldrich, 56
Vt. 324, 48 Am. Rep. 791.
3 Fanning v. Murphy, 126 Wis. 538,
4 L. R. A. (N.S.) 666, 6 Ann. Cas. 436,
106 N. W. 1056.
4 Blanchard ▼. Blanchard, 201 N. T..
134, 87 L. R. A. (N.a) 783, 94 K. B.
630.
2649
Quasi or Constructive Contract § 1543
tribution from the other party who is liable upon guch obligation
if such obligation arises out of contract. This right of contribution
may now be enforced at law.'
If the obligation arises out of tort one who is not a wilful wrong-
doer may have contribution against the other for the amount which
he has been obliged to pay in excess of his proportionate share.*
A wilful wrongdoer, however, can not have contribution for the
amount which he is obliged to pay, since in order to make out a
cause of action he is obliged to show as a basis of recovery that he
has committed a wrong.^ An express contract between two par-
ties by which one agrees to commit a tort and the other agrees to
exonerate him from liability or to contribute to such liability, is
illegal ; * and in the absence of an express contract the law will not
create an obligation of this sort.
If A is bound by law to pay a debt for which B is primarily
liable, such payment is not voluntary and A can recover from B.'
Where certain damages for opening streets must by law be. paid
out of a county treasury, although the liability therefor is against
the city in the first instance, such payments are not voluntary, and
the county may recover therefor from the city.^* So if a county
agrees to pay for certain fire plugs which by order of the fiscal
court are to be entered on the contract of the waterworks com-
pany with the city, and the city is thus obliged to pay for them, it
may recover from the county.^^ The maker of a note is bound to
reimburse an accommodation endorser for the amount which he
has been obliged to pay thereon.^*
If A has given to B a negotiable instrument for value and there
is a total failure of consideration, A may recover from B the
amount which A is obliged to pay to X, a bona fide holder, to
whom B has transferred such instrument.^' If A has given a nego-
ISaaden t. Herndon, 122 Ky. 760,
121 Am. 6t Rep. 493, 5 L. R. A. (N.S.)
1072, 93 S. W. 14; Gardner v. Conn,
34 O. S. 187.
i Acheson v. Miller, 2 O. S. 203 (over-
ruling, Acheeon t. Miller, 18 Ohio 1].
1 Talmadge y. Zanesville & MaysYille
Road Co., 11 Ohio 197; Davis v. Gel-
haus, 44 O. S. 69; Wilhelm v. Defiance,
58 0. S. 56, 65 Am. St. Rep. 745, 40
L. R. A. 294, 50 N. E. 1&.
tSee iilI27 et aeq.
SBlanchard ▼. Blanchard, 201 N. Y.
134, 37 L. R. A. (N.S.) 783, 94 N. E.
630.
IS Lancaster County v. Lancaster, 160
Pa. St. 411, 28 Atl. 854.
11 Stanford (City of) v. Lincoln
County (Ky.), 61 S. W. 463.
HBIanchard v. Blanchard, 201 N. Y.
134, 37 L. R. A. (N.S.) 783, 94 N. E.
630.
13 Evans ▼. Central Life Ins. Co., 87
Kan. 641, 41 L. R. A. (N.S.) IISO, 125
Pac. 86.
§ 1544 Page on Contracts 2650
liable instrament to an insurance company and the insurance com-
pany refuses to issue a policy in accordance with the oral repre-
sentations of its agent, A may recover from such insurance com-
pany the amount which A is obliged to pay upon such note to X,
to whom the insurance company has transferred such noteJ*
§ 1544. Recovery of payments made on judgments. The ques-
tion whether payments made on a judgment can be recovered
depends in the first instance upon the further question whether
such judgment has been reversed, set aside, and the like, or
whether it has not. If the judgment is not reversed, set aside, or
modified in a proper proceeding for that purpose directly attack-
ing the judgment, it is binding between the parties if rendered by
a court having jurisdiction of the parties and the subject-matter.
Since matters concluded by such judgment can not be relitigated
it follows that money paid by reason of such judgment can not be
recovered, even if the judgment is erroneous, or should have been
rendered for the^ defeated party on the real merits of the case.
The enforcement of such judgment is clearly a resort to the means
provided by law for enforcing liabilities, and such payments can
not be said to be made under duress.^ Thus if money forfeited as
bail has been decreed by order of court to the county in which the
cause of action was brought, instead of to the county to which the
trial was transferred, the latter county, the party who has been
prejudiced by such order should appeal from the order; and can
not sue the former county for the money thus paid in, while the
order stands unmodified.^ Thus in a condemnation suit, A, the
owner of an undivided interest in realty was awarded a certain
sum of money as damages for his interest in the realty appro-
priated. A partition suit was then pending between A and the
other co-owners. Subsequently the tract out of which the land
14 Evans v. Central Life Ins. Co., 87 Missouri. New Madrid County v.
Kan. 641, 41 L. R. A. (N.S.) 1130, 125 Phillips, 125 Mo. 61, 28 S. W. 321.
Pac. 86. Nebraska. Gerecke v. Campbell, 24
1 Connecticut. Carter v. Society, 3 Neb. 306, 38 N. W. 847.
Conn. 455. ^ Tennessee. Kirklan v. Brown, 23
Iowa. Warren County t. Polk Tenn. (4 Humph.) 174, 40 Am. Deo.
County, 89 la. 44, 56 N. W. 281. 635.
Kentucky. Williams v. Shelboume, 2 Warren County v. Polk County, Sl^
102 Ky. 579, 44 S. W. IH). la. 44, 56 N. W. 281.
Maine. Footman v. Stetson, 32 Mew
17, 52 Am. Dec. 634.
2651 Quasi or Constructive Contract § 1544
had been appropriated was awarded to another eo-owner, B. It
was held that the county which had made the payment in the con-
demnation proceedings could not recover from A.' Thus where A,
who had at one time been a commissioner of insolvents, assumed
to act as such, and required B to give bond with sureties, which
B did, and after the bond was forfeited A sued B and such surety,
and obtained a judgment which was paid by one of the sureties,
such surety can not recover from A.* So after a judgment which
includes usurious interest, recovery of such usury can not be had
while the judgment is unreversed.' So where A was sued as surety
on a bail bond, and judgment rendered, and after such judgment
he filed a remission of the penalty executed by the governor of the
state, but such judgment was not set aside or modified, it was held
that A could not recover the amount paid in by* him on such judg-
ment.* Equity has allowed recovery of money paid upon a com-
mon-law judgment which was obtained by fraud, though such
judgment is not reversed, set aside or modified.^ Thus A held a
note signed by the firm B and C, per C. A represented to B that
the money for which this note was given was loaned to the firm,
and B allowed A to take a judgment on such note. Subsequently
B enjoined the collection of such judgment on the ground that it
was not a firm debt; but on A^s answer that it was a firm debt,
and that the judgment was not obtained by fraud, the injunction
was dissolved. B paid such judgment! After payment B found
evidence that the money was loaned to C, and used by him to dis-
charge an individual debt. It was held that on these facts B could
recover from A in equity.* Equity has refused to give relief in the
absence of fraud, although the judgment was rendered against one
against whom it should not have been rendered in view of all the
facts, and although the time for a new trial has elapsed.* If A ob-
tained a judgment against his cashier, B, for a shortage, and B con-
tended that such money was taken away by unknown persons, a judg-
ment rendered in favor of A against B, which has been afiirmed by the
'New Madrid County v. Phillips, 125 I Williams v. Shelbourne, 102 Ky. 679,
Mo. 61, 28 S. W. 321. In this case A 44 S. W. 110.
was B's guardian. No fraud, however, 7 West v. Kerby, 27 Ky. (4 J. J.
was found to exist. Mar.) 55.
4 Job V. Collier, 11 Ohio 422. • Ellis v. Kelly, 71 Ky. (8 Bush.)
B Footman ▼. Stetson, 32 Me. 17, 62 621.
Am. Dec. 634 ; Thatcher v. Gammon, > Michael v. American National Bank,
12 Mass. 268. 84 O. S. 370, 38 L. R. A. (N.S.) 220,
95 N. £. 905.
§ 1544 Page on Contractts 2652
court of last resort, is final as between the parties; and B can not
resort to equity to have such judgment set aside and to compel A
to repay to him the amount of such judgment which B has paid to
A, although B has subsequently discovered the person by whom
such money was takenJ*
At law payments on a judgment obtained by fraud can not be
recovered until such judgment is reversed or set aside." A judg-
ment is not conclusive as to matters arising after its rendition.
Thus if A' is compelled by judicial proceedings to pay assessments
for a street "improvement and such improvement is thereafter aban-
doned, A can recover the money thus paid in."
A different question arises where the judgment has been re-
versed, set aside, modified, and the like. In such cases a payment
made upon such judgment can be recovered: (1) if made under
duress and not voluntarily, and if the judgment is reversed upon
the merits, or (2) if the judgment of reversal contains an order of
restitution." If the property of the judgment debtor is seized and
sold on execution and the proceeds paid over to the judgment
creditor, the judgment debtor may recover such amount from the
judgment creditor." The same principle applies where money in
the hands of an ofiicer of the court is distributed by such ofiicer
under an erroneous order or decree. Upon reversal, the party who
was entitled to such fund may recover from the person to whom
19 Michael y. American National ICiBSoaxi. Chicago Herald Co. ▼.
Bank, 84 0. S. 370, 38 L. R. A. (N.S.) Bryan, 105 Mo. 500, 6 Am. & Eng. Ann.
220, 05 N. £. 005. Cas. 751, 02 S. W. 006; Arkaneas Valley
11 Ogle V. Baker, 137 Pa. St. 378, 21* Trust Co. v. Corbitf (Mo.), 170 S. W.
Am. St. Rep. 886, 20 Atl. 008. (Where 484.
the judgment was entered on a war- Oklahoma. State National Bank ▼.
rant of attorney contained in a forged Ladd (Okla.), L. R. A. 1017C, 1176, 162
note.) Pac. 684.
liMcConville v. St. Paul, 75 Minn. Wisconsin. Chapman v. Sutton, 68
383, 74 Am. St. Rep. 508, 43 L. R. A. Wis. 657, 32 N. W. 683.
584, 77 N. W. 003. 14 United States. Crane t. Runey, 26
n England. Anonymous, 2 Salk. 588. Fed. 15.
United States. Northwestern Fuel Illinois. Field v. Anderson, 103 111.
Co. V. Brock, 130 U. S. 216, 35 L. ed. 403.
151. Indiana. Smith v. Zent, 83 Ind. 86,
Alabama. Carroll v. Draughon, 173 43 Am. Rep. 61.
Ala. 338, 56 So. 200. Ohio. Bickett v. Gamer, 31 O. S. 28;
Illinois. Ure v. Ure, 223 111. 454, 114 Virginia. Sturm y. Fleming, 31 W.
Am. St. Rep. 336, 70 N. E. 153. Va. 701, 8 S. E. 263.
Maryland. Green v. Stone, 1 Har. &
J. (Md.) 405.
2653
Quasi or Constrtjctive Contract § 1544
it is paidJ' If the law permits execution to issue on a judgment
-while appeal or proceedings in error are pending, money paid by
reason of such execution may be recovered if the judgment is
reversed thereafter^* Thus if the execution is levied, and payment
is made to stop the sale," or if an execution has issued but has not
been levied and payment is made to prevent a levy,^* such payment
is under compulsion and may be recovered. So recovery has been
allowed where the execution was forwarded by mail to the debtor,
and the amount for which it issued was paid in by him J* Op the
same principle a payment made after a creditor's bill has been filed
in equity to enforce the lien of the judgment on certain realty may
be recovered after reversal, the court finding as a fact that such
payment was compelled by the action, and was not made volun-
tarily in settlement of the claim.^ The same relief has been given,
though in another form, where payments have been made upon a
decree in equity, which fixes the amount of the debt and orders a
sale of the realty. Where such decree has been reversed because
the amount of the debt was ascertained erroneously by the trial
court, payments on the original decree should be credited upon the
subsequent decree.^^ In some cases the court does not think it
necessary to indicate more than that money was paid on a writ of
execution without indicating whether a levy was made or not, on
the ground that in either case payment was made by duress." If
execution has not issued, but may issue at the option of the judg-
ment creditor, there is some conflict of authority on the question
whether payment of the judgment is voluntary. In some juris-
dictions it is held that if the judgment debtor pays such judgment
IBMetzner v. Bauer, 98 Ind. 425; In
re Home ProTident, etc., Association,
129 N. Y. 288, 29 N. E. 323.
It United States Bank v. Bank, 31
U. S. (6 Pet.) 8, 8 L. ed. 299; Wright
V. Noatrand, 100 N. Y. 616, 3 N. E.
78; Bickett v. Garner, 31 O. S. 28;
Travelers* Ins. Co. v. Heath, 95 Pa. St.
333.
11 Stevens v. Fitch, 52 Mass. (11
Met.) 248.
Contra, Gould v. McFall, 118 Pa. St.
455, 4 Am. St. Rep. «06, 12 Atl. 336.
(In this case the judgment was re-
versed for technical reasons.)
II Lewis V. Hull, 39 Conn. 116;
Travelers' Ins. Co. v. Heath, 95 Pa.
St. 333.
IS United States Bank v. Bank, 31 U.
S. (6 Pet.) 8, 8 L. ed. 299.
M Chapman v. Sutton, «8.Wi8. 657,
32 N. W. 683.
21 Effinger v. Kenney, 92 Va. 245, 23
S. E. 742.
22 As where the return "money made:
paid by John Heath," left it in doubt
whether a levy had been made or not.
Travelers' Ins. Co. v. Heath, 95 Pa.
St. 333.
§1544
Page on Contracts
2654
before execution issues he does not do so voluntarily.". Where this
view obtains, such payments may be recovered,** even if the surety
who p^ys the judgment against himself and his principal takes a
formiil assignment of the judgment to keep it alive against the
principal." Belief is also given in such cases on a rule by the
court to which such cause is sent on reversal to show cause why
restitution should not be made." In other jurisdictions payment
of a judgment on which execution has not issued is not under
duress,*^ even if execution is threatened," and such payment, there-
fore, can not be recovered. Hence, a payment of a judgment in
which excessive attorney's* fees have been awarded, made in order
to clear the title to realty so that a new loan could be efiFected,
can not be recovered." So if a judgment is paid voluntarily while
appeal or error proceedings are pending, such payment can not be
recovered, even though the decree appealed from is modified or
reversed." When Ealmbach v. Foote first came before the supreme
court,'^ it was held that a payment under a threatened levy made
to the attorney of the plaintiff and retained by him for his own
use could be recovered from him. The judgment below was re-
versed and the cause remanded. When it came before the supreme
court a second time the evidence showed that no threat of levy
was made, that the party making the payment, a surety of the
principal debtor made the payment voluntarily and took an assign-
ment of the judgment against his principal, which was afterwards
reversed, and that the attorney who collected the money paid it
23 "He may as well pay the amount
at one time as at another and save
the expense of delay." Peyser v.
Mayor, 70 N. Y. 497, 501, 26 Am. Rep.
624 [quoted in Chapman v. Sutton,
68 Wis. 657, 32 N. W. 683].
24Buford V. Briggs, 96 Ark. 150, 131
S. W. 351; Gregory v. Litsey, 48 Ky.
(9 B. Moh.) 43; Scholey v. Halsey, 72
N. Y. 578. "It is not necessary in order
to maintain the action that the pay-
ment should have been coerced by ex-
ecution." Scholey v. Halsey, 72 N. Y.
578.
S Gates V. Brinkley, 72 Tenn. (4 Lea)
710.
IS Gregory v. Litsey, 48 Ky. (9 B.
Hon.) 43, 48 Am. Dec. 415.
27 Groves v. Sentell, 66 Fed. 179, 13
C. C. A. 386; Estes v.* Thompson, 90
Ga. 698, 17 S. E. 98; Cohen v. Laun-
dry Co., 99 Ga. 289, 25 S. E. 689; Lowis
V. Brewing Co., 63 111. App. 345; Gould
V. McFall, 118 Pa. St. 455, 4 Am. St.
Rep. 606, 12 Atl. 336.
21 Ferryman v. Pope, 94 Ga. 672, 21
S. E. 715. ^
29 Estes V. Thompson, 90 Ga. 698, 17
S* £. 98.
30 Weaver v. Stacy, 93 la. 683, 62 N.
W. 22; Kalmbach v. Foote, 86 Mich.
240, 49 N. W. 132; Ditman v. Raule,
134 Pa. St. 480, 19 AtL 676.
91 Kalmbach v. Foote, 79 Mich. 236^
44 N. W. 603.
B655
Quasi or Constructive Contract
1544
over to his client, not even retaining his fees. It was then held
that such payment could not he recovered.** Thus where A*s land
is sold as the property of B, and while an appeal is pending A
voluntarily .pays the amount necessary to redeem such realty, A
can not recover such payment when the decree under which the
realty was sold is reversed.^ But where no opportunity to make a
defense is given to the judgment debtor, as where a cognovit judg-
ment is taken, payment or giving a new security may be considered
as made under duress.** Where the oiBcer who is about to serve
the execution has an agreement with the judgment creditor to
receive half the proceeds collected, and such agreements are illegal,
it has been held that because of such interest a payment or security
given to avoid such unlawful levy is given under duress.* Whether
the judgment debtor's right of action for involuntary payments
always accrues on reversal is a question on which there is a diver-
gence of authority. In some cases the right of the debtor to recover
is denied if the money belongs in good conscience to the creditor.*
Money which is paid in satisfaction of a judgment can ^ot be
recovered where the judgment is reversed, not upon the merits, but
upon mere technicalities, as where the judgment was reversed
because the judgment creditor who took a default judgment had
omitted to make proof in proper form," or because it was held that
the judgment creditor had technically waived his right to recover.*
On reversal of a judgment in foreclosure, as being excessive in
amount,* the trial court attempted to evade the reversal by the
supreme court, by reducing and modifying its original judgment
nunc pro tunc ; while this "innovation in procedure was held erron-
eous,* it was held that the defendant could not recover from the
plaintiff for the rents during the time that plaintiff was in posses-
UKalmbach v. Foote, 86 Mich. 240,
49 N. W. 132.
» Weaver v. Stacy, 93 la. 683, 62
N. w! 22.
MKnoz County Bank v. Doty, 9 O.
S. 506, 75 Am. Dec. 479.
as Van Dusen v. King, 106 Mich. 133,
64 N. W. 9. This is "fraud and co-
ercion." It is "not so much a ques-
tion of individual right as of public
policy."
WCowdery v. Bank, 139 Cal. 298, 96
Am. St. Rep. 115, 73 Pac. 196; Teaa-
dale v. StoUer, 133 Mo. 645, 54 Am.
St. Rep. 703, 34 S. W. 873.
37 Gould V. McFall, 118 Pa. St. 455,
4 Am. St. Rep. 606, 12 Atl. 336.
aSTeasdale v. Stoller, 133 Mo. 645,
54 Am. St. Rep. 703, 34 S. W. 873.
In these cases, however, the payment
is looked upon as, to some extent, a
voluntary payment.
3JFor judgment of reversal see Lon-
don, etc.. Bank v. Bandmann, 120 Cal.
220, 65 Am. St. Rep. 179, 52 Pac. 583.
^•Cowdery v. Bank, 139 Cal. 298, 98
Am. St. Rep. 115, 73 Pac. 196.
1544
Page on Contracts
2656
sion as purchaser under the erroneous order of sale, since ''his only
remedy is to have them applied on the mortgage debt."*^ In other
cases the court has ordered restitution as a matter of course, and
has declined to prejudge the result of a new trial following re-
versal in a proceeding to recover.** A suit in assumpsit has been
held to lie where an action by an insurance company against its
agent for premiums collected by him had resulted in judgment
which he had been compelled to pay; and this judgment had sub-
sequently been reversed, not because the premiums did not belong
to the company, but because the company, not having complied
with the statute authorizing it to do business in that state, was not
allowed to enforce rights growing out of such business.^ Under
the former practice recovery of what a judgment debtor had lost
by reason of the judgment was effected by a writ of restitution, if
the record disclosed what he had lost or by an action in scire facias
if it did not.^ Under modern practice the reversing court may
order restitution,* even if the judgment is reversed because the
trial cojirt lacked jurisdiction.* Even where a judgment has been*
reversed on the ground that the trial, court had no jurisdiction,*^
the trial court may retain the case for the purpose of enforcing
restitution.* If the judgment of reversal contains an order of
restitution the judgment debtor may recover independent of any
question, whether payment by him was voluntary or involuntary.*
Such question of voluntary payment should be raised as a ground
for refusing to reverse. The judgment of reversal and restitution
41 Cowdery v. Bank, 139 Cal. 298, 90
Am. St. Rep. 115, 73 Pac. 196 (quota-
tion: 139 Cal. 309, 96 Am. St. Rep. 124,
73 Pac. 196).
42 Ex parte Walter, 89 Ala. 237, 18
Am. St. Rep. 103, 7 So. 400. (In
this case the trial court was com-
pelled by mandamus to order restitu-
tion after reversal without reference
to the probable result of a new trial.)
Murray v. Berdell, 98 N. Y. 480.
43 Travelers' Ins. Co. v. Heath, 95 Pa.
St. 333.
44 Anonymous, 2 Salk. 588; United
States Bank v. Bank, 31 U. S. (6 Pet.)
8; 8 L. ed. 299.
45 Morris's Cotton, 75 U. S. (8 Wall.)
507, 19 L. ed. 481; Ex parte Morris,
76 U. S. (9 Wall.) 605, 19 L. ed. 799;
^larket National Bank v. Bank, 102 N.
Y. 464,' 7 N. E. 302.
4« O'Reilly v. Henson, 97 Mo. App.
491, 71 S. W. 109.
47 Northwestern Fuel Co. v. Brock^
139 U. S. 216, 35 L. ed. 151. (Since,
except in case of tiegotiable instjru-
ments and the like, an assignee could
not bring an action in the ^United
States courts on the ground of being
a citizen of another state from that in
which the defendant was domiciled un-
less his assignor could have so brought
an action.)
4« Northwestern Fuel Co. v. Brock,
139 U. S. 216, 35 L. ed. 151.
4IHiler v. Hiler, 35 O. S. 645; Bread-
ing v. Blocher, 29 Pa. St. 347.
2657
Quasi or Constructive Contract § 1544
''establishes beyond further question the right of plaintiff in error
to be restored to all things which he has lost by reason of the
erroneous judgment. Its justice can not be rejudged in any col-
lateral proceeding."* An action in scire facias or a writ of resti-
tution are neither indispensable at modern practice. A direct
action for money had and, received may be maintained.'^ This
right, however, has been limited in some states to cases where no'
order of restitution was made on reversal.** The fact that restitu-
tion is asked and refused in the proceedings which result in re-
versal does not prevent a separate action in assumpsit.** The statu-
tory method of restitution is not exclusive and does not prevent an
action in assumpsit.** Trespass, however, will not lie it the judg-
ment upon which the execution issued under which the judgment
debtor's property was taken and sold was merely erroneous and
not void. The debtor's remedy is in assumpsit.** The right of
action for money paid exists in favor of the' real party in interest ,
whose money has been paid to the judgment creditor, even if he
is not a party of record.** It lies against the judgment creditor
to whom or on whose behalf money has been paid. Thus if money
of a judgment -debtor is applied to paying witness fees which
should have been paid by the judgment creditor, the debtor's
action on reversal is against the sheriff and he can not recover
from the witness.*^ In an action for money had. the debtor may
recover the amount of the proceeds of his property, if it has been
sold on execution, paid over to or on behalf of the judgment
creditor.** If the property sells for less than its value, or its
seizure has caused other damage to the judgment debtor, it is
» Breading v. Blocher, 29 Pa. St. 347,
349 [quoted in Hiler v. Hiler, 35 O. S.
645].
ilRaun V. Reynolds, 18 Cal. 275;
Haebler v. Myers, 132 N. Y. 363,28 Am.
St. Rep. 599, 15 L. R. A. 588, 30 N. E.
963; Clark v. Pinney, 6 Cow. (X. Y.)
298.
82 Duncan v. Kirkpatrick, 13 S. & R.
(Pa.) 292.
M Travelers' Ins. Co. v. Heath, 95 Pa.
St. 333.
MHaebler v. Myers, 132 N. Y. 363,
28 Am. St. Rep. 589, 15 L. R. A. 588,
30 N. £. 963.
« Field V. Anderson, 103 111. 403.
M Stevens v. Fitch, 52 Mass. (11
Met.) 248.
57 Gray v. Alexander, 26 Tenn. (7
Humph.) 16.
M England. Goodyer v. Junce, Yelv.
179 fsub nomine, Goodyere v. Ince, Cro.
Jac. 246].
Indiana. Martin v. Woodruff, 2 Ind.
237; Thompson v. Reasoner, 122 Ind.
454, 7 L. R. A. 495, 24 N. E. 223.
Kentucky. Hesa v. Deppen, 125 Ky.
424, 15 Am. & Eng. Ann. Cas. 670, 101
S. W. 362.
Minnesota. Peck v. McLean, 36
Minn. 228, 1 Am. St. Rep. 665, 30 N.
W. 759.
\
§1545
Page on Contracts
2658
evident that this right of recovery is inadequate. ' Accordingly, in
some jurisdictions the judgment debtor is not limited to this meas-
ure of damages, but may recover the^ value of his property so
seized on execution.**
If a restitution bond has been given and a judgment has been
collected while proceedings in error were pending, the judgment
debtor may maintain an action upon such restitution bond after
such reversal;" and the judgment creditor can not dismiss his
original cause of action and interpose it as a set-ofiF as an action
on the restitution bond.*^
•
§ 15451" Application of foregoing principles to taxee, assess-
ments for local improvements and license fees. Payments unlaw-
fully coerced as taxes may be recovered.^ -On the other hand, if a
tax is paid voluntarily its illegality is no ground for an action to
recover it.^ Arf agreement between a taxpayer and a public cor-
poration to the effect that such tax is to be repaid if it is not a
Oklahoma. State National Bank v.
Ladd (Okla.), L. R. A. 1917C, 1176, 162
Pac. 684.
Wisconsin. Lewis v. Ry., 97 Wis.
368, 72 N. W. 976.
it Reynolds v. Hosmer, 45 Tal. 616;
McJilton V. iiove, la HI. 486; Gould v.
Sternberg, 128 111. 510, 15 Am. St. Rep.
138, 21 N. £. 628; Smith v. Zent, 83
Ind. 86, 43 Am. Rep. 61.
n Biekett v. Garner, 31 O. S. 28.
II Biekett V. Garner, 31 O. S. 28.
See also, Hier v. Anheuser-Busch
Brewing Association, 60 Neb. 320, 83
N. W. 77.
1 Iowa. Eyerly v. Jasper County, 72
la. 149, 33 N. W. 609.
Kansas. Connelly v. Board, 64 Kan.
168, 67 Pac. 453; Atchison, Topeka &
Santa Fe Ry. Co. y. Humboldt, 87
Kan. 1, 41 L. R. A. (N.S.) 175, 123
Pac. 727.
Kentucky. Newport v. Ringo, 87 Ky.
635, 10 S. W. 2.
Massachusetts. National Bank v.
New Bedford, 155 Mass. 313, 29 N. E.
532.
Minnesota. Wheeler y. Board, etc.,
87 Mmn. 243, 91 N. W. 890.
Missouri. Simmons Hardware Co. y.
St. Louis (Mo.), 192 S. W. 394.
New Hampshire. J3enton v. Good ale,
66 N. H. 424, 30 Atl. 1121.
North Dakota. Malin v. Lamoure
County, 27 N. D. 140, 50 L. R. A. (N.S.)
!M)7, Ann. Cas. 1916C, 207, 145 N. NV.
582.
Rhode Island. Horgan v. Taylor, 36
R. I. 232, 89 Atl. 1058.
Utah. Raleigh v. Salt Lake City, 17
Utah 130, 53 Pac. 974.
Washington. Wyckoff y. King
County, 18 Wash. 256, 51 Pac. 379.
2 California. Dear y. Varnum, 80
Cal. 86, 22 Pac. 76.
Colorado. Board, etc., y. Springs
Co., 15 Colo. App. 274, 62 Pac. 336.
Florida. Johnson v. Atkfns, 44 Fla.
185, 32 So. 879.
Georgia. Jeem v. Ell i jay, 89 Ga. 154,
15 S. E. 33.
Iowa. Odendahl y. Rich, il2 la. 182,
83 N. W. 886.
Kansas. Atchison, Topeka & Santa
Fe Ry. Co. y. Humboldt, 87 Kan. 1, 41
L. R. A. (N.S.) 175, 123 Pac. 727.
Kentucky. Louisville v. Becker, 130
Ky. 17, 28 L. R. A. (N.S.) 1045. 1 ?n
S. W. 311.
2659
Quasi or Constructive Contract § 1545
legal tax, is a valid agreement ; and it may be enforced in an action
by the taxpayer to recover such tax if it is in fact illegal.' In the
absence of specific statutory provision prescribing the form and
contents of a protest, it is not necessary that the protest should
specify the ground upon which the party who pays such tax con-
tends that it is illegal/ especially if such grounds are known to
the taxing officials.'
"While there is practical unanimity of opinion upon these general
propositions, there is a decided lack of harmony in the adjudica-
tions upon the question of what degree of compulsion amounts to
a coercion so that the tax may be recovered if it proves to be
illegal. This lack of harmony is in part due to a difference in the
powers granted by the various states to their taxing officers in
making summary collection of taxes. After eliminating these
reasons for divergence, however, there remains a clear conflict of
authority as to what amounts to coercion of payment of taxes.
Payment of taxes has been held to be made under duress where
arrest was threatened;* or criminal proceedings;^ or where the
omission to pay an excise tax was made a crime;' or where prop-
erty is withheld,' or seizure,^® or sale thereof is threatened," such
Harylancl. Monticello, etc., Co. v.
Baltimore, 00 Md. 416, 45 Atl. 210.
Hassachasetts. Foley v. Haverhill,
144 Mass. 332, 11 N. E. 554.
Minnesota. Falvey v. Board, etc.,
76 Minn. 257, 70 N. W. 302.
Missonri. State v. R. R., 165 Mo.
597, 65 S. W. 980.
Montana. iEopkins v. Butte, 16
Mont. 103, 40 Pac. 171.
Nebraska. Foster v. Pierce County,
15 Neb. 48, 17 N. W. 261; Bates v.
York County, 15 Neb. 284, 18 N. W.
81 ; Baker v. Fairbury, 33 Neb. 674, 50
N. W. 050.
Ohio. State v. CommissionerB, 56 O.
S. 718 [sub nomine. State v. Bader, 47
K E. 564].
Vennont. Sowles v. Soule, 59 Vt.
131, 7 Atl. 715.
Wisconsin. Babcock v. Fond du Lac,
58 Wis. 230, 16 N. W. 625.
'State National Bank v. Memphis,
116 Tenn. 441, 7 L. R. A. (N.S.) 663,
8 Ann. Cas. 22, 94 S. W. 606.
4Wliitford V. Clarke, 33 R. I. 331, 36
L. R. A. (N.S.) 476, Ann. Cas. 1913D,
564, 80 Atl. 257.
SWhitford v. Qarke, 33 R. I. 331.
36 L. R. A. (N.S.) 476, Ann. Cas. 1913D,
•564, 80 Atl. 257.
• Swift Co. V. United States, 111 U.
S. 22, 28 L. ed. 341; Douglas v. Kansas
City, 147. Mo. 428, 48 S. W. 851.
THoefling v. San Antonio, 85 Tex.
228, 16 L. R. A. 603, 20 S. W. 85.
tRatterman v. Express Co., 40 0. S.
608, 32 N. £. 754. So an internal
revenue tax paid under protest may
be recovered. Spreckels Sugar Refin-
ing Co. V. McClain, 192 U. S. 397, 48
L. ed. 496.
9 Erhardt v. Winter, 92 Fed. 018, 35
C. C. A. 84.
lOHennel v. Board, etc., 132 Ind. 32,
31 N. E. 462; Minor Lumber Co. v.
Alpena, 97 Mich. 499, 56 N. W. 926;
St. Anthony, etc, Co. v. Bottineau, 9
N. D. 346, 50 L. R. A. 262, 83 N. W.
212.
11 Sale of realty. Whitney v. Port
Huron, 88 Mich. 268. 26 Am. St. Ren.
§1545
Page on Contracts
2660
as will cast a. cloud upon the owner's title,^^ or terminate the
owner's rights;^* as where the collector threatens to sell lands on
a tax warrant, or the holder of a tax title threatens to claim a tax
deed unless the land is redeemedJ^ If a tax sale casts a cloud on
the title, money paid to redeem property from such sale is not paid
voluntarily and may be recovered^' Thus, while as a general rule,
a mortgagor or one claiming under him who buys at a tax sale,
can not assert any claim by reason thereof as against a mortgagee,
yet if the purchaser at a tax sale is the equitable owner holding
under an assignee of a second mortgagee and his interest does not
appear of record, money paid to redeem from such sale may be
recovered^* So if a levy on property," or seizure of property is
threatened,^* or by statute the tax is made a lien upon specific
personalty, such as bank stock,^* payment is held to be made under
compulsion. So where land can not be conveyed until the tax is
paid,* or redemption from a tax sale isf necessary,*^ recovery has
been allowed. Where the tax collecting officers have power to
291, 50 N. W. 316; Thompson v. De-
troit, 114 Mich. 502, 72 N. W. 320;
Bowns V. May, 120 N. Y. 357, 24 N. E.
947; Stephan v. Daniels, 27 O. S. 527;
Whittaker v. Deadwood, 12 S. D. 60S,
82 N. W. 202. Personalty. Hennel
V. Board, 132 Ind. 32, 31 X. E. 462;
Lyon V. Receiver, etc., 52 Mich. 271, 17 *
N. W. 839; Kelley v. Rhoads, 7 Wyom.
237, 75 Am. St. Rep. 904, 39 L. R. A.
594, 51 Pac. 593.
12 Montgomery v. Cowlitz County, 14
Wash. 230, 44 Pac. 259.
13 Gill V. Oakland, 124 Cal. 335, 67
Pac. 150.
14 Bowns V. May, 120 N. Y. 357, 24
N. E. 947.
IB American, etc.. Union v. Hastings,
67 Minn. 303, 69 N. "W. 1078.
*• American, etc., Union v. Hastings,
67 Minn. 303, C9 N. W. 1078.
"Cox V. Wclcher, 68 Mich. 203, 13
Am, St. Rep. 339, 36 N. W. 69; Lind-
say V. Allen, 10 R. I. 721, 30 Atl. 840.
11 Powder River Cattle Co. v. Custer
County, 45 Fed. 323 ; Hennel v. V ander-
burgh Co., 132 Ind. 32, 31 N. E. 462;
Atchison, etc., Ry. Co. y. Atchison
County, 47 Kan. 722, 28 Pac. 999;
Kelley v. Rhoads, 7 Wyom. 237, 75
Am. St. Rep. 904, 39 L. R. A. 594, 51
Pac. 693.
H Aetna Ins. Co. v. New York, 153
N. Y. 331, 47 N. E. 593.
M State V. Nelson, 41 Minn. 25, 4
L. R. A. 300, 42 N. W. 548. A con-
trary view is taken in Weston v. Luce
County, 102 Mich. 528, 61 N. W. 15,
but subsequently in view of the Mich-
igan statute allowing recovery of taxes
illegally exacted if paid under protest,
recovery of such a payment was al-
lowed in Gage v. Saginaw, 128 Mich.
682, 87 N. W. 1027. Hence the treas-
urer can not be compelled by manda-
mus to issue a receipt, illegal taxes
being unpaid, as the owner may pay
them under protest to get his deed
and recover them. State v. Nelson, 41
Minn. 25, 4 L. R. A. 300, 42 N. W.
548.
21Keehn v. McGiUicuddy, 19 Ind.
App. 427, 49 N. E. 609; American Bap-
tist Missionary Union v. Hastings, 67
Minn. 303, 69 N. W. 1078.
2661
Quasi or Constructive Contract § 1545
collect a tax by summary process without giving to the alleged
delinquent a right to be heard in court upon the question of the
illegality of the tax, he should not be obliged in order to protect
his rights to wait until his property has been actually seized before
making payment. When the circumstances are such that unless he
pays, his property is liable to summary process in the ordinary
routine of collection there is, in justice, no reason for further delay
to protect his rights. Accordingly, it has been held that under
such circumstances payment is under compulsion," even if a con-
siderable time must elapse before the collectors are bound to collect
summarily," and even if the warrant has not yet issued.** In some
jurisdictions the courts are far less liberal in allowing recovery of
payment of taxes. Payment of customs without objection or pro-
test is held to be voluntary." Payment of illegal taxes under
protest, before the collector has made any demand thereSEor," or
before any process has issued for its collection,*^ or before any
legal steps have been taken to compel payment," or before the
collector has any power to collect taxes by legal proceedings or
summary process," is voluntary. Publication of a delinquent tax-
list, under the method of collecting taxes in force in some states
does not constitute compulsion." Where such publication is one
22 Connecticiit. Jackson v. Union, 82
Conn. 266, 73 Atl. 773.
Maine. Howard v. Augusta, 74 Me.
79.
Maasadmaetts. McGee v. Salem, 149
Mass. 238, 21 N. E. 386.
Michigaii. Thompson v. Detroit, 114
Mich. 602, 72 N. W. 320.
Hew York. Vaughn v. Port Chester,
135 N. Y. 460, 32 N. E. 137.
PennsylTaiiia. Grim v. School Dis-
trict, 57 Pa. St. 433, 98 Am. Dec. 237.
Tennessee. State National Bank v.
Memphis, 116 Tenn. 641, 7 L. H. A.
(N.S.) 663, 8 Ann. Cas. 22, 94 S. W.
606.
Rhode Island. Albro v. Kettelle, —
R. I. — , 107 Atl. 198.
Vermont. Allen v. Burlington, 45
Vt. 202.
Wisconsin. A. H. Stange Co. t. Mer-
rill, 134 Wis. 614, 115 N. W. 115.
23Rumford Chemical Works v. Ray,
19 R. I. 456, 34 Atl. 814.
24 Board, etc., v. R. R., 4 Kan. App.
772, 4^ Pac. 1013.
21 Flint, etc., Co. v. Bidwell, 123 Fed.
200.
2«Conkling v. Springfield, 132 III.
420, 24 N. E. 67.
2T Decker v. Perry (Cal.), 35 Pac.
1017; Wilson v. Pelton, 40 O. S. 306;
Houston V. Feeser, 76 Tex. 365, 13 S.
W. 206.
2IConkling. v. Springfield, 132 111.
420, 24 N. E. 67; Gould v. Board, etc.,
76 Minn. 279, 79 N. W. 303, 530; Dun-
nell Mfg. Co. v. Newell, 15 R. I. 233,
2 Atl. 766.
. 29 Peninsular Iron Co. v. Crystal
Falls, 60 Mich. 79, 26 N. W. 840.
80 Dear v. Varnum, 80 Cal. 86, 23
Pac. 76.
§1545
Page on OoNraAors
2662
of the steps leading up to a sale, this rule could not apply except
where the sale itself would be held not to amount to compulsion.
A taxpayer who pays a tax before it is due in order to secure
a rebate which is offered in case of payment before maturity, makes
such payment voluntarily and can not recover it.'^ Payment to
avoid a money penalty for non-payment is held to be voluntary,"
though in some jurisdictions such payment is held to be under
compulsion." The reductio ad absurdum of the former, view is
found in those decisions which hold that payment made to prevent
the sale of realty for a void. tax is voluntary and xsan not be re-
covered." This holding is based on the theory that the owner's
method of testing the validity of the tax is to allow the sale to
proceed and then to attack it whenever the attempt is made to
deprive him of his realty under it. A jurisprudence which can devise
no fairer means of attacking the validity of a tax than this means
which has grown up in a country where not all taxes are valid by
divine right, is indeed inadequate.
One who pays for revenue stamps without notifying the coUeetor
of their intended use and without making protest can not recover such
payment." It is always possible for the government to do justice and
to order voluntarily the payment of taxes illegally exacted." Stat-
utes authorizing repayment of illegal taxes are for the benefit of the
parties making such payments, and hence even if permissive in
their terms are construed as mandatory." Moved by the injustice
of the rules in force in many jurisdictions, some legislatures have
« Atchison, Topeka & Santa Fe Ry.
Co. V. Atchison, 47 Kan. 71*2, 28 Pac.
1000; Atchison, Topeka & Santa Fe
Ry. Co. V. Atchison County, 47 Kan.
722, 28 Pac. 999; Atchison, Topeka &
Santa Fe Ry. Co. v. Humboldt, 87 Kan.
1, 41 L. R. A. (N.S.) 175, 123 Pac.
727; Louisville v. Becker, 139 Ky. 17,
28 L. R. A. (N.S.) 1045, 129 S. W.
311.
Contra, Stowe v. Stowe, 70 Vt. 609,
41 Atl. 1024.
32 Arkansas. Brunson v. Board of
Directors, 107 Ark. 24, 44 L. R. A.
(N.S.) 293, Ann. Cas. 1015A, 493, 153
S. W. 828.
California. Decker v. Perry (Cal.),
33 Pac. 1017.
Michigan. Peninsular Iron Co. v.
Crystal Falls, 60 Mich. 79, 26 N. W.
840.
Nevada. Bowman v. Boyd, 21 Nev.
281, 30 Pac. 823.
33 State V. Franklin Bank, 10 Ohio
91 (obiter, as tax which was exacted
was held to be legal). Allen v. Bur-
lington, 45 Vt. 202.
34phelan v. San Francisco, 120 Cal.
1, 52 Pac. 38; Otis y. People, 106 III.
542, 63 N. E. 1053.
39 Chesebrough v. United States, 192
U. S. 253, 48 L. ed. 432.
39Lange v. Soffell, 33 111. App. 624;
Farmers', etc.. Bank v. Vandalia, 57 111.
App. 681.
37 De Pauw Plate-Qlass Co. y. Alex-
andria, 152 Ind. 443, 52 N. E. 606.
/
2663
Quasi or Constructive Contract § 1545
made more or less liberal provision for the recovery of payments
of illegal taxes.^ The effect of such statutes often is to eliminate
the question of duress entirely, and to allow recovery of pay-
ments of illegal taxes even if made voluntarily.* Thus a statute
may provide for recovery of illegal taxes paid voluntarily, if a
proper ground of objection to such tax is contained in the protest
made at the time of such payment.*" The provisions of such statute
must be complied with to enable recovery thereunder. If the
statute requires a specific protest, voluntary payment under a
general protest can not be recovered,*^ Under such a statute an
indorsement **paid under protest" on the tax roll and the tax
receipt is insufficient.** A protest which alleges wilful over-valua-
tion, favoritism, and the omission of property from the roll by the
supervisor, charges fraud with sufiicient certainty.** A protest
against the entire tax on bonds on the ground that they are bonds
of foreign corporations, -that they are in another state, and that
they are held by a non-resident trustee, is suflScient as to the inter-
est of such trustee, on the theory that "the greater includes the
less," although he owns but an undivided half interest in such
bonds.**
Even in the absence of a statutory provision, the grounds of pro-
test must be stated.** If a written protest is required by statute an
oral protest is insufiicient.** A payment extorted by compulsion
may, however, be recovered without complying with these statutes.*^
» White V. Smith, 117 Ala. 232, 23
So. 525; Topeka, etc., Co. v. Board,
etc., 63 Kan. 351, f^ Pac. 660; Western
Ranches v. Custer County, 28 Mont.
278, »72 Pac. 659; Day v. Pelican, 94
Wis. 503, 69 N. W. 368.
3S Pacific Coast Co. v. Wells/ 134 CaL
471, 66 Pac 657; Matter of Adams v.
Board, etc., 154 N. Y. 619, 49 N. E.
144; Centennial, etc., Co. y. Juab
County, 22 Utah 395, 62 Pac. 1024.
<• Connelly v. San Francisco, 164 Cal.
101, 127 Pac. 834; Idaho Irrigation Co.
V. Lincoln County, 28 Ida. 98, 152 Pac.
1058; Williams v. Acton, 219 Mass.
i520, 107 N. E. 362; White v. Millbrook
Township, 60 Mich. 532, 27 N. W. 674.
41 Peninsular Iron Co. v. Crystal
Falls, 60 Mich. 79, 26 N. W. 840;
Traverse Beach Association v. Elm wood
. Township, 142 Mich. 78, 105 N. W. 30;
Davis V. Otoe County, 55 Neb. 677, 76
N. W. 465; Bankers' Life Association
V. Douglas County, 61 Neb. 202, 85 N.
W. 64.
42 Traverse Beach Association v. Elm-
wood Township, 142 Mich. 78, 105 N.
W. 30.
4SLingle v. Elmwood Township, 142
Mich. 194, 105 N. W. 604.
44Mackay v. San Francisco, 128 Cal.
078, 61 Pac. 382.
4»Albro V. Kettelle, ~ R. I. — , 107
Atl. 108 [overruling on this point,
Rumford Qiemical Works v. Ray, 19
R. I. 466, 34 Atl. 814, and Wliitford v.
Clarke, 33 R. I. 330, 36 L. R. A. (N.S.)
476, Ann. Cas. 1913D, 564, 80 Atl. 257].
4tKehe v. Blackhawk County, 125
la. 649, 101 N. W. 281.
47Pere Marquette R. R. v. Luding-
ton, 133 Mich. 397, 95 N. W. 417.
§1545
Page on Contracts
2664
The general rules as to recovering taxes paid under duress are
always subject to this qualification. If the legislature has provided
means for testing the legality of a tax, without risking loss of
property, imprisonment, and the like, such method must be re-
sorted to. Payment made without seeking such remedy will be
deemed voluntary.** Thus where an application for abatement may
be made, payment under protest without making such application
can not be recovered.** If an injunction to restrain the collection
of an illegal tax is granted, and subsequently the treasurer
threatens a sale of property for such tax, the remedy of the prop-
erty owners is by proceedings in contempt of court. Subsequent
payment of such tax under such threat is voluntary and can not
be recovered.* However, recovery has been allowed* where in addi-
tion the treasurer makes the false statement that such tax has
been held by the supreme court to be lawful.*^
Payment of invalid local assessments, made under duress, may
be recovered.*^ If such payment is made voluntarily it can not be
recovered.** As in the case of taxes, the conflict of authority
appears when we attempt fo pass from such general statements to
a discussion of what constitutes payment under duress. The differ-
ence between payment of assessments and payment of taxes is that
while the tax is usually a personal debt enforceable out of property
4«De Graflf v. Ramsey County, 46
Minn. 319, 48 N. W. 1135; Bradley v.
Laconia, 66 N. H. 269, 20 Atl. 331;
Pooley V. Buffalo, 122 N. Y. 692, 26 N.
E. 16, 624; Jamaica, etc., Boad Co. v.
Brooklyn, 123 N. Y. 375, 25 N. E. 476.
49 All Saints Parish v. Brookline, 178
Mass. 404, 52 L. R. A. 778, 59 N. E.
1003.
M Trustees v. Thoman, 51 O. S. 285,
37 K E. 523.
SfOreenbaum v. King, 4 Kan. 332,
96 Am. Dec. 172.
B2 Arkansas. Magnolia v. Sharman,
46 Ark. 358.
California. Gill v. Oakland, 124 Cal.
335, 57 Pac. 150.
Michigan. Newberry v. Detroit, 184
Mich. 188, 150 N. W. 838.
Minnesota. McConville v. St. Paul,
T5 Minn. 383, 74 Am. St. Rep. 508, 43
L. R. A. 584, 77 N. W. .993.
New York. Poth v. New York, 151
N. Y. 16, 45 N. E. 372.*
N Colorado. Richardson y. Denver,
17 Colo. 398, 30 Pac. 333.
Georgia. Hoke v. Atlanta, 107 6a.
416, 33 S. E. 412.
Iowa. Newcomb v. Davenport, 86 la.
•291, 53 N. W. 232.
Kentucky. Louisville v. Anderson, 79
Ky. 334, 42 Am. Rep. 220.
Montana. Hopkins v. Butte, 16
Mont. 103, 40 Pac. 171.
New Jersey. Fuller v. Elizabeth, 42
N. J. L. 427.
New York. Redmond v. New York,
125 N. Y. 632, 26 N. E. 727; United
States Trust Co. v. New York, 144 N.
Y. 488, 39 N. E. 383.
Ohio. ^Vhitbeck v. Minch, 48 O. S.
210, 31 N. E. 743.
Tennessee. Bank v. Memphis, 107
Tenn. 66, 64 S. W. 13.
2665
Quasi or CoNSTBrcTivE CowNTRact §1545
generally and sometimes against the person^ an assessment rarely
is a personal debt. Payment of assessments has been held to be
under duress where realty subject to the lien thereof has been**
or is about to be sold" in proceedings to enforce the lien of such
assessments. Thus where proper authorities have begun active
proceedings to collect such assessments,** or have ordered that such
proceedings be begun,*^ payment thereof is not voluntary. On the
other hand, payment to avoid the addition of interest,*, or of a
penalty in money ,•• is not made under duress. Even the sale for a
void assessment, if it is void and casts no cloud on the title,* as
where the purchaser at the sale has the burden of proving the
validity of the sale,*^ has been held not to be compulsion; and a
payment compelled by threat of such a sale is in the law a volun-
tary payment. As in the case of taxes it must be observed that a
method of testing the validity of a tax which requires a sale of
property thereunder is most unfair and inadequate. Payment
under protest is not necessarily under duress.*^
If a means is given by law for testing the validity of the assess-
ment without awaiting the seizure and sale of one's property,* as
by an injunction suit,* or if the levy may be resisted as illegal,*
such means must be resorted to ; and a failure so to do shows that
in law the payment is voluntary. It has been held that money paid
on an assessment, illegal but not void on its face, can not be re-
covered until the assessment has been set aside in a proceeding
brought for that purpose.*
MKeehn v. McGillicuddy, 19 Ind.
App. 427; 49 N. E. 609.
■ Vaughan v. Port Chester, 136 N.
Y. 460, 32 N. E. 137; Poth v. New York,
151 X. Y. 16, 45 N. E. 372.
MPoth V. New York, Ul N. Y. 16,
45 X. E. 372.
>7 Vaughn v. Port Chester, 135 N.
Y. 460, 32 N. E. 137.
MVanderbeck v. Rochester, 122 N. Y.
285, 25 N. E. 408.
M Decker v. Perry (Cal.), 35 Pac.
1017.
lOPhelan v. San Francisco,. 120 Cal.
1, 52 Pac. 38.
•1 Da vies v. Galveston, 10 Tex. Civ.
App. 13, 41 S. W. 145.
Q First National Bank v. Americus,
68 Ga. 110, 45 Am. Rep. 476; Hawk-
eye, etc., Co. V. Marion, 110 Ta. 468,
81 N. W. 718; Whitbeck v. Minch, 48
0. S. 210, 31 N, E. 743; Peebles v.
Pittsburgh, 101 Pa. St. 304, 47 Am.
Rep. 714.
B3Hokc V. Atlanta, 107 Ga. 416, 33
S. E. 412.
MWhitbrck v. Minch, 48 O. S. 210,
31 N. E. 743.
• Union Pacific Ry v. (Commission-
ers of) Dodge County, 98 U. S. 541, 25
L. ed. 196; Hoke v. Atlanta, 107 Ga.
410, 33 S. E. 412.
W Elizabeth v. Hill, 30 N. J. L. o-r,.!;
Fuller v. Elizabeth, 42 X. J. L. 427;
State v. Elizabeth, 51 X. J. L. 485,
18 Atl. 302; Trimmer v. Rochester, 130
X. Y. 401, 29 X. E. 740.
§1545
Page on Contracts
2666
Payment of an nnauthorized license fee made under duress may
be recovered.*^ A voluntary payment of an illegal license fee can
not be recovered." Here again under harmony in general proposi-
tions we find marked divergence of authority in applying these
general propositions to specific cases. Where arrest is threatened
for conducting a business and the like without paying such license
fee,** or according to some authorities, where the statute or ordi-
nance imposing such license makes non-payment a crime, though no
immediate arrest is threatened," or where non-payment will result
in exclusion from the right to do business in the state and no mode
,of redress or opportunity for a hearing is given,'^ such payment is
Contra, that it is not necessary that
such assessment be first set aside if
valid on its face, but levied by as-
sessors who had no jurisdiction to
make «uch levy. . Bruecher v. Port
Chester, 101 N. Y. 240, 4 N. E. 272.
87 Colorado. Walsh v. Denver, 11
Colt). App. 523, 53 Pac. 458.
Kentucky. Bruner v. Clay City, 100
Ky. 507, 38 S. W. 1062; Harrodsburg
V. Renfro (Ky.), 51 L. R. A. 897, 58 S.
W. 795.
Missouri. Simmons Hardware Co. v.
St. Louis (Mo.), 192 S. W. 394; Amer-
ican Manufacturing Col v. St. Louis,
270 Mo. 40, 192 S. W. 402.
Ohio. Catoir v. Watterson, 38 O. S.
319.
South Caroliaa. Wood-Mendenhall
Co. V. Greer, 88 S. Car. 249, 70 S. E.
724.
Texas. Marshall v. Snediker, 25 Tex.
460, 78 Am. Dec. 534.
Wisconsin. Newmann v. La Crosse,
94 Wis. 103, 68 N. W. 654.
tt Alabama. Singer Sewing Machine
Co. V. Teasley (Ala.), 73 So. 969.
Arkansas. Helena v. Dwyer, 65 Ark.
155, 45 S. W. 349.
CaUfornia. Maxwell v. San Luis
Obispo, 71 Cal. 486, 12 Pac. 484.
Delaware. Wilmington v. Wicks, 2
Marv. (Del.) 297, 43 Atl. 173.
Georgia. Tatum v. Trenton, 85 6a.
468, 11 S. E. 705.
Indiana. (Town of) Ligonier ▼. Acker-
man, 46 Ind. 552, 15 Am. Rep. 323.
Kentucky. Maysville v. Melton, 102
Ky. 72, 42 S. W. 7o4; Providence v.
Shackelford. 106 Ky. 378, 50 S. W. 542.
Louisiana. Fusel ier v. St. Landry
Parish, 107 T^. 221, 31 So. 678; Sims
V. Mer Rouge, 141 La. 91, 74 So. 706.
Michigan. Eslow v. Albion, 153
Mich. 720, 22 L. R. A. (N.S.) 872, 117
K. W. 328.
Nebraska. Baker v. Fairbury, 33
Neb. 674, 50 N. W. 950.
New Jersey. Shoemaker v. Board of
Health, 83 N. J. L. 425, 85 AtL 312.
New York. People v. Wilmerding,
136 N. Y. 363, 32 N. E. 1099.
Tennessee. Shelton v. Silverfield,
104 Tenn. 07, 56 S. W. 1023.
Wisconsin. Van Buren v. Downing,
41 Wis. 122; Noyes v. State, 46 Wis.
250, 32 Am. Rep. 710, 1 N. W. 1.
n Douglas V. Kansas City, 147 Mo.
428, 48 S. W. 851; American Manu-
facturing Co. V. St. Louis, 270 Mo. 40,
192 S. W. 402; Toledo v. Buechle, 21
Ohio C. C. 429; Newmann v. La Crosse,
94 Wis. 103, 68 N. W. 654.
TO Chicago v. Sperbeck, 69 111. App.
562.
Contra, Helena v. Dwyer, 65 Ark. 155,
45 S. W. 349; Betts v. Reading, 93
Mich. 77, 52 N. W. 940.
71 Scottish, etc., Ins. Co. v. Herriott,
109 la. 606, 77 Am. St. Rep. 548, 80
N. W. 665.
2667
Quasi or Constructive Contract § 1546
held to be made under duress. So the expense of abating a
nuisance on demand of health authorities may be recovered by a
property owner where the duty of abating such nuisance really
rests on the sanitary authorities and a refusal to comply with the
demand would render the property owner prima facie liable to a
penalty.'* In some of the cases denying the right to recover, the
voluntary character of the payment is quite clear. Thus payment
of a license voluntarily made to a board which has no legal author-
ity to issue such licenses can not be recovered.'' So a voluntary
pa3rment of a license fee by one who subsequently abandons the
business because he is unable or unwilling to file a bond as required
by law, can not be re^jovered.'* In other cases a right to recover
is denied under circumstances which seem to show what to the
ordinary mind looks very like compulsion. Thus payment made on
receipt of a circular threatening to enforce the law,'' or under
threat of criminal prosecution,'* or under threat of arrest on the
following day if such payment was not made," has been held not
to be made under duress.
§1546. Protest. The question of the necessity of a protest
when a payment is made by compulsion and the effect of a protest
are occasionally presented for adjudication. In spite of obiter
which tend to emphasize the necessity aitd effect of protest unduly,
the presence or absence of protest has of itself but little effect. If
a pa3rment is made without compulsion, the fact that it is made
under protest does not justify the recovery thereof.^ On the other
hand, if a payment is made under compulsion the general rule is
that protest is not necessary and that failure to make protest does
Contra, Jackson v. Newman, 59 Miss.
385, 4*2 Am. Rep. 367; Douglas v. Kan-
sas City, 147 Mo. 428, 48 S. W. 851;
Western Union Telegraph Co. v. Mayer,
28 O. S. 521; Austin v. Viroqua, 67
Wis. 314, 30 N. W. 515.
72 Andrew v. St. Olave's, etc. [1898],
1 Q. B. 775.
TSTatum v. Trenton, 85 Ga. 468, 11
S. E. 705.
W Curry v. Tawas Township, 81 Mich.
355, 45 N. W. 831.
n Yates y. Ins. Co., 200 111. 202, 65
K. E. 726.
TSBetts V. Reading, 93 Mich. 77, 52
N. W. 940.
TT Eslow V. Albion, 153 Mich. 720, 22
L. R. A. (N.S.) 872, 117 N. W. 328.
1 United States. Union Pacific Ry.
V. Dodge County Commissioners, 98 U.
S. 541, 25 L. ed. 196.
Massachnsetts. Rosen f eld v. Boston
Mutual Life Ins. Co., 222 Mass. 284,
110 N. E. 304.
Michigan. Warren v. Federal Life
Insurance Co., 198 Mich. 342, 164 N.
W. 449.
New Jersey. Koewing v. West
Orange, 89 N. J. L. 539, 99 AtL 203.
t
S 1547 Page on Contracts 2668
not prevent the recovery of such payment.* In some jurisdictions
protest is made necessary by specific statutory provisions, as in the
case of payment of taxes.' If payment is made to one who does
*
not take in his own right and who does not know of the facts
which amount to compulsion or which prevent the money paid
from being justly due from the person by whom it is paid, protest
may be necessary to justify recovery against such person if he has
altered his position and can not be placed in statu quo.* An illus-
tration is found in payments made to public officers, such as taxing
officers, against whom an action can not be brought unless protest
is made or unless it is shown that they know that by means of
compulsion payment of a claim which is not justly due has been
extorted.'
§ 1547. Necessity of demand. If B receives money rightfully
from A under a contract by which B agrees to repay such money
to A on demand, it is generally said that A can not maintain an
action against B unless he has made such demand,^ or unless B has
in effect denied his obligation to repay such fund to A as by fraud-
ulent representation as to the amount of the balance due from him
to A.* In other cases it is said to be the general rule that where-
ever money is due, an action will lie without previous demand.'
This should be the rule in all cases in which the defendant has
money or property in his possession which the plaintiff has a right
to recover. The bringing of an action is in itself a notice that the
plaintiff expects the defendant to pay money or to deliver prop-
erty; and if the court dismisses such action because no demand
was made before the action was brought, the plaintiff can then
bring another action immediately, treating the first action as a
demand and he can thus recover upon the same evidence as to the
North Dakota. Diocese of Fargo v. 3 See § 1545.
Caes County, 28 N. D. 209, 148 N. W. « See S 1484.
541. SSee §1545.
Ohio. Marietta v. Slocomb, 6 O. S. 1 Ferris v. Paris, 10 Johns. (N. Y.)
471. 285; Abbott v. Draper, 4 Denio. (N.
Vermont. Meacham v. Newport, 70 Y.) 51.
Vt. 67, 39 Atl. 631. 2 Clark v. Moody, 17 Mass. 145.
2 Southern Pacific Co. v. California 3 White v. Franklin Bank, 39 Mass.
Adjustment Co., 237 Fed. 9f)4, 150 C. (22 Pick.) 181.
C. A. 604; McKee v. Campbell, 27 Mich. See also, Bither v. Packardi 115 Me.
497; De Graff v. Ramsey County, 46 306, 98 Atl. 929.
Minn. 319, 48 N. W. 1135.
2669
Quasi or Constructive Contract § 1547
merits of the case as that in which the original action was dis-
missed. This is a slow and cumbersome way of administering
justice. If the defendant has not had a fair opportunity to know
that the money or property in his possession belongs to the plain-
tiff and to pay it over to him the facts should be determined
whether the plaintiff should pay the costs of the action or whether,
if he brings the action without due demand, he should be obliged
to pay all costs in case the defendant does not contest the action
upon the merits; while if the defendant does contest the action
upon the merits, a demand would apparently have been ineffective.
Instead, however, of treating circumstances of this sort as affect-
ing liability for costs, many of the courts have treated the absence
of demand in some cases as a ground for dismissing the action.
For this reason it is necessary to consider the classes of cases in
greater detail.
If a pa3rment is induced by the wrongful act of the party to
whom the money is paid, a demand is not necessary.* If payment
is induced by duress or compulsion,' or by the fraud of the person
to whom such payment is made,* or by the innocent misrepresenta-
tion of the party to whom such payment is made,^ demand is not
necessary. If one who has been injured by the tort of another
elects to waive his right of action in tort, and to sue on the theory
of constructive contract, demand should not be necessary, since the
defendant is a wrongdoer.* It is said, however, that if the owner
4 Martin v. Home Bank, 160 N. Y.
190, 54 N. E. 717.
IBither v. Packard, 115 Me. 306, 98
Ail. 929; Hinsdill v. V^hite, 34 Vt. 568;
Babcock v. Granville, 44 Vt. 325.
• White V. Franklin Bank, 39 Mass.
(22 Pick.) 181 ; Malone y. Harris, 6 Mo.
451.
"The doctrine is clearly recognized
that where the receiver is guilty of
fraud or other wrong in taking the
money, he is not entitled to notice.
The necessity of a demand does not,
therefore, exist in a case where the
party receiving the money, instead of
acting innocently and under an honest
mistake, knows the whole truth, and
consciously receives what does not be-
long to him, taking advantage of the
mistake or oversight of the other party,
and claiming to hold the money thus
obtained as his own. In such case he
can not assume the attitude of bailee
or trustee, for he holds the money as
his own, and his duty to return it
arises at the instant of the wrongful
receipt of the overpayment. He is
already in the wrong, and it needs no
request to put him in that position.
The Utica Bank v. Van Gieson, 18 Johns.
485; Andrews v. Artisans' Bank, 26
N. Y. 299; Dill v. V^areham, 7 Met.
447 ; Southwick v. First National Bank,
84 N. Y. 430." Sharkey v. Mansfield,
20 N. Y. 227, 43 Am. Rep. 181.
7 Leather Manufacturers' Bank v.
Merchants' Bank, 128 U. S. 26, 32 L.
ed. 342.
• Spencer v. Morgan, 5 Ind. 146; Fer-
guson V. Dunn, 28 Ind. 58; 'Fuller v.
Tuska, 13 N. Y. Supp. 580.
§1547
Page on Contracts
2670
of property which has been -converted wrongfully and sold, elects
to sue for money had and received, demand is necessary.' If
money is paid by a mistake and both parties are acting in good
faith, it is said in a number of cases that demand is necessary J*
In some of the jurisdictions in which this view has been expressed
in broad terms, it has been qualified very materially. If the per-
son to whom the payment was made accepted it in good faith but
discovered the mistake before the action was brought, it is said
that it is his duty to repay such money at once, and that accord-
ingly demand is not necessary.^^ In some of these jurisdictions the
question of the necessity of demand seems now to depend upon the
relative fault in inducing such mistake as between the party who
made the pa3rment and the party who received the payment when
such payment was made. If the mistake is induced primarily by
the fault of the person to whom the payment is made, it is said
that demand is not necessary." If payment is made by mistake of
the party who makes it, and the adversary party has full knowl-
edge of the facts, demand is not necessary." If A purchases from
B land which A already owns, a demand is hot necessary as a con-
dition precedent to A's action to recover from B the money paid
for such land." In some jurisdictions it seems to be held that
demand is not necessary as a condition precedent to an action to
t Babb v. Babb, 89 Ind. 281.
10 Freeman v. Jeffries, L. R. 4 Ezch.
1S9; South wick v. First National
Bank, 84 N. Y. 420; Gillett v. Brewster,
62 Vt. 312, 20 Atl. 105; Lawton v.
Howe, 14 Wis. 241.
''If the mistake was induced by the
fraud of the party receiving the same,
and he had knowledge of the overpay-
ment at the time, or if he had sub-
sequently discovered the mistake, the
duty was then cast upon him to rectify
the mistake and repay the money.
Thereafter he knowingly has the money
of the other party to the transaction
in his hands, which he holds against
equity and good conscience, and there
is no apparent reason for any demand
for the repayment of the money be-
fore suit. But where the overpayment
arises from the mistake or negligence
of the party making it, and without
the fault or knowledge of the party
receiving it, it is reasonable that the
party so receiving the overpayment
should not be subject to a suit until
he has been notified of the overpay •
ment and called upon, and had a rea-
sonable opportunity to rectify the
mistake." Bishop v. Brown, 51 Vt. 330
[quoted in Gillett v. Brewster, 62 Vt.
312, 20 Atl. 105].
»
It Bishop V. Brown, 51 Vt. 330.
MVamum v. Highgate, 66 Vt 416,
26 Atl. 628; Holt v. Ruleau (Vt.), lOB
Atl. 934.
"When the payor is not in fault and
the payee receives the money in his
own wrong, no demand is necessary."
Varnum v. Highgate, 66 Vt. 416, 26
Atl. 628.
13 Sharkey v. Mansfield, 90 N. Y. 227,
43 Am. Rep. 161.
HHoIt V. Ruleau (Vt), 102 Atl. 934.
2671
Quasi or Constructive Contract ■ § 1548
recover pa3rinent made by mistake without regard to the relative
fault of the party who made the payment and the party who
received itJ* If the party who made such payment by mistake has
received something under such transaction which is or may be of
value to the adversary party, he should tender what he has received
under such transaction before bringing action to recover the pay-
ment thus made.^*
E. PAYMENT OBTAINED BY FRAUD
§1548. Payment obtained by fraud — Cteneral principles. As
has already been stated,* one who has been induced to enter into a
contract by the fraud of the adversary party has an election of
remedies, one of which is to avoid the contract and recover what
he has parted with or a reasonable compensation therefor. Where
fraud exists, tve have few of the complications that limit recovery
of payments made by mistake. The chief question that makes this
branch of the subject diflficult is the extent of the right to waive
tort and sue in contract. If money has been paid under such con-
tract, the right of the party defrauded to waive the tort and
recover such payment on the theory of an implied contract, in gen-
eral assumpsit, is very generally recognized.^ It is not necessary
that the fraud should be the sole cause of 'the payment.' It is
sufficient if the payment would not have been made if it were not
11 Riitherford v. Mclvor, 21 Ala. 750;
Sturgis V. Preston, 134 Mass. 372.
It Northampton National Bank v.
Smith, 169 Mass. 281, 47 N. E. 1009.
1 See f 339.
2 England. Johnson v. Rex [1904],
A. C. 817; Kettlewell v. Refuge Assur-
ance Co. [1908], 1 K. B. 545, 3 B. R.
C. 844, 77 L. J. K. B. N. S. 421, 97 L.
T. N. S. 896, 24 Times L. R. 217, 52
Sol. Jo. 158.
Alabama. Tuscaloosa County v.
Foster, 132 Ala. 392, 31 So. 587.
Iowa. McCord v. Mitchell (la.), 165
N. W. 453.
Maine. Bither v. Packard, 115 Me.
306, 98 Atl. 929.
Missouri. Needles v. Burk. 81 Mo.
569, 51 Am. Rep. 251.
Nebraska. Martin y. Hutton, 90 Neb.
34, 36 L. R. A. (N.S.) 602, 132 N. W.
727.
New Jersey. Hanrahan v. Provident
Association, 67 N. J. L. 526, 61 Atl. 480
[affirming, 66 N. J. L. 80, 48 Atl. 517].
New York. Supervisors of New York
V. Tweed, 13 Abb. Pr. (N.S.) 152.
Texas. Weis v. Ahrenbeck, 5 Tex.
Civ. App. 542, 24 S. VV, 356.
Vermont. Johnson v. Gate, 77 Vt.
218, 59 Atl. 830.
Washington. Scandinavian Ameri-
can Bank v. Puget Sound Machinery
Depot, 79 Wash. 599, 140 Pac. 901.
West Virginia. Jackson v. Hough, 38
W. Va. 236, 18 S. E. 575; Robinson v.
Welty, 40 W. Va. 385, 22 S. E. 73.
Wisconsin. Burke v. Ry., 83 Wis.
410, 58 N. W. 692.
8 McCord V. Mitchell (la.), 165 N. W.
453.
\
§1548
Page on Contracts
2672
for such fraud.* If payment is obtained by fraudulent representa-
tion of fact as to the existence of liability, such payment may be
recovered, even though no contract existed between the parties.*
If A represents to B that entry has been made upon a certain tract
of land but that A^ could obtain a relinquishment of such filing for
a certain sum of money and B pays such amount to A for such
purpose, B may recover such payment,* even if an inspection of
the government records would have disclosed the falsity of such
statement.
Recovery has been permitted where a payment was induced by
fraudulent representation as to a fact which if true would have
caused such payment to be made, although it would not have
imposed any legal liability upon the party who made such pay-
ment.^ A father who has been induced to pay for a loss by fraudu-
lent representation that his child destroyed certain property, may
recover such payment, although he would not have been liable
legally for such loss if such statement had been true.* Recovery
may be had where payments are induced by constructive fraud.*
Thus where bonds of a corporation are in effect, though under a
disguise in outward form, sold to its directors at a discount, the
amount of such discount may be recovered from such purchasers^*
If goods are sold tinder a contract induced by fraud, we have,
by reason of the divergent theories concerning the right to waive
tort and sue in assumpsit,^^ two views: (1) that the vendor may
waive the tort and sue in assumpsit," and (2) that he can not sue
in assumpsit, but must sue either in replevin or troverJ* A con-
structed for B an apparatus for making gas. Soon afterwards it
was destroyed by fire. On B's fraudulent statement that this was
the fault of the gas apparatus, A agreed to do certain repairing
4McCord V. Mitchell (la.), 165 N. W.
453.
iniiaois. People v. Foster, 133 111.
496, 23 N. E. 613.
Indiana. • Ingalls v. Miller, 121 Ind.
188, 22 N. E. 995.
Kansas. Frick v. Lamed, 50 Kan.
776, 32 Pac. 383.
Minnesota. Holland v. Bishop, 60
Minn. 23, 61 N. W. 681.
South Dakota. Gillespie v. Evans, 10
S. D. 234, 72 N. W. 576.
• Martin v. Hutton, 90 Neb. 34, 36
L. R. A. {N.S.) 602, 132 N. W. 727.
7 Needles v. Burk, 81 Mo. 569, 51 Am.
Rep. 251.
• Needles v. Burk, 81 Mo. 569, 51 Am.
Rep. 251.
• See ch. XVI.
10 Fitzgerald v. Construction Co., 41
Neb. 374, 59 N. W. 838.
11 See §§ 1507 et seq.
12 Where credit is obtained by fraud
the vendor may sue in assumpsit at
once. Crown Cycle Co. v. Brown, 39 Or.
285, 64 Pac. 451.
13 Jones V. Brown, 167 Pa. St. 395,
31 Atl. 647.
i.
2673
Quasi or Constructive Contract
1549
without charge. After making such repairs, A learned of B's
fraud and brought suit in assumpsit for^a reasonable compensation.
It was held that he could recover.**
One who has obtained an insurance policy by fraudulent repre-
sentations can not rec(Jver premiums or assessments paid by him
when the insurance company elects to avoid such policy for such
fraud," since the parties can not be placed in statu quo."
The right to recover in assumpsit assumes that on discovering
the fraud the party defrauded elects to disaffirm the express con-
tract. If he elects to affirm, he can not sue in general assumpsit.
Thus a defrauded vendor who affirms the contract, can not there-
after sue the vendee for the amount realized by him on a resale."
The fact that a contract is ingenious and speculative in char-
acter and that one party assumes a risk of never receiving com-
pensation; does not amount to fraud and does not entitle the party
to avoid such transaction and to recover what he has paid."
§1549. Payment obtained by fraud — Specific illustrations.
One who pays money, deceived by fraudulent representations of
the adversary party with reference to the mortgage which the
latter is selling to the former, may recover such pajnnent in
assumpsit.^ So if a vendor is induced by fraudulent representa-
tions to accept securities in payment for his goods, he may credit
the value of such securities on the purchase price of such goods
and sue in assumpsit to recover the difference.^ So money paid by
drawee on a draft accepted ''against indorsed bills of lading''
attached to the draft, may be recovered when these bills of lading
were in fact fictitious.' Money paid by shippers to a carrier of
goods in excess of charges made to other shippers of similar goods
by such carrier, induced' by the statement of such carrier that it
14 Citizens', etc., Co. v. Granger, 118
III. 2G0, 8 N. p. 770.
tt Elliott V. Knights of Modern Mac-
cabees, 46 Wash. 320, 13 L. R. A. (N.S.)
856, 89 Pac. 829.
II Elliott V. Knights of Modern Mac-
cabees, 46 Wash. 320, 13 L.il. A. (N.S.)
856, 89 Pac. 929.
tTBedier v. Fuller, 116 Mich. 126, 74
N. W. 506.
It Jacobs V. Wisconsin National Life
Insurance Co., 162 Wis. 318, 156 N. W.
159.
1 Cornell v. Crane, 113 Mich. 460, 71
N. W. 878; Robinson v. Welty, 40 W.
Va. 385, 22 S. E. 73. So of a purchase
of a bond. Ripley v. Chase, 78 Mich.
126, 18 Am. St. Rep. 4*28, 43 X. W.
1097.
2Blalock V. Phillips, 38 Ga. 216:
Hidey v. Swan, 111 Mich. 161, 69 N.
W. 225;. Wilson v. Force, 6 Johns.
(N. Y.) 110, 5 Am. Dec. 195.
3 Guaranty Trust Co. v. Grotrian, 114
Fed. 433, 57 L. R. A. 689, 52 C. C. A.
235.
§ 1550 Page on Contracts 2674
gave no lower rates, may be recovered.* If the president' of a
public board allows fictitious claims, and shares in the proceeds
thereof, an action for money had and received will lie against him.'
Recovery exists in cases of fraud though the party guilty of fraud
is thus securing from the party who seeks recovery the payment of
a debt due from a third party. Thus A had embezzled money from
a railway company, B. B's agent represented to X that payment
of a certain sum would make good such shortage and enable A to
retain his position. In fact the shortage was much greater, and A
was discharge^. It w^as held that X could recover such payment
from B.' If A, who has sold goods to B through B 's agent, X, and
who has been paid therefor by B, represents to X that he has not
been paid for such goods and thus induces X to pay for them again,
such payment may be recovered in assumpsit upon the common
counts.' Money paid for realty, under a contract voidable for
fraud may be recovered if a reconveyance is tendered.*
If an agent obtains money as commissions from his principal by
fraudulently representing that certain parties to whom he had
sold on' credit were solvent, such payment may be recovered.* So
if A obtains money from B under a contract to use it in making
a joint purchase, which contract A^has no intention of perform-
ing ; ** or if A obtains money from B by falsely claiming to be the
holder of B's note, which he has in fact transferred, and on which
he then declines to pay such money,^^ such payments may be
recovered.
§ 1550. Who may recover, and from whom. A volunteer can
not recover on the theory that payment has been made through
fraud however. The right of recovery is limited to the party
making the payment or his legal representatives. A obtained a
loan of money from B through B's agent, X, by fraud. B was
thereafter dissatisfied, and X, being under no legal liability, repaid
♦ Cook V. Ry., 81 la. 551, 25 Am. St. IMcKinnon v. Vollmar, 75 Wis. 82,
Rep. 512, 9 L. R. A. 764, 46 N. W. 17 Am. St. Rep. 178, 6 L. R. A. 121,
1080. 43 N. W. 800.
B Supervisors of New York v. Tweed, IFrick v.. Lamed, 50 Kan. 776, 32
13 Abb. Pr. (N-S.) 152. Pac. 383.
• Burke v. Ry., 83 Wis. 410, 53 N. 10 Holland v. Bishop, 60 Minn. 23, 61
W. 692. N. W. 681.
7 Johnson v. Gate, 77 Vt. 218, 59 Atl. " Gillespie v. Evans, 10 S. D. 234, 72
830. N. W. 576.
2675
Quasi or Constructive Contract § 1551
him the amount advanced and took A's security. It was held that
X could not recover from A in quasi-contractJ
A payment can not be recovered from one who is not a party to
the fraud and to whom a part of the proceeds of such fraud have
been paid upon a valuable* consideration.* An attorney who has
received part of the proceeds of the life insurance policy as a con-
tingent fee upon recovering such proceeds for his client, can not
be compelled to reimburse such life insurance company if it is
found that the insured was not dead and that the transaction was
a fraud between the insured and the beneficiary to which such
attorney was not a party.'
This right of recovery can not be made a means of collecting
damages in tort. Only the person who receives the payment is
liable. Thus A, agent of X, by fraudulent representations induced
B to enter into a contract with X and to pay money thereunder to
X. B can not recover from A for money had and received.* By
statute in some states assumpsit may be brought against the person
guilty of deceit, even if no money was paid to him or for his benefit
under such transaction.*
F. PAYMENT BY MISREPRESENTATION
§1551. Payment by miflrepreaentatlon. Payment made under
misrepresentation presents fewer difiieulties than payment by mis-
take. In cases of mistake both parties are innocent, though one
may be negligent. In payment by misrepresentation, the party
receiving the payment has by his false statement caused such pay-
ment to be made. Though he is innocent of intentional wrong-
doing, and is not guilty of a tort, such payment may be recovered.^
Thus where A induced B to pay money a second time, by stating
that B had not delivered it the first time ; * qt if a creditor induces
an illiterate debtor to make an overpayment by stating that an
ISteiner v. Clisby, 103 AU. 181, 15
So. 612.
2 Fidelity Mutual Life Ins. Co. v.
Clark, 203 U. S. 64, 51 L. ed. 91.
3 Fidelity Mutual Life Ins. Co. v.
Clark, 203 U. S. 64, 51 L. ed. 91.
4 Minor v. Baldridge, 123 Cal. 187, 55
Pac. 783.
« Hallett V. Gordon, 122 Mich. 573, 82
N. W. 827 [modifying on rehearing,
122 Mich. 567, 81 N. W. 556].
1 Putnam v. Dungan, 89 Cal. 231, 26
Pac. 904; Blue v. Smith, 46 HI. App.
166; Fisher v. During, 53 Mo. App. 548;
Montgomery County v. Fry, 127 N. Car.
258, 37 S. E. 259.
Contra, Harse v. Pearl Life Assur.
Co. [1904], 1 K. B. 558.
SHouser v. McGinnas, 108 X. Car.
631, 13 S. E. 139. B was acting as
express messenger and had charge of
a package of five hundred dollars for A,
which A claimed not to have received.
§1552
Page on Contracts
2676
amount was due on a debt on which part payments had been made
larger than was in fact due ; ' or if A induces B to pay him a thou-
sand dollars by claiming an interest in B*s land, when in fact A
had none ; * or if A obtains money from B for certain realty by an
innocent misrepresentation as to the identity of such realty;' or
if an administrator obtains payment of excessive fees by misrepre-
senting the amount thereof,* such payments may be recovered even
though no fraud is found to exist. On the other hand, it has been
held that if an agent of an insurance company represents in good
faith that an insurance upon the life of a third person could be
effected, one who relies upon such representations and pays pre-
miums upon such policies can not recover such premiums, although
the contract is invalid for want of an insurable interest.^
If fraud exists, the right to recover in some form of action is
still clearer. As fraud is a tort, however, the question sometimes
becomes one of the right to waive a tort and sue in quasi-contract.*
G. PAYMENT UNDER MISTAKE OF. FACT
§ 1552. Payment under mistake of fact. A person who, under
a mistake of material fact, makes a payment which he is not under
legal liability to make, can recover the money thus paid, if the
other elements necessary in an action to recover payments are
present.* In other words, such payments 'are not looked on as
3 Steer v. Oakley, 186 Pa. St. 582, 40
Atl. 815.
• Putnam v. Diingan, 89 Cal. 231, 26
Pac. 904.
• Buckley v. Patterson, 39 Minn. 250,
39 X. W. 490; Thwing v. Lumber Co.,
40 Minn. 184, 41 N. W. 815; McKin-
non V. Vollinar, 75 Wis. 82,* 17 Am. St.
Kep. 17S, G L. B. A. 121, 43 N. W. 800.
• Blue V. Smith, 46 111. App. 166.
THarse v. Pearl Life Assur. Co.
[1904], 1 K. B. 5r>8.
• See §§ 1504 et seq.
1 England. Kelly v. Solari, 9 M. &
W. 54.
United States. Espy v. Bank, 85 U.
S. (IS Wall.) 604, 21 L. ed. 947; United
States V. Barlow, 132 U. S. 271, 33 L.
ed. 346; Adams v. Henderson, 168 U.
S. 573, 42 L. ed. 584.
Alabama. Hardigrce v. Mitchum, 51
Ala.. 151.
California. Corson v. Berson, 86 CaL
433, 25 Pac. 7; Putnam v. Dungan, 89
Cal. 231, 26 Pac. 904; Lutz v. Rothchild
(Cal.), 38 Pac. 360.
Connecticut. Mansfield v. Lynch, 59
Conn. 320, 12 L. R. A. 285, 22 Atl.
313; Hogben v. Ins. Co., 69 Conn. 503,
01 Am. St. Rep. 53, 38 Atl. 214.
Illinois. People v. Foster, 133 111. 496,
23 N. E. 615; Tuller v. Fox, 46 111.
App. 97; Blue v. Smith, 46 111. App.
1G6.
Indiana. Cross v. Herr, 96 Ind. 96;
Stokes V. Goodykoontz, 126 Ind. 535,
26 X. E. 391; Stotsenburg v. Fordice,
142 Ind. 490, 41 X. E. 313, 810; Tarplee
V. Capp, 25 Ind. App. 56, 56 X. E. 270.
Iowa. Cook V. Ry., 81 la. 551, 25
Am. St. Rep. 512, 9 L. R. A. 764, 46
X. \\. 1080; Chickasaw, etc., Ins. Co.
V. Weller, 98 la. 731, 68 X. W. 443;
Fidelity Savings Bank v. Reeder, 142
2677
Quasi or Constructive Contract § 1552
voluntary payments.' The action of assumpsit lies to recover such
payments.'
la. 373, 120 N. W. 1029; Gosswiller ▼.
Jansen, 170 la. 806, 162 N. W. 45.
Kansas. Noble v. Dough ten, 72 Kan.
336, 3 L. R. A. *(N.S.) 1167, 83 Pac.
1048; Lowe y. Wells, 78 Kan. 105, 06
Pac. 74; Kansas City v. The R. J. &
W. M. Boyd' Construction Co., 86 Kan.
213, 120 Pac. 347.
Kentucky. Lyon v. Mason, etc., Co.,
102 Ky. 504, 44 S. W. 135; Rhodes v.
Lambert (Ky.), 58 S. W. 608; Tucker
V. Denton (Ky.), .15 L. R. A. (X.S.)
289, 106 S. W. 280, 32 Ky. L. Rep.
521; Supreme Council Catholic Knights
of America v. Fenwick, 160 Ky. 260,
183 S. W. 006.
Hassachnsetts. Garland v. Bank, 0
Mass. 408, 6 Am. Dec. 86; Gould v.
Emerson, 160 Mass. 438, 30 Am. St.
Rep. 501, 35 N. £. 1065.
mnnesota. Grand Lodge Ancient
Order of United Workmen v. Towne,
136 Minn. 72, L. R. A. 1017E, 344, 161
N. W. 403.
Missonii. Jordan v. Harrison, 46
Mo. App. 172; Connell v. Hudson, 53
Mo. App. 418.
Hew Jersey. Wood v. Sheldon, 42 N.
J. L. 421, 36 Am. Rep. 523.
New Mexico. Elgin v. Gross, 20 N.
M. 450, L. R. A. 1016A, 711, 150 Pac. 022.
New York. Kingston Bank v.
Eltinge, 40 N. Y. 301, 100 Am. Dec.
516; Sharkey v. Mansfield, 00 N. Y.
227, 43 Am. Rep. 161; Martin v. Bank,
160 N. Y. 100, 54 N. E. 717.
North Dakota. James River National
Bank v. Weber, 10 N. D. 702, 124 N. W.
052.
Ohio. Ward v. Ward, 12 Ohio C. D.
50.
Oregon. Scott v. Ford, 45 Or. 531,
68 L. R. A. 460, 78 Pac. 742, 80 Pac.
800.
PennsylYania. Bonz v. Updegrove, 5
Pa. St. 516, 47 Am. Dec. 425; McKibben
V. Doyle, 173 Pa. St. 570, 51 Am. St.
Rep. 785, 34 Atl. 455; Donner v. Sack-
ett, 251 Pa. St. 524, 07 Atl. 80.
Rhode Island. Phetteplace v. Buck-
lin, 18 R. I. 207, 27 AtL 211.
South Carolina. Glenn v. Shannon,
12 S. Car. 570.
South Dakota. Caldwell v. Maxfield,
7 S. D. 361, 64 N. W. 166.
Tennessee. Dickens v. Jones, 12
Tenn. (6 Yerg.) 483, 27 Am. Dec. 488;
Guild V. Baldridge, 32 Tenn. (2 Swan)
205; Neal v. Read, 66 Tenn. (7 Baxt.)
333.
Texas. Alston v. Richardson, 51
Tex. 1; Cleveland School Furniture Co.
V. Hotchkiss, 80 Tex. 117, 33 S. W.
855.
Vermont. Holt v. Ruleau (Vt.), 102
Atl. 034.
West Virginia. Shinn v. Shinn, 78
W. Va. 44, 88 S. E. 610.
Wisconsin. Buffalo v. 0*Malley, 61
Wis. 255, 50 Am. Rep. 137, 20 N. W.
013; Peterson v. Bank, 78 Wis. 113, 47
N. W. 368 ; White v. Brotherhood Loco-
motive Firemen and Enginemen, 167
Wis. 323, L. R. A. 1018D, 1185, 167 N.
W. 457.
''Where money is paid upon the sup-
position that a specific fact, which it
is supposed would entitle the other to
maintain an action, is true, which fact
is not true, an action will lie to re-
cover the money back, 'upon the ground
that the plaintiff has paid money which
he was under no obligation to pay, and
which the party to whom it was paid
had no right either to receive or retain,
and which, had the true state of facts
been present in his mind, at the time,
he would not have paid.* " Ingalls v.
Miller, 121 Ind. 188, 100, 22 N. E. 095
[quoted in Stotsenburg v. Fordice, 142
Ind. 490, 404, 41 N. E. 313, 810].
2 Noble v. Doughten, 72 Kan. 336, 3
L. R. A. (N.S.) 1167, 83 Pac. 1048;
Supreme Council Catholic Knights of
America v. Fenwick. 109 Ky. 260, 183
S. W. 006. See 1 1528.
3 Shinn v. Shinn, 77 W. Va. 44, 88
S. E. 610.
§1553
Page on Contracts
2678
The right of recovering payments made under a mistake of fact
is especially clear where government funds have thus been ex-
pended,* though the right to recover such funds does not rest solely
on the ground of mistake.' If a payment has been made under a
mistake of fact, the right to recover such payment does not depend
upon the promise of the person to whom such payment was made
to repay such amount.*
One who has made a payment by mistake may by subsequent
agreement as to the application of such payment preclude himself
from recovering it.^ This has been explained as a ratification of
such payment.* On the other hand, it has been said that payment
made after the mistake is discovered does not preclude the party
who made it from recovering the overpayment.*
§1553. Elements 'of mistake of fact — ^Unconsoi0ii8 ignoraiiee
or forgetfulnesfl. The elements of mistake of fact for which a pay-
ment may be recovered are substantially the same as the elements
of mistake for which an executory promise may be avoided.^ A
mistake which authorizes the recovery of a payment can not exist
unless there has been an unconscious ignorance or forgetfulness of
an essential fact.* A party who makes a payment knowing that
he has no knowledge upon specific essential features of the trans-
action, can not recover such payment if he discovers subsequently
the existence of facts the knowledge of which would have induced
him not to make such payment.* If an insurance company knows
that the insured has been absent more than seven years and does
not know whether he is alive or dead and pays the face of such
policy rather than defend an action thereon, such payment can not
be recovered when the insurance company finds that the insured is
alive.* It has been held, however, that if the insured disappears
4 United States v. Barlow, 132 U. S.
271, 33 L. ed. 346; Kansas City v. Boyd
Construction Co., 86 Kan. 213, 120 Pac.
347.
I See § 1520.
• Fidelity Savings Bank v. Reeder,
142 la. 373, 120 N. W. 1029.
7 Brookings Lumber & Box Co. v.
Manufacturers' Automatic Sprinkler
Co., 173 Cal. 679, 161 Pac. 266.
t Brookings Lumber & Box Co. v.
Manufacturers' Automatic Sprinkler
Co., 173 Cal, 679, 161 Pac. 266.
• Ficks V. Purcell, 164 Wis. 596, 160
N. W. 1058.
1 See §§ 219, 251 et seq., 384 and 400.
2 New York Life Ins. Co. v. Chitten-
den, 134 la. 613, 120 Am. St. Rep. 444,
11 L. R. A. (N.S.) 233, 13 Ann. Cas.
408, 112 N. W. 96.
3 New York Life Ins. Co. v. Chitten-
den, 134 la. 613, 120 Am. St. Rep. 444,
11 L. R. A. (N.S.) 233, 13 Ann. Cas.
408, 112 N. W. 96.
4 New York Life Ins. Co. v. Chitten-
den, 134 la. 613, 120 Am. St. Rep. 444,
2679
Quasi or Constructive Contract § 1554
and neither the insurance company nor the beneficiaries know
whether he is alive or dead, and the beneficiaries pay assessments
upon the certificate to prevent it from lapsing, they may recover
the assessments which ultimately prove to have been made after
the death of the insured.'
■
§ 1554. MiBtJike as to essential element In order to authorize
the recovery of a payment it must be shown that the mistake under
which it was made was one which went to the essential nature of
the transaction.^ The mistake of fact must not be as to some col-
lateral matter, but must affect the very existence of the liability
which the payment was intended to discharge.* If a liability of
any sort exists, payment thereof can not be recovered on account
of some mistake in the inducement.' The party who made such
payment' must have been mistaken as to the facts which affected
11 L. R. A. (N.S.) 233, 13 Ann. Cas.
408, 112 N. W. 96.
S White V. Brotherhood of Locomotive
Firemen and Enginemen, 165 Wis. 418,
162 N. W. 441; White v. Brotherhood
Locomotive Firemen and Enginemen,
167 Wis. 323, L. R. A. 1018D, 1185, 167
K. W. 457.
1 Needles v. Burk, 81 Mo. 569, 51 Am.
Rep. 251.
SEngUnd. Aiken v. Short, 1 Harl.
& N. 210.
United States. Otis v. CuUum, 92 U.
S. 447, 23 L. ed. 496.
AlalMima. Garretson v. Joseph, 100
Ala. 279, 13 So. 948.
Iowa. Kellenberger v. Oskaloosa Na-
tional Building, Loan and Investment
Association, 129 la. 582, 105 N. W. 836.
Kaiyland. National .Exchange Bank
r. Ginn, 114 Hd. 181, 33 L. R. A.
(N.S'.) 963, Ann. Cas. 1914G, 608, 79
AtL 1026.
Hianesota. Langevin v. St. Paul, 49
Minn. 189, 15 L. R. A. 766, 51 N. W.
817.
Hew York. Southwick v. Bank, 84
N. Y. 420.
Pumajlraiiia. Pepperday ▼. Bank,
183 Pa. St. 519, 63 Am. St. Rep. 769, 39
L. R. A. 520, 38 Atl. 1030.
Wisconsiiiu Buffalo v. O'Malley, 61
Wis. 255, 50 Am. Rep. 137, 20 N. W.
913.
"A mistake where that is the founda-
tion of the action must relate to a
fact which is material, essential to the
transaction between the parties. A
payment made under the influence of
a mistake concerning a fact which, even
if it were as it is supposed to be,
would create no legal obligation, but
merely operate as an inducement upon
the mind of the party paying the
money, the other party being without
fault, would not justify a recovery as
for money had and received." Langevin
V. St. Paul, 49 Minn. 189, 196, 15 L.
R. A. 766, 51 N. W. 817.
'Pensacola, etc., R. R. v. Braxton,
34 Fla. 471, 16 So. 317; Kellenberger
V. Oskaloosa National Building, Loan
and Investment Association, 129 la.
582, 105 N. W. 836; Buffalo v. O'Malley,
61 Wis. 255, 20 N. W. 913.
''The mistake must be to such an ex-
tent as will amount to destruction of
the consideration." Ashley ▼. Jennings,
48 Mo. App. 142, 147.
§ 1554 Page on Contracts. 2680
his liability. A payment can not be recovered for a mistake which
does not go to the essential character of the transaction, although
it concerns a fact which is material to the willingness of the party
to make such payment and without which he would not have made
such payment.* A payment can not be recovered for a mistake
which is not essential and which is not material in inducing the
party to make such payment. If A collects a debt 'for B from C,'
or A owes B, and C takes A's check, thinking it good, and pays B
personally, C can not recover such payment from B if A's check
proves worthless.' So where A is indebted to B, and by mistake
as to some other liability pays B on a different non-existent claim,
A can not recover such payment from B until A's indebtedness to
B is satisfied.^ Thus where A had a claim against a railroad for
killing cattle, and after he had presented his claim received a
voucher, which the railroad paid, he is not obliged to repay such
sum until his claim is settled, even though such order was intended
for another man of the same name and was paid under mistake as
to the identity of the person asking payment.* So if A owns two
lots and B a third adjoining A's, and the city brings suit to enforce
an assessment on such lots and takes a decree for the assessment
against the three lots jointly, A can not redeem his lots alone, but
must redeem B's as well. Hence, if A redeems all three, thinking
that B's lot \)elongs to A, this is a mere matter of inducement and
A can not recover from the city the amount due on B's lot alone.
This is true especially after the city has paid over the money
received at the tax sale, from which sale A was redeeming his land
to the contractors.' A endorsed several instruments for B, think-
ing them in effect promissory notes. As they fell due, and were
not paid by B, A paid those first maturing to C, the holder thereof,
under the belief that A was liable as endorser. A resisted payment
of the last instruments of the series and established his non-
liability.^' A then sued C to recover the payment made by him to
4Parodi v. State Savings Bank, 113 TPensacola, etc., R. R. v. Braxton, 34
Miss. 364, L. R. A. 1918E, 325, 74 So. Fla. 471, 16 So. 317; Ashley v. Jennings,
280. 48 Mo. App. 142.
SParodi v. State Savings Bank, 113 tPensacola, etc., R. R. v. Braxton, 34
Miss. 364, L. R. A. 1918E, 325, 74 So. Fla. 471, 16 So. 317.
280. (A was negligent in taking a ILangevin v. St. Paul, 40 Minn. 189,
defective check from C.) 15 L. R. A. 766, 51 N. W. 817.
• Garrctson v. Joseph, 100 Ala. 279, 10 First National Bank v. Alton, 60
13 So. 948; Pepperday v. Bank, 183 Pa. Conn. 402, 22 Atl. 1010.
St. 519, 63 Am. St. Rep. 769, 39 L. R. .
A. 629, 38 Atl. 1030.
2681
Quasi or Coxstructive Contract § 1554
C on the first instrument of the series. It was held that he could
not recover, even though he had been mistaken in his belief that
upon paying such instruments he would be subrogated to the
security held therefor.'' A bank which pays a check out of funds
which it has on hand in the mistaken belief that the maker of such
check is solvent and will pay to the bank that which he owes upon
another transaction, can not recover such payment after the
maker of such check is known to be insolvent in order to apply
such payment as a set-off to such debt." If a building and loan
association intending to pay interest to a withdrawing stockholder,
pays such interest under an existing agreement at a specified rate,
it can not subsequently recover, on the theory of mistake, the dif-
ference between the amount to which the stockholder would have
been entitled if such building and loan association had paid divi-
dends upon such stocf A shipper who has paid a carrier at the
rate agreed upon, can not recover for the difference between the
quantity as determined by the method of measurement agreed upon
between the shipper and the carrier and the method of measure-
ment by which a shipper is obliged to measure the article when it
is sold at the point of delivery, although by such difference in
measurement the carrier suffers a loss.'* * It has been held that one
who buys the municipal bonds which he intends to buy, and who
pays therefor, can not recover such payment," although it is sub-
sequently decided that such bonds are of no legal validity.'* Pay-
ment of a judgment not a lien on the homestead, made because
the judgment debtor, by reason of a mistake in his abstract of title
thinks it is a lien thereon and that he can not borrow money on his
homestead unless such debt is paid, is not under mistake.'^
11 Alton V. Bank, 157 Mass. 341, 34
Am. St. Rep. 285, 18 L. R. A. 144, 32
N. E. 228. The court said that the
right of subrogation was "A collateral
matter and no part of his principal
contract by which he makes himself
surety. The existence of that right is
not the implied foundation of the prin-
cipal contract."
12 National Ezch. Bank v. Qinn, 114
Md. 181, 33 L. R. A. (N.S.) 963, Ann.
Gas. 1914C, 508, 78 Atl. 1026.
13 Kellenberger v. Oskaloosa National
Building, Loan and Investment Asso-
ciation, 129 la. 582, 105 N. W. 836.
14 Buffalo V. O'Malley, 61 Wis. 255, 50
Am. Rep. 137, 20 N^ W. 913.
W Otis V. Cullum, 92 U. S. 447, 23 L.
ed. 496.
It Citizens' Savings & Loan Associa-
tion V. Topeka, 87 U. S, (20 Wall.) 655,
22 L. ed. 455.
HLathrope v. McBride, 31 Neb. 289,
47 N. W. 922. Nor is such payment
under duress.
§ 1556
Page ox Contracts
2682
/
§1555. Mistake as to evidence. The mistake of fact which
authorizes the recovery of a payment made by mistake of fact is
a mistake as to the fact which creates the liability and not a mis-
take as to the evidence by which the fact of such liability is to
be proved^ Thus where A paid a debt and subsequently lost the
receipt, and on demand of his creditor paid the debt again, it was
held that A could not recover such payment after he had found his
receipt, and was thus able to prove that he had paid it before.* A
maker of a note who pays it .to the executor, knowing that the
testator had agreed to bequeath such note to the maker, but not
knowing that he could prove such oral agreement, can not recover
such payment as made under a mistake of fact.'
§1556. ninstrations of mistake of fact. The term ''mistake
of fact*' has been held in cases involving the right to recover pay-
ments to include mistakes as to the title to realty,^ the existence
of a lien thereon,' the solvency of an estate* — as where such in-
solvency is produced by the subsequent presentation and allowance
of claims whose existence was not known to the executor when he
overpaid the legatee from whom he is now seeking to recover the
excess,^ the amount of the assets of a firm,' the release of an
indorser by omission of the holder of a check to present it for
payment,* and the validity of Sales of furniture on which com-
missions were paid under the belief that such sales were valid.^
K A, a lessor, gives an order upon B as lessee in favor of Y, and
1 Ball V. James, 176 la. 647, 158 N.
W. 684; Marriott v. Hampton, 7 T. R.
269.
2 Marriott v. Hampton, 7 T. R. 269.
8 Ball V. James, 176 la. 647, 158 N.
W. 684.
1 Adams v. Henderson, 168 U. S. 573,
42 L. ed. 584; Shaw v. Mussey, 48 Me.
247; Holt v. Ruleau (Vt.), 102 Atl. 934.
(Where A, by mistake, buys his own
realty from B.)
2Hardigree v. Mitchum, 51 Ala. 151;
Rhodes v. Lambert (Ky.), 68 S. W. 608.
3 Connecticut. Mansfield v. Lynch, 59
Conn. 320, 12 L. R. A. 285, 22 Atl.
313.
minois. Wolf V. Beaird, 123 HI. 585,
6 Am. St. Rep. 565, 15 N. E. 161 ; Blue
y. Smith, 46 HI. App. 166.
Indiana. Tarplee v. Capp, 25 Ind.
App. 56, 50 N. E. 270.
Massadiusetta. Bliss v. Lee, 34 Mass.
(17 Pick.) 83.
Ohio. Rogers v. Weaver, 5 Ohio 536.
But such payment can not be re-
covered until after a judicial determin-
ation that the estate is insol<vent.
Wisconsin. Union, etc.. Bank v. Jef-
ferson, 101 Wis. 452, 77 N. W. 889.
4 Wolf v. Beaird, 123 HI. 585, o Am.
St. Rep. 565, 15 N. E. 161.
B Stokes V. Goodykoontz, 126 Ind. 535,
26 N. E. 391.
5 Martin v. Bank, 160 N. T. 190, 64
N. E. 717.
7 Cleveland, etc., Co. v. Hotchkias, 89
Tex. 117, 33 S. W. 855.
2683
Quasi or Constrtjctive Contract § 1556
also assigns his lease to Y, from whom A had originally leased
such property and to whom A was indebted and B pays such order
without knowledge of the assignment, B may recover such pay-
ment from A on being obliged to pay such rent again to the
assignee of the lease.* In the absence of fraud one who has paid
premiums, upon an insurance policy under which no risk attached
may recover the amount of such premiums.* Payment of illegal
street assessments made in ignorance of the facts making them
illegal may be recovered.^* If A pays money to B, in perforTP«»^ce
of a CQutract between them, under the mistaken belief on A's part
that B has performed such contract fullv A may recover such pay-
ment." Thus where B had agreed to plaster a house for A, and
A paid him, believing that such work had been done, he may
recover the money thus paid, where the material is of such inferior
quality as to be valueless.^^ A agreed to sell fish for B, at ten per
cent, commission, and to guarantee the purchase price on sales
made by him. Before making such contract with A, B had sold
some of the fish to X. Memoranda of the amounts delivered to the
different vendees were turned in to A, and A paid to B the amount
due thereon, less his ten per cent, commission. In this way A paid
B for the fish which B had sold to X. On X's refusal to pay A,
A sued B for such iimount. It was held that A could recover.^*
If A pays money to B in order to secure the discharge of A's
parents in the mistaken belief that the contract between B and A's
parents was a valid obligation, A may recover such payment.^^
Under such circumstances A can not be regarded as a volunteer.^'
If Ay a broker, has paid B, the owner of stock, the amount for
which A is informed that such stock has been sold, A may return
the stock and recover the amount of such payment on learning that
• Eagan t. Abbett, 74 K. J. L. 49
[sub nomine, Egan y. Abbett, 64 AtL
Ml].
iPanons y. Lane, 97 Minn. 98, 4
L. R. A. (X.S.) 231 [sub nomine, In re
MiUers' & Manufacturers' Ins. Co.,
106 N. W. 486].
ItTripler v. New York, 139 N. Y. 1,
34 N. E. 729; Mutual Life Ins. Co. y.
New York, 144 N. Y. 494, 39 N. E. 386;
same case, 125 N. Y. 617, 26 N. E. 721;
Redmond y. New York, 125 N. Y. 632,
26 N. E. 727.
11 NoUman y. Eyenson, 5 N. D. .344,
65 N. W. 686.
t2Nollman y. Eyenson, 5 N. D. 344,
65 N. W. 686.
13Blanchard y. Low, 164 Mass. 118,
41 N. E. 118.
14 Tucker y. Denton (Ky.), 15 L. R.
A. (N.S.) 289, 106 S. W. 280, 32 Ky.
L. Rep. 521.
II Tucker y. Denton (Ky.), 15 L. R.
A. (N.S.) 289, 106 & W. 280, 32 Ky.
L. Rep. 521.
§ 1556 Page on Contracts 2684
such sale had not been effected.^* X's will provided that A should
have control of X's estate until B reached the age of eighteen,
when A was to pay B a certain part of the estate; and if B died
before reaching such age,, the entire estate was to fall to A. A
voluntarily paid B B's share before B reached the age of eighteen.
Subsequently B died before reaching such age of eighteen;
A was allowed to recover on the ground that the payment was
made under a mistake of fact, in that B did not know that A
would die before the age of eighteen.^^ If A, an executor, has paid
a legacy to B, who was the child of a legatee in the belief that
the legatee had not died until after the testator had died, when in
fact the legatee died before testator died, and accordingly such
legacy lapsed, A may recover the amount of such payment from
B.^ Where a city engineer by mistake estimated the area paved
at about three thousand square yards more than it really was, and
in reliance upon such estimate the city paid the contractor for the
entire amount of the engineer's estimate, at the rate of one dollar
a square yard, it was held that the city could recover from the
contractor on learning of the mistake.^ So if A pays a note to B
under the mistaken belief that A has executed such note, A may
recover.*
If A has paid money to B for a license to make use of a patent
which A believes that B possesses, and it turns out that B's patent
was invalid, A's right to recover such payment presents a ques-
tion upon which there is a conflict of authority. In some juris-
dictions it is held that A has made such payment under a mistake
as to an essential element of the transaction and that he has not
received anything in return for such payment; and, accordingly,
A has been allowed to recover a payment thus made.*^ Under this
principle A may recover royalties which he has paid for the' use
of a patent right after its expiration.^ In other jurisdictions it
is said that such a payment is voluntary, and that since A has used
the invention which was patented he has received what he bar-
gained for; and, accordingly, he has been denied the right to
tSDonner v. Sackett, 251 Pa. St. 524, 20Lewellen y. Garrett, 58 Ind. 442,
97 Atl. 89. 28 Am. Rep. 74.
17 Semmig v. Herrihew, 67 Vt. 38, 30 21 Stanley Rule & Level Co. v. Bailey,
Atl. 691. 45 Conn. 464.
It Scott v. Ford, 45 Or. 531, 68 L. 22 Stanley Rule A Level Co. t. Bailey,
R. A. 469, 78 Pac 742, 80 Pac. 899. 45 Conn. 464.
ItDuluth V. McDonnell, 61 Minn. 288,
63 N. W. 727.
2685
QtrASi OR Constructive Contract § 1557
recover such payment.^ Under this principle A has been denied
a right to recover where the patent was void for technical rea-
sons," and where the invention was not novel." Since A is making
such payment in order to enjoy a. legalized monopoly and since he
would have been entitled to make use of such invention without
the payment of such license fee, it is difficult to see that he has
received anything of value in return for such payment; and no
good reason for denying his right of recovery appears.
One who has deposited money in a bank to the credit of a
county in reliance upon forged obligations of the county, may
recover such payment if the county's right of action against the
official who was guilty of such forgery and who has appropriated
money belonging to the county is not impaired thereby." If A
believed that his son, X, who was an express messenger, had lost
a package of money when in fact it had been stolen from him by
Y, another express messenger, and in reliance on such belief A
paid the express company, B, the amount of such supposed loss, A
may recover such amount from B on learning the facts.*^ If B
has lent money to X upon a forged note and mortgage and A is
subsequently induced to make a loan upon another forged note
and mortgage a part of which loan is to be paid to B to discharge
his note and mortgage, A may recover the amount of such payment
from B upon discovering the forgery if B has not altered his
position." If A has given a check to B, the collection of which has
been delayed until the drawee bank has become insolvent and A
in ignorance of such delay gives to B a second check for such debt
which is collected. A, on learning of B's negligence in presenting
the first check, may recover such amount."
§ 1557. BDstakes in computation. A mistake as to the amount
due on a debt,^ even where the facts as to the amount of principal
23 Schwarzenbach v. Odorless Exca-
vating Apparatus Co., S& Md. 34, 57
Am. Rep. 301, 3 Atl. 676; Hiatt v.
Twomey, 21 N. Car. 315.
24 Sehwarzenbach v. Odorless Exca-
vating Apparatus Co., 65 Md. 34, 57
Am. Rep. 301, 3 Atl. 676.
a Hiatt ▼. Twomey, 21 N. Car. 315.
21 Hathaway v. Delaware County, 185
N. Y. 368, 13 L. R. A. (N.S.) 273, 78
N. E. 153.
27 Lowe V. Wells Fargo Express, 78
Kan. 105, 06 Pac. 74.
2t Grand Lodge, Ancient Order of
United Workmen v. Towne, 136 Minn.
72, L. R. A. 1917E, 344, 161 N. W.
403.
21 Noble V. Doughten, 72 Kan. 336, 3
L. R. A. (N.S.) 1167, 83 Pac. 1048.
1 Gould y. Emerson, 160 Mass. 438,
39 Am. St. Rep. 501, 35 N. E. 1065;
Peterson y. Bank, 78 WU. 113, 47 N»
W. 368.
§1558
Page on Contracts
2686
and payments are known, but the amount due can be ascertained
only by a long arithmetical calculation,^ is a mistake of fact, and a
payment made by reason thereof may be recovered. Thus where
the parties make a mistake in computing the price to be paid for
property, in accordance with a contract of sale ; ' or make a mis-
take in computing the amount due on a mortgage ; ^ or by mistake
compute at eight per cent, interest on a note which by its terms
bears interest at six per cent.,' or otherwise erroneously compute
the interest due ; * or where a principal and agent make a mistake
in computing their mutual accounts;^ or where by mistake the
same item is paid twice ; * or where a payment is made under mis-
take in computing the weight of the articles sold, on which weight
the payment is based,* money paid under such mistakes may be'
recovered. A and B, tenants in common in land, were arranging
a voluntary partition, and A was to take that half of the land upon
which improvements were erected, and pay to B the amount neces-
sary to equalize his share. By a mistake in the computation A paid
to B the entire value of the buildings upon this tract, instead of
one-half their value. It was held that A could recover the amount
thus paid in by him in excess of the amount necessary to>iequalize
his share with B's.*
§ 1558. Beccnrery of payment on forged inrtmment. Whether
recovery of payment on a forged instrument can be had from one
who has taken such instrument for value and in good faith is a
question which arises not infrequently, and on which there is an
unfortunate conflict of authority. Under one theory a bank is
bound to know the signatures of its depositors; and if it pays a
forged check, signed by the name of a depositor, it can not recover
the money thus paid, if the payee has acted with reasonable
prudence and in good faith.* A bank. A, purchased from X a
tWorley t. Moore, 07 Ind. 15; Mont-
gomery County T. Fry, 127 N. Car. 258,
87 S. E. 259; Steere v. Oakley, 186
Pa. St. 582, 40 Atl. 815.
'Norton t. Bohart, 105 Mo. 615, 16
8. W. 598.
4 Klein ▼. Bayer, 81 Mich. 233, 45 N.
W. 991.
• Stotsenbnrg t. Fordice, 142 Ind. 490,
41 N. E. 313, 810.
5 Montgomery County t. Fry, 127 N.
Car. 258, 37 S. E. 259.
7 Spencer t. Qoddard, 62 K. H. 702.
• Johnson v. Saum, 123 la. 145> 98 N.
W. 599.
• McRae, etc, Co. y. Stone, 119 Ga.
516, 46 S. E. 668.
19 Reed v. Horn, 143 Pa. St. 323, 22
Atl. 877.
t England. Price t. Neale, 3 Burr.
1354, 1 W. BL 390.
United SUtea. United States Bank
▼. Bank, 23 U. S. (10 Wheat) 333, 6
L. ed. 334.
2687
Quasi or Constructive Contract •§ 1558
check upon bank B, paying value therefor and acting in good faith.
A then sent such check for collection and it was paid by B. Sub-
sequently B learned that such 6heck was a forgery and attempted
to recover the amount thereof from A. Under such circumstances
B can not recover if A was not guilty of negligence.^ Where A
indorsed a forged check of which he was the innocent holder, to B,
and B presented it at the bank and received payment, and the
bank on discovering the fact of the forgery demanded repayment
of B, and B complied with the demand, it was held that B had
made such payment voluntarily and that he could not recover
from A.' If A sold a traveler's check to B and has agreed to pay
such check when countersigned by B's signature, which is placed
upon the face thereof, A is liable to B for the amount of all such
checks which A pays in reliance upon B's forged signature.*
The rule that the drawee is bound to know the signature of the
drawer has been applied to drafts drawn by public ofScials upon a
public fund.' If the United States Treasury pays a bona fide
minds. Chicago First National Bank
▼. Bank, 152 111. 296, 43 Am. St. Rep.
247, 26 L. R. A. 289, 38 K. E. 739.
Iowa. First National Bank v. Bant*,
107 la. 327, 44 L. R. A. 131, 77 N. W.
1045.
Kentucky. Deposit Bank y. Bank,
90 Ky. 10, 7 L. R. A. 849, 13 S. W.
339; Farmers' National Bank y. Farm-
ers' ft Traders' Bank, 159 Ky. 141, L.
R. A. 1915A, 77, 166 S. W. 986.
Maine. Neal y. Cobum, 92 Me. 139,
69 Am. St. Rep. 495, 42 Atl. 348.
Maryland. Commercial, ete., Bank v.
Bank, 30 Md. 11, 96 Am. Dec. 554.
Massadinsetts. First National Bank
y. Bank, 151 Mass. 280, 21 Am. St. Rep.
450, 24 N. E. 44.
Ifinnesota. Germania Bank y. Bont-
tell, 60 Minn. 180, 51 Am. St. Rep. 519,
27 L. R. A. 635, 62 N. W. 327 ; Penning-
ton County Bank y. First State Bank,
110 Minn. 263, 136 Am. St. Rep. 496,
26 L. R. A. (N.S.) 849, 125 N. W. 119.
Miasonxi Northwestern National
Bank y. Bank of Commerce, 107 Mo.
402, 15 L. R. A. 102, 17 S. W. 982.
Nebraska. State Bank y. First Na-
tional Bank, 87 Neb. 351, 29 L. R. A.
(N.S.) 100, 127 N. W. 244.
New Modco. State National ^ank
y. Bank of Magdalena, 21 N. M. 653,
L. R. A. 1916E, 1296, 157 Pac. 498.
Ohio. Bank v. Bank, 58 0. S. 207,
65 Am. St. Rep. 748, 41 L: R. A. 584,
50 N. E. 723 [distinguishing, Ellis y.
Trust Co., 4 O. S. 628, 64 Am. Dec. 610,
as decided under a local custom].
Pennsylyania. Levy y. Bank, 4 Dall.
(Pa.) 234; s. c, 1 Binn. (Pa.) 27.
Texas. Moody v. Bank, 19 Tex. Ciy.
App. 278, 46 S. W. 660.
Vermontik Bank v. Bank, 10 Vt. 141,
33 Am. Dec. 188.
West Virginia. Williamson Bank y.
McDowell County Bank, 66 W. Va. 545,
36 L. R. A. (N.S.) 605, 66 S. E. 761.
2 State National Bank y. Bank of
Magdalena, 21 N. M. 653, L. R. A.
I916E, 1296, 157 Pac. 498.
>Neal y. Cobum, 92 Me. 130, 69 Am.
St. Rep. 495, 42 Atl. 348.
4 Sulliyan v. Knauth, 220 N. Y. 216,
L. R. A. 191 7F, 554, 115 N. E. 460.
• United SUtes y. Bank of New York,
National Banking Association, 219 Fed.
§ 1558.
Page on Gontraots
2688
holder of a draft to which the name of an officer of the United
States has been forged, the United States can not recover such
payment from snch holder.* It has been said, however, that the
United States is not bonnd to know the genuineness of its treasury
notes; and that a payment to the United States in forged treasury
notes is not a payment in legal effects This rule is not always
placed on the ground that the bank was negligent. Sometimes the
reason assigned is that between two equally innocent parties the
loss must lie where it falls.
Another line of cases holds that if the drawee bank is free from
all negligence except that of paying the check in reliance on the
indorsement of the holder, it may recover such payment.* The
rule that the drawee is to be regarded as knowing the signature
of the drawer is said to apply only where the person to whom the
money has been paid has not contributed to the mistake of the
drawee.* It is said that an indorsement by the payee without re-
striction is equivalent to a representation that the check is genu-
ine.^ In such jurisdictions it is not necessary that the payee should
have been negligent or should have contributed to the mistake of
the drawee." It is sufficient if the payee has not so altered his
position in reliance upon the payment as to be prejudiced in case
he is obliged to repay such amount.
In some jurisdictions it is said that the drawee bank can not
recover a* payment upon a forged check unless the payee was not
negligent in taking the check, the drawee was negligent in paying
648, 134 C. C. A. 579, L. R. A. 1915D,
797.
t United States v. Bank of New York
National Banking Association, 219 Fed.
648, 134 C. C. A. 579, L. R. A. 1915D,
797.
7 Cooke v. United States, 91 U. S. 389,
23 L. ed. 237.
• Indiana. First National Bank ▼.
Bank, 4 Ind. App. 3^, 51 Am. St. Rep.
221, 30 N. E. 808.
New York. Com Exchange Bank v.
Bank, 91 N. Y. 73, 43 Am. Rep. 655.
North Daketa. First National Bank
v. Bank of Wyndmere, 15 N. D. 299, 125
Am. St. Rep. 588, 10 L. R. A. (N.S.)
49, 108 N. W. 546.
Oklahoma. American Express Co. t.
State National Bank, 27 Okla. 824, 33
L. R. A. (N.S.) 188, 113 Pac. 711.
South Carolina. Ford v. People's
Bank, 74 S. Car. 180, 114 Am. St. Rep.
986, 10 L.-R. A. (N.S.) 63, 7 Ann. Cas.
744, 54 S. E. 204.
Tennessee. People's Bank v. Bank,
88 Tenn. 299, 17 Am. St. Rep. 884, 6
L. R. A. 724, 12 S. W. 716.
• Ford V. People^s Bank, 74 S. Car.
180, 114 Am. St. Rep. 986, 10 L. R. A.
(N S.) 63, 54 S. E. 204.
tl Ford V. People's Bank, 74 S. Car.
ISO, 114 Am. St. Rep. 986, 10 L. R. A.
63, 54 S. E. 204.
11 First National Bank y. Bank of
Wyndmere, 15 N. D. 299, 125 Am. St.
Rep. 588, 10 L. R. A. (N.S.) 49, 108 N.
W. 546.
2689
Quasi or Constructive Contract § 1558
the ch^ck, and the payee has altered his position as a result of the
payment."
The right to recover is very materially affected by the negli-
gence of either party. If the bank which forwards the forged
check was negligent and could by the use of due diligence have
discovered the forgery, the bank which pays such forged check
may recover from the bank which forwards it." If, on the other
hand, the drawee bank omits to give reasonably prompt notice of
the fact of the forgery, it can not recover the payment, even if
such recovery would have been permitted otherwise.^* In juris-
dictions in which the payee bank is ordinarily allowed to recover,
only reasonably prompt notice is necessary."
The right of recovery has been recognized under special circum-
stances. A sent a check to B on a bank, X. C, a person of almost
the same name as B, obtained Ihe check, endorsed it with his own
name and deposited it with the bank, Y, which forwarded it to X,
but did not show that it was collecting it as agent merely. X
paid Y and Y paid C. A then sued the bank, X, in Minnesota, to
recover the amount of his deposit without deducting this check.
X gave notice to Y, which was located in Massachusetts, of the
pendency of this action. Y did not defend and judgment was
rendered against X. X then sued Y and recovered the payment.
The ground of recovery was based on the theory that the judgment
was conclusive against Y." If the drawer of a check has negli-
gently misdirected it so that it is delivered to a man of a name
similar to that of the payee by whom it is cashed, the drawer must
credit the bank with the amount of such check."
If the drawer of a check is induced by fraud to deliver a check
payable to a fictitious person to one whom he believes to be such
person and it is endorsed by such person and presented for pay-
ment, there is a conflict of authority as to the right of the bank to
12 American Express Co. v. State Na-
tional Bank, 27 Okla. 824, 33 L. B. A.
(N35.) 188, 113 Pac. 711.
13 People's Bank v. Franklin Bank,
88 Tenn. 299, 17 Am. St. Bep. 884, 6
L. B. A. 724, 12 S. W. 716; Canadian
Bank v. Bingham, 30 Wash. 484, 60
L. B. A. 955, 71 Pac. 43.
14 United States v. Bank, 6 Fed. 134;
First National Bank v. First National
Bank, 58 O. S. 207, 65 Am. St. Bep.
748, 41 L. B. A. 584, 50 N. E. 723.
« Schroeder v. Harvey, 75 111. 638.
IS First National Bank v. Bank, 182
Mass. 130, 94 Am. St. Bep. 637, 6.5 N.
E. 24 [citing on the proposition that
the judgment was binding on the other
bank, Knickerbocker v. Wilcox, 88
Mich. 20Q, 21 Am. St. Bep. 595, 47 N.
W. 123; and Konitsky v. Meyer, 49 N.
Y. 571].
ITWeisberger Co. v. Barberton Sav-
ings Bank Co., 84 O. S. 21, 34 L. B. A.
(N.S.) 1100, 95 N. E. 379.
§1558
Page on ContracIb
2690
charge such check against the drawer's account. In some juris-
dictions it is held that it is the duty of the bank to ascertain the
existence and identity of the payee before paying the check; and
that if it pays such a check upon such endorsement it can not
claim credit for such payment as against the maker.^* In other
jurisdictions it has been said that since the maker of the check
intended it to be paid to the person to whom it is actually paid,
the bank is entitled to such payment as a creditJ* This result has
been reached where it was not shown what the real name of the
impostor was ; and the court has said that possibly the name which
he used might have been his own, although he induced the drawer
to believe that he was dealing with a different person*
If both the holder of the check and the drawee are negligent it
has been said that the drawee can not recover from the holder to
whom payment was made.'^ If the holder was negligent in taking
a check from an unidentified stranger and in omitting to notify the
drawee of such act and if the drawee was negligent in not having
any genuine signature of the drawer by which to verify the check,
the drawee can not recover the payment which it made to the
holder of such check.^
As the bank, even if bound to know the signature of the de-
positor, is not charged with knowledge of the contents of all
instruments executed by him, money paid out on an altered check
may be recovered.*
Since a drawee bank is not bound to know the signature of the
payee, payment of a genuine check upon a forged endorsement
may be recovered unless by reason of its negligence or otherwise
the drawee . bank is precluded from setting up the fact of such
forgery.* If the drawee has been notified by the drawer not to
IS Shipman ▼. Bank of SUte of N. Y.,
126 N. Y. 318, 22 Am. St. Rep. 821, 12
L. R. A. 791, 27 N. E. 371; Armstrong
y. Pomeroy National Bank, 46 0. S. 512,
15 Am. St. Rep. 655, 6 L. R. A. 625, 22
N. E. 866; Guaranty State Bank &
Trust Co. V. Lively, 108 Tex. 393, L.
R. A. 191TE, 673, 194 S. W. 937.
tl McHenry v. Old Citizens' National
Bank, 85 0. S. 203, 38 L. R. A. (N.S.)
nil, 97 N. E. 395.
» McHenry v. Old Citizens' National
Bank, 85 O. S. 203, 38 L. R. A. (N.S.)
1111, 97 N. E. 395.
21 Williamson Bank t. McDowell
County Bank, 66 W. Va. 545, 36 L. R.
A. (N.S.) 605, 66 S. E. 761.
22 Williamson Bank v. McDowell
County Bank, 66 W. Va, 545, 36 L. R.
A. (N.S.) 605, 66 S. E. 761.
23 Espy V. Bank, 85 U. S. (18 Wall.)
614, 21 L. ed. 949; Parke t. Roser, 67
Ind. 500, 33 Am. Rep. 102; National
Bank v. Bank, 122 N. Y. 367, 25 N. E.
355.
24Xriiited States. United States v.
National Exchange Bank, 214 U. S. 302,
53 L. ed. 1006.
2691
Quasi or Constructive Contract § 1558
pay the check and it nevertheless pays such check upon a forged
endorsement to a bona fide holder thereof, the drawee can not
recover such payment. By reason of its negligence, however, the
drawee may be precluded from setting up the fact of forgery in
order to recover a payment made to an innocent holder of the
forged instrument." The United States may recover a payment
made to an innocent holder of a check issued by the United States
upon which the signature of the payee has been forged." If a
bank, in reliance upon the representations of a person as to his
identity, delivers a check to him which he indorses with the name
^of the person whom he represents himself to be, and delivers to
A^ to whom the bank pays it, the bank making the payment can
not recover from A if the representations as to the identity of the
indorser are false and the indorsement is forged.'^ A altered a
check on the drawee bank, X, raising the amount and deposited it
with a bank, Y, which sent it to X through the clearing house. X
paid Y and Y paid A. On learning of the alteration, X sued Y.
It was held that no recovery could be had."
Under any theory, no recovery can be had unless the bank mak-
ing the payment can show that it has suffered a loss. If it has the
means of charging such checks against the account of itfi depositor,
it can not maintain an action to recover such payment." If A
miiiois. First National Bank v. Bank,
162 lU. 296, 43 Am. St. Rep. 247, 2$ L.
R. A. 280, 38 N. £. 739 [affirming, 40
lU. App. 640].
Indiana. First National Bank v.
Bank, 4 Ind. App. 3.55, 51 Am. St. Rep.
221, 30 N. E. 808.
Massachusetts. National -Bank v.
Bangs, 106 Mass. 441, 8 Am. Rep. 349;
Carpenter v. Bank, 123 Mass. 66; First
National Bank v. Bank, 182 Mass. 130,
94 Am. St. Rep. 637, 63 N. E. 24.
Mfamesota. Hensel y. Ry., 37 Minn.
87, 33 N. W. 329.
Nebraska. First National Bank t.
Bank, 56 Neb. 149, 76 N. W. 430; First
National Bank v. Omaha National
Bank, 39 Neb. 192, 80 N. W. 810.
Hew York. Corn Exchange Bank t.
Nassau Bank, 91 N. Y. 74, 43 Am. Rep.
dSo.
Ohio. Shaffer v. McKee, 19 O. S. 526.
Oklahoma. National Bank of Com-
merce T. First National Bank, 51 Okla.
787, L. R. A. 1916E, 537, 152 Pac. 596.
PennsylTania. Second National Bank
v. Guarantee Trust & Safe Deposit Co.,
206 Pa. St. 616, 56 Atl. 72.
Texas. Kouvant v. Bank, 63 Tex.
610.
21 National Bank of Commerce t.
First National Bank, 51 Okla. 787, L. R.
A. 1016E, 537, 152 Pac. 606.
M United States v. National Ex-
change Bank, 214 U. S. 302, 53 L. ed.
1006.
2T Land Title and Trust Co. v. Bank,
196 Pa. St. 230, 79 Am. St. Rep. 717,
50 L. R. A. 75, 46 Atl. 420.
28 Crocker- Woolworth National Bank
V. Bank, 139 Cal. 564, 96 Am. St. Rep.
169, 63 L. R. A. 245, 73 Pac. 456.
21 Land, etc., Co. v. Bank, 196 Pa.
St. 230, 79 Am. St. Rep. 717, 50 L. R. A.
75, 46 Atl. 420.
§1559
Page on Contracts
2692
miU^es a loan on a note and mortgage to which X's name is forged
and such loan is made in part for the purpose of taking up a prior
loan which B has made in reliance upon a similar forged note and
mortgage, A may recover from B the amount which A has paid to
B in reliance upon such forged note and mortgage if B haa not
altered his position in reliance upon such payment.*
§1559. Becovery of pajrment canamg oyerdraft. If a bank
pays a check which overdraws a depositor's account, some author-
ities hold that the bank can not recover from payee if he does not
know that such check will make an overdraft.^ The reasons given >
for such holding are different in different jurisdictions. In some
recovery is denied because the bank is chargeable with knowledge
of the amount of depositors' funds in its hands.^ ''The bank
always has the means of knowing the state of the account of the
drawer, and if it elects to pay the paper, it voluntarily takes upon
itself the risk of securing it out of the drawer's account or other-
wise. If there has ever been any doubt upon this point there
should be none hereafter."' In others, because the mistake is as
to a collateral matter.* Under this rule, where A gave B a check
on a bank which B deposited in the same bank, receiving credit
therefor in his pass-book, the bank can not on the same day return
the check and cancel the credit to B because A's account was
overdrawn.' Whether a credit upon the books of the bank is
equivalent to a payment of a check or whether the bank is free to
cancel such credit if the check is not paid by the maker, is a ques-
M Grand Lodge Ancient Order of
United V^orkmen v. Towne, 136 Minn.
72, L. R. A. 1917E, 344, 161 N. W. 403.
1 Colorado. First National Bank v.
Devenish, 15 Colo. 229, 22 Am. St. Rep.
394, 25 Pac. 177.
Kentucky. First National Bank v.
Sidebottom, 147 Ky. 690, 145 S. W. 404.
New York. Oddie v. National City
Bank, 45 N. Y. 735, 6 Am. Rep. 160.
Maryland. Manufacturers' National
Bank v. Swift, 70 Md. 515, 24 Am. St.
Rep. 381, 17 Atl. 336.
Washington. Spokane & Eastern
Trust Co. V. Huff, 63 Wash. 225, 33 L.
B. A. (N.S.) 1023, Ann. Cas. 1912D,
491, 115 Pac. 80.
2 Manufacturers' National Bank v.
Swift, 70 Md. 515, 14 Am. St. Rep. 381,
17 Atl. 336; Oddie v. Bank, 45 N. Y.
735, 6 Am. Rep. 160.
• Oddie V. Bank, 45 N. Y. 735, 742;
6 Am. Rep. 160. In Merchants' Na-
tional Bank ▼. Swift, supra, the depos-
itor's account proved insufficient he-
cause a deposit made by him and put
to his credit was of trust funds which
he could not retain, and the facts of
such deposit were all known to the
bank.
4 Chambers v. Miller, 13 C. B. N. S.
125.
« Oddie v. Bank, 45 N. Y. 735, 6 Am.
Rep. 160.
2693 Quasi qb Construptive Contract § 1560
tion upon which there has been a conflict of authority — some
courts regarding such a credit as equivalent to a payment,* while
other courts say that such a credit is not of itself a payment and
that the bank may cancel such credit if the check is not paid by
the maker J In Massachusetts a payment of a check without the
bank's examining the drawer's account, which had not been re-
duced during the preceding month, was held to be made with such
negligence as to preclude recover^.* The fact that the check was
paid after business hours to accommodate the payee and that such
payment was made in the belief that the drawer had sufficient
funds in the bank, does not entitle the bank to recover such pay-
ment.*
Under different circumstances a recovery has been allowed. B,
an agent of a bank, T, sold goods which had been pledged to Y,
and put the proceeds in the bank, Y, in his own name. B then
drew a check payable to A upon the bank, Y. A deposited this in
the bank, X, and X paid it to Y. Under the rules of the clearing
house, checks which were not good could be returned if not re-
tained after one p. m. Before the bank, X, had paid B, but after
it had given B credit for the amount of this check upon his book,
Y demanded repayment of this amount from X. On X's refusal
Y sued. It was held that Y could recover the amount of such
check less the amount of B's .deposit in the bank actually belong-
ing to B.* If the payee knows that the check makes an overdraft
and the bank pays in ignorance of such fact, the bank has been
allowed to recover from 'the payee." If the drawer of the check
has funds on hand sufficient to pay such check, the bank can not
recover the amount thereof from the person to whom it has been
paid, although the maker becomes insolvent and if the bank had
not made such payment it could have treated such deposit as a
set-off."
§ 1560. Negligence of party making payment — ^Held not to bar
reouvery. "WTiere pajrment is made by one who is under no legal
•
I Oddie V. National City Bank, 45 N« 10 Merchants' National Bank v. Bank,
T. 735, 6 Am. Rep. 160. 130 Mass. 513, 2 N. E. 89.
T National, etc., Co. v. McDonald, 51 11 Martin v. Moi^gan, 3 Moore (C. P.
Cal. «4, 21 Am. Rep. 697. & Ex.) 635; Peterson v. Bank, 52 Pa.
• Boylston National Bank v. Richard- St. 206, 91 Am. Dec. 146.
son, 101 Mass. 287. 12 National Exch. Bank v. Qinn,
• Spokane & Eastern Trust Co. v. 114 Md. 181, 33 L. R. A. (N.S.) 963,
Huff, 63 Wash. 225, 33 L. R. A. (N.S.) Ann. Caa. 1914C, 508, 78 AtL 1026.
1023, Ann. Cas. 1912D, 491, 115 Pac. 80.
§1560
Paqe on Contracts
2694
liability, under mistake of fact as to the existence of such liability,
the weight of authority is that such payment may be recovered,
even if the party making it could have discovered his mistake if
he had used proper diligence^ The mere fact that the party mak-
ing the payment had the means of knowing the facts does not
prevent him from recovering.' It is not the means of knowledge
possessed by the party making the payment, but his actual knowl-
edge or ignorance of material f^cts that determines his right to
recover.' If a bank understands that its depositor who has made
two duplicate checks says that he has destroyed the first check
and under such mistake the bank pays the second check which
makes an overdraft, such payment may be recovered, even though
the bank was negligent* A payment which a trustee has made
through his mistake in reading the wrong clause of the will, may
IBiigland. Kelly v. Solaris 0 Mees.
A W. 64.
United States. Brown ▼. Tillinghast,
84 Fed. 71; Union National Bank t.
McKey, 102 Fed. fW2, 4-2 C. C. A. 583.
Alabama. Rutherford v. Mclvor, 21
Ala. 750; Merrill v. Brantley, 133 Ala.
537, 31 So. 847.
Indiana. Indianapolis ▼. MeAvoy, 86
Ind. 587; Metropolitan Life Ins. Co. v.
Bowser, 20 Ind. App. 557, 50 N. E. 86.
Helnwaka. Douglas County ▼. Keller,
43 Neb. 035, 62 N. W. 60.
Hew York. Mayer v. New York, 63
N. Y 455.
North Carolina. Houser v. McGin-
nas, 108 N. Car. 631, 13 S. E. 130;
Simms v. Vick, 151 N. Car. 78, 24 L.
R, A. (N.S.) 517, 18 Ann. Cas. 660, 65
S. E. 621.
Notth Dakota. James River National
Bank v. Weber, 10 N. D. 702, 124 N. W.
052.
Pennsylvania. McKibben v. Doyle,
173 Pa. St. 570, 51 Am. St. Rep.^85;
34 Atl. 455; Union Trust Co. ▼. Qilpin,
235 Pa. St. 524, 84 Atl. 448.
Texas. Hummel v. Flores (Tex. Civ.
App.), 30 S. W. 300.
Virginia. City National Bank v.
Peed (Va.), 32 S. £. 34.
Whether the carelessness of a maker
of a promissory note in paying it after
alteration without examining it to de-
tect such alteration, prevents him from
recovering such payment, was discussed
but not decided in Davis v. Bauer, 41
0. S. 267.
> Indianapolis v. McAvoy, 86 Ind.
587; James River National Bank v.
Weber, 10 N. D. 702, 124 N. W. 062;
McKibben v. Doyle, 173 Pa. St. 670,
51 Am. St. Rep. 785, 34 AtL 455; Union
Trust Co. y, Gilpin, 235 Pa. St. 624,
84 Atl. 448.
3 Union Trust Co. v. Oilpin, 235 Pa.
St. 524, 84 Atl. 448.
"The possession of the means of
knowledge by the party who paid the
money can be regarded as affording a
strong observation to the jury to in-
duce them to believe that he had an
actual knowledge of the circumstances;
but * * * there is no conclusive rule of
law that because a party has the
means of knowledge he has the knowl-
edge itself." 2 Chitty Cont. (11 Am.
Ed.) 030 [quoted in Brown v. College
Comer, etc., Co., 56 Ind. 110; which in
turn is quoted in Stotsenburg v. Ford-
ice, 142 Ind. 400, 41 N. E. 313, 8^10].
4 James River National Bank v.
Weber, 10 N. D. 702, 124 N. W. 062.
2695
Quasi or ConIbtruotive Contract § 1561
be recovered.' Where A paid money for a party-wall, relying on
B's claim of ownership, A may recover, though A had the means of
learning of B's want of title.* So A, a mortgagee of a cotton crop,
whose mortgage secures a debt greater than the value of the crop,
who knows that B holds a second mortgage on the same crop, and
who buys from B such crop and pays for it, may recover from B
the money thus paid where he did not know that it was the same
crop, even if he could have learned such fact by due diligence.^
Thus where a sheriff made a levy upon property which had been
taken on a prior attachment, and hearing nothing from such prior
attaching officer or creditor, sold such property and paid the pro-
ceeds over to the party whose execution the sheriff was serving,
and the latter was afterwards obliged to pay over the amount for
which the prior attachment was issued, it was held that he might
recover the amount of such payment from the execution creditor
to whom he had paid the entire amount.*
One who has known a fact but has forgotten it, and under such
forgetfulness makes a. payment, may recover such payment.*
Where A, acting as clerk for B, an express messenger, delivered a
package of money to C and forgot to make a note or take a re-
ceipt of itj and C, after A had forgotten the facts, claimed that he
had not received the money, and thereupon A and B contributed
to make up the amount and, paid the express company, which paid
C, A was allowed on learning of his mistake to recover the amount
from C.^ If a debtor has made partial payments upon his debts,
and in making the final payment he forgets one of such partial
payments and overpays by the amount of such forgotten payment,
he may recover such amount.^^
§ 1561. NegUgenee held to bar recovery. There is, however,
some authority for the proposition that one paying under mistake
of fact, which he could have discovered by due diligence, can not
• Union Trudt Co. ▼. Gilpin, 235 Pa.
St 524, 84 Atl. 448.
• McKibbcn v. Doyle, 173 Pa. St. 579,
51 Am. St. Rep. 785, 34 Atl. 455.
7 Merrill ▼. Brantley, 133 Ala. 537,
31 So. 847.
• Glenn ▼. Shannon, 12 S. Car. 570.
• Kelly ▼. Solari, 9 M. & W. 54;
Goaswiller ▼. Jansen, 179 la. 806, 162
N. W. 46; Houser ▼. McGinnas, 106 N.
Car. 631, 13 S. E. 139; Simms ▼. Viek,
151 X. Car. 78, 24 L. R. A. (N.S.) 517,
18 Ann. Caa. 669, 65 S. E. 621; Guild ▼.
Baldridge, 32 Tenn. (2 Swan.) 295.
1^ Houser v. McGinnas, 108 N. Car.
631, 13 S. E. 139.
11 Simms v. Vick, 151 N. Car. 78, 24
L. R. A. (K.S.) 517, 18 Ann. Cas. 669,
65 S. E. 621.
I§)a561 Page on Coi^TRAcrs 2696
irecaptver such payment J So a debtor who makes a payment under
'<a •iottstake of a fact which he would have known had he used
.Qvdinary diligence in examining his receipts, can not recover.* So
.gift*'ha»:heen held that as an executor has the means of knowing the
^^yeney- of the estate, he can not recover a payment made under
' k Ittisiakte ' of fact as to such solvency.' So an administrator who
>belitevivi'g"tfaat the estate of his principal is solvent pays a note of
' dU6b i)rihcipal, can not recover a payment in excess of the dividend
'Nvliicb'^iich 'dstate pays from a surety on such note, although the
sfCii^tJ^ 'Vi^oiAd have been obliged to pay the note had the administra-
iot n6t A6M so; and though the loss will fall on the administrator
1>«^'WmHy.^ ^!Nit> '^ relief can be had for mistake of a fact with
khcMtedge ol'whhsh the party making the mistake was specially
'eliA*ged'.''iThusi'Wh«re A and B, who were to furnish timber to X,
'a^^^^ tburt' 'M >i»hould^ -all be furnished in A's name, and he should
draw the money and pay B, and A drew some of the money, giving
'5efedlt»fftti* the. r^t, «ltid. paid B a greater proportion of the cash
*jtoMf^h*'tha4»n&orPe»p<mded to the share of timber furnished by B,
^tll<ydgh''l^s'thwr"wa8'd«e© for the timber, it was held that A was
bbund' t<^ kno^t" ^horw^Hiuoh' timber B had furnished as compared
''liHthiiA,^attd'hence'«t'ha*^Aiootild not recover an excess of payment,
i ^eii a^umiAgt tbat^ B < wai» entitled only to his proportionate share
^><)f'fthie''da6b^l!»idii«i*''''W^»e it ^as the sheriff's duty to look up
'ibUfiJdpal^HeflS'And^asstelaneiitsiiripon property which he has sold
i^d^e- di£rtribat3iyg'{th0>ffuibd6; q Aeviff who overlooks a lien, and
^"p^y^fimbtl^ 'to'^he ^oitgbgefe, roanr /not recover from such mort-
^gag^e>'fliei attidont Whiefaithe>ish6mff«iir afterwards compelled to pay
to the city.^ A payment by a mi^tarkeof fact, of which fact the
party making the payment has constructive notice, can not be
. a»o»reifed<! Thit*^ w.ljw^o^ulpitflBcfeif^teferfcb'iake part of the land
" 't^Aiton ' V.' Wit. 1^ 'Mass! iili'si' '* '(fi'.j ^16, li'Am. Dec. 627; Shriver v.
''Xin;^Si; «!ei). "ad/hs 'L.-R/ AJm/^a*"- GaiVi*dii,fSd»Wi Va. 458, 4 S. E. «60.
N. £. 228; Rosenfeld v. Boston Mutual 4Proudfoot v. Clevenger, 33 W. Va.
'4iifk Pnttfraue'e €o^ 2£2^^aiB8Jd384y 110 M7^<W & .P.,394* .
'\fifi fir 3D4;/Brriimia}«t .^: MoQui^e, 107 > Simmons v. Loqd^j, 41 W. Va. 738,
'llJ'Gai-.. 55!, 12''S. >E?. Wl-? Steirtoa v. 124 ^-^,.^1,. ■■ i
Hea4{ 9 ^Vt'. -174, 31 !Atti. JMsiJ '«?; • Simmona/v.; 3Loo»?y,; ^1 W. Va. 738,
iWoudfoOt v.'deveti^fer, 33 W;'Vat'267, r24 S^iK. 677. / .;.. n ,
10 S. E. 394. ' : i .'- . TKrumbhaar V. TewdaH, 158 Pa. St.
^^* .t^firVKmnHt v.> Mb6nire, '107:'H.(€ar. 4l^6^26>Ml^lt..,ilA<tl>^ca9& the mort-
t^-'Ml^'^I^'S^iE^ 191. T • -/ / :! . : gagetf had ffilbaeqvwatJ^ al|«r^4 his po-
9 Paine v. Drury, 36 Masa. *(J1I Piek.) ...sitlOD^ on; the a«siNnFtioin i^%, there
400; Carson v. McFarland, 2 Rawle /isreM B0Maa8eMm«nt,.ltfiQp npoi^/ such
/
2697
Quasi or Constructive Contract § 1562
under lease for public use, and by the statute such election con-
veyed the legal title in such part to the city, a lessee, who after
such election has paid the entire rent to his lessor, can not recover
from him an amount proportioned to the value of the property
thus taken by the city ; since, even if he has no actual notice of such
election, he is, as a party to the proceeding, bound to take notice.*
§ 1562. Innocent payee must be placed in statu quo. If the
person to whom the money is paid by mistake receives it in good
faith and without knowledge of the mistake under which it is paid,
and if the mistake is not due to his own fault, either exclusively
or primarily, he can not be compelled to repay it unless he can be
placed in statu quoJ If he has paid the money over to those who,
as far as he is concerned, are entitled to it,^ he can not be com-
pelled to refund. If he has otherwise altered his position in reli-
ance on such payment he is not liable therefor.' If an attorney
presents to a bank a check given by one who has no funds therein,
and the bank pays such check, it can not recover from the attorney
after he has remitted such funds to his client.* Where A, a mort-
gagor, believes that certain realty which A, and B, the mortgagee.
property, and he could not be placed in
statu quo. The court, howev^, rest
their opinion on the ground that the
mortgagee took the payment in good
faith, and had done nothing to mis-
lead the sheriff.
• McCardell y. Miller, 22 R. I. 96, 46
Atl. 184.
1 Aiifona. Copper Belle Mining Co. ▼.
Gleesoh, 14 Ariz. 548, 48 L. R. A. (N.S.)
481, 134 Pac. 28o.
Massadmaetta. Welch v. Gk>odwin,
123 Mass. 71, 25 Am. Rep. 2A; Moors
V. Bird, 190 Mass. 400, 77 N. £. 643.
Michifan. Walker v. Conant, 69
Mich. 321, 13 Am. St. Rep. 301, 37 N.
W. 292.
MiMiesoUi. Langevin v. St. Paul, 49
Minn. 189, 15 L. R. A. 766, 51 N. W.
817; Grand Lodge Ancient Order of
United Workmen v. Towne, 136 Minn.
72, L. R. A. 1917E, 344, IW N. W.
403 (obiter).
New Jersey. Behring v. SomerviBe,
63 N. J. L. 568, 49 L. R. A. 578, 44 Atl.
641.
• Oregon. Security Savings & Trust
Co. V. King, 69 Or. 228, 138 Pac. 465.
Pennajdvania. Krumbhaar v. Yew-
dall, 153 Pa. St. 476, 26 Atl. 219.
South Caroliiia. Atlantic Coast Line
Ry. Co. V. Schirmer, 87 S. Car. 309,
69 S. £. 439.
Utah. Richley ▼. Clark, 11 Utah 467,
40 Pac. 717.
2 Manufacturers' National Bank v.
Swift, 70 Md. 515, 14 Am. St. Rep. 381.
17 Atl. 336; Langevin v. St. Paul, 49
Minn. 189, 15 L. R. A. 766, 61 N. W.
817.
) Krumbhaar v. Yewdall, 153 Pa. St.
476, 26 Atl. 219. (In this case defend-
ant was held not liable, though his im-
munity was placed on other grounds.)
4 Manufacturers' National Bank ▼.
Swift, 70 Md. 515, 14 Am. St. Rep. 381,
17 Atl. 336.
§ 1562 Page on Contracts 2698
intended to include under the mortgage, is cohered thereby, and in
that belief A pays money to B to secure a release of such realty
from such mortgage, and subsequently in a foreclosure suit such
payment is credited on the debt and B's rights are fixed by decree,
A can not thereafter recover from B.' The opinion of the majority
was based on the theory that in such cases the more negligent of
the two should suffer. One judge dissented for the reason that B
knew of such mistake before the decree was rendered, but still
allowed such payment to be credited on his debt.
A, the owner of a note and mortgage assigned it to B by assign-
ment of record, but kept the mortgage. Subsequently A assigned
it again to' C, who had no actual notice of the assignment to B.
X, the mortgagor, paid C's interest in the mortgage to C. Sub-
sequently X was obliged to pay the entire debt to B. X then suei
C to recover the amount paid to C, but it was held that X could not
recover.*
The rule that a party who is guilty of negligence in not ascer-
taining facts and so makes a payment under a mistake of fact can
not recover,^ applies with the greatest force where he has by his
negligence misled the adversary party, who has altered his position
and can not be placed in statu quo.' Thus A was the agent of B,
the railroad company. X was A's cashier, and had worked in. that
capacity for A's predecessor. The rules of the railroad required
prompt settlement ^each month of all money received for freight.
X was an embezzler when A entered on his employment ; but A
allowed X to neglect the rule requiring prompt payment and to
transmit money, really received as cash on recent freight accounts,
as payments on older .accounts. X's defalcation was thus concealed
for a time. When it was discovered, the railroad company claimed
that the shortage had arisen since A's employment began; and A,
believing such claim, paid X's shortage. The delay in discovering
the shortage caused the release of a surety on X's bond, by lapse
of time. It was held that A, on learning that X's shortage was
created before A's employment began, could not recover the pay-
ment from the railroad.*
IRichley v. Clark, 11 Utah 467, 40 7 See 1 1661.
Pac. 717. IFegan v. Ry., 9 N. D. 30, 81 N.
I Behring v. Somerville, 63 N. J. L. W. 39.
668, 49 L. R. A. 678, 44 Atl. 641. (C in IFegan v. Ry, 9 N. D. 30, 81 N.
reliance on X's payment had released W. 39.
the note and mortgage which he was
holding as collateral.)
2699 Quasi or Constructtve Contract § 1564
Conversely, a payment which is made by mistake of fact may
be recovered if the party to whom such payment has been made has
not altered his position to his damage in reliance upon such
payment,^^
Whether the fact that the person to whom a payment has been
made has spent such money, is such an alteration of position that
he can not be required to repay such amount, is a question upon
which there has been some difference of authority. It has been
suggested that if the person who receives such payment alters his
method of Jiving in reliance upon such payment and thus spends
such money, it is such an alteration of position as to prevent the
party who made such payment from recovering itJ^ There is no
necessary connection, however, between such payment and such
increased expenditures; and it is generally held that the fact that
the money has been spent by the person to whom it was paid does
not prevent recovery by the party who made such pajrment."
§ 1563. BSistake need not be mntnal. While the mistake under
which payments whose recovery are allowed are made may be
mutual,^ it is not necessary to recovery that it should be mutual.*
The doctrine of mutuality of mistake applies primarily to mistakes
in expression,' and has no application to payment by mistake.
The cases occasionally cited to show its necessity in the law of
payments are cases in which a bona fide payee has so altered his
position that he can not be placed in statu quo.
H. PAYMENT BY MISTAKE OF LAW
§1564. Payment by mistake of law. As has been indicated
already,^ the Roman law recognized the formal and the real con-
tracts first, then the informal contracts depending upon agreement,
and, last of all, the various forms of quasi-contractual obligation.
The condictio indebiti could be brought to recover payments made
It Grand Lodge Ancient Order of eleven months after to be called on to
United Workmen v. Towne, 136 Minn. repay it?" Brisbape v. Dacres, 5 Taunt
72, L. R. A. 1917E, 344, 161 N. W. 403. 143.
11 Brisbane v. Dacres, 5 Taunt 143. « Union Trust Co. v. Gilpin, 235 Pa.
"For see how it is! If the sum be St. 524, 84 Atl. 448.
large it probably alters the habits of 1 Worley v. Moore, 97 Ind. 15.
his life, he increases his expenses, he has 2 Stotsenburg v. Fordice, 142 Ind. 400,
spent it over and over again; perhaps 41 N. £. 313, 810.
he can not repay it all or not without ' See 1 256.
great distress: is he then five years and 1 See § 4.
§ 1564 Page on Contracto 2700
by mistake. Whether this mistake was of fact only or of fact and
law alike, is not at all clear. The mistake for which the condictio
indebiti may be brought is described by many of the writers in
terms so broad as to include mistake of law as well as of fact ; while
some of the later authorities after the classic period seem inclined
to limit the right to recover a payment made under mistake of law.
The English law seems to have started with the theory that
money paid under a mistake of law which was justly due might be
recovered if it was against good conscience for the person to whom
such payment had been made to retain it.' In some cases this
proposition is clearly laid down in obiter.' Indeed, the general rule
that money paid under a mistake which there was no ground to
claim in conscience may b^ recovered in an action for money had
and received, was laid down without any restriction to mistake of
fact.* The doctrine that money paid by mistake of law could be
recovered was not confined to obiter, however, but it was the basis
of decision in early cases.' Where A paid money to B to redeem a
mortgage and by reason of a subsequent dispute B repaid such
money to A, not knowing that the original payment had operated
as a discharge of the mortgage, B was allowed to recover such
money from A on learning that the original payment had operated
as a discharge.' The principle that a payment made under mistake
of law could be recovered was applied in an action of account.^ In
this form of action the court was not bothered by the necessity of
finding a fictitious promise ; but the duty of the party who had re-
ceived such payment to restore it was the same whether the action
was account or assumpsit. "An4 ^although he delivered them to
the defendant as his own (monies), not knowing the law therein,
supposing it to be no payment, yet in regard he did not give it
otherwise nor upon other consideration, the defendant received
them as the plaintiff's money and is accountable for them."' In
spite of these authorities, we find one judge denying the right to
recover money paid upon a wager policy on the ground that igno-
rantia juris non excusat.'
2 Hewer v. Bartholomew, Cro. Eliz. • Hewer v. Bartholomew, Cro. Eli*.
614; Bonnel v. Foulke, 2 Sid. 4. 614.
• Farmer v. Arundel, 2 W. Bl. 824. T Hewer v. Bartholomew, Cro. Bliz.
4Bize V. Dickason, 1 T. R. 285. 614.
I Hewer v. Bartholomew, Cro. Eliz. I Hewer v. Bartholomew, Cro. Eliz.
614. 614.
• Lowry v. Bourdieu, 2 Dougl. 468.
2701
Quasi ob Consikuctive Contkac! vj 1564
In this condition of authorities an a.ction was brought for money
had and received to recover a payment made by an insurer upon a
policy which the insured had obtained by suppressing a material
fact, but which amount the insurer had paid after the insured had
made full disclosure of such suppression to the insurer. Lord Ellen-
borough asked the plaintiflE's counsel whether he could state any
case where, if a party paid money to a party voluntarily with full
knowledge of all the facts of the case, he could recover it back
again on account of his ignorance of the law ; and no answer being
given, in spite of the foregoing authorities, the court cited the case
in which such recovery had been denied,'* and held that a payment
made by mistake of law could not be recovered on the ground that
every man must be taken to be cognizant of the law — otherwise there
would be no saying to what extent the excuse of ignorance might
not be carried.^' A subsequent case '* seems to have settled the law
in favor of the theory that a payment of money not justly due
under a mistake of law can not be recovered, although of the four
judges who decided the case, one took the position that a payment
by mistake of law could not be recovered, the second took the^ posi-
tion that payment by mistake of law could be recovered, a third
took the position that the record did not show any ignorance of laW,
and the fourth based his decision entirely upon the ground that the
person to whom the money was paid had expended it and that it
would be contrary to aequum et bonum if he were obliged to
repay it.
In spite of the various reasons given for the result, this case
seems to have fixed the rule in English law; and since then it has
been held in most jurisdictions that money paid with full knowl-
edge of all material facts, under mistake of law, can not be recov-
ered in the absence of other reasons for allowing such recovery.''*
The same principles apply where there is full knowledge of facts,
tl Lowry v. Boardieu, 2 Doug. 468.
11 Bilbie v. Lumley, 2 East. 469.
12 BriBbane v. Dacres, 5 Taunt 143.
1) England. Bilbie v. Lumley, 2 East.
469.
United States. Elliott v. Swartwout,
35 U. S. (10 Pet.) 137, 9 L. ed. 373;
United States v. Edmondston, 181 U. S.
500, 45 L. ed. 971.
Alabama. Traweek v. Hagler (Ala.),
75 So. 152.
CaUfomia. Brumagin v. Tillinghast,
18 Cal. 265, 79 Am. Dec. 176; Holt ▼.
Thomas, 105 Cal. 273, 38 Pac. 891.
Colorado. HaTlett v. Alexander, 50
Colo. 37, 34 L. R. A. (N.S.) 328, Ann.
Cas. 1912B, 1277, 114 Pac. 490.
Illinois. Morgan Park (Village of)
V. Knopf, 199 111. 444, 65 N. E. 322.
Indiana. MeWhinney v. Logansport,
132 Ind. 9, 31 N. E. 449.
Iowa. Painter v. Polk Co., 81 la.
242, 25 Am. St. Bep. 489, 47 N. W. 65.
§1564
Page on Contracts
2702
but one party subsequently wishes to avoid the transaction.^^ Pay-
ments of this sort are merely examples, and the most common kind,
of voluntary payments, and fall within the rule that voluntary
payments can not be recovered.
As in cases of mistake for which it is sought to avoid an execu-
tory transaction,^' a foreign law is looked upon as a fact and not
as law, so that a payment which is made by mistake as to a foreign
law may be recovered.^* The fact that the mistake of law is due
Kanaas. Cherokee County v. Hub-
bard, 8 Kan. App. 500, 65 Pac. 557.
Zentucky. LouisTille, etc., Ry. v.
Hopkins Co., 87 Ky. 605, 9 S. W. 497.
Maine. Freeman v. Curtis, 51 Me.
140, 81 Am. Dec. 564; Bragdon v. Free-
dom, 84 Me. 431, 24 Atl. 895; Cobum v.
Neal, 94 Me. 541, 48 Atl. 178; Stewart
V. Ticonic National Bank, 104 Me. 578,
72 Atl. 741.
Maryland. Baltimore v. Lefferman,
4 Gill (Md.) 423, 45 Am. Dec. 145.
Massachusetts. Forbes v. Appleton,
59 Mass. (5 Cush.) 115; Alton v. Bank,
157 Mass. 341, 34 Am. St. Rep. 285, 18
L. R. A. 144, 32 N. £. 228; Taber v.
New Bedford, 177 Mass. 197, 58 N. E.
640.
Middgan. Lamb v. ^thbum, 118
Mich. 666, 77 N. W. 268.
Wnoesota. Erkens v. Nicolin, 39
Minn. 461, 40 N. W. 567.
Missouri. Needles v. Burk, 81 Mo.
569, 51 Am. Rep. 251; Kane y. Dauem-
heim, 60 Mo. App. 64.
New Hampshire. Strafford Savings
Bank v. Church, 69 N. H. 582, 44 AtL
105.
New Jersey. Camden v. Green, 54
N. J. L. 591, 33 Am. St. Rep. 686, 25
Atl. 357.
New York, Flynn v. Hurd, 118 N. Y.
19, 22 N. E. 1109; Vanderbeck y. Ro-
chester, 122 N. Y. 285, 10 L. R. A. 178,
25 N. E. 408; Newburgh Savings Bank
V. Woodbury, 173 N. Y. 55, 65 N. E.
858.
North Carolina. Matthews v. Smith,
67 N. Car. 374; Commissioners v. Com-
missioners, 75 N. Car. 240; Devereux v.
Ins. Co., 98 N. Car. 6, 3 S. E. 639; First
National Bank v. Taylor, 122 N. Car.
569, 29 S. E. 831; Pardue v. Absher,
174 N. Car. 676, 94 S. E. 414.
North Dakota. Jacobson v. Mohall
Telephone Co., 34 N. D. 213, L. R. A.
1916F, 532, 157 N. W. 1033.'
Ohio. Mays v. Cincinnati, 1 0. S.
269; Railroad Co. v. Iron Co., 46 0. S.
44, 1 L. R. A. 412, 18 N. E. 486; Cincin-
nati V. Coke Co., 53 O. S. 278, 41 N. E.
239; Phillips v. McConica, 59 O. S. 1,
69 Am. St. Rep. 753, 51 N. E. 445.
South Carolina. Robinson v. Charles-
ton, 2 Rich. L. (S. Car.) 317, 45. Am.
Dec. 739.
South Dakota. Evans v. Hughes
County, 3 S. D. 244, 580, 52 N. W. 1062,
54 N. W. 603.
Tennessee. Hubbard v. Martin, 14
Tenn. (8 Yerg.) 498.
West Virsinia. Beard v. Beard, 25
W. Va. 486, 52 Am. Rep. 219; Shriver
V. Garrison, 30 W. Va. 456, 4 S. E. 660.
Wisconsin. Birkhauser v. Schmitt,
45 Wis. 316, 30 Am. Rep. 740.
See also, Errett v. Wheeler, 109 Minn.
157, 26 L. R. A. (NJS:) 816, 123 N.
W. 414.
14 Buckley v. Redmond, 95 Mich. 282,
54 N. W. 771; Haeg v. Haeg, 53 Minn.
33, 55 N. W. 1114.
II See 1404.
It Norton v. Marden, 15 Me. 45, 88
Am. Dec. 132; Haven v. Foster, 26
Mass. (0 Pick.) 112, 19 Am. Dec. 353.
See afso, Osincup v. Henthom, 89
Kan. 58, 46 L. R. A. (N.S.) 174, Ann.
Cas. 1914C, 1262, 130 Pac. 652.
2703
Quasi or Constructive Contract § 1565
to the adversary party, does not authorize the recovery of a pay-
ment made under a mistake of law if there is no relation of trust
and confidence between the two partiesJ^ Money which is paid to
the United States under a mistake of law, relying upon instruc-
tions of the Treasury Department, can not be recovered.^'
•§1565. Ulustratioiis — ^Total failure ci consideration. The
principle that payments made under a mistake of law can not be
recovered applies to payments made by one who was under no legal
liability to make them, and who receives nothing in return there-
for, although by reason of his mistake of law he believes that by
such payment^ he is discharging a legal liability^ Thus one who
pays under an erroneous construction of the contract,^ as a mis-
construction as to the rate of interest after maturity,' or mistaking
the liability of indorsers,* or believing that he is legally liable for
his minor child's tort,' can not recover such payment. So if the
holder of the legal title of stock pays an assessment thereon after
insolvency,* or if an executor, mi3taking the law as to lapsed lega-
cies, pays to an adopted child of testator's deceased daughter a
legacy which had lapsed by the death of such daughter before
testator,^ such payments can not be recovered. Thus A believed
that he was liable as indorser on a check, whereas under the facts
known to him he was not liable as a matter of law. He made a
payment on such supposed liability and agreed to pay the rest.
Subsequently he resisted liability on this promise successfully,* and
then sued to recover the payment already made. As such payment
was made under a pure mistake of law, no recovery could be had.*
So a husband who as administrator of his deceased wife delivers
certain securities to her son as his distributive share can not after-
n Elliott y. Swartwout, 35 U. S. (10
Pet.) 137» 9 h. ed. 373.
ItEUiott ▼. Swartwout, 35 U. S. (10
Pet) 137, 9 L. ed. 373.
1 United States v. Edmondston, 181
U. 8. 500, 45 L. ed. 971; Traweek v.
Hagler (Ala.), 75 So. 152; Stewart ▼.
Ticonic National Bank, 104 Me. 578» 72
AtL 741; Strafford Savings Bank v.
CSraidi, 60 N. H. 582, 44 Atl. .106.
2 Cincinnati v. Coke Co., 53 0. S. 278,
41 N. E. 239.
SReetor ▼. Collins, 46 Ark. 167, 56
Am. Rep. 571.
4 First National Bank y. Taylor, 122
N. Car. 569, 29 S. £. 831.
I Needles y. Burk, 81 Mo. 569, 51 Am.
Rep. 251.
tHoIt y. Thomas, 105 Cal. 273, 39
Pac. 891. .
7 Phillips V. McConica, 59 O. S. 1,
69 Am. St. Rep. 753, 51 N. E. 445.
• Neal y. Cobum, 92 Me. 139, 69 Am.
St. Rep. 495, 42 Atl. 348.
9 Coburn y. Neal, 94 Me. 541, 48 AtL
178.
§1566
Page on Contracts
2704
wards assert an interest in them as husband.^ So in the absence
of duress, one who pays a license fee in excess of the amount fixed
by law,^^ or pays an unauthorized tax, no duress existing,^' can not
recover the amount so paid. So a public officer who pays into the
treasury fees which he is entitled to retain can not recover them.^'
One who has paid taxes upon an entire tract of land in order to
protect a lien upon an undivided interest therein, under a statute
which authorizes the owner of any interest in or Hen upon an un-
divided estate to pay his proportionate part of such tax, can not
recover such excess payment from the owner of the other un-
divided interest.^* If A pays a debt to B upon which he is second-
arily liable after judgment has been entered thereon, A can not
recover such payment on discovering that such judgment was irreg-
ular and that it was set aside for such irregularity, if he knew all
the facts when he made siich payment and his mistake was one of
law J* If A has, through mistake of law, misunderstood the price
at which public land is sold and has paid a price greater than that
fixed by law, A can not recover the difference between the price
which he paid and the price which was fixed by law.^*
§ 1566. Doctrine that payment by mistake of law may be re-
covered. The practical results of the doctrine that money which is
not justly due can not be recovered if it is paid under a mistake of
law, have been so unjust and unfair that some courts have refused
to recognize its existence, and they have, although possibly uncon-
sciously, followed the original English doctrine ; and they have held
that money which is paid under a mistake of law may be recovered
19 Hughes V. Pealer, 80 Mich. 540, 45
N. W. 589. In this case the court found
as a fact that the husband knew his
rights. ,
11 Camden v. Green, 54 N. J. L. 591,
33 Am. St. Rep. 686, 25 Atl. 357.
12 United States. Elliott v. Swart-
wout, 35 U. S. (10 Pet.) 137, 9 L. ed.
373.
Illinois. Yates v. Ins. Co., 200 111.
20-2, 6.1 N. E. 726.
Kentucky. Louisville, etc., Ry.. v.
Marion County, 89 Ky. 531, 12 S. W.
1064.
Michigan. Manistee Lumber Co. v.
Springfield Township, 92 Mich. 277, 52
N. W. 468.
Missouri. Christy's Administrator v.
St. Louis, 20 Mo. 143.
13 Wesson .V. Collins, 72 Miss. 844,
850; 18 So. 360, 917.
14Hallett v. Alexander, 50 Colo. 37,
34 L. R. A. (N.S.) 328, Ann. Cas. 1912B,
1277, 114 Pac. 490.
1* Stewart v. Ticonic National Bank,
104 Mc. 578, 72 Atl. 741.
II United States v. Edmondston, 181
U. S. 500, 45 L. ed. 971.
2705
Quasi or Constructive Contract § 1566
if the party to whom it is paid is in no way entitled. thereto, either
in strict law or in equity and good conscience.^
A member of a fraternal insurance society who through mistake
of law' has paid assessments in excess of the amount which he was
legally bound to pay, may recover the difference between the assess-
ments paid and the assessments which he was legally bound to pay.*
If A enters into a contract with X through B, X's broker, to buy
B's realty, and if A pays to B a sum of money in reliaance on B's
representation that he was entitled to such commission and that A
was to pay the rest of such purchase price to X, A on learning tha^
X was not to receive a commission from B and on being obliged to
pay to B the entire purchase price, may recover from X the amount
thus paid to him.' An executor who pays a legacy under an er-
roneous construction of the will,* or who pays debts in full Under a
1 Mansfield y. Lynch, 59 Conn. 320,
12 L. R. A. 285, 22 AtL 313; Bruner v.
SUnton, 102 Ky. 450, 43 S. W. 411;
Lyon ▼. Mason & Foard Co., 102 Ky.
594, 44 & W. 135; Scott v. New Castle,
132 Ky. 616, 21 L. R. A. (N.S.) 112,
116 S. W. 788; Polites v. Barlin, 149
Ky. 376, 41 L. R, A. (N.S.) 1217, 149
S. W. 828; Spalding v. Lebanon, 156
Ky. 37, 49 L. R. A. (N.S.) 387, 160 S.
W. 751; Supreme Council Catholic
Knij^hts of America v. Fenwick, 169
Ky. 269, 183 S. W. 906; Hartsfield v.
Wray, 181 Ky. 836, 205 S. W. 965;
Lichtwadt v. Murphy's Administrator
(Ky.), 206 S. W. 771.
'*We mean distinctly to assert that
when money is paid by one under a
mistake of his rights and his duty,
and which he was under no moral or
«
legal obligation to pay, and which the
recipient has no right in good con-
science to setain, it may be recovered
back in an action of indebitatus as-
sumpsit, whether the mistake be one of
law or fact; and this we insist may be
done both upon the principles of Chris-
tian morals and the common law."
Northrop v. Graves, 19 Conn. 548, 554;
50 Am. Doc. 264 Tquoted in Mansfield
V. Lynch, 50 Conn. 320, 327; 12 L. R. A.
285, 22 Atl. 313].
''It is the settled rule in this state,
adopted at an early date and followed
by a long line of decisions, that when-
ever, by a clear or palpable mistake of
law or fact essentially bearing upon
and affecting the contract, money has
been paid without consideration, which,
in law, honor or conscience, was not
due and payable, and which, in honor or
good conscience ought not to be re-
tained, it may and ought to be re-
covered." Supreme Council Catholic
Knights of America v. Fenwick, 1G9
Ky. 269, 183 S. W. 906 [citing, Ray v.
Bank of Kentucky, 42 Ky. (3 B. Mon.)
510]; Gratz v. Redd, 43 Ky. (4 B.
Mon.) 178; McMurtry v. Kentucky
Central R. R. Co., 84 Ky. 462, 1 S. W.
815; Titus v. Rochester German Insur-
ance Co., 97 Ky. 567, 28 L. R. A. 478,
31 S. W. 127; Kentucky Title Savings
Bank & Trust Co. v. Langan, 144 Ky.
46, 137 S. W. 846.
2 Supreme Council Catholic Knights
of America v. Fenwick, 109 Ky. 269,
183 S. W. 906.
)Go<%swiller v. Jansen. 170 la. 806,
162 N. W. 45.
4 Northrop v. Graves, 19 Conn. 548,
50 Am. Dec. 264.
§1566
Page on Contracts
2706
mistaken belief that certain other debts of whose existence he
knows are not legally enforceable because not proved by writing
signed by decedent,' may recover such payments, or the amount
thereof in excess of what should have been paid. So where one pays
a license fee under the mistaken belief that the ordinance imposing
it is valid, may recover such payment.* The fact that the person
who has paid a license fee through a mistake of law has acted under
the license thus obtained, does not prevent him from recovering such
payment since he could have acted in the same way with impunity
j^ithout making such payment or securing such license.^ If A has
paid money for a license in reliance upon a decision of a trial court,
he may, when such decision is reversed, recover such part of the
original payment as is proportioned to the remainder of the term.*
Where a public officer permits one in ignorance of the law to pay
license fees for burial permits, which fees were not authorized by
law, it has been held that such payments may be recovered as made
by fraud.* -If A attempts to effect insurance, and without any fraud
on A's part the insurance never takes effect,^ as where a mortgagee
by mistake of law takes out insurance on the mortgaged property
believing that it protects his interest,^^ or without fraud the insured
makes a warranty broken when made, such as one concerning his
occupation,'* or the location of the property insured,'* A may recover
the premiums paid. If the agent of the insurance company has mis-
led both the insurance company and the insured, the right of the
insured to recover the premiums paid in is clear.'* To keep them
''would be an act of bad faith and of the grossest injustice and
dishonesty." '• If an employe pays over to his employer tips which
• Mansfield v. Lynch, 50 Conn. 320,
12 L. R. A. 285, 22 Atl. 313. ,
• Bniner v. Stanton, 102 Ky. 450, 43
S. W. 411; Spalding v. Lebanon, 156
Ky. 37, 40 L. R. A. (N.S.) 387, 160 S.
W. 761.
"He is not presumed to know more
than those who constitute the legis-
lative and executive departments of
the government under which he lives."
Louisville v. Anderson, 70 Ky. 334, 340;
42 Am. Rep. 220 [quoted in Bruner v.
Stonton, 102 Ky. 450, 461; 43 6. W.
411].
7 Spalding v. Lebanon, 156 Ky. 37,
40 L. R. A. (N.S.) 387, 160 S. W. 751.
• Scott V. New Castle, 132 Ky. 616,
21 L. R. A. (N.S.) 112, 116 S. W, 768.
• Marcotte v. Allen, 01 Me. 74, 40 L.
R. A. 185, 30 Atl. 346.
1* Metropolitan Life Ins. Co. v. Bow*
ser, 20 Ind. App. 557, 50 N. E. 86.
11 Waller v. Assurance Coi^ 64 la. 101,
10 N. W. 865.
12 McDonald v. Ins. Co., 68 N. H. 4,
73 Am. St. Rep. ^8, 38 Atl. 500.
IS Jones V. Ins. Co., 00 Tenn. 604, 25
Am. St. Rep. 706, 18 S. W. 260.
14 New York Life Ins. Co. v. Fletcher,
117 U. S. 510, 20 L. ed. 034.
»Ins. Co. V. Wilkinson, 80 U. S. (18
WalL) 222, 233, 20 L. ed. 617 [quoted fai
2707
Quasi or Constrtjotive Contract , § 1566
the employe has received from customers under a mistake of law as
to his duty, he may recover such payment from his employer." A
beneficiary who has permitted trustees to pay a proportion of his
share of a trust fund over to persons not entitled thereto, in reliance
upon their mistake as to the system of law which fixed the rip^hts
of the parties and as to the rights of the parties under such law,
may compel the person to whom such fund has been paid to restore
it if it is in existence and in reach of the court, by a proceeding
in equity." Payment of a void judgment by one who is liable
only as surety on a bond given to discharge a levy, may be re-
covered."
This right of recovery of payment made under mistake of law
is limited to cases where such payment should not have been made
in morals and in good conscience. The mere non-existence of legal
liability is not enough to justify recovery. Thus a husband con-
veyed land to his wife, B, and she agreed as part of the considera-
tion to assume a debt of his. By reason of her coverture such
agreement had no validity. Subsequently she paid such debt. It
was held that she could not thereafter recover it, even though such
payment could not have been compelled."
In some jurisdictions in which the general rule seems to be that
a payment made under a mistake of law can not be recovered,
relief is occasionally given,* especially if the party who made such
payment does not receive the benefit therefrom which he had sup-
posed that he would receive.*^ One who has paid money as a sub-
scription to a public improvement under an unconstitutional law,
may recover such payment if by reason of the unconstitutionality
of such law the public improvement for which such subscription
was made is not constructed.^ Money which is deposited as cash
McDonald v. Ins. Co., 68 N. H. 4, 6;
73 Am. St. Rep. 548, 38 Atl. 500].
II Pontes V, Barlin, 149 Ky. 376, 41
L. R. A. (N.S.) 1217, 149 S. W. 828.
IT Prince de Beam v. Winans, 111
Md. 434, n Atl. 626.
ItLichtwadt v. Murphy's Adminis-
trator (Ky.), 206 S. W. 771.
IIRuppell V. Kissel (Ky.), 74 S. W.
220.
» Conway v. (^and Chute, 162 Wis.
172, 155 N. W. 959 [citing. Green Bay
& Miss. Canal Co. t. Hewitt, 62 ^is.
316, 21 N. W. 216, 22 N. W. 588; Wis-
consin Marine & Fire Insurance Co.
Bank v. Mann, 100 Wis. 596, 76 N. W.
777, and Rowell v. Smith, 123 Wis. 610,
3 Ann. Cas. 773, 102 N. W. 1].
tIBrasfield v. Milan, 127 Tenn. 561,
44 L. R. A. (N.S.) 1150, 155 S. W. 926;
Conway v. Grand Chute, 162 Wis. 172,
155 N. W. 953.
22 Conway v. Grand Chute, 162 Wis.
172, 155 N. W. 953.
§1567
Page on Contracts
2708
bail may be recovered if the law did not authorize cash bail for
the appearance of one charged with a criminal offense.^
Even where the courts still adhere to the rule forbidding re-
covery of money paid under mistake of law, they look upon it with
marked disfavor^^ and they refuse to apply the rule where it will
produce an unjust result."
§1567. Mistake of law coupled with other operatiye tnfitB.
Other reasons may, however, enable the party who has paid money
under mistake of law to recover it. Thus where the payment is
obtained by B's knowing A's mistake and taking advantage of it; ^
or by actively causing A to make such mistake;^ or by B's using
A's mistake as a means of exerting undue influence over A,' A may
recover the money so paid. So where the probate judge rendered
services in settling a will contest, contrary to a statute which
forbade a probate judge to practice law, payment made to him
by his client in ignorance of the law and under his influence may
be recovered.* The principle that a payment made by one person
under a mistake of law, and received by one who knows that the
other party is paying by reason pf such mistake, may be recovered,
is not limited to cases of payment to a public ofScer. Payment
under such facts may be recovered from a private person to whom
such payment is made.' In case of a known mistake of law mere
silence may be fraud.* Under the civil code of California, §1578,
payment under a mistake of law, which is shared substantially
by all the parties, may be recovered.^ So where the mortgagee's
attorney advises the mortgagor that as the mortgage covers the
rents and profits, the mortgagee is entitled to the proceeds of the
23 Alabama. Butler v. Foster, 14
Ala. 323.
Kansas. Applegate v. Young, 62 Kan.
100. 61 Pac. 402.
Nebraska. Snyder v. Gross, 60 Neb.
340, 5 Ann. Cas. 152, 95 N. W. 636.
New York. Eagan v. Stevens, 39
Hun. 311.
Tennessee. Brasfield v. Milan, 127
Tenn. 561, 44 L. R. A. (N.S.) 1150, 155
S. W. 926.
24 Burlingame v. Hardin County, 180
la. 919, 164 N. W. 115.
21 Burlingame v. Hardin County, 180
la. 919, 164 N. W. 116.
1 Toland v. Corey, 6 Utah 392, 24 Pac.
190.
2 Kinney v. Dodge, 101 Ind. 573.
3 Baehr v. Wolf, 59 IlL 470; Evans v.
Funk, 151 111. 650, 38 N. E. 230.
4 Evans v. Funk, 151 III. 650, 38 N.
E. 230.
'Jordan v. Stevens, 51 Me. 78, 81
Am. Dec. 556; Freeman v. Curtis, 51
Me. 140, 81 Am. Dec. 564.
• Downing v. Dearborn, 77 Me. 457,
1 Atl. 407.
7 Gregory v. Clabrougb's Executors,
129 Cal. 475, 62 Pac. 72.
2709
Quasi ok Constructive Contract § 1567
cropSy and the mortgagor accordingly pays over the proceeds of
the crop, such pa3anent is made under a mistake of law shared by
all parties and may be recovered.' A public officer is paying out
public funds and not his own. Even though the loss, if any, will
ultimately fall on him personally, this fact is held, in most juris-
dictions to entitle him, in his official capacity, to recover payments
made under a mistake of law.* Money paid by one public officer
to another may be recovered even more readily than money paid
by a public officer to one who is not.^* As long as the fund remains
in the hands of officers in their official capacity, no harm can
result from requiring it to be paid into the proper account,* and
much injustice can be prevented by so doing. -The reasons, insuf-
ficient as they are, which are relied upon to justify the refusal to
allow recovery of such payments as between individuals, have no
application here. If a taxpayer may, sue on behalf of the public,
he may recover for the public money paid out by a public officer,
voluntarily, but without authority of law.''
Money paid under a statement that repayment is expected if it
shall be determined that- such payment was not due, may be re-
covered."
iGr^ory v. Clabrougli'a Executors,
129 Cal. 475, 62 Pac. 72.
9 United SUtes. McElrath v. United
States, 102 U. S. 426, 26 L. ed. 180.
Alabama. Demopolis v. Marengo
County, 195 Ala. 214, 70 S. W. 275.
District of Columbia. White v. Uni-
ted States, 38 D. C. App. 131.
Iowa. Pocahontas County v. Katz-
Craig Contracting Co. (la.), 165 N. W.
422.
Michigan. Ellis v. State Auditor, 107
Mich. 528, 65 N. W. 577.
Miaaonii State, ex rel., v. Scott, 270
Mo. 146, 192 S. W, 90.
Without denying this rule, it has
been held that a payment to a de facto
officer can not be recovered, as he is
entitled to compensation for his serv-
ices in good conscience. Badeau v.
United States, 130 U. S. 439, 32 L. ed.
997.
10 State, ex reL, v. Scott, 270 Mo. 146,
192 S. W. 90.
11 Heath v. Albrook, 123 la. 559, 98
N. W. 619.
12 Burlingame v. Hardin County, 180
la. 919, 164 N. W. 115.
PART IV
PARTIES
CHAPTER XLY
Parties
§ 1568. Necessity of two adversary parties.
i 1569. Abnormal status as affecting contractual capacity.
§ 1568. NeoeBslty of two advenary parties. Since a genuine
contract is an agreement which the law will enforce,^ a contract
can not exist unless there are two adversary parties to the con-
tract.^ A covenant by which A agrees to pay money to himself, or
to perform some other act for his own benefit, has no legal effect.' If
A makes a note which is payable to himself, such note has no legal
significance as long as it remains in A's hands.^ When A endorses
1 See §§ 36 et seq. and 49.
2De Tastet v. Shaw, 1 B. & Aid. 664;
Ellis V. Kerr [1910], 1 Ch. 529; Canter-
berry V. Miller, 76 IlL 355; Muhling ▼.
Sattler, 60 Ky. (3 Met.) 285, 77 Am.
Dec. 172,
S England. Wood v. Mytton, 10 Q.
B. 805.
United States. Moses v. Lawrence
County National Bank, 149 U. S. 298,
37 L. ed. 743.
Illinois. Canterberry y. Miller, 76
111. 355; Kayser v. Hall, 85 IlL 511, 28
Am. Rep. 624.
Kentucky. Muhling y. Sattler, 60
Ky. (3 Met.) 285, 77 Am. Dec. 172.
Hassachusetta. Pitcher y. Barrows,
34 Mass. (17 Pick.) 361, 28 Am. Dec.
306.
Tennessee. Moore y. Cary, 138 Tenn.
332, 197 S. W. 1093.
''The covenant, to my mind, is sense-
less. I do not know what is meant, in
point of law, by a man paying him-
self." Faulkner v. Lowe, 2 Ezch. 595.
This principle has been invoked to
show that a state has no power to oon-
tract with one of its counties, since
this would be "saying that the state
has contracted with itself or its own
agencies and creatures — a solecism in
the law." Watson Seminary v. Pike
County Court, 149 Mo. 57, 45 L. R. A.
675, 50 S. W. 880. This principle was
not, however, necessary to the decision
in this case, since the statute under
discussion was a declaration of the
will of the legislature and not a con-
tract; and it could, therefore, be re-
pealed at any time.
4 England. Wood v. Mytton, 10 Q.
B. 805.
United States. Moses v. Lawrence
County National Bank, 149 U. S. 298,
37 L. ed. 743.
Illinois. Kayser v. Hall, 85 IlL 511,
28 Am. Rep. 624.
Massachusetts. Pitcher v. Barrows,
34 Mass. (17 Pick.) 361, 28 Am. Dec
306.
Tennessee. Moore v. Cary, 138 Tenn.
332, 197 S. W. 1093.
2710
2711
Pabties
§1568
such note to B for value and delivers it, the instrument takes effect,'
but it takes effect because of the contract between A and B, and
not because of the contract made by A with himself. These prin-
ciples have been codified in the Negotiable Instruments Law, and
by the provisions of that statute a promise to pay to the order of
the promisor has no legal effect until it is endorsed and delivered
by the promisor.* If A, as one of the parties, enters into a joint
contract with A and B as the adversary parties, A is both promisor
and promisee, both debtor and creditor; and the contract is re-
garded as without legal effect.^
The objection to a contract which a party has attempted to make
with himself, is one of substance and not of mere form.* It is
inoperative at common law, but it is also inoperative in equity.*
On the one hand, no action upon such a contract can be brought if
the same person is both plaintiff and defendant, and is seeking
relief against himself ; ^ and on the other hand, such contract can
not be used as a justification for retaining money in the hands of
the defendant.^^ If A and B agree to sell goods to B and C, and if
such goods are delivered to B and C under covenant by which the
title to such goods is to remain in A and B until payment, C can
not set up as a defense to an action of trover for his conversion
of such goods the fact that B was both seller and buyer.
I England. Absolon v. Marks, 11 Q.
B.10.
CaKfornia. Meyer ▼. Foster, 147 CaL
1«^ 81 Pac. 402.
--aiii3. Robe: t J v. Lane, 64 Mc. 108,
13 Am. Rep. 212.
Massachusetts. Dubois v. Mason, 127
Mass. 37, 34 Am. Rep. 335.
Ohio. Ewan v. Brooks- Waterileld
Co., 55 0. S. 596, 60 Am. St. Rep. 719,
35 L. R. A. 786, 45 N. E. 1094.
Wisconsin. Roach v. Sanborn Land
Co., 135 Wis. 354, 115 N. W. 1102.
t Davis T. Blakely First National
Bank (Ala.), 68 So. 261; People's Na-
tion al Bank v. Taylor, 17 Ariz. 215,
149 Pac 763; Jordan v. First National
Bank (Ga.), 91 S. E. 287; Moore v.
Cary, 138 Tenn. 332, 197 S. W. 1003.
T Faulkner y. Lowe, 2 Ezch. 595; El-
lis T. Kerr [1910], 1 Ch. 529 [distin-
guishing, Rose y. Poulton, 2 Barn. &
Ad. 822, as an example of a joint and
several covenant]; Napier y. Williams
[1911],-.! Ch. 361.
• De Tastet v. Shaw, 1 B. & Aid. 664;
Ellis V. Kerr [1910], 1 Ch. 529; Napier
y. Williams [1911], 1 Ch. 361.
I De Tastet y. Shaw, 1 B. & Aid. 664 ;
Bcyce y. Edbrooke [1003], 1 Ch. 836;
Ellis y. Kerr [1910], 1 Ch. 529; Napier
V. Williams [1911], 1 Ch. 361.
10 Faulkner v. Lowe, 2 ExcU. 595;
Ellis V. Kerr [1910], 1 Ch. 529 [distln-
guishing, Rose y. Poulton, 2 Bam. &
Ad. 822, as an example of a joint and
seyeral covenant]; Napier y. Williams
[1911], 1 Ch. 361; Canterberry y. Mil-
ler, 76 111. 355; Muhling y. Sattler, 60
Ky. (3 Met.) 285, 77 Am. Dec. 172.
II De Tastet v. Shaw, 1 B. & Aid. 664.
§ 1569 Page on Contraoto 2712
One who acts in a special capacity, such as executor, was re-
garded at common law as having a personal interest and a personal
liability in all such transactions. He was not treated as a cor-
poration sole. Accordingly, a party can not enter into a contract
with himself in a different capacity.^' He can not in his personal
capacity execute and deliver a note and mortgage to himself in
his official capacity, even though it is to secure a debt which in
his personal capacity he owes to the estate which he represents in
his official capacity.^'
§ 1569. Abnormal status as affecting contractual capaci^. In
the discussion of contracts up to this point we have assumed that
both parties to the contract were of normal status and possessed
full capacity. Many of the propositions of contract law have no
application in cases in which one party or the other is of abnormal
status or lacks full capacity. A discussion of the contracts of
persons of abnormal status involves questions both of contract and
of quasi-contract. The commoner types of natural persons of
abnormal status or lacking full capacity will first be considered,
then questions of partnership, agency, and of liability as that of
trustees and the like, which is often confused with agency; and
then the contracts of artificial persons, that is, of the^ government
and of public and private corporations.
12Gorham v. Meacham, 63 Vt. 231, 130orham t. Meacham, 63 Vt. 231,
22 Ail. 572 [sub nomine, Burditt v. 22 Atl. 572 [sub nomine, Burditt t.
Colbarn, 13 L. R. A. 676]. Colburn, 13 L. R. A. 676] ; Morley ▼.
French, 56 Mass. (2 Cush.) 130.
CHAPTER XLVI
Contracts of Infants
S 1570. Theory underlying doctrine of infancy.
9 ld71. The termination of minority at common law.
§ 1572. Effect of emancipation.
§ 1573. Assent of parent or guardian.
§ 1574. Statutes affecting capacity of minors.
§ 1575. Infant married women.
S 1576. Original rule concerning the effect of an infant's contract.
§ 1577. Present standing of original rule.
§ 1578. Modem rule concerning the effect of an infant's contracts.
§ 157d. Void contracts — ^Powers of attorney.
§ 1580. Void contracts — ^Appointments of agents.
§ 1581. Other contracts held void.
1 1582. Valid contracts — ^Marriage.
§ 1583. Valid contracts — ^Enlistment.
§ 1584. Valid contracts — ^Apprenticeship.
S 1585. Valid contracts — ^Performance of legal duty.
§ 1586. Valid contracts — ^Necessaries — Nature of liability.
S 1587. What are necessaries.
S 1588. Examples of necessaries.
§ 1589. Effect of special circumstances.
§ 1590. Effect of excessive supply of articles.
S 1591. Effect of existence of parent or guardian.
§ 1592. Money as a necessary.
§ 1593. Voidable contracts.
1 1594. Examples of voidable contracts — Transfers of property.
§ 1595. Contracts for work and labor.
§ 1596. Contracts of suretyship.
1 1597. Compromise and arbitration.
§ 1598. Instruments negotiable in form.
§1599. Contracts of partnership.
§ 1600. Infant as member of corporation.
§ 1601. Concealment or misrepresentation of minority.
5 1602. Ratification— Who can ratify.
1 1603. Nature and effect of ratification.
§ 1604. What constitutes ratification — Express ratification. .
§ 1605. Form of express ratification. , .
§ 1606. Ratification by acts and conduct showing unequivocal intent.
S 1607. Acts and conduct not showing unequivocal intent.
2713
§ 1570 Page on Contracts 2714
§ 1608. Acknowledgment or pnrt payment.
§ 1600. Who can disaffirm.
§ 1610. Time for diBaffirmance — Minority.
§1611. Theory of reasonable time after reaching majority.
S 1612. Theory of period of limitations.
§ 1613. What constitutes disaffirmance — ^Executory contracts.
§ 1614. Disaffirmance of conveyance of realty.
i 1615. Disaffirmance of contract for sale or purchase of personalty.
§ 1616. Partial disaffirmance impossible.
§ 1617. Restoration of consideration on disaffirmance.
§ 1618. Consideration not enuring to benefit of infant.
§ 1619. Change in form of consideration — Subrogation.
§ 1620. Special statutory provisions.
§ 1621. When restoration of consideration must be made.
§ 1622. Results of disaffirmance.
§ 1623. Theory that contract of infant is voidable only on fun restitution.
1 1624. Infant as bankrupt.
§ 1625. Infant's torts arising out of contract.
§ 1570. Theory underlying doctrine of iofanoy. A child lacks
the judgment and discretion necessary to make ordinary contracts.
If his contracts were binding on him in all cases, extravagance in
personal expenditures and recklessness in business ventures would
often burden him before his majority with debts which he could
never pay. The policy of our law deprives him in many cases of
the control of his own property and transfers it to his guardian;
and as a corollary the law is unwilling to allow him to bind himself
by contracts concerning the management of his estate, since these
are matters to which his guardian should attend. On the other
■
hand, the law imposes certain obligations upon him, and these
obligations are in no way weakened if the infant voluntarily prom-
ises to discharge them. The wise policy of the law, therefore,
must hold that certain contracts are not binding upon the infant,
at least if he wishes to escape liability; while others are binding,
at least to the extent of the pre-existing liability of the infant.
Whether such promises should be called contracts or not is a ques-
tion of terminology.
As the object of the law is not solely the protection of the infant,
but rather an adjustment of his rights and duties in such way as
will promote the general well-being, a complicated set of questions
is left for solution in cases where the infant has received some-
thing of value under the contract and his right to avoid his liability
limits the right of the other party to recover his property. With
these questions the following sections are concerned.
2715
Contracts op Infants
§1571
Since capacity is presamed, the burden is upon the party who
alleges infancy to establish that factJ
§1571. The tennination of minority at comnum law. The
common law fixed the age of majority at twenty-one for both males
and females. Persons under that age were infants or minors.^
This rule is, of course, an arbitrary one. There is but little differ-
ence in the discretion of one on the day before and on the day after
majority.* **A minor who has nearly attained his majority may
be as able to protect his interests in a contract as one who has
passed that period. But the law must necessarily fix some precise
age at which persons shall be held sui juris. It can not measure
the individual capacity in each case as it arises."' Unless some
arbitrary point of time is fixed by law, the capacity of the infant
would necessarily be a question of fact in each, case ; and from the
uncertainty and practical difficulty that would be thus caused the
courts have always shrunk. The exact moment at which the age
of twenty-one was reached and minority ended was settled at com-
mon law as the first moment of the day preceding the twenty-first
anniversary of birth.* **0n the day before the twenty-first anni-
IGiOam ▼. Richart (Okla.), 150 Pac.
1037.
lADon., 1 Salk. 44, 1 Black. Com.
4«3; Rowland v. McGuire, 64 Ark. 412,
42 6. W. 1068. "An infant or minor
(wkom we. call any that iB under the
age of 21 years •••)." Coke
Litt., 2 b; Harris ▼. Berry, S2 Ky. 137.
This is said to be the common-law
rule as to males. International Text
Book Co. V. Connelly, 206 N. Y. 188,
42 L. R. A. (N.S.) 1115, 99 N. E. 722.
The age of twenty-one has been
adopted by statute as to males. Jeffer-
son ▼. Gallagher (Okla.), 150 Pac. 1071.
2 Ex parte IfcPerren, 184 Ala. 293,
47 L. R. A. (N.S.) 543, 63 So. 159; Me-
Carty v. Carter, 49 111. 58, 95 Am. Dec.
572; Baker v. Lovett, 6 Mass. 78, 4 Am.
Dec. 88; Hamer v. Dipple, 81 0. S. 72,
27 Am. Rep. 496.
tMoCarty v. Carter, 49 1U. 53, 55;
95 Am. Dec 572. "WheneTer he arrives
at majority, a time flzed by an arbi-
trary rule, which in the nature of
things can not affect the personal caplt-
hilities of its subject, tl'^* law presumes
that he has acquired all the wisdom
and prudence necessary for the proper
management of his affairs; hence the
law imposes on him full responsibility
for all his acts and contracts." Hamer
r. Dipple, 31 0. S. 72, 74.
4 England. Swinebume, pt 2, § 2, pi.
7; 2 Kent Com. 233; Met. Cont 38; 7
Wait Act & Def. 129; Fit^hugh v. Den-
nington, 6 Mod. 259; Anon. 1 Salk. 44.
. IttdiaM. Roe t. Hersey^ 3 Wils. 274;
Wells V. Wells, 6 Ind. 447.
Kentucky. Hamlin v. Stevenson, 34
Ky. (4 Dana) 597.
lltssachusetta. BardweU ▼. Purring*
ton, 107 Mass. 419.
New York. Phelan v. Douglas 
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