5o8 HARVARD LAW REVIEW. which, when made without a consideration, is a gift.^ The proposi- tion, however, that a mistake constitutes a ground of recovery is not true as a universal proposition, and, like all other such propositions, can be defeated by showing a particular instance in which it fails. The learned writer himself indicates many such instances.^ More- over, it is by no means an obvious proposition in any case that a mere mistake of the parties should create a cause of action in favor of one against the other. If mistake involves no breach of right, as is commonly said, how caj^ a plaintiff ask the court to grant him relief against one who has omitted no duty } The learned author himself says, " There being no contract between the parties, unless the defendant is guilty of some wrong, the plaintiff can establish no cause of action against him." ^ He is speaking, to be sure, of the necessity of proving a tort as the basis of action in the case of restitution upon a tort, but he calls this an ** almost self-evident proposition," and indeed it is. It certainly should suffice to throw upon him the burden of showing the wrong involved in mistake. The true theory, as I conceive it, may be best illustrated in the consideration of three cases. I. Suppose that A, with knowledge of the facts, makes an inten- tionally false statement of them to B, in order to induce B to pay him a sum of money. This is a clear case of deceit, and B should be allowed to recover back the money. II. Suppose A makes the same statement, which is false in fact, but which he honestly supposes to be true, in order to induce B to pay him the money. Before the payment, however, he learns the falsity, but, suppressing his knowledge, allows B to pay him on the faith of the representation. This is clearly as much deceit as the former case, and B should be allowed to recover back his money.* III. Suppose the same facts, except that A discovers the falsity of his statement after the payment instead of before it. This is a case of mistake, but it is indistinguishable in principle from the others. A is as morally, and should be as legally, delin- quent in retaining the money as in the other cases he was morally and legally delinquent in taking it. An action to recover back the money paid in the case of such a mistake bears much the same 1 Pages 26, 27. 2 Pages 32, 34, 43, 59, 71, 72, 77, and elsewhere.
- Page 160. * Pollock on Torts, 4th Eng. ed., 265, 267.
