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Page:Harvard Law Review Volume 1.djvu/221

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mistake must be as to a fact which, if true, would make the person paying liable to pay the money; not where, if true, it would merely make it desirable that he should pay the money.”

This remark was not necessary to the decision of the case, and it is submitted that it does not give the proper test. The following illustration would seem to prove that Bramwell’s test cannot be adopted. A, supposing that B is indebted to him, though B in fact is not, draws an order on B in favor of C, and delivers it to him as a gift. A dies, and after A’s death the order is presented by C, in ignorance thereof, and paid by B, who believes A to be alive; but he knows that he is not indebted to A. B has paid the money supposing that, by so doing, he got a good contract against A. Plainly he has no remedy against A’s estate. A’s order was a mere offer, which was revoked by A’s death,— is C to be a gainer at B’s expense? Under Bramwell’s test he must be; as the fact about which B was mistaken, namely, A’s existence, if true, would not have made B liable to comply with the order.

In Southwick v. First Nat. Bank,[1] a bill drawn by A on B, payable to A’s order, was indorsed by A to C, to whom A was indebted, the understanding between A and C being that C should obtain payment of the bill, and extinguish A’s indebtedness with the proceeds. The understanding between A and B was that A was to draw a bill on B, and with the proceeds take up an outstanding bill on which A and B were liable. The bill was presented by C to B, who accepted and also paid the bill, under the impression that A was carrying out his part of the agreement. It was held that the mistake of fact was not of a kind to entitle B to recover the money paid. “It is certainly true,” says Earl, J., delivering the opinion of the Court, “that if the drawees had known what they now know, or if they had known that the proceeds of the draft were to be applied otherwise than upon the old draft, they would not have accepted or paid the draft. But were they so mistaken that they can retain the money voluntarily paid by them? It is not every mistake that will lay the groundwork for relief. It must be a mistake as to some existing fact, not as to something to happen or to be done in the future. It must be a mistake as to some fact, not remotely, but directly, bearing upon the act against which relief is sought. If it were the rule to relieve against mistakes as to remote, or what are sometimes called extrinsic, facts,

  1. 84 N.Y. 420.