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Page:Harvard Law Review Volume 1.djvu/226

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the plaintiff, and an enrichment of the defendant, is it an answer to an action brought by the plaintiff, for the defendant to say that the mistake was due to plaintiff’s negligence?

In the early cases the judges were undoubtedly ready to hold that a plaintiff who had been negligent could not recover, for there are many dicta to that effect. But by the great current of authority it is held to day that plaintiff’s negligence is not sufficient to defeat a recovery.[1] In Lawrence v. American Bank, supra, the Court says: “It is the fact that one by mistake pays money to another to which the latter is not entitled from the former, which gives the right of action, and the fact that the mistake occurs through negligence does not give the payee any better, or the payer any worse, title to the money.”

In these jurisdictions where the defendant is allowed to defeat a recovery by showing that he has so changed his position in consequence of the payment that he cannot be put in statu quo, there would seem to be no necessity for invoking the aid of the doctrine of public policy in order to defeat a recovery by a negligent plaintiff. But in a jurisdiction where it is held that it is no defence to an action brought to recover money paid under mistake of fact, that the defendant’s position has been changed and substantial rights lost in consequence of the payment, it would seem to be highly inequitable to throw the loss brought about by plaintiff’s negligence on the defendant.

Assuming a defendant to be ignorant of plaintiff’s mistake, can an action be brought without a demand having first been made upon him? Clearly not on principle. The defendant has a title which the plaintiff gave to him. Can it be said that the defendant has been unjustly enriched at plaintiff’s expense, in receiving that which the plaintiff gave to him without any fraud on his part? The unjustifiable enrichment, it is submitted, is not a consequence of the receipt, but of the detention against the will of plaintiff of that which was received with his consent. And the defendant should not be subjected to the costs of an action without having first had an opportunity of restoring that which he lawfully received. It has been so held in England[2] and in New York.[3] In Massachusetts it

  1. Kelly v. Solari, 9 M. & W. 54; Devine v. Edwards, 87 Ill. 177; Lawrence v. American Nat. Bank, 54 N.Y. 432; Lyle v. Shinnebarger, 17 Mo. Ap. 66 (semble); Guild v. Balbridge, 2 Swan, 295. See, however, West v. Houston, 4 Harr. (Del.) 170; Wilson v. Barker, 50 Me. 447 (semble), contra.
  2. Freeman v. Jeffries, L.R. 4 Ex. 189.
  3. Southwick v. First Nat. Bank, 84 N.Y. 420.