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Page:Harvard Law Review Volume 1.djvu/229

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the warehouse-keeper to both A and B. By a mistake made by B’s clerk in adding up the figures, the weight appeared to be greater than it really was, and led to an overpayment by A. B at the time of the sale had made advances to his principal on the cotton, and on receiving the money applied it in extinguishment of this indebtedness. After B’s principal became insolvent A discovered the mistake, and, B refusing to refund the overpayment, sued for money had and received. It was held that the plaintiff could recover. In behalf of the defendant the rule was invoked that, in the case of money paid under mistake to an agent, there can be no recovery against an agent who has, in ignorance of the mistake, paid the money over to his principal. The Court said that this rule had no application; and on this point the decision is unquestionably sound, for in the case supposed by the counsel, of payment over by an agent, the agent is able to say to the plaintiff, when sued by him, You have no claim against me, as I have done with the money just what you intended I should do, and its receipt by me has not resulted in my enrichment. Whereas, in Newall v. Tomlinson, the money was never paid to plaintiff with the intention that he should pay it over to any one. But as the defendant extinguished, as he was authorized to do, a claim which he held against his principal, he was plainly within the rule of a purchaser for value without notice.[1] If the defendant had gone through the form of giving the money to his principal, and then receiving it back in payment of the debt, clearly he would have been within the rule protecting a purchaser; and yet the difference in form can make no difference in the real nature of the transaction.[2] It seems impossible to support the decision unless on the possible ground that the mistake was made in the first place by the defendant through his clerk; and yet if he was negligent, was not the plaintiff equally so, as he had lists before him which would have enabled him to discover the defendant’s mistake? Reference is made by some of the judges to the fact that it was defendant’s mistake, but there is no reason for supposing that an absence of that fact would have led to a different decision.

The case also suggests another point: How far is a change of position which prevents the defendant being put in statu quo an


  1. Ins. Co. v. Abbott, 131 Mass. 397; Southwick v. First National Bank, 84 N. Y. 420.
  2. Ins. Co. v. Abbott; Southwick v. First Nat. Bank, supra, at p. 436.