And where the payment by A to C is made by A not for the discharge of C's claim against B but for another purpose, the fact that C supposes the payment was made to discharge his claim against B should not preclude recovery unless C has changed his position or other special circumstances make recovery inequitable.81 § 1575. Recovery of the value of goods or services rendered under a mistake. The same principle of justice which requires the return of money paid under a mistake, requires that other benefits received under a similar mistake should likewise be restored.82 If the transferee still has possession of all or part of what has been transferred, or of anything received by him in exchange for ait, when demand is made upon him or when he discovers the real facts, a mistake of such a character as ever to justify rescission should subject him to a duty to return in specie what he has in his possession; and a failure to perform the duty should involve liability for its value.83 Where what was transferred under a mistake was money, other money is the exact equivalent, so that the mere fact that the money originally received by him is no longer in his possession does not preclude rescission. It may be supposed, however, that goods or serv a trust when he paid it. That the plaintiff would undoubtedly have lent the whole sum to the fraudulent person, if the latter previously had paid the prior mortgage from his own funds seems immaterial. 81 In Hathaway v. Delaware County, 185 N. Y. 368, 78 N. E. 153, 13 L. R. A. (N. S.) 273, 113 Am. St. 909, the plaintiff had in exchange for a forged note of the defendant county delivered to the forger, a former treasurer of the county, a check payable to A, the existing treasurer. The forger delivered this check to A in payment of a shortage in the forger's accounts, and A so applied it. The plaintiff was allowed to recover. In Continental Caoutchouc &c. Co. v. Dunlop &c. Co., 90 L. T. (N. S.) 474, one who, when under a duty, to pay a particular creditor of another, paid the wrong creditor, was held entitled to recover the payment. See also Kleinwort v. Dunlop Rubber Co., 97 L. T. (N. S.) 263. In Koontz v. Central Nat. Bank, 51 Mo. 275, and Munroe v. Bonanno, 16 N. Y. App. D. 421, 45 N. Y. S. 61, one who had by mistake paid a debt due from another was allowed to recover the payment. 82 In this connection may be considered goods or services rendered under an invalid or unenforceable contract. See supra, § 1479, and topics therein referred to. 83 Johnson v. Saum, 123 Iowa, 145, 98 N. W. 599; Goff v. Gott, 5 Sneed, 562; supra, § 94, ad fin. Cf. Hendricks v. Goodrich, 15 Wis. 679. ices have been transferred, and that neither they nor traceable products of them are in existence, but that, nevertheless, a pecuniary benefit has been received from their use. It may be argued with great force that on principles of quasi-contract, recovery of the value of this benefit should be permitted; but it may be replied that to allow such recovery is, in effect, to force a bargain upon an innocent defendant for what he may not have desired to buy on such terms.84 In spite of the latter argument it seems the lesser evil, if the plaintiff has been guilty of no negligence, to allow recovery of the value of the benefit received to the extent that the services or property have been of direct pecuniary advantage to the recipient. That is, if he has made or saved money from what he received, e. g.,if he would have bought similar property at the market price had he not received that in question, he should pay the value to him of what he has acquired. § 1576. Demand. If the defendant knew that the benefit which he received was given under such a mistake as would justify its recovery, he is liable without demand of restitution first being made upon him; 85 and it seems that if ignorant of the facts at first, subsequent discovery of them subjects him to immediate liability.86 But if he remains ignorant of the facts, a demand is necessary before an action can be maintained.87 Without regard, however, to the question whether the plaintiff could bring action without a prior demand, it has been generally held that unless the de 84 In Concord Coal Co. v. Ferrin, 71 N. H. 33, 51 Atl. 283, 93 Am. St. Rep. 496, the plaintiff delivered coal to the defendant on the assumption that the defendant was to pay the reasonable value thereof in cash. The defendant received the coal on the assumption that its value was to be credited on a debt due the defendant from a third person. So far as appeared, neither party was negligent in its assumption. The court denied recovery of the fair value of the coal. 85 Sharkey v. Mansfield, 90 N. Y. 227, 43 Am. Rep. 161; Martin v. Home Bank, 30 N. Y. App. Div. 498, 52 N. Y. S. 464, affd., 160 N. Y. 190, 54 N. E. 717; Varnum v. Highgate, 65 Vt. 416, 26 Atl. 628. 86 Sheppard v. Lang, 122 Ga. 607, 50 S. E. 371; Earle v. Bickford, 6 Allen, 549, 83 Am. Dec. 651; Bishop v. Brown, 51 Vt. 330. 87 Freeman v. Jeffries, L. R. 4 Exch. 189; Worley v. Moore, 77 Ind. 567, 569; Sibley v. Pine County, 31 Minn. 201, 17 N. W. 337; Gillett v. Brewster, 62 Vt. 312, 20 Atl. 105; Stocks v. Sheboygan, 42 Wis. 315. fendant has been guilty of fraudulent concealment, the Statute of Limitations begins to run from the time that a payment under mistake was made.88 § 1577. Unilateral mistake as to contents of writing. 89 Where the signer of a writing has made an innocent mistake without carelessness, whether induced by fraud or not, the writing is not his expression, and there is no contract. But if a man acts negligently, and in such a way as to justify others in supposing that the writing is assented to by him, he will be bound both at law and in equity. Accordingly, even if an illiterate executes a deed under a mistake as to its contents, he is bound if he did not require it to be read to him or its object exject explained.90 And much more, if the signer is not illiterate, "it will not do for him to enter into a contract and when called upon to abide by its conditions, say that he did not read it when he signed it, or did not know what it contained." 91 Though declining to decree rescission for such a reason, a Bree v. Holbech, 2 Doug. 654; Baker v. Courage, [1910] 1 K. B. 56; Richardson v. Bales, 66 Ark. 452, 51 S. W. 321; Maxwell v. Walsh, 117 Ga. 467, 43 S. E. 704; Schultz v. Board, 95 Ind. 323; Brown v. Edes, 37 Me. 318; Ely v. Norton (1 Halst.), 6 N. J. L. 187; State Hospital v. Philadelphia County, 205 Pa. 336, 54 Atl. 1032. See also Board v. Veghte, 44 N. J. L. 508. A contrary conclusion has been reached in Texas where the statute does not begin to run until by the exercise of reasonable diligence the plaintiff should have discovered his rights. Standford v. Finks, 45 Tex. Civ. App. 30, 35, 99 S. W. 499; and the same result has been reached in several States by statute. Shain v. Sresovich, 104 Cal. 402, 38 Pac. 51; West v. Fry, 134 Iowa, 675, 112 N. W. 184, 11 L. R. A. (N. S.) 1191; German Security Bank v. Columbia F. & T. Co., 27 Ky. L. Rep. 581, 85 S. W. 761; Peacock v. Barnes, 142 N. C. 215, 55 S. E. 99, and such is the rule generally adopted by courts of equity. Brooksbank v. Smith, 2 Y. & 89 See supra, § 1488. 91 Supra, § 35. See also supra, § 90b. In Williams v. Leisen, 72 N. J. L. 410, 60 Atl. 1096, the defendant testified when sued on a written contract for the purchase of books that the plaintiff's agent told him that he wanted to get some influential citizens to indorse the work and the defendant signed the slip supposing that it was merely an indorsement of the work. This was held insufficient to excuse the defendant. But see Carlisle Banking Co. v. Bragg, [1911] 1 K. B. 489, (C. A.); Bank of Ireland v. McManamy, Ir. Rep., [1916] 2 K. B. 161. court of equity, in its discretion, may refuse specific enforcement on that account.92 And if the promisee was guilty of fraud, the fraud will be a defence to an action by him, though the promisor was negligent in failing to read the contract.93 § 1578. Relief sometimes allowed for unilateral mistake in other cases. 94 As to other cases than those referred to in a preceding section, the expressions are numerous that mistake, in order to justify relief, must be mutual or the error of one party must be known to the other. That this is true of reformation is nowhere doubted; but some cases afford countenance for the doctrine that unilateral mistake while the contract is still executory and the parties can be put in statu quo, may afford ground for rescission.95 This has been most frequently attempted where a 92 McElroy v. Maxwell, 101 Mo. 294, 14 S. W. 1. And see supra, § 1425. 93 Warden v. Reser, 38 Kans. 86, 16 Pac. 60; Alexander v. Brogley, 62 N. J. L. 584, 41 Atl. 691, 63 N. J. L. 307, 43 Atl. 888; Smith v. Smith, 134 N. Y. 62, 31 N. E. 258, 30 Am. St. Rep. 617. But see Reid v. Bradley, 105 Iowa, 220, 74 N. W. 896; Dowagiac Mfg. Co. v. Schroeder, 108 Wis. 109, 84 N. W. 14. 94 § 1573. 95 In Moffett, etc., Co. v. Rochester, 91 Fed. 28, 32, 33 C. C. A. 319, 62 U. S. App. 392, the court speaking of this doctrine said: "The court below adopted the opinion which has been sometimes expressed obiter by judges, and frequently quoted by text writers, that equity will not reform a written contract unless for the mistake of both parties, but may rescind and cancel one upon the ground of a mistake by either. Thus, it is said in Dulany v. Rogers, 50 Md. 533: 'A mistake on one side may be ground for rescinding, but not for reforming, a written agreement,' See also Diman v. Providence, etc., Railroad Co., 5 R. I. 130; Hearne v. Insurance Co., 20 Wall. 488, 491, 22 L. Ed. 395; Smith v. Mackin, 4 Lans. 41. The opinion seems to have originated in the observation in Mortimer v. Shortall, 2 Dru. & War. 373, that 'a mistake on one side might be a ground for rescinding a contract, but could never be relied on as a reason for taking from a man what he thought he was to get under his agreement,'-an observation which is neither lucid nor logical when read disconnected with the context. What the proposition means, and all it means, is that a contract cannot be reformed into a new contract for the mistake of one party only, but may be rescinded for a mistake of one party whenever the circumstances of the case are such that it would be inequitable to allow the other party to enforce it, and inadequacy of consideration alone is not such a circumstance. Eyre v. Potter, 15 How. 42, 58, 59, 14 L. Ed. 592. A very extended examination of the reports has failed to disclose a case in which a judgment rescinding a contract has proceeded solely upon the ground that the terms as reduced to writing although expressing the understanding of one party, did not express that of the other. Rescis price was bid which because of erroneous arithmetical processes or by the omission of items was based on a mistake. sion has been allowed in several cases of this and other kinds,96 In all the reported cases where there was not the element of mutual mistake, or mistake of one side with knowledge on the other, there was, in the language of Addison, [on Contracts] 'some undue influence, misrepresentation, surprise, or abuse of confidence,' or the contract was so oppressive as to be unconscionable." The decision from which this quotation is taken was reversed in the Supreme Court (see the following note); but the correctness of the principles stated in the above quotation is reaffirmed in Star-Chronicle Pub. Co. v. New York Evening Post, 256 Fed. 435, 443, 167 C. C. A. 563, and the contract in suit was specifically enforced in spite of the defendant's unilateral mistake, the court citing in support of its allowance of this remedy, Tamplin v. James, 15 Ch. D. 217; May v. Platt, [1900] 1 Ch. 616; Swaisland v. Dearsley, 29 Beav. 430; Dyas v. Stafford, 7 L. R. Ir. 606. In St. Nicholas Church v. Kropp, 135 Minn. 115, 160 N. W. 500, L. R. A. 1917 D. 741, a suit to recover the amount of a certified check deposited with the plaintiff's bid for the erection of a church, the court held that a mistake in computation of the bid owing to the omission of an important item of the cost, justified a cancellation of the contract and a recovery of the deposit. The court said: "This case upon its facts is not distinguishable from Moffett H. & Co. v. Rochester, 178 U. S. 373, 44 L. Ed. 1108, 20 Sup. Ct. Rep. 957, except that there notice of the error was given when the bids were opened; but that can be of no consequence, since under the statute there applicable the bid could not be withdrawn after being submitted. The court rescinded the accepted proposal to construct certain municipal im provements. This power of a court of equity to rescind or cancel a contract entered while one party labored under a mistake as to a fact of impelling importance to him in entering it is recognized in Brown v. Lamphear, 35 Vt. 252. And in speaking of the case of Diman v. Providence, W. & B. R. Co., 5 R. I. 130, the court in Fehlberg v. Cosine, 16 R. I. 162, 13 Atl. 110, says: "This case recognizes another rule of equity, that where there has been a material mistake upon one side the court may rescind and cancel the agreement, where it can do so without injustice to the other party. There are two principal classes of cases in which this power of the court is exercised. One includes cases of executory contracts and the like, where the parties can be put in statu quo. In these cases the parties have not, in reality, agreed; their minds have not met; and if one, without fault on his part, has bound himself to something materially different from what he supposed it to be, which can be annulled without loss or injustice to the other side, it is deemed... inequitable to enforce it.' See also Smith v. Mackin, 4 Lans. 41; School Comrs. v. Bender, 36 Ind. App. 164, 72 N. E. 154; Goodrich v. Lathrop, 94 Cal. 56, 29 Pac. 329, 28 Am. St. Rep. 91, and Werner v. Rawson, 89 Ga. 619, 15 S. E. 813, where the vendor made a mistake in respect to the purchase price of land and the contract had been executed, still the court rescinded the deal, holding: 'while a court of equity will not reform a written contract upon the ground of mistake, unless the mistake is shown to be common to both parties, yet it may exercise its powers to grant relief, in a proper case, by rescinding and cancelling the writing upon the |