178 



PLEADING, EVIDENCE AND DAMAGES. 



Money had 

 and received 

 for Repay- 

 ment of the 

 Price. 



Under a mis- 

 take. 



Money had 

 and received 

 for Repay- 

 ment of part 

 of the Price. 



"WTiere an article, wliicli has been paid for, does not 

 answer the description of the thing which when bought it 

 purported to be (z) ; or where a Horse is bought warranted 

 sound, &c., and paid for, and on its turning out unsound 

 is returned to the sellers, who receives it, there is a mutual 

 Rescission of the Contract, and the buyer may recover the 

 Price paid in an action for Monei/ had and received {a). 

 Also, where a Horse has been bought warranted sound, to 

 be returned if Unsound (b) ; or if the contract is, that the 

 Horse is to be returned if Un suit able [c] ; or Unfit for a 

 particular pm^pose {d) ; and circumstances arise in any of 

 these cases which justify the return of the Horse, and the 

 Horse is tendered, the same form of action lies for Repay- 

 ment of the Price. A claim for Horse meat and Stablinrj 

 may be added if necessary. 



Where money is paid with a knowledge of all the facts, 

 but under a mistake of the law, it cannot in general be re- 

 covered back {e) . But money paid under a mistake of 

 facts, and which the party retaining it has no claim in 

 conscience to retain, is recoverable as money paid without 

 consideration (/'), even though the plaintiff cannot be put 

 i)i statu quo (r/). 



Where a Horse is bought and the Price paid, but the 

 Buyer, by the terms of the agreement, has the option of 

 retiirning the Horse within a certain time, allowing a 

 certain sum for the use of it, the Residue of the Price may 

 be recovered by him after the Horse has been returned or 

 tendered in an action for Monei/ had and received. Thus, 

 where a pair of Horses were bought for 80/. and paid for, 

 with liberty to return them within a month, allowing the 

 seller 10/. out of the 80/., but that if the buyer kept them 

 beyond the month, he should pay the seller 10/. beyond 

 the 80/., it was held that upon the Horses being returned 

 within the month, the buyer had a right to recover the 

 70/. from the seller, in an action for Monei/ had and re- 

 ceived (//) . 



(r) Goiiipcri: v. Dartlctf, 22 L. J., 

 Q. B. 99. 



{a) IVeston v. Dorcncs, Doug. 24 ; 

 Fourr v. TFells, Cowp. 818; and 

 Simpson v. Foils, before Rolfe, B., 

 Carlisle Spr. Ass. 1847, Appendix. 



{b) Adam v. Richards, 2 H. Bla. 

 573. 



(r) Tuiccrs V. Barren, 1 T. R. 

 133. 



{d) Chanter v. Hopkins, 4 M. & 

 W. 406. 



{c) Flatt V. Bromage, 24 L. J., 

 Ex. 63 ; Barlcr v. Fott, 4 H. & N. 

 759 ; Rogers v. Ingham, L. R., 3 

 Ch. D. 351. 



(/) Bize V. Fickason, 1 T. R. 285. 



(>/) Standish v. Ross, 3 Ex. 527. 



(h) Hurst V. Orbell, 8 A. & E. 

 107. 



