Lowe v. Wells Fargo & Co.

Citations

• 78 Kan. 105
• 96 P. 74
• 1908 Kan. LEXIS 17

Syllabus

<p>SYLLABUS. BY THE COURT.</p> <p>I. Mistake of Fact — Payment of Money — Recovery. Plaintiff’s son was in the employ of the defendant at Emporia as express messenger. A part of his duty as such was to receive and receipt for packages -at the trains, convey them to the express office, and take a receipt therefor. He received and receipted for a package containing money at a train, and no further trace of it could be found. The company demanded payment of the amount of money from the boy. The father, believing-his son had dropped the package between the train and the express office and^that it had thus been lost, paid the amount to the company. It was afterward learned that the son safely conveyed the package to the company’s office' and placed it with other packages, but failed to take a receipt therefor; that another employee of the company stole the package, squandered the money, and the company never recovered it. The company was protected by surety bonds as to both employees. After the facts were discovered the father demanded from the company a return of the money paid, which was refused, and he brought this suit. Held, the money was paid under a mistake of fact and the plaintiff is entitled to recover.</p> <p>2. -Avoidance of Alleged Contract. Upon the payment of the money by plaintiff the company executed and delivered to him a receipt therefor, to which was added: “It is hereby agreed that in case we find this package of money, or any part of it, the amount recovered is to be refunded to the said H. B. Lowe.” Held, that this contract, if the acceptance made it a contract, should be avoided by the mistake of fact under which it was made.</p>