Analogous to the case of one who forgets a fact affecting his legal right or duty, is that of one whose ignorance is due to his failure to avail himself of means of knowledge. No matter how close at hand the means of knowledge may be, no matter how stupid or careless the failure to ascertain the truth may be, if one confers a benefit under an honest mistake, i.e. in unconscious ignorance of the truth, the retention of the benefit is ordinarily inequitable. By the weight of authority restitution may be enforced:

Kelly v. Solari, 1841,9 Mees. & Wels. 54: Parke, B. (p. 59): "but if it [money] is paid under the impression of the truth of a fact which is untrue, it may, generally speaking, be recovered back, however careless the party paying may have been, in omitting to use due diligence to inquire into the fact."

Rutherfordv. Mclvor, 1852,21 Ala. 750: Dargan, C.J. (p. 756): "I cannot yield my assent to the proposition, that the means of ascertaining the real facts of the case are tantamount to actual knowledge of them. If this were the rule, then it would be but rare that money paid by mistake could ever be recovered back. For instance: if, in the settlement of an account, a mistake in the calculation was made, it could not be afterward corrected by suit, because the parties, having competent knowledge of figures, had the means of knowledge; and the mistake being the result of negligence, rather than the want of knowledge, the parties would be bound to abide by it." 1

1 Accord: Lucas v. Worswick, 1833, 1 Moody & Rob. 293; Lewellen v. Garrett, 1877, 58 Ind. 442; 26 Am. Rep. 74; Simms v. Vick, 1909, 151 N. C. 78; 65 S. C. 621; 24 L. R. A. (N. S.) 517. And see Johnson v. Saum, 1904, 123 la. 145; 98 N. W. 599; Guild v. Baldridge, 1852, 2 Swan (32 Tenn.) 294; Perry v. Newcastle, etc., Ins. Co., 1852, 8 U. C. Q. B. 363, 367.

1 Also: Townsend v. Crowdy, 1860, 8 C. B. N. S. 477; Brown v. Tillinghast, 1897, 84 Fed. 71 (C. C, Wash.); Merrill v. Brantly, 1902, 133 Ala. 537; 31 So. 847; Devine v. Edwards, 1881, 101 111. 138; Brown v. College Corner, etc., Road Co., 1877, 56 Ind. 110; Fraker v. Little, 1880, 24 Kan. 598; 36 Am. Rep. 262; First Nat. Bank v. Behon, 1891,91 Ky. 560; 16 S. W. 368; 13 Ky. Law Rep. 148; Baltimore, etc., R. Co. v. Faunce, 1847, 6 Gill (Md.) 68; 46 Am. Dec. 655; Appleton Bank v. McGilvray, 1855, 4 Gray (Mass.) 518; 64 Am. Dec. 92; Pingree v. Mutual Gas Co., 1895, 107 Mich. 156; 65 N. W. 6; Koontz v. Central Nat. Bank, 1873, 51 Mo. 275; Dobson v. Winner, 1887, 26 Mo. App. 329 (see, however, Union Savings Assn. v. Kehlor, 1879, 7 Mo. App. 158, 165); Douglas County v. Keller, 1895, 43 Neb. 635; 62 N. W. 60; Waite v. Leggett, 1828, 8 Cow. (N. Y.) 195; 18 Am. Dec. 441; Kingston Bank p. Eltinge, 1869, 40 N. Y. 391; 100 Am. Dec. 516; Hathaway v. County of Delaware, 1906, 185 N. Y. 368, 370; 78 N. E. 153; 13 L. R. A. (N. S.) 273; 113 Am. St. Rep. 909; Payne v. Witherbee, Sherman & Co., 1909, 132 App. Div. 579; 117 N. Y. Supp. 15; Simms v. Vick, 1909, 151 N. C. 78; 65 S. E. 621; 24 L. R. A. (N. S.) 517 (cf. Brummitt v. McGuire, 1890, 107 N. C. 351; 12 S. E. 191); James River Nat. Bank v. Weber, 1910, 19 N. D. 702; 124 N. W. 952; McKibben v. Doyle, 1896, 173 Pa. St. 579; 34 Atl. 455; 51 Am. St. Rep. 785; Houston, etc., R. Co. v. Hughes, 1911, Tex. Civ.

App. ; 133 S. W. 731; City Nat. Bank v. Peed, 1899, (Va.) 32 S. E. 34. And see Johnson v. Saum, 1904, 123 la. 145; 98 N. W. 599; Guild v. Baldridge, 1852, 2 Swan (32 Tenn.) 294.

The following cases in one degree or another decline to go to the full extent of the principle: Grymes v. Sanders, 1876, 93 U. S. 55; East-Haddam Bank v. Scovil, 1837, 12 Conn. 303, 310; Stanley Rule & Level Co. v. Bailey, 1878, 45 Conn. 464, 466, ("There may be such full and complete means of knowledge as to be equivalent to knowledge itself."); West v. Houston, 1844, 4 Harr. (Del.) 170, ("Where there is a payment in ignorance of a fact, it may be recovered back, unless the mistake arises from the negligence of the party to examine and take notice of information within his full means of knowledge."); Board of Commrs. v. Gregory, 1873, 42 Ind. 32; Norton v. Marden, 1838, 15 Me. 45, 47; 32 Am. Dec. 132, ("But it is insisted that the plaintiff had the means of correct knowledge. And, in one sense a person may be said always to have the means of knowledge. He may have access to books, and to the assistance and instructions of his fellow men. But the means of knowledge which the law requires are such as the party may avail himself of as then present, without calling to his aid other assistance."); Ash v. McLellan, 1905, 101 Me. 17; 62

There are some cases, however, as will appear later, in which the equities are so nearly equal that if it appears that the plaintiff's mistake was the result of his own negligence, the scales will be tipped against him and he will be denied relief (post, Sec. 25).