In two classes of cases mistake of one party only to a contract undoubtedly justifies affirmative relief as distinguished from a mere refusal to enforce the contract specifically against him:

Bank v. Nassau Bank, 91 N. Y. 74, 43 Am. Rep. 655. But if by lapse of time before suit the position of the person receiving payment is changed, the payment cannot be recovered. London, etc., Bank v. Bank of Liverpool, [1896] 1 Q. B. 7.

64 First Nat. Bank v. Bremer, 7 Ind. App. 685, 34 N. E. 1012.

66 See supra, Sec. 1162.

67Jones v. Huggeford, 3 Mete. 515; Ross v. Terry, 63 N. Y. 613, 614; Uniform Sales Act, Sec. 36; Uniform Warehouse Receipts Act, Sec. 44, supra, Sec. 1063.

68 Hecht v. Batcheller, 147 Mass. 335, 17 N. E. 651; Bicknall v. Waterman, 5 R. I. 43; Burgess v. Chapin, 5 R. I. 225. But see Harris v. Hanover Bank, 15 Fed. 786. This principle is not applicable to bank notes. One who pays, even innocently, with the notes of a broken bank cannot retain the benefit of the transaction. Owenson p. Morse, 7 T. R. 64; Small v. Franklin Mining Co., 99 Mass. 277; Lightbody v. Ontario Bank, 11 Wend. 9, s. c. sub nom. Ontario Bank v. Lightbody, 13 Wend. 101, 27 Am. Dec. 179; Roberts v. Fisher, 43 N. Y. 159, 3 Am. Rep. 680; Westfall v. Braley, 10 Oh. St. 188, 75 Am. Dec. 509.

69 Fenn v. Harrison, 3 T. R. 757,759; Henry v. Allen, 93 Ala. 197, 9 So. 579; Gordon v. Irvine, 105 Ga. 144, 31 S. E. 151; Sebastian May Co. v. Codd, 77 Md. 293, 26 Atl. 316; Day v. Kinney, 131 Mass. 37, 38; Brown v. Montgomery, 20 N. Y. 287, 75 Am. Dec. 404; Rothmiller v. Stein, 143 N. Y. 581, 592, 38 N. E. 718, 26 L. R. A. 148; Bicknall v. Waterman, 5 R. I. 43, 48; Burgess v. Chapin, 5 R. I.225,227,228.

70 Uniform Neg. Inst. Law, Sec. 65. See, supra, Sec. 1162.

71Ibid..

1. Where the mistake was known to the other party to the transaction.72

2. Where the person against whom relief is sought is in the position of a donee or volunteer.78

The first of these rules is based on obvious justice; the second is in accordance with a far-reaching principle of courts of equity concerning volunteers. Under this head also must be included not only cases where a gift was intended, but cases where there is a total failure of supposed or expected consideration, as where money paid under a mistake is recovered.