If one to whom money has been paid under a mistake has so changed his position in reasonable reliance on his right to the payment as to be unable to restore it without a detriment greater than he would have incurred had the payment never been made, recovery is not allowed,64 unless, the plaintiff's mistake was due to the defendant's fault. Then he has but himself to blame if injured by a change of position, and recovery should be allowed.66 A common illustration of change of position barring relief is where payment has been made to an agent who before discovery of the mistake has made settlement with his principal.66 And in England, with a strange disregard
43 Ir. L. T. Rep. 21, an agreement was made in consideration of the assignment of the debtor's estate that the assignee should pay a certain composition on the debts. Part of the property assigned was an insurance policy the premium of which was stated in a schedule to be 61 £ a year. In fact this amount was payable semi-annually. The court refused relief in view of the interest of the creditors to whom the composition was payable.
64 German Security Bank v. Columbia, etc., Trust Co., 27 Ky. L. Rep. 581, 85 S. W. 761; Pelletier v. State Nat. Bank, 117 La. 335, 41 So. 640; Wilson v. Barker, 50 Me. 447; Walker v. Conant, 65 Mich. 194, 31 N. W. 786, 60 Mich. 321, 37 N. W. 202,13 Am. St. Rep. 301; Pickslay v. Starr, 140 N. Y. 432, 44 N. E. 163, 32 L. R. A. 703, 52 Am. St. 740; Continental Nat. Bank v. Tradesmen's Bank, 173 N. Y. 272, 65 N. E. 1108; Ball v. Shepard, 202 N. Y. 247, 05 N. E. 710; Fegan v. Great Northern Ry. Co., v N. Dak. 30, 81 N. W. 30; Boas v. Updegrove, 5 Pa. 516, 47 Am. Dec. 425; Atlantic Coast Line R. Co. v. Schirmer, 87 S. C. 300, 60 S. E. 430; Richey v. Clark, 11 Utah, 467, 40 Pac. 717. And see Deutsche Bank v. Beriro & Co., 73 L. T. R. 660; Maher v. Millers, 61 Ga. 556, 34 Am.
Rep. 104; Citizens' Bank v. Rudisill, 4 Ga. App. 37, 60 S. E. 818; Guild v. Baldridge, 2 Swan (Tenn.), 205. The contrary decisions in Durrant v. Ecclesiastical Commrs., 6 Q. B. D. 234, and Kingston Bank v. Eltinge, 40 N. Y. 301,100 Am. Dec. 516, have been criticised. Keener, Quasi Contracts, p. 66; Woodward, Quasi Contracts, 5 25; Costigan, 20 Harv. L. Rev. 205, 216. Cf. with one of these criticised cases (Kingston Bank v. EH tinge), Continental Nat. Bank v. Tradesmen's Bank, 173 N. Y. 272, 65 N. E. 1108; Hathaway v. Delaware County, 185 N. Y. 368, 78 N. E. 153, 13 L. R. A. (N. S.) 273, 113 Am. St. Rep. 000; Ball v. Shepard, 202 N. Y. 247, 05 N. E. 710.
65 Union Bank v. United States Bank, 3 Mass. 74; Koonts v. Central Nat. Bank, 51 Mo. 275; Phetteplace v. Bucklin, 18 R. I. 207, 27 Atl. 211; Metcalf v. Denson, 4 Baxt. 565. See also Newall v. Tomlinson, L. R. 6 C. P. 405; Clark v. Eckroyd, 12 Ont. App. 425. The cases relating to the effect of a change of position on the right to recover money paid under a mistake of fact are collected in L. R. A. 1017 E. 340n.
66 Holland v. Russell, 1 B. & S. 424, aff. 4 B. & S. 14; Shand v. Grant, 15 of the principle which should underlie the matter, it has been held that no other case of change of position will exonerate a defendant.67 In order that change of position should operate as an excuse, it should be irrevocable or revocable only with loss.68 The mere fact that the defendant has parted with what he received is not sufficient to excuse him if he obtained pecuniary benefit thereby, as if he discharged a debt or expended money in a way which in any event he would have had to do.69 That a defendant is a purchaser for value in good faith of a legal right is not of itself an answer to a proceeding to reform or rescind the transfer of that legal right, because of an essential mutual mistake between the parties to the transaction. In many, if not in most, of the suits in equity for reformation or rescission, that is the position of the defendant.