Payment made under misrepresentation presents fewer difficulties than payment by mistake. In cases of mistake both parties are innocent, though one may be negligent. In payment by misrepresentation, the party receiving the payment has by his false statement caused such payment to be made. Though he is innocent of intentional wrong-doing, and is not guilty of a tort, such payment may be recovered.1 Thus, where A induced B to pay money a second time, by stating that B had not delivered it the first time,2 or if a creditor induces an illiterate debtor to make an overpayment by stating that an amount was due on a debt on which part payments had been made larger than was in fact due ;3 or if A induces B to pay him a thousand dollars by claiming an interest in B's land, when in fact A had none ;4 or if A obtains money from B for certain realty by an innocent misrepresentation as to the identity of such realty ;5 or if an administrator obtains payment of excessive fees by misrepresenting the amount thereof ;6 such payments may be recovered even though no fraud is found to exist. If fraud exists, the right to recover in some form of action is still clearer. As fraud is a tort, however, the question becomes one of the right to waive a tort and sue in quasi-contract.7

21 Citizens', etc., Co. v. Granger, 118 111. 266; 8 N. E. 770.

22Bedier v. Fuller, 116 Mich. 126; 74 N. W. 506.

1 Putnam v. Dungan, 89 Cal. 231; 26 Pac. 904; Blue v. Smith, 46 111. App. 166; Fisher v. During, 53 Mo. App. 548; Montgomery County v. Fry, 127 N. C. 258; 37 S. E. 259.

2Houser v. McGinnas, 108 N. C. 631; 13 S. E. 139. B was acting as express messenger and had charge of a package of five hundred dollars for A, which A claimed not to have received.

3 Steere v. Oakley, 186 Pa. St. 582; 40 Atl. 815.

4 Putnam v. Dungan, 89 Cal. 231; 26 Pac. 904.

5 Thwing v. Lumber Co., 40 Minn. 184; 41 N. W. 815; Buckley v. Pat-terson, 39 Minn. 250; 39 N. W. 490; McKinnon v. Vollmar, 75 Wis. 82; 17 Am. St. Rep. 178; 6 L. R. A. 121; 43 N. W. 800.