This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The principle that payments made under a mistake of law cannot be recovered applies to payments made by one who was under no legal liability to make them, and who receives nothing in return therefor, although by reason of his mistake of law he believes that by such payments he is discharging a legal liability.1 Thus one who pays under an erroneous construction of the contract,2 as a misconstruction as to the rate of interest after maturity,3 or mistaking the liability of indorsers,4 or believing that he is legally liable for his minor child's tort,5 cannot recover such payment. So if the holder of the legal title of stock pays an assessment thereon after insolvency,6 or if an executor, mistaking the law as to lapsed legacies, pays to an adopted child of testator's deceased daughter a legacy which had lapsed by the death of such daughter before testator,7 such payments cannot be recovered. Thus A believed that he was liable as indorser on a check, whereas under the facts known to him he was not liable as a matter of law. He made a payment on such supposed liability and agreed to pay the rest. Subsequently he resisted liability on this promise successfully,8 and then sued to recover the payment already made. As such payment was made under a pure mistake of law, no recovery could be had.9 So a husband who as administrator of his deceased wife delivers certain securities to her son as his distributive share cannot afterwards assert an interest in them as husband.10 So in the absence of duress, one who pays a license fee in excess of the amount fixed by law,11 or pays an unauthorized tax, no duress existing,12 cannot recover the amount so paid. So a public officer who pays into the treasury fees which he is entitled to retain cannot recover them.13
H. 582; 44 Atl. 105; Camden v. Green, 54 N. J. L. 591; 33 Am. St. Rep. 686; 25 Atl. 357; Newburgh Savings Bank v. Woodbury, 173 N. Y. 55; 65 N. E. 858; Vanderbeek v. Rochester, 122 N. Y. 285; 10 L. R. A. 178; 25 N. E. 408; Flynn v. Hurd, 118 X. Y. 19; 22 N. E. 1109; Devereux v. Ins. Co., 98 N. C. 6; 3 S. E. 639; Commissioners v. Commissioners, 75 N. C. 240; Matthews v. Smith, 67 N. C. 374; First National Bank v. Taylor, 122 N. C. 569; 29 S. E. 831; Phillips v. Mc-Conica, 59 O. S. 1; 69 Am. St. Rep. 753; 51 N. E. 445; Cincinnati v. Coke Co., 53 O. S. 278; 41 N. E. 239; Railroad Co. v. Iron Co., 46 O. S. 44; 1 L. R. A. 412; 18 N. E. 486; Mays v. Cincinnati. 1 O. S. 269; Robinson v. Charleston, 2 Rich. L. (S. C.) 317; 45 Am. Dec. 739; Evans v. Hughes County, 3 S. D.
244, 580; 52 N. W. 1062; 54 N. W. 603; Hubbard v. Martin, 8 Yerg. (Tenn.) 498; Shriver v. Garrison, 30 W. Va. 456; 4 S. E. 660; Beard v. Beard, 25 W. Va. 486; 52 Am. Rep. 219; Birkhauser v. Schmitt, 45 Wis. 316; 30 Am. Rep. 740.
2 Buckley v. Redmond, 95 Mich. 282; 54 N. W. 771; Haeg v. Haeg. 53 Minn. 33; 55 N. W. 1114.
1 Strafford Savings Bank v. Church, 69 N. H. 582; 44 Atl. 105.
2 Cincinnati v. Coke Co., 53 O. S. 278; 41 N. E. 239.
3 Rector v. Collins, 46 Ark. 167: 55 Am. Rep. 571.
4 First National Bank v. Taylor, 122 N. C. 569; 29 S. E. 831.
5 Needles v. Burk. 81 Mo. 569; 51 Am. Rep. 251.
6 Holt v. Thomas, 105 Cal. 273; 38 Pac. 891.