Of the class of cases under consideration in this chapter are those in which a recovery is sought for services rendered in the mistaken belief that the status of the plaintiff imposed upon him a duty toward the defendant. It seems clear, upon principle, that one who believes himself to be a slave whereas in fact he has been emancipated, or one who believes himself to have been legally apprenticed whereas the apprenticeship is void, or one who believes himself or herself to be the legal husband or wife of another whereas by reason of the previous marriage of the latter the relation of husband and wife does not exist, should be allowed to recover the value of any services rendered or other benefit conferred in performance of the duties of such supposed status. The authorities are divided.4 In many of the cases, the plaintiff's ignorance of his true status was the result of the defendant's fraudulent representations, and the plaintiff claimed the right to waive the tort and sue in assumpsit - a question separately treated in another chapter (post, Sec. Sec. 282, 285, 286).
1 City of Indianapolis v. McAvoy, 1882, 86 Ind. 587; City of Indianapolis v. Patterson, 1887, 112 Ind. 344; 14 N. E. 551, (cf. De Pauw Plate Glass Co. v. City of Alexandria, 1898, 152 Ind. 443; 52 N. E. 608); George's Creek C. & I. Co. v. County Commrs., 1882, 59 Md. 255; Betz p. City of New York, 1907, 103 N. Y. Supp. 886, (aff. 193 N. Y. 625).
2 Wheeler v. Board of County Commrs., 1902, 87 Minn. 243; 91 N. W. 890.
3 Pitcher v. Turin Plank Road Co., 1851, 10 Barb. (N. Y. Sup. Ct.) 436. Although the court, in this case, endeavors to show that the mistake was one of fact rather than of law, its argument is not convincing. As to money paid under a mistake of law, see ante, Sec. 35 et seq.
4 Slave: recovery allowed: Kinney v. Cook, 1841, 4 111. 232; Hickam v. Hickam, 1891, 46 Mo. App. 496; Negro Peter v. Steel, 1801, 3 Yeats (Pa.) 250; Urie v. Johnston, 1831, 3 Penr. & W. (Pa.) 212. Contra: Negro Franklin v. Waters, 1849, 8 Gill (Md.) 322. And see Boardman v. Ward, 1889, 40 Minn. 399; 42 N. W. 202; 12 Am. St. Rep. 749.
Apprentice: See Burrows v. Ward, 1886, 15 R. I. 346; 5 Atl. 500, which indicates that recovery would be denied.
In measuring the recovery in a case of mistake as to status the value of any benefit conferred upon the plaintiff by the defendant - as board, lodging, clothing, or instruction - must be deducted from the value of the services rendered by the plaintiff. For to the extent that the benefit has been paid for, its retention is not unjust. A consideration paid to the father of a supposed apprentice, or to the former master of a supposed slave, must be deducted for the same reason. And if such consideration is equivalent to the value of the services rendered by the plaintiff, no recovery should be allowed.1