If the plaintiff, not by way of exchange, yet in consequence of the mistake and at the defendant's expense, reaps a benefit equivalent in value to that conferred upon the defendant, restitution should not be enforced. This is exemplified in the case of Kingston Bank v. Eltinge,2 which was an action to recover money paid by a sheriff, with the plaintiff's consent, to the defendant. The plaintiff and the defendant both had judgments against one Elmendorf, execution had issued on both judgments, and certain property had been sold. The plaintiff consented to the payment of the proceeds of the sale to the defendant in the belief that the sale had been under the defendant's execution, whereas in fact the defendant's execution had expired and the sale had been under the plaintiff's. But it further appeared that the defendant, upon receipt of the money so paid, had canceled his judgment, which had been a prior lien on Elmen-dorf's real estate, and the plaintiff had subsequently realized from a sale of the real estate so released a sum at least equivalent to that paid under mistake to the defendant. Under these circumstances it was properly held that, "as the plaintiff was not entitled to recover unless it was against conscience for defendant to retain the money, and as defendant received no more than his due and thereupon relinquished a lien from which plaintiff derived full as much benefit as if it had itself received the money, plaintiff, on this ground alone, was not entitled to recover."
1 Day v. New York, etc., R. Co., 1873, 51 N. Y. 583, (Plaintiff had been given business of feeding and keeping stock transported by defendant, in consideration of conveyance of land, and building of cattle pens, etc. The contract was unenforceable under the Statute of Frauds; defendant defaulted; this action was to recover benefit derived by defendant from plaintiff's performance. Said the court (p. 592): "It was not necessary for the plaintiff to tender the profits to the defendant before the commencement of the action. They were part of the consideration received by him for his conveyance, and he has the same right to hold them as if so much money had been paid to him by the defendant. His claim is against the defendant for the balance, if any, of the value of the land."); Lawton v. Howe, 1861, 14 Wis. 241, (Plaintiff had received void school land certificates which he had surrendered to the commissioners for cancellation.). For additional cases see post, Sec. 106.
2 1876, 66 N. Y. 625, 627. See also Dickey County v. Hicks, 1905, 14 N. D. 73; 103 N. W. 423; De Pauw Plate Glass Co v. City of Alexandria, 1898, 152 Ind. 443; 52 N. E. 608.
If the benefit received by the plaintiff as a result of his mistake is less in value than that conferred upon the defendant, restitution should be enforced, of course, to the extent of the difference.