In at least two American jurisdictions - Connecticut and Kentucky - the alleged distinction between mistake of fact and mistake of law has been consistently denied. In the most frequently cited and quoted Connecticut case, Northrop's Executors v. Graves,1 Chief Justice Church, in an admirably clear, trenchant opinion, said: "The mind no more assents to the payment made under a mistake of the law, than if made under a mistake of the facts; the delusion is the same in both cases; in both alike, the mind is influenced by false motives." In Kentucky the question has been presented in a variety of cases. Perhaps one of the most interesting is McMurtry v. Kentucky Central Railroad Company.2 The railroad company, having paid a judgment in an action for personal injuries, with interest from the date of its rendition, brought suit to recover the amount paid as interest on the ground that it had been paid under a mistake, the statute providing that judgments for personal injuries, inter alia, should not bear interest. In giving judgment for the plaintiff, the court emphasized the fact that there had been no compromise or choice of courses by the company in making the payment. "When the parties," said Justice Holt, "regard a question of either law or fact as doubtful, and to avoid litigation, and by way of compromise, payment is made, then no recovery can be had; but in the case now before us no question was raised at the time as to the right of the claimant to interest." In other cases in the same jurisdiction recovery has been permitted of meter rent paid by a consumer to a gas company, which, under a proper construction of the contract between the gas company and the city, the company had no right to charge; 1 of a liquor license fee paid under an invalid ordinance;2 of premiums paid on a void insurance policy;3 of money paid under an unconstitutional statute;4 of money paid by a married woman in ignorance of her rights under a statute;5 of taxes illegally assessed under a mistake of law.6 As to taxes, however, it should be noted that it has been held 7 that when payment can be coerced only by suit, then if payment is made without suit no recovery will be allowed. This seems entirely to disregard the question of mistake, and erroneously to assume that the only possible ground of recovery is that of payment under compulsion.
1 1849, 19 Conn. 548, 554; 50 Am. Dec. 234. Accord: Kane v. Morehouse, 1878, 46 Conn. 300; Mansfield v. Lynch, 1890, 59 Conn. 320; 22 Atl. 313; 12 L. R. A. 285; Monroe Nat. Bank v. Catlin, 1909, 82 Conn. 227; 73 Atl. 3.
2 1886, 84 Ky. 462, 464; 1 S. W. 815.