
    Mifflin et al. v. Columbia Water Company.
    
      Payments by mistake of fact — Remedy—Public Service Commission.
    
    1. A payment made under a mistake of fact to one not entitled thereto may be recovered back in an action of assumpsit.
    
    2. The remedy to recover payments made by mistake to a public service company is not before the Public Service Commission.
    Rule for judgment for want of a sufficient affidavit of defence. C. P. Lancaster Co., Feb. T., 1922, No. 52.
    J. E. Senft, for rule; Henry M. Bruner, contra.
    Jan. 13, 1923.
   Hassles, J.,

In his statement the plaintiff alleges that his testator and himself owned for a long time a house at No. 901 Park Avenue in the Borough of Columbia; that there was an outside hose attachment on the house, on which the defendant company in December, 1912, filed the threads so that it could not be used; that, notwithstanding that it was rendered unfit for use by the defendant company, it charged and collected from the plaintiff water rent for it from December, 1912, to Oct. 1, 1918, at the rate of $4 per year, and from Oct. 1, 1918, to Oct. 1, 1921, at the rate of $4.80 per year. During all this period the plaintiffs were ignorant of the fact that the defendant had put the said attachment out of service.

The defendant does not deny that it put the hose attachment out of service, but denies that it received all the payments which the plaintiff alleges were made. It admits the receipt of $26.68 during the time the plaintiff claims that the water rent was paid. It further alleges that the defendant has a proper remedy by proceeding before the Public Service Commission of Pennsylvania.

An examination of the act of assembly creating the Public Service Commission of Pennsylvania, and defining its powers, does not show that the plaintiff has a remedy before it to recover back payments made through ignorance or mistake. We think the affidavit of defence, therefore, is not sufficient to prevent the plaintiff obtaining judgment for the amount which the defendant admits it received. It is well settled that a payment made under a mistake of fact to one not entitled thereto may be recovered back in an action of assumpsit: Durdon v. Gaskill, 2 Yeates, 268; Ritchie v. Summers, 3 Yeates, 531; Johnson v. Rutherford, 10 Pa. 455; Cannell v. Smith, 142 Pa. 25; Reed v. Horn, 143 Pa. 323.

The affidavit of defence is sufficient to prevent judgment for all of plaintiff's claim in excess of the amount which the defendant admits it received. The rule for judgment for want of a sufficient affidavit of defence is made absolute and judgment entered for the plaintiff for $26.68, with leave to proceed for the balance of his claim. Rule made absolute.

From George Ross Eshleman, Lancaster, Pa.  