
    Dougald McArthur v. Theodore Luce et al.
    
      Money paid under mistake of facts.
    
    One who after investigation pays a claim made in good faith, but afterwards found to be baseless, cannot recover back the money on the ground that it was paid under mistake of fact.
    Error to Alpena.
    Submitted April 22.
    Decided April 28.
    Assumpsit. Plaintiff brings error.
    
      Kelley & Clayberg for plaintiff in error.
    A claim cannot be re-opened if after having been disputed and asserted in good faith, it has been settled without fraud, undue advantage or mistake of fact, Kercheval v. Doty 31 Wis. 476; Trigg v. Bead 5 Humph. 529; Larue v. White 8 Dana 46; Boss v. McLauehlan 7 Graft. 86; an account stated may be impeached for mistake, Lochvood v. Thorne 11 N. T. 170; Philips v. Belden 2 Edw. Ch. 1; or an award set aside, Garter v. Carter 109 Mass. 306; Spoor v. Tyzzer 115 Mass. 40; specific performance will be denied when there was a mutual mistake as to the subject matter of the contract, Jones v. Clifford L. E. 3 Oh. D. 779; Davis v. Shepherd L. E. 1 Gh. App. 410; Dale v. Roosevelt 5 Johns Ch. 174; Marvin v. Bennett 8 Paige Gh. 312; Laiurence v. Staigg E. I. 256; money paid under mutual mistake may be recovered back, Little v. Derby 7 Mich. 325; McQoren v. Avery 37 Mich. 120; Bend v. Hoyt 13 Pet. 263; Waite v. Leggett 8 Cow. 195; Burr v. Feeder 8 Wend. 412; Wheadon v. Olds 20 Wend. 174; Kelly v. Solari 9 M. & W. 54; Bell v. Gardiner 4 M. & Gr. 11; Milnes v. Duncan 6 B. & C. 671; Lazell v. Miller 15 Mass. 207; Millett v. Holt 60 Me. 169; Lawrence v. Am. Nat. Bank 54 N. Y. 432; Kingston Bank v. Eltinge 40 N. Y. 391; Canal Bank v. Bank of Albany 1 Hill 287; Devine v. Edwards 87 111. 177; Bradford v. Chicago 25 111. 410; Allen v. Mayor 4 E. D. Smith 407; Lewellen v. Garrett 58 Ind. 442; Citizens Bank of Baltimore v. Grafflin 31 Md. 507; Mowatt v. Wright 1 Wend. 363; Guild v. Baldridge 2 Swan 295.
    
      Turnbull & McDonald for defendant in error.
    A bona ■fide claim with color of right will sustain a settlement, Gates v. Shutts 7 Mich. 132; Moore v. Detroit Locomotive Works 14 Mich. 275; Hull v. Swarthout 29 Mich. 252; the law will not disturb settlements made deliberately especially if acquiesced in for a long period, Frazer v. Hext 2 Strobh. Eq. 250; and when there was full opportunity to ascertain the amount due, Boyer v. Pack 2 Den. 108; Brisbane v. Dacres 5 Taunt. 143; 2 Smith’s Beading Gases 242; Mowatt v. Wright 1 Wend. 364; Williams v. Irving 47 How. Pr. 440; a payment made voluntarily and with a knowledge of all the facts cannot be recovered back, Stewart v. Ahrenfeldt 4 Den. 190; Clarke v. Dutcher 9 Cow. 674; a settlement may be sustained if the parties thought there was a doubt in the case, 1 Pars. Cont. 439; Mills v. Lee 6 Mon. 91; Moore v. Fitzwater 2 Eand. 442; Pierson v. McCahill 21 Cal. 122; Bennet v. Paine 5 Watts 259.
   Marston, C. J.

Luce & Co., in demanding that McArthur pay them for logs cut, as they supposed, upon their land, acted in entire good faith. They had a survey made, and according thereto the plaintiff had cut logs over the line. When the claim was made upon the plaintiff he employed a surveyor and they went upon the land and plaintiff then became satisfied that he had cut and taken logs from off defendants’ land, and authorized a settlement to be made, which was done. This was in 1871 and all parties rested in the belief that a correct settlement had been made until some time in 1875 when a new survey established the fact that no logs had been cut upon defendants’ land and this action was brought to recover back the moneys paid, upon the claim of having been paid under a mistake of fact.

Where a claim is thus made against another who, not relying upon the representations of the claimant, has the opportunity to and does investigate the facts, and thereupon becomes satisfied that the claim made is correct and adjusts and pays the same, I think such settlement and payment should be considered as final. If not, it is very difficult to say when such disputed questions could be considered as finally settled, or litigation ended. In the settlement of disputed questions where both parties have equal opportunity and facilities for ascertaining the facts, it becomes incumbent on each to then make his investigation and not carelessly settle trusting to future investigation to show a mistake of fact and enable him to recover back the amount paid. One course encourages carelessness and breeds litigation after witnesses have passed beyond the reach of the parties: the other encourages parties in ascertaining what the facts and circumstances actually are while the transaction is fresh in the minds of all, and a final and peaceful settlement thereof. Detroit Advertiser & Tribune Co. v. Detroit, ante p. 116 and County of Wayne v. Randall, ante p. 137.

The judgment must be affirmed with costs.

The other Justices concurred.  