Millett v. Holt , 60 Me. 169 ( 1872 )

Danforth, J.

The principles of law applicable to actions between partners are not involved in this case. The parties were not partners, and the fact that the plaintiff in his writ proposes to prove them so, cannot overcome the facts agreed upon. As appears from the case, hardly an element necessary to constitute a partnership, entered into the agreement. It was a tenancy in common, and nothing more.

But if a partnership had existed in relation to the cutting and sale of the wood and timber, it could be no objection to the maintenance of this action. It involves no partnership transaction, none of the facts necessary to sustain the action refer to their dealings with third persons, or tend to change the condition of either party growing out of their agreement relative to the wood and timber. Though the subject-matter of the action is a consequence of that agreement, it is not a necessary one, and in no proper sense can it be considered a part of it. It is simply a mutual mistake, the opportunity for which was furnished by the agreement, but it is in no way an element of that agreement. The action does not propose even to open a settlement, but only to correct the mistake.

It seems that the parties in making their settlement, added the plaintiff’s bill to the defendant’s, when it should have been deducted from it, in consequence of which the plaintiff paid four hundred and twenty-one dollars more than he shpuld have done. This was done as much by the mistake of the one as the other, and now he asks that it may be paid back to him. And why should it not be ? If this action is sustained under the statement of facts presented, it will only be invoking one of the most common principles of law, and add one more to the long list of cases maintained to recover back money paid under a mutual mistake of fact.

Action to stand for trial.

Appleton, C. J.; Cutting, Walton, Dickerson, and Tapley, JJ., concurred.