First National City Bank v. McManus , 29 N.C. App. 65 ( 1976 )

223 S.E.2d 554 (1976) 29 N.C. App. 65

FIRST NATIONAL CITY BANK
v.
John McMANUS.

No. 7518SC815.

Court of Appeals of North Carolina.

April 7, 1976.

Smith, Moore, Smith, Schell & Hunter, by Martin N. Erwin and Benjamin F. Davis, Jr., Greensboro, for plaintiff appellant.

Block, Meyland & Lloyd, by Thomas J. Robinson, Jr., Greensboro, for defendant appellee.

MORRIS, Judge.

Plaintiff appellant, contending that the money was paid out to the defendant payee under a mistake of fact, maintains that defendant, unjustly enriched and unable to construct an adequate defense in law or equity, must accede to plaintiff's demand for repayment. We agree.

The issue of who stands for the loss and disappointment when money has been disbursed under some mistaken belief of entitlement is always problematic. Our Supreme Court, structuring the problem along lines of equity, justice and transactional security, broadly holds that ". . . money paid to another under the influence of a mistake of fact . . . may be recovered, provided the payment has not caused such a change in the position of the payee that it would be unjust to require a refund." Guaranty Co. v. Reagan, 256 N.C. 1, 9, 122 S.E.2d 774, 780 (1961); Dean v. Mattox, 250 N.C. 246, 108 S.E.2d 541 (1959); Allgood v. Trust Co., 242 N.C. 506, 88 S.E.2d 825 (1955); Johnson v. Hooks, 21 N.C.App. 585, 205 S.E.2d 796 (1974); cert. denied 285 N.C. 660. Also see 66 Am.Jur.2d, Restitution and Implied Contracts, § 135, pp. 1066-1067.

There is no question but that the clerical error arising under this fact situation is sufficient to denominate the payment by plaintiff to defendant as one made under a mistake of fact. Simms v. Vick, 151 N.C. 78, 65 S.E. 621 (1909); Harrington v. Lowrie, 215 N.C. 706, 2 S.E.2d 872 (1939); also see: Continental Oil Co. v. Jones, 191 So.2d 895 (La.Ct.App.1966). Moreover, plaintiff's negligence, if any, and defendant's ostensible good faith, standing alone, constitute an insufficient defense to plaintiff's claim for repayment. Dean v. Mattox, supra; Allgood v. Trust Co., supra; also see: Salvati v. Streator Township High School Dist. No. 40, 51 Ill.App.2d 1, 200 N.E.2d 122 (1964); Westamerica Securities, Inc. v. Cornelius, 214 Kan. 301, 520 P.2d 1262 (1974). Also see: 70 C.J.S. Payment § 157d, p. 371; 66 Am.Jur.2d, Restitution and Implied Contracts, § 131, pp. 1063-1064.

Thus, when stripped of its considerable detail, this case essentially turns on whether the overpayment of $18,568.55 to defendant ". . . caused such a change in the position of the other party [i. e. payee] that it would be unjust to require him to refund [the money]". 66 Am.Jur.2d, Restitution and Implied Contracts, § 135, p. 1066. Stated differently, ". . . the crucial question in an action of this kind is, to which party does the money, in equity and good conscience, belong?" Allgood, supra, 242 N.C., at 512, 88 S.E.2d, at 829.

The change of position concept, usually framed in terms of equity and fair play, ultimately focuses attention on the payee's behavior and reaction to the payment and will warrant retention of the money given to the payee under a mistake of fact only when the payee's change of position resulting from the payment is obviously ". . . detrimental to the payee, material and irrevocable and [generates a condition] such that the payee cannot be placed in status quo." Westamerica Securities, Inc., supra, 214 Kan., at 309, 520 P.2d, at 1270. Though the issue is never simple or easily explained, we are of the opinion that "[a] change of position is not detrimental, and is not a defense, if the change can be reversed, or the status quo can be restored, without expense." 40 A.L.R.2d, What Constitutes Change of Position by Payee so as to Preclude Recovery of Payment Made Under Mistake, § 2, p. 1001. The burden of such an irrevocable and material change of position that the payee cannot be placed in status quo is on the payee. 66 Am.Jur.2d, Restitution and Implied Contracts, § 135.

Here, defendant payee asserts that the change of position resulted from the increased tax liability generated by the payment, the necessity and cost of defending his stake in this matter and the fact that the fund proceeds have been invested "in a business operation" wherein the funds in question have not been maintained "in a separate liquid account or form". We cannot, as a matter of law, perceive increased tax liability or defense costs as a "change of position" sufficient to bar plaintiff's recovery. Defendant can apply for tax refunds if a refund is in order, and the cost of resolving a dispute is simply part of the price all parties must bear when challenged with the prospect of a lawsuit. Moreover, the fact that defendant invested in a business cannot, by itself and without other facts, raise a change of position defense. Defendant, in his affidavit, chose only to say that he had invested the money, with other funds in a business venture. For reasons best known to him, he did not give any other information, except that he did not maintain a "separate liquid account or form". He has disclosed no reason that the money cannot be refunded. Where a payee uses ". . . the erroneous payment to acquire property of value . . . [there can be no] detrimental change of position." 40 A.L.R.2d, supra, § 5, p. 1015; also see Guaranty Co. v. Reagan, supra; Ohio Co. v. Rosemeier, 32 Ohio App.2d 116, 288 N.E.2d 326 (1972); Westamerica Securities, Inc., supra. Defendant simply received a benefit to which he had no entitlement. When defendant invested the funds in a business venture, he merely transferred his interest from a cash position to some type of equity position.

Plaintiff, having agreed to pay defendant the amount due him under the pension plan in annual installments, is entitled to the use of the funds erroneously paid defendant for the period pending payment under the provisions of the plan.

We reach the conclusion that the court should have allowed plaintiff's motion for summary judgment and denied defendant's motion.

Reversed.

VAUGHN and CLARK, JJ., concur.