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January 11, 1938


The opinion of the court was delivered by: MARIS

MARIS, District Judge.

On Motions for New Trial and for Judgment N.O.V.

The facts in this case are fully set forth in my opinion filed July 30, 1937. Upon those facts I concluded that the payment made by the plaintiff to the defendant was not made under a mistake of fact but that, if there was any mistake, it was one of law from which the plaintiff was not entitled to be relieved. The plaintiff thereupon filed a motion for a new trial and for judgment n.o.v., which motions have now been argued.

  In support of its motions the plaintiff urges that I erred in making certain findings of fact and in failing to make certain order findings. As to this, however, it is sufficient to say without detailed discussion that I have again carefully considered my findings in the light of the evidence and am satisfied that they correctly state the facts disclosed thereby.

 The plaintiff also argues that I erred in my conclusion of law that a payment made under the circumstances disclosed in this case could not be recovered back and it cites in support of its position Leather Manufacturers' Nat. Bank v. Merchants' Nat. Bank, 128, U.S. 26, 9 S. Ct. 3, 5, 32 L. Ed. 342. In the case Mr. Justice Gray said: "Whenever money is paid upon the representation of the receiver that he has either a certain title in property transferred in consideration of the payment, or a certain authority to receive the money paid, when in fact he has no such title or authority, then, although there be no fraud or intentional misrepresentation on his part, yet there is no consideration for the payment, and the money remains, in equity and good conscience, the property of the payer, and may be recovered back by him, without any previous demand, as money had and received to his use."

 That case, however, was a suit to recover back the amount paid upon a forged endorsement of a check and it clearly has no application here. There clearly the receiver of the money had no title to the check and consequently no authority whatever to receive payment thereon. Here the Director of the Department of Wharves, Docks and Ferries of the City was expressly authorized by the Pennsylvania Act of July 22, 1913, P.L. 911, to receive from the plaintiff as a riparian owner payment of the cost of bulkheads constructed by the City in front of its property.

 By the payment which it made the plaintiff unquestionably acquired a valuable right, namely, the right to use the bulkheads in question for the purpose of constructing, extending, altering, improving or repairing any wharf, or other building in the nature of a wharf, or other harbor structure, or for other wharf purposes. The payment was required by the provisions of the act to be made before any such use could take place and clearly the City had neither the duty nor the right to inquire of a riparian owner as to the extent to which or the time when it proposed to make use of a bulkhead for which it was making payment. If the plaintiff had no intention of using the bulkhead for wharf purposes, but made the payment because it understood the law to require such payment as a condition precedent to the use of the abutting land, its mistake was purely one of law, and consequently, for the reasons stated in my former opinion, furnishes no support for this action.

 The motions for a new trial and for judgment n.o.v. are refused.


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