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United States of America v L. Cohen Grocer Company,

my duty to say, so far as the application of this law to the facts presented in this identical case are concerned, that it is invalid, for the reason that I have stated. It is regrettable that a law which was intended to be so beneficient as this law is intended to be, and which was intended and designed to remedy a most outrageous and crying evil, should be found to fall short, by reason of constitutional difficulties, of the end sought to be attained.

There never was a time when a curb on human greed and rapacity was so urgently demanded as it is demanded now, and I repeat, that the abhorrence which I feel of the selfish hoggishness of tlie profiteer is such that I can scarcely deal with the question with the amount of judicial plumb with which I ought to deal with it. But in my opinion, gentlemen, these considerations do not warrant a ruthless overriding of the rights of the citizen to have stated in a criminal statute the certain and definite rights which hedge him about as a citizen, and the certain and definite definitions by which he, or his counsel can ascertain whether or not he is guilty of a felony.

Congress alone has power to define crimes against the United States. This power cannot be delegated either to the Courts or to the juries of this country.

It is a remarkable fact that the original act as passed contains (so far as my casual examination of it has reached) no specific punishment as for a crime for the doing of the acts denounced by the amendment of October 22, 1919. Those things were reached by the original Lever Act by a different method and procedure. I am not prepared to say that that procedure was wrong, or that that procedure was constitutionally invalid, but I am prepared to say that in my opinion the procedure adopted here is unconstitutional and invalid. Therefore, because the law is vague, indefinite and uncertain, and because it fixes no immutable standard of guilt, but leaves such standard to the variant views of the different courts and juries which may be called on to enforce it, and because it does not inform defendant of the nature and cause of the accusation against him, I think it is constitutionally invalid, and that the demurrer offered by the defendant ought to be sustained. It will be sustained and one of your number wil! sign the verdict which I have had prepared. Mr. Higgs:

May I ask at this time if you Honor hold that this entire section of the statute is unconstitutional, or just this specific clause? The Court:

I am, of course, only passing upon that particular clause. Mr. Higgs:

Your Honor is not passing upon that clause which makes it an offense to discriminate? The Court:

Not at all, I am only passing upon that clause which I quoted, and which in skeleton substance says that it is "unlawful for any person wilfully to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries." I endeavored to limit that wholly in the particular facts of this case. If it should, perchance, apply to facts in orlier cases I have nothing to do with that. I am not going to meet trouble.

Kunkel et al. v Kunkel.

Assumpsit-Executors -Legacy -Payment Terms of Will-Lapse

Mistake-Act of July 12, 1897, P. L. 256.

The Act of July 12, 1897, P. L. 256, provides that any devise or legacy in favor of a brother or sister, when a testator leave no lineal descendants, "shall not be deemed or held to lapse" by reason of the decease of the devisee or legatee in the lifetime of the testator, if the former leaves issue surviving the latter, "saving always to every testator the right to direct otherwise."

Where executors paid a legacy on the advice of counsel who correctly stated the law but there had been a misapprehension as to the clear terms of a will, assumpsit will lie to recover the amount paid. This was a mistake of fact not of law, arising out of a careless reading of the will.

A defense not raised in the affidavit of defense or at the trial will not be considered on appeal.

Appeal from Court of Common Pleas of Allegheny County. No. 71 October Term, 1919, Supreme Court of Pennsylvania, Western District.

Allan Davis, for appellant.
George H. Rankin, for appellee.

MoscHZISKER, J., April 20, 1920.—Plaintiffs sued in assumpsit to recover $5,000 alleged to have been paid defendant under mistake of fact; in accordance with binding instructions, a verdict was rendered for defendant, and plaintiffs have appealed from judgınent thereon.

B. S. Kunkel died October 1, 1911, testate, without lineal descendants; by his will, dated 1909 and republished by codicil in 1911, he provided, inter alia, “I give to each of my brothers, Wm. F. Kunkel, and Charles H. Kunkel, if living at the time of my decease, the sum of five thousand dollars;" the present plaintiffs were appointed executors.

William F. Kunkel died March 10, 1910, leaving an only child, William F. Kunkel, the present defendant, to whom plaintiffs paid the $5,000 which would have belonged to his father had he survived testator; this was done under circumstances we shall briefly relate.

The trust company executor wrote John G. Johnson, Esq., who represented the estate, saying its co-executor desired to pay the legacy in question to William B. Kunkel, and it would do so if counsel deemed that course proper. Mr. Johnson replied, acknowledging a copy of the will and stating: “Any devise or legacy in favor of a brother or sister of a testator who dies before the latter; in case he leaves no lineal descendants, goes to the surviving issue of the dead brother or sister, unless the will directs otherwise."

The vice-president of the trust company, who had the matter in charge and had corresponded with Mr. Johnson, upon receipt of his letter, without making any "inspection or examination of the will,” paid the legacy to defendant; subsequently counsel advised plaintiffs this was a mistake, since william B. Kunkel's father had not survived testator. The present suit followed the refusal of a demand for repayment.

The Act of July 12, 1897, P. I.. 256, provides that any devise or legacy in favor of a brother on sister, when a testator leaves no lineal descendants, "shall not be deemed or held to lapse” by reason of the decease of the devisee or legatee in the lifetime of the testator, if the former leaves issue surviving the latter, “saving always to every testator the right to direct otherwise."

That the present testator did "direct otherwise" is apparent, for he expressly provides that, in order to take, the legatees must lie living at the time of his decease; in other words, that the legacies, respectively, shall lapse is either of the brothers predeceases him. This is the plain meaning of the will, lcaving no possible room for legal construction to

Kunkel et al. v Kunkel.

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the coutrary; and, when the letter from counsel is read attentively, it is clear he advised on the law as we have stated it.

True, immediately after his correct legal advioe, Mr. Johnson adds: “Under these circumstances, as Benjamin S. Kunkel left no children, and as William F. Kunkel left but one child, the legacy will be payable to the latter;" but he evidently assumed, as a matter of fact, that Benjamin S. Kunkel's will did not "direct otherwise," and the fourth assignment of error complains because plaintiffs were refused permission to show that, at the time the letter was dictated, the writer thereof "did not have before him the will of Benjamin S. Kunkel and did not look at the will or know that the legacy wos conditional." We see no necessity for ruling on this assignment, however, for, as already said, it is apparent Mr. Johnson made no mistake of law; his mistake was a misapprehension of the facts (reierred to in his letter as “circunıstances”) to which the law, as he correctly stated it, was to be applied. The phrase "under these circumstances," which Mr. Johnson ises, to square with his preceding statement of law and subsequent advice as to payment, can refer only (since he mentions 110 circumstances concerning the provisions of the will) to an assumed set of circumstances, or facts in regard to testator's expressed wishes which he plainly misapprehended.

The sole basis for the claim that the payment was made under a inistake of law, is that it must be presumed Mr. Johnson read the will and pronounced his legal view as to its proper construction; though, as have said, nis written opinion furnishes convincing evidence :o the contrary. There is no such presumption; but if there were, to afford it the direct claimed would give greater weight to that which, at the most, could be but evidence of a possible fact, than to what the document in question shows to be the fact itself, in violation of the rule that a presumption always gives way to a matter of fact when the latter is shown.

The remaining assignment of error, in one form or another, duly question the propriety of the binding instructions and judgment for defendant; they bring us to a consideration of the real point in the case, namely, whether the money was actually paid under mistake of law or fact. As to this, it is apparent the mistake was made by thinking, and acting upon the hypothesis, that the will did not provide against a lapse in case of death of the legatee in the lifetime of testator, whereas the fact is directly to the contrary. This of course, presents a mistake of fact; and the opinion of the court below, dismissing plaintiff's motion for judgment n. o. v. does not rule otherwise. It is there said: “The facts are not ir. dispute and, “The letter (of Mr. Johnson) states a recognized rule of law;" but the opinion goes on to announce as a general principle, that a “mistake oi fact cannot be pleaded successfully where all the parties concerned knew or had means of ascertaining the facts;" and, acting on this theory, the learned judge concludes by saying, “We are unable to discover any fact warranting the entry of judgment in favor of plaintiffs."

The view of the court below is not in accord with the established law of this state. In Union Trust Co. v Gilpin, 235 Pa., 524, we adopt, and affirm per curiam, the opinion of Judge Newconıb. There, as here, on a inistaken assumption of fact, the amount of a legacy was paid to one not entitled thereto, although (again as here), the will disclosing the rea! facts of the case, was always at hand. Recovery was allowed on the theory that the mistake was one of fact, arising through carelessness in reading the will. While this issue was submitted to the jury, the court states (p. 529): "Undoubtedly their conclusion was correct--no one could read the will attentively without being forcibly impressed blunder had been made *; the final answer here was not only con

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Kunkel et al. v Kunkel,

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sistent with the evidence, but it is not apparent how there could have been any escape from it." In other words, the point as to the character of the mistake might have been ruled as a matter of law; and the circumstance that plaintiff had ready and ample means of information, which, if taken advantage of, would have avoided the wrong payment, was not sufficient to prevent recovery.

Again, our Superior Court, by a well considered opinion in Girard Trust Company v Harrington, 23 Pa.. Superior Ct. 615, 620, also ruled that the circumstance of the person who made the payment of money under mistake of fact, failing to take advantage of the means of knowledge within his reach

is not sufficient to disertitle him to recover it back," citing Mr. Justice Trunkey in Meredith v. Haines, 14 W. C. N. 364, 366, to this effect: “Money paid by the plaintiff to the defendant, under a bona fide forgetfulness of facts which disentitled the defendant to receive it, may be recovered back; it is not sufficient to prevent a party from recovering money paid by him, under a mistake of fact, that he had the means of knowledge of the fact, unless he paid it intentionally, not choosing 10 investigate the facts (Kelly v Solari, 9 M. & W. 54). That was a case where the directors of a life insurance company had been informed the policy was forfeited in the lifetime of the insured, and, after his death, having forgotten the fact, paid the money on demand of the administratrix

Negligence in making a mistake does not deprive a party of his remedy on account thereof; it is the fact that one by mistake unintentionally pays money to another to which the latter is not entitled from the former, that gives the right of action: Lawrence v American National Bank, 54 N. Y., 432."

In McKibben et al. v Doyle, 173 Pa., 579, 581, we say: ' "The mere omission to take advantage of means of knowledge within the reach of the party paying (money under mistake of fact) does not prevent a covery.” It is stated in 22 A. & E. Ency. of Law, 624, "Where money is paid under mistake of fact, it is no defense to an action for its recovery that the mistake arose through the prayer's negligence, if such negligence caused no harm to payee"; but defendant contends that, since he had parted with the $5,000 prior to a demand for its return, the negligence of plaintiffs, in paying the money, has caused him such harm as to estop them from recovery This contention has no merit. Union Trust Co. v Gilpin, supra, (p. 527), shows an offer to prove defendant had “meantime spent the money so that repayment would now be a hardship,” and it was held immaterial, the count saying (p. 529): “There is neither reason thority to support the theory that the mere fact of the money having been spent amounts to an alteration of defendant's legal position." We see

reason here for departing from that position; if defendant spent the money, presumably he has either the things which it purchased or the benefit therefrom; or, if, as intimated in a refused offer of proof, he set the fund aside for the benefit of, or gave it to, his mother (for whose support he had a contingent legal liability), this cannot fairly be said to represent a loss to him, which bars plaintiffs. In brief, while no doubt there was negligence connected with the payment, and Mr. Johnson's letter may have mislead the trust company into its carelessness, yet there is no evidence the legacy was intentionally paid without regard to, or waiving the controlling facts. Plaintiffs derived no benefit from the transaction, and no facts appear which, in equity and good conscience, either entitle defendant to retain the money or estop plaintiffs from recovery; the court below erred in ruling otherwise.

Appellee attempts to invoke another matter of defense by raising the objection that plaintiffs are not formally named in the record as executors,

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Kunkel et al. v Kunkel.

and, since there has been no surcharge of the $3,000, they have not suffered a loss and cannot recover. As to this, it is sufficient to say the record does not show whether or not plaintiffs have been surcharged, and, finally, no such defense as here attempted having been raised in the afliduvit oi defense, or, so far as the record indicates at trial, it will not be considered by us.

We have examined all the authorities cited-upon what constitutes mistakes of law and fact-and find none of them in conflict with our present decision that this case presents a mistake of fact.

The first three assignments of error are sustained; the judgment is reversed and the record is remitted to the court below with directions to forthwith enter judgment for plaintiffs.

Dissenting Opinion by BROWN, C. J.: The appellants admittedly made a mispayment to the appellee. The Court below held that they could not recover it back, because it had been made under a mistake of law. A majority of this Court held that the payment was made under a mitsake of fact, and, therefore, can be recovered back. I am unable to understand how it is possible to say that the payment was made under a mistake of fact. No facts in the case are in dispute, and it conclusively appears from the testimony submitted by the plaintiffs themselves, that at the time they made the payment they were not misaken as to any fact in connection with it. By the will of the testator the sum of $5,000 was given to his brother, William F. Kunkel, if living at the time of his death. The brother died before hiin, leaving the appellee as his only child, to whom the appellants paid the sum of $5,000, which would have gone as a legacy to his father if he had survived the testator. There was no mistake as to any of the facts at the time the payment was made, for there was no question as to them; but there was, however, a legal question involved, and that was the right of the appellee to receive, under ihe will of his uncle, the sum which the executors paid him. They could pay it to him only if the will authorized them to pay it, and this involved the construction of that instrument, which admittedly was purely a matter of law. A copy of it was sent to Mr. Johnson, who acknowledged its receipt, and, with it evidently before him, he advised the executors that they could pay the appellee. This was a legal misconstruction of the testator's will, of course inadvertenly made, but nevertheless it was a mistake of the law applicable to the provisions of the will under the undisputed facts in the case, the material one being that William F. Kunkel had died before the testator, and, as a matter of law, the legacy to him and lapsed. Even good Homer sometimes nodded. If the payment was made under Mr. Johnson's advice, it was clearly made under a mistake of law; if i: had been made without his advice, it would still have been under a mistake oi law, for the executors had a copy of the will in their possession, and, as they are conclusively presumed to have had knowledge of its provisions, the construction of them, under the undisputed facts, involved only legal questions.

I cannot read any of the cases referred to in the opinion of the majority of the court as supporting their view, that the appellants are titled to recover. A reference may be made to the first and principal one cited. In Union Trust Company of New York v Gilpin, the construction of the will of the testator was not in question. The money paid by the plaintiffs was paid under a mistaken identity of a trustee, which was, of course, a mistake of fact, and on that ground alone a recovery was sustained, the court below saying what we approved, that “The payment was

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