In the meantime, and on April 8, 1912, the attorney of defendant at Kansas City wrote to plaintiff the following letter:

"I wish to formally advise you that the case of Perry v. Your Company can be settled for $150.00. Inasmuch as the Travelers' Insurance Company have declined the defense of this case, of which fact you have heretofore been informed, I desire to say that that company by way of compromise offers to pay one-half of the suggested amount, or $75.00, for a release and a stipulation for dismissal in the case. I wish also in this connection to advise you that it is your duty to mitigate the damages as much as possible, and that your claim against the insurance company can only be for such amount as was necessary for you to pay in settlement of the case. While in your city on the 5th inst. I took this matter up with Mr. J. D. Harris, attorney for the plaintiff, and advised him as to our position. You may consider this proposition open for ten days."

The court excluded this letter and also evidence offered by defendant tending to prove that a settlement could have been made at that time for $150. To this exception was duly saved. The jury found for the plaintiff, and this judgment for $3,081.75 was duly entered upon the verdict, from which this appeal was taken to the Springfield Court of Appeals. That court, in an opinion by Sturgis, J., in which Robertson, P. J., concurs, held that the judgment should be reversed, and the cause remanded for retrial, and summarizing its conclusions as follows:

"We think the facts of this case clearly bring the plaintiff within the rule conceded by it, that a person under the general rule now under consideration should pay a sum to mitigate his damages when he has the right to recover that sum from the wrongdoer, and that this defendant did in effect say to the plaintiff that this case can be settled for $150, and you may settle for that amount, and we will litigate as to whether it was our duty to defend the case; and, if the issue is found against us, the judgment may be for $150 and your costs to date." Farrington, J., dissented in an opinion questioning the conclusion of the majority as to the effect of the letter of April 8, 1912, in connection with the provisions of the contract of insurance hereinbefore set out, and holding that the judgment of the trial court should be affirmed. We think that the dissenting opinion correctly states the law applicable to the facts of this case, and agree with the conclusion at which it arrives. We therefore adopt the opinion of Judge Farrington, which will be found reported in 186 Mo. App. 332, 172 S. W. 458, and following, as the opinion of this court. The judgment of the circuit court for Jasper county is accordingly affirmed.

RAILEY, C., concurs.

PER CURIAM. The foregoing opinion of BROWN, C., is adopted as the opinion of

2. WITNESSES 139(11) TRANSACTIONS WITH PERSON SINCE DECEASED HUSBAND AND WIFE "PARTY."

for horses belonging to decedent, defendant was In replevin by a widow and administratrix not competent to testify as to transactions with decedent; the other party to the contract being dead, and an administrator being a party, within Rev. St. 1909, § 6354.

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Party.]

Appeal from Circuit Court, Livingston County; Arch B. Davis, Judge.

"Not to be officially published." Action by Florence Williams against James H. Moore. From a judgment for plaintiff, defendant appeals. Affirmed.

F. W. Ashby and Paul D. Kitt, both of Chillicothe, for appellant. F. Sheetz, of Chillicothe, for respondent.

ELLISON, P. J. This action is replevin for two horses said to have belonged to D. H. Williams, deceased. Plaintiff is his widow and administratrix of his estate. The judgment in the trial court was for plaintiff.

A short time before the death of Williams he wrote defendant a note, requesting him to pay plaintiff some money on the horses. Plaintiff called on defendant for the money. The trial court permitted her to testify to the conversation she then had with defendant as to what he had earned with the horses that week, and also to admissions he made to her. Defendant then offered himself as a witness in his defense, and he was not allowed to testify, on the ground that the other party to the contract concerning the horses was dead. Exceptions taken to these rulings are the questions presented here. Defendant's theory is substantially this: That plaintiff, being at the time the wife of deceased, was not a competent witness, and that she was not the agent of her

husband within the meaning of the statute. But, if she was his agent, then defendant was competent, since the other party (plaintiff) was alive and able to testify against defend

ant. The statute as to witnesses, sections 6354 and 6359, R. S. 1909, are involved.

[1] We answer defendant's points in this way: Plaintiff was not offered as agent of deceased in his lifetime. It was not necessary that she should be an agent. At common law the husband or wife could not testify for or against the other, and, though the relationship was dissolved, neither could be a witness as to any confidential communications between them, before it was dissolved. The statute (section 6359, R. S. 1909) relieves the wife of disability in a restricted way in actions, first, on policies of insurance; second, actions against carriers; and, third, in matters of business transactions when the transaction was had and conducted by such married woman as agent of her husband. The first two do not cover the present case and there is no necessity, or room, for the application of the third; for in such in

stances as that the former wife did not need the enabling aid of the statute, for the widow was competent at common law. The widow is not the wife, and therefore may, at comnon law, testify, as any other witness, for or against the interests of her former husband's estate unless she herself was interested in the matter about which she is to testify, or unless it concerns confidential communications with her husband. The statute (section 6354, R. S. 1909) relieves the disability as to interest, and she is therefore left a competent witness, except as to such confidential communications with her hus

band. This matter is thoroughly discussed in Brown v. Patterson, 224 Mo, 639, 652-657, 124 S. W. 1. In Stein v. Weidman, 20 Mo. 17, 21, it is said that:

"In the opinion of this court, the widow of a decedent may be a witness for or against the administrator or executor of the estate of her deceased husband, whether solvent or insolvent, as to all such facts as the policy of the law does not require to be kept sacred and secret between husband and wife, during marriage."

[2] The trial court likewise ruled correctly in sustaining the objection of plaintiff's counsel to the competency of defendant as a witness. The other party to the contract was dead, and an administrator is a party to this action. In such instances the other party is incompetent to testify "in his own favor, *** except as to such acts and contracts as have been done or made since the ** the appointment of the administrator." Section 6354, R. S. 1909. The testimony sought to be drawn from defendant was not of that character, and hence was properly excluded. Kersey v. O'Day, 173 Mo. 560, 569, 73 S. W. 481; Weiermueller v. Scullin, 203 Mo. 466, 474, 101 S. W. 1088. The judgment is affirmed. All concur.

Money received under a mutual mistake of fact can be recovered in an action at law for money had and received. 3. PAYMENT 85(3) MONEY RECEIVED MUTUAL MISTAKE.

interest therein to another, and each party acts When one person sells land or a definite under the assumption and mistaken belief that the vendor has the interest and title he bargains to sell and for which he receives the money, but such is not the fact, then the money has been paid under a mutual mistake of fact and may be recovered.

4. PAYMENT 85(7)-RECOVERY OF MONEY PAID BY MISTAKE-NEGLIGENCE.

is mutual, negligence of the party paying it Where money is paid under mistake that does not bar his recovery thereof. 5. PAYMENT 85(1) MONEY PAID UNDER

MISTAKE-DEFENSES.

-

That the person receiving money paid under mutual mistake of fact has spent it is no defense to an action to recover it. 6. DESCENT AND DISTRIBUTION

ILY SETTLEMENT.

82-FAM

The binding force of family settlements, of a compromise, a yielding of some real or like other settlements, is based on the fact bona fide claim.

7. PAYMENT 85(1) MUTUAL MISTAKE QUITCLAIM DEED.

Where defendant and plaintiff were both mistaken in thinking that title to land was in defendant, whereas it was in plaintiff, and under such mistake plaintiff paid defendant for his interest, it was no defense to plaintiff's action to recover back such purchase money that defendant's deed to plaintiff of the property was only a quitclaim.

Appeal from Circuit Court, Greene County; Guy D. Kirby, Judge.

Action by Lina I. Picotte against Ruhamah B. Mills. From judgment for plaintiff, defendant appeals. Affirmed.

Watson & Page and Williams & Galt, all of Springfield, for appellant. Patterson & Patterson, of Springfield, for respondent.

STURGIS, P. J. This is an action for money had and received, the object being to recover back money paid by plaintiff to defendant under a mistake. The plaintiff had judgment, and the defendant appeals assigning numerous errors. It will be quite impossible within the confines of an ordinary opinion to state all the facts and discuss in detail the 20-odd distinct propositions of law, many of them with several subdivisions, contained in appellant's able and painstaking briefs. We have examined these briefs with

plaintiff's part, the defendant merely making a quitclaim deed for whatever interest she might have in the land. The facts are, however, as both parties testified, that they both believed and acted under the belief that the land was owned by Thos. E. Hendrix at his death in fee instead of by him and his wife by the entirety, and that it then descended, under the statute of descents, one-half to plaintiff as widow and one-half to his collateral heirs of which. defendant was Plaintiff frankly admits that she believed she owned an undivided one-eighteenth of said land; that she sold same and received the money therefor in good faith and made her deed to convey that interest. To say otherwise would be to convict her of bad faith and intentional fraud.

[3] It is no longer an open question in this state that, when one person sells land or a definite interest therein to another, and each

This same principle is expressed in 20 Ency. of Law (2d Ed.) 814, thus:

*

*

"The existence of a subject-matter being essential to every contract, it follows that the to exist which does not exist invalidates any mistake of the parties in supposing something contract in respect thereto, except, of course, where the uncertainty of the existence of the thing is the very essence of the agreement. * If after a contract for the sale of real property it turns out by operation of some settled principle of law of which both parties were alike ignorant the party who contracted to sell had in fact no title to the land, in all these cases the contract is voidable." Further at page 819:

"So if the real owner of property, in ignorance of his title, purchases it from the supposed owner, equity will grant relief by decreeing a restitution of the purchase money or canceling a bond executed therefor; or, if the contract formance and ordering its cancellation." is still executory, by denying its specific per

[4] Defendant lays much stress on plain

* *

"If this was the belief of both parties, then it follows that Townley did not by his purchase procure the fee as he intended, and as Welton intended he should, then it is a case of mutual mistake, one of so fundamental a character as appeals very strongly for equitable interposition. Where there was a mutual mistake of parties as to the interest of the vendor in the land sold, the Court of Appeals of Virginia held that the sale should be set aside. Irick v. Fulton's Ex'rs, 3 Grat. 193. And this, notwithstanding the whole matter arose from a mutual misconstruction of the deed and a will, and equitable relief was asked solely on the ground that the vendor and vendee both believed that the former only had an undivided interest in the land sold, when in truth she interest in the land sold, when in truth she possessed the fee."

In Clark v. Carter, supra, the plaintiff purchased land of an executor, each intending to pass a good title in fee and each believing the executor had power to convey the fee. The court there said:

"It was not only a question of knowledge, but the result of the transaction was different from

what both of them mutually intended that it should be, and that result was the direct result of their mutual mistake of fact, namely, that the executrix had the authority under the will to sell the remainder in fee, when in fact she had no such power. * * * In the recent case of Livingston v. Murphy, 187 Mass. 315 [72 N. E. 1012, 105 Am. St. Rep. 400], after a careful consideration of this question, the Supreme Court of Massachusetts held that a mistake as to the ownership of land is a mistake of fact in regard to which equity will grant relief, although the mistake arose from an erroneous view of the legal effect of a deed."

and then representing as administratrix by the inventory that the land belonged to the husband's estate. The evidence is that she never saw the deed conveying the property to her and her husband, and had no husband bought and owned the land. While knowledge of the title further than that her the statute makes it the duty of the administrator to examine the 'deceased's title papers, a failure to do so is no more than negligence, shared in this case equally at least with defendant's brother as coadministrator, and whose interest, like defendant, was adverse to plaintiff. The authorities are numerous that, though plaintiff's mistake is numerous that, though plaintiff's mistake is due to negligence, yet when the mistake under which the money is paid is mutual, as it is here, such negligence in no way bars the recovery. In the leading case of Koontz v. Central National Bank, 51 Mo. 275, where plaintiff paid a draft drawn on another party without looking at it, the defendant having inadvertently presented it to plaintiff, the court said:

makes no difference that the plaintiff when she "This is a case of mutual mistake, and it paid the draft had the means of knowing, and might by diligence and care have avoided the payment. It is held that it is no bar to an action that the party paying had the means of knowing, and might have availed himself of those means by care and attention, and thus have arrived at exact knowledge. ** * If the money is paid under the impression of the truth of a fact which is untrue, it may, generalless the party paying had been in omitting to ly speaking, be recovered back, however careuse due diligence to inquire into the facts."

It should be noted, too, that in the above case the defendant, collecting bank, had paid over the money collected to the drawer of the draft, and as a result of the negligent mistake of the plaintiff in paying another's obligation the defendant was compelled to be loser because the mistake was mutual. In Nordyke & Marmon Co. v. Kehlor, 155 Mo. 643, 654, 56 S. W. 287, 290 (78 Am. St. Rep. 600) the court said:

"They were both mistaken, and the contract which they intended to establish on that foundation falls when the foundation itself is discovered to have no existence. And in such case it is immaterial that the party pleading the mutual mistake was negligent in seeking information."

In answering the defendant's contention here as there, that plaintiff is the party who furnished by the inventory and otherwise the false information as to the ownership of the land on which the parties acted, the court further held, quoting from the syllabi:

"In such case it is immaterial whether plaintiff or defendant furnished the mistaken information upon which the condition was predicated; the contract showing that it was assumed as a fact and was adopted by both plaintiff and defendant as the sole standard by which the performance of the condition was to be determined."

In Mason v. Commerce Trust Co., 192 Mo. App. 528, 183 S. W. 707, the plaintiff had paid to a collecting bank certain interest coupons which he did not owe. In a suit to recover same the court said:

"There is no question but that the defendant bank was not the owner of the coupons, but was merely an agent in collecting them, and that it has paid the money collected over to the Kansas bank, and did so in good faith before it had any notice of there being any mistake. This, however, would make no difference if the mistake were mutual, that is, if the defendant bank had made a mistake as well as plaintiff; and this would be true regardless of plaintiff's lack of care or prudence in failing to see that they were not the coupons he was required to pay. *But, so far as anything the defendant bank itself did, it made no mistake, since it merely obeyed directions in notifying plaintiff, and had no means of ascertaining that the coupons were not the ones plaintiff was obligated to pay. The mistake of one party to a contract will not entitle him to relief, in an action at law, unless it appears that his mistake was produced by fraud, or misconduct amounting to fraud, on the part of the one who did not make the mistake."

Since, as we have seen, it makes no difference as to the degree of negligence of the parties or the culpability of the mistake, provided the same is mutual, in determining the right to plaintiff's recovery, nor indeed to the fact that the least innocent may have to suffer the loss (Koontz v. Bank, supra; Mathews V. City of Kansas, 80 Mo. 231, 235, where the court said: "In the instance of a mutual mistake the party paying thereunder may ordinarily recover without regard to the special equities involved as to where the loss will fall. In such case it is mainly a question of fact. The inquiry is, Were, both parties in error as to the real facts, and did both act thereon?") it would seem that it is only in case of a unilateral mistake that the equities of the parties become a contributing factor. In the Mathews Case, supra, the court, commenting on Mayer v. Mayor, 63 N. Y. 455, said:

"The learned judge who delivered the opinion seems to have treated the case as if the mistake did not appear that the city had altered its conwas that of plaintiff alone, and, therefore, as it dition in consequence of the payment on lot 27 instead of 28, and would, perhaps, suffer no loss by making restitution, it was a proper condition of affairs for the application of the rule that the loss should fall on him who first occasioned the mistake."

While not necessary to a decision of this case, since the mistake here was mutual, it would seem just that where money is paid by mistake of the payor and the recipient has no equities in his favor, but seeks to retain that to which he is clearly not entitled, then he should be made to return it, though the only mistake on his part was the reception of money to which he was not entitled under the mistaken belief that he was so entitled. 22 Ency. Law (2d Ed.) 621. “The cases founded on mistake seem to rest on this principle: That if parties, believing that a certain state of things exists, come to an agreement with such belief for its basis, on discovering their mutual error they are remitted to their original rights." Third National Bank v. Allen, 59 Mo. 310, 313.

In this connection we will say that defendant's belief that she owned an interest in this land was not brought about by any word or act of the plaintiff. The defendant admits that before the inventory was filed she believed, as did the plaintiff and all the family,

"The general rule undoubtedly is that, if a party who pays money to an agent for the use of his principal becomes entitled to recall it, he may, upon notice to the agent, recall it, provided the agent has not paid it over to the principal, and also provided no change has taken place in the situation of the agent since

that the husband and brother owned the land

of an inventory of the real estate is rather for the benefit of the creditors than the heirs, since the administration has nothing to do with the real estate except as it becomes necessary to pay debts. Langston v. Canterbury, 173 Mo. 122, 132, 73 S. W. 151. The fact of listing this land on the inventory of decedent's estate affected in no way either the defendant's real right to an estate therein nor her belief as to same, not deciding, however, that such fact is at all important here.

[5] Nothing is suggested by way of estop