Bombay High Court Reports Volume 8; Report of Cases Decided in the High Court of Bombay (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1905 Excerpt: ...no proof that there was any fraud in the original contract, or that the defendant) at the. time trhen he received payment of the Rs. 1,100, and stated that he intended to cany out the contract, deliberately intendod to do nothing more in the matter, and thus deceived the piaintiff. Tho payment then must be looked upon aa voluntary; and the only question which remains is, whether the money is recoverable by law. I hold that it is not. The, consideration has only partially failed; the contract has been in part performed, inasmuch as the estate has been partially wound up, and the plaintiff has derived some benefit in consequence." The special appeal was heard by Melvill and Kemball, JJ. Shantaram IXarayan, for the special appoallant: --Tbe payment of Ra 1,100 by tbe plaintiff was not voluntary, aa it was made under a mistake of-fact In Milnes v. Duncan (b) Bayloy, J says: "If a party pay money under a mistake of the law, he cannot recover it back But if ho pay money under a mistake of the real f&cts, and no laches ate imputable to him in respect of his omitting to avail himself of the means of knowledge within his power, he may recover back such money." (Sec also 2 smith's L. C. 376 6th ed.) In the present case the defendant represented to the plaintiff that he had in his possession her husband's will. Relying upon this representation, she passes the agreement sued on. It turns out that the alleged will is no will at all; and there is, therefore, a total failure of consideration. Between the plaintiff and the defendant there ia the Edu 187-, uiary relation of masher and servant. If the defendant had a Kuplai will left by his master in his possession, he, as a paid "servant, jrpSankar was bound, without extra remuneration, to give...