NOTES 429 the Supreme Court held them to be confiscatory.^ One of the carriers then brought action against a shipper for the diflFerence between the rate prescribed by the statute and a reasonable rate. And the North Dakota court has recently held that it is not entitled to recover.* The carrier, of course, had contended that the rates had always been un- reasonable; that therefore it had, during the period covered by the statutory rates, been serving the shipper at an unjust and illegal com- pensation; that to the extent of the excess of value of service over pre- scribed rate, it under mistake or duress had given value in return for no consideration; in short, that the shipper was unjustly enriched at its expense. On the other hand, the reasoning of the court is that there was no contract, express or implied in fact, on the part of the ship- per to refund in case the Supreme Court later found the rates to be confiscatory; that so far as recovery was to be based upon unjust en- richment, the situation of the carrier was similar to that of the plain- tiff in Windbiel v. Carroll.^ There the plaintiff paid the defendant's claim insisting that he did not owe it, and later found a receipt con- clusively showing that his belief was correct; yet he was unable to re- cover. The court distinguished between payment in ignorance of a fact and payment in ignorance of the means of proving a fact. If a plaintiff cannot produce the requisite proof of what he knows to be true, the law will not ai(^ him. This principle, generally regarded as settled,^ may conceivably, however, not extend to the principal case, where the only way of ascertaining the facts of a complicated situation is by a period of experimentation. The North Dakota court further found that, so far as the Supreme Court had in the past interpreted the decree, "without prejudice," that decree provided for future con- ditions that might arise and did not permit overthrowing what was already concluded. It is commonly stated that money paid under a mistake of law can- not be recovered. If this principle were sound, it would be a strong argument in favor of the North Dakota decision. It is not the pres- ent purpose to discuss the correctness of this doctrine, which has been attacked by text- writers,^ is not accepted in all jurisdictions,^ and is subject to so many exceptions as to create a doubt as to its existence.' Irrespective of its soundness the principal case may be supported. In Henderson v. Folkstone Waterworks Co.,^^ the plaintiff paid a water tax which had been held to be legal. Later the House of Lords held the » 236 U. S. 585.
- MinneapoUs & St. P. & S. S. M. Ry. Co. v. Washburn L. C. Co. (N. D.) 168
N. W. 684. » 16 Hun (N. Y.), loi.
- Woodward, Quasi Contracts, § 13; Keener, Quasi Contracts, 27.
^ Woodward, Quasi Contracts, § 36; Keener, Quasi Contracts, 85-95; Stadden, "Error of Law," 7 Col. L. Rev. 476; 2 Pomeroy, Eq. Jur., §§ 841-51.
- Northrop v. Graves, 19 Conn. 548; Scott v. Board of Trustees, 132 Ky. 616,
116 S. W. 788. ' Erkens v. NicoUn, 39 Minn. 461, 40 N. W. 567; Vamum v. Highgate, 65 Vt. 416, 26 Atl. 628; Marcotte v. Allen, 91 Me. 74; 39 Atl. 346, County of Wayne v. Reynolds, 126 Mich. 231, 85 N. W. 574; Haven v. Foster, 9 Pick. (Mass.) 112 (1829). In re Ainsworth, [1915] 2 Ch. 96; Culbreath v. Culbreath, 7 Ga. 64. " I T. L. R. 329 (1885).
