The action is to recover money paid by the plaintiff and his assignors to the defendant under a mistake of fact. When this case was before us on a former occasion for review of another trial, we held that according to the facts found by the referee the payments appeared to have been voluntary and not under any mistake of fact, but with full knowledge, or the means of knowledge,, on the part of the persons making the payment, of all the facts and circumstances. If that were the only difficulty in the case, I think we should now hold that that difficulty had been overcome on the trial now. under review. It appeared on the last trial that the overcharges which had been paid were nearly all on back charges, and that the plaintiff and others making the payments had no means of ascertaining whether they were: correct .or not, but paid them in good faith according to the bills • presented, supposing and believing them to be correct. These back charges were charges made by connecting roads, which the defendant paid, and charged and collected from- persons receiving freight at its hands, which had come over these connect-: ing- roads. The bills on which these payments were made were falsely made up by the defendant’s clerk and agent having charge of the business, by overcharging the amounts which defendant had so paid. This, we are inclined to think, would bring the case fairly within the rule in regard to money paid by mistake on the part of the person paying .'.through the fraud of the other party. But the other difficulty, that by far the largest.portion of the money paid to and received by the defendant’s agent was not and has never become the money of the plaintiff or of his assignors, still remains and appears to be inseparable. Of course this action cannot be maintained unless the plaintiff can show that, the defendant, or his agent authorized to receive money in payment of charges for freight, has received his money, or that of his assignors. It was paid by Kinney, the cartman, who had no authority to pay it, and who did not profess or undertake to pay it as their agent. He was not the agent of *261the defendant in any sense, and was in no respect in their employment. He had a contract with the plaintiff and his assignors to transport their goods from defendant’s warehouse and deliver them at a certain price per ton. For that purpose he may be regarded as their agent or employe, but he had no authority to advance money and pay charges on their account. These payments he made voluntarily with his own money, and took the bills receipted with the goods; and the sums paid was reimbursed to him without any knowledge, on the part of the owners of the goods, that he had paid the bills to the defendant. How, then, does the plaintiff get any title to this money overpaid in the defendant’s hands ? Certainly, when the defendant received it and gave a receipt iu full, neither the plaintiff nor his assignors had any right or title to it whatever. It was advanced to the defendant by a volunteer, who did not assume to act as their agent in the transaction of paying the money, but who advanced his own funds, taking the risk of their paying him. The cartman, upon the facts which appear in the case, could not have compelled them to pay him these advances which they had never requested him to make on their account, and which they had never assented to or sanctioned in any way, except, perhaps, by retaining the goods. But, whether this is so or not, makes little or no difference in this case. The case is simply and sharply this: Kinney paid their debts voluntarily, without any request or authority; and they, without knowing this, pay him what he has advanced. The question then is, does this give them any title to the money paid by Kinney to the defendant % Clearly, not. The mere naked statement of the proposition is sufficient to refute the plaintiff’s claim. It is, in this action, a question of title, and not of equitable subrogation to any claims Kinney may be supposed to have. Probably Kinney could not have maintained any action of this kind against the defendant, as it had no demands against him, and he was under no obligation to pay anything. If the plaintiff, by reason of his over-payments and assignments, has any title to any money, it must be to that in Kinney’s *262hands, instead of that in the hands of the defendant. It does not vary the case on this question that Kinney was told by defendants’ agents to bring back the goods in case the owners refused to pay what he had advanced, as none were ever returned. Over-charges of this kind paid by the plaintiff tithe defendant, or to its agent duly authorized to receive mane for such charges, or by his assignees, stand upon a differe footing, and we think may be recovered upon the facts will appear in the case. But little, if anything, appears to have been paid in that way.
The judgment must, therefore, be reversed and a new trial ordered, with costs to abide the event.
Hew trial granted.