(concurring specially). Concur in ‘affirmance. But that conclusion is reached under a somewhat different course of reasoning than that adopted by Justice Bruce. The complaint asks a recovery for money paid either under mutual mistake of fact or fraud induced by the defendant. There is no sufficient proof of fraud, so that alternative is eliminated. The answer is, in effect, a general denial as to the payment having been made under mutual mistake of fact or fraud. And coupled therewith, “as a further defense to plaintiff’s complaint,” facts establishing a liability of plaintiff to defendant under a breach of contract to supervise the corporate business and accounts, superintend collections, and the deposit of its collections in.the bank, and a shortage arising between the collections made and the deposits placed in the bank is set forth in detail and as arising upon a contract and bond made, executed, and delivered by the plaintiff to the defendant company. This *225•affirmative defense is in the nature of a counterclaim against any liability that plaintiff may establish under his complaint, alleging payment by him under mutual mistake of fact. The answer then is the equivalent of a denial that the payment was made under a mutual mistake of fact, coupled, however, with a counterclaim based upon breach of contract arising out of the transaction should the court find with plaintiff that the payment was made under a mutual misapprehension and mistake of fact.
The law seems to be well settled that “a voluntary payment, with a knowledge of all the facts, cannot be recovered back, though there was no debt. But a payment under a mistake of fact may be. Adams v. Reeves, 68 N. C. 134, 12 Am. Rep. 627; Pool v. Allen, 29 N. C. (7 Ired. L.) 120; Newell v. March, 30 N. C. (8 Ired. L.) 441; Lyle v. Siler, 103 N. C. 261, 9 S. E. 491; Worth v. Stewart, 122 N. C. 258, 29 S. E. 579; Macon County v. Jackson County, 75 N. C. 240; Pearsall v. Mayers, 64 N. C. 549. In Pool v. Allen, 29 N. C. (7 Ired. L.) 120, Buffin, Oh. J., states the reason for this principle with his usual force; ‘There was no intention here to make a gift of the money, so as in that sense to constitute it a case of a voluntary payment. On the contrary it was clear that the money was paid out and received in discharge •of a debt then believed to subsist. In that, there was a total mistake on the part of the person making the payment and probably on that of the receiver also; and it is plain that money thus got under a mistake and for no consideration cannot be kept ex equo et bono.’ ” . The foregoing, from the opinion in Simms v. Vick, 151 N. C. 78, 24 L.R.A.(N.S.) 517, 65 S. E. 621, 18 Ann. Cas. 670, so clearly states the rule and the law to be examined under these facts that no better can be done than to set it forth. See also note appended thereto, citing cases from many states. As to the former proposition, that money paid with knowledge of all the facts cannot be recovered back, see the decision of our own court in Dickinson v. Carroll, 21 N. D. 271, 37 L.R.A.(N.S.) 286, 130 N. W. 829. Even though, as in that case, it was the payment of accommodation paper held by a third person for which the maker received nothing. It is equally well settled in this state that a payment made under a mistake of fact may be recovered by action. James River Bank v. Weber, 19 N. D. 792, 124 N. W. 952, citing, applying, and explaining Pegan v. Great Northern R. Co. 9 N. D. 30, 81 N. W. 39.
*226With the law settled, the facts in the case under the proof and the issues presented in the pleadings are next to be considered. First, was the payment made under a mutual misapprehension of the facts? It would seem so. The plaintiff has testified that though he received a copy of the contract and bond in June previous to the payment of the money in February, yet they were not accessible, and he did not become familiar with the contract and bond to know its contents until some little time after he had made the payment herein sought to be recovered, and that he made the payment under the misapprehension that the bond made him liable for the misappropriation of the office employees in the local telephone exchange over which, according to his contract, he was manager. The bond in nowise makes him liable for these shortages, which, if they exist at all, must be embezzlements of some of the employees other than the plaintiff. The bond merely insures his personal honesty, and it is admitted that only a small percentage of the money was received or went through his hands, and that he has accounted for all of that. The basis of liability lies in whether he was responsible for the defalcations of others. And it is impossible to believe that he would have made this payment had he not understood that he was bonded to make it, and, under the bond, was surety for the defalcations of the entire office force. And it is plain that the directors and officials of the telephone company knew of his misapprehension in this particular, or else assumed that he construed the bond contrary to its express provisions or in connection with the contract. If the ¡recovery turned upon the question of whether this payment was made under mutual mistake of fact alone, or, in other words, upon the complaint and a general denial thereto, the plaintiff should recover.
But we now reach the affirmative defense, i. <?., in substance that the money, although paid under mistake of fact, should be retained as the payment for and settlement of plaintiff’s liability to defendant company under the terms of the contract of employment, independent of and additional to any liability on the bond. This defense, as heretofore stated, is in the nature of a counterclaim or additional defense as'termed, and therefore the burden of its proof under a fair preponderance of the evidence is upon the party asserting it, the defendant. And there is substantial proof of plaintiff’s liability to the telephone company under that contract. The proof of shortage is conceded by all parties. There *227is no dispute in the amount. It is shown by the difference between receipts of the office, according to tbe office books, and tbe deposits made in tbe bank. It amounts to nearly $100 a month during tbe time of such superintendency of tbe financial affairs of the company and tbe discovery of any discrepancy. To be time be was employed according to tbe contract to do well-nigh tbe impossible, i. e., build telephone lines, be away from tbe office a week at a time as construction manager at a time when be has contracted “to look after all collections of all accounts due and owing,” “and to account at all times for all moneys that may come into bis bands or under bis control in tbe performance of tbe duties and in connection with bis position” as “manager, lineman, and repairer of its telephone system.” But be has unmistakably contracted to do this. And concededly be has failed to even realize bis duties, not to mention performing them, and a loss has resulted to tbe telephone company therefrom. This loss, while perhaps debatable as a liability against plaintiff, is one dependent upon tbe proof and tbe construction to be given to tbe contract. If tbe contract is open to two constructions, one supporting and tbe other negativing liability, resort may be bad as to how tbe parties have construed it as betweeu themselves. Tbe officials for tbe defendant have testified that ibis liability was considered and discussed during tbe settlement under which this money was paid. Even though plaintiff paid under a mistake of fact on bis part, apparently tbe payment was received in settlement of this contingent liability, and to that extent it was not both paid and received under mutual mistake of fact. And tbe trial court, under a double motion for directed verdict, has passed upon tbe facts adversely to plaintiff in this respect. In so doing it has held tbe counterclaim supported by a fair preponderance of tbe evidence. Its findings have tbe force of a special verdict, and must prevail unless clearly contrary to a preponderance of tbe evidence, this being a jury case. Under this rule tbe finding must be sustained and tbe judgment affirmed.