(dissenting). I am unable to concur in tbe above opinion. It seems to be tbe theory of my associates that tbe action, will not lie because there was some liability on plaintiff’s part to respond in damages to defendant corporation for a breach of tbe contract of employment, it being conceded that there was no such liability under tbe *228bond. This reasoning, to my mind, is fallacious. It is predicated, I think, upon a mistaken view both of the-law and the facts. The opinion states: “That no liability was proved under the bond, as the bond merely secured the personal honesty of the plaintiff, and there is no proof or claim of personal dishonesty. There can, in our opinion, however, be no doubt as to his probable liability, to some exbent, at any rate, under the contract,” etc. There are two sufficient answers, as I view it, to the conclusions of the majority. First, the money was paid under a mutual mistake, both parties believing that there was a liability under the bond, there being no claim or suggestion of liability under the contract. Second, there was, in fact and law, no liability to any extent under the contract; but if there was liability “to some extent” this would not justify defendant in retaining the full sum of $505. The opinion does not enlighten us as to the amount of such liability, but it appears to be assumed therein that if any liability whatever existed under the contract that this will defeat plaintiff’s action. I confess my inability to perceive just how defendant could, under the facts, establish a cause of action against plaintiff for a breach of the contract.
To my mind the appeal presents the simple question as to whether, in equity and good conscience, the plaintiff is entitled to the repayment of this money. It was paid, manifestly, through a mutual mistake as to defendant’s legal rights and plaintiff’s liability. No such rights and corresponding liability existed, and the money was paid without any consideration whatever. Under these facts it is elementary that plaintiff, in equity and good conscience, ought not to be permitted to retain such money. I think the judgment should be reversed and a new trial ordered.