DELIVERED THE OPINION OF THE COURT.
Samuel H. Harlan and city of Louisville entered into three several contracts, each for one year, that expired September, 1, 1889, 1890 and 1891, whereby he agreed to clean the public wells and keep in repair all the public pumps in the city, furnishing material according to specifications on file in the health office at the price of thirty-five cents per month for each pump during first, seventy cents per month for each during second, and sixty-five cents per month for each during third contract period, and afterward received full payment at the prices fixed for 1,040 such pumps kept in repair under first, for 1,000 under second, and for 1,000 under the third contract.
But it having been subsequently ascertained by officers of the city upon actual count, and now conceded, that the true number of pumps was and is only 522, this action was *288brought to recover back from him the sum of difference between what he was entitled to at the fixed prices per pump for that number and what he had received, upon the ground such excess had been paid by the city through mistake and without consideration.
The defense is placed upon the ground that although at the dates of the contracts, the health department had control and supervision of the wells and pumps of the city, that duty had previously been imposed upon and performed by the engineering department, which officially reported to the city council for the jear 1888 the number of pumps to be 1,040; and that defendant being referred by officers of the city to that report for information on the subject, and caused thereby to believe such was the actual number, made his bids and entered into the several contracts to keep the pumps in repair at the prices mentioned.
But the number of pumps was not specified, it being stipulated in each contract, generally, that defendant was to keep all in the city in repair at a fixed price per pump. And if, as is placed beyond doubt, defendant received through mistake of plaintiff, payment at prices agreed on for repairing 1,040 pumps under the first contract and 1,000 under the second and third contracts, when there was in fact only 522 that he did keep in repair, then ex aequo et bom he should be required to pay back the excess, unless, as is contended, city of Louisville is estopped by conduct of its authorized officers.
The evidence shows there was an inspector of pumps whose duty it was to ascerlain and report regularly to the health office what particular pump or pumps needed repair, and defendant acted on that information. And at the end of each month a voucher was made out in his favor by a clerk of the health office for amount found due by multiply*289ing the number 1,040 under first contract, and 1,000 under second and third contracts, by the price fixed for each period, without regard to either the actual number repaired, or the actual number in existence. But before receiving payment, lie,- as required by law, made oath to justice and correctness of each voucher.
The court below instructed the jury to find for plaintiff, unless they believed from the evidence “that before the defendant made the contracts with city of Louisville sued on, . . he was informed by its officers who had charge of the department which superintended repairsmade upon thepublic wells and pumps of the city, or by his assistant or secretary, that there were 1,040 public wells and pumps in the city, and he believed the information so received to be true and relied upon it when he made the said contracts.”
Although report of the engineer made in 1886 was so grossly incorrect as to evidence inexcusable negligence, still if defendant believed, and in good faith entered into the contracts believing, the report was true, not being himself in fault, then his plea of estoppel would avail. But in due performance of his contract he had means of knowing, and could not honestly make oath to justice and correctness of his monthly demands without knowing, the precise number of pumps he had undertaken to keep in repair. Therefore, in legal contemplation, he did know, and was not deceived or misled wlum he entered into the second and third contracts, if at all, and clearly plaintiff is entitled to recover back the excess paid under them, and the court erred in not so peremptorily instructing the jury.
It may be that defendant entered into the first contract agreeing- to keep the pumps in repair at the comparatively lowprice of thirty-five cents per pump in good faithbelieving report of the engineer was true, and the instruction given *290would not be improper on a new trial, if made to relate only to that contract. For it was not Ms legal duty to know and he may have in good faith believed that report was true and relied upon it.
For the error indicated the judgment is reversed for new trial consistent with this opinion.