dissenting.
The opinion, in my view, gives too much prominence to the action of the Navy Department and, in effect, determines the case by it as if the controversy were between the Department and Levinson, and not between him and Johnson. It caused the controversy, indeed, and by its mistake gave a right to Levinson to which Johnson was entitled. Has the law no redress for the injury thus inflicted? It would be a reproach to it if it have not.
Let. me repeat the facts. In pursuance of a statute, and in the manner directed by it, the Navy Department offered the yacht Wadena for sale. It was the duty of the Department to the Government of which it was an instrument to accept the highest bid, and it owed a duty as well to him who should be the highest bidder. Johnson responded to the offer of sale and, his bid was the highest. By mistake, however, the bid was assigned to a boat of similar name. In consequence of the mistake Levinson was considered the highest bidder and a bill of sale was issued to him. Before the delivery of the yacht, however, *203the mistake was discovered and the yacht was retained by the Department. This being the situation, the Department, not in its own interest, not in partiality to either claimant, caused this suit to be brought that the rights of the claimants could' be adjudicated. The suit is a disclaimer of interest or favor; it is in the naturé of a bill of interpleader and the contest is remitted to the inter-pleaded, Levinson and Johnson, and the law of their rights. And that law is dependent, upon what they did, not upon what the Navy Department did, — upon the priorities between them, not upon a chance advantage. These are the elements that should determine judgment, whether we assign to accident or mistake the action of the Department in declaring Lévinson to be the purchaser of the yacht. I need not dwell upon the sufficiency of either as a ground of relief.
Accident is said to be one of the oldest heads of equity jurisdiction, ,and a learned authority says its -first and principal requisite is, that, by an event not expected nor foreseen, one party has without ffiult and undesignedly undergone some legal loss while another party has acquired a legal right which it is contrary to good conscience for him to retain and enforce., 2 Pomeroy, § 824. .
The requisites and consequences are in this case, and exhibit the relative situations and rights of Levinson and Johnson. Levinson has acquired a rigTit to which Johnson was entitled and which Johnson lost by an'accident to which he was not a contributor. The law in its sufficiency and prudence meets such contingent happening and gives a remedy to prevent or redress its injury. That Levinson was given a bill of gale is not a serious1'deterrent. As the bill of sale could have been refused it can be disregarded as an element of decision. '
Mistake as well as accident (mistake may be considered a corollary of accident) is a ground of relief which the law’s remedia,! consideration furnishes for the redress of *204-injustice. And that a mistake was made cannot be denied, and to which no act or negligence of Johnson was accessory. He responded to the solicitation of the Navy Department executing the law, and he was entitled to the preference that the law commanded. It was given to another by mistake. The law will not permit him to retain it, and this is a necessary deduction, I confidently believe and, therefore, confidently express,, though. it is opposed by the judgment of my brethren. I repeat, that there was a mistake cannot be disputed, and I cannot think that its consummation'protects it from correction and that a remedy should be denied because it is needed, all of its conditions existing.
It was the view of the Circuit Court of Appeals in a well reasoned opinion that the Secretary of the Navy had “ no authority to deliver the bill of sale to Levinson ” but was “ bound to deliver it to Johnson.” There is much to sustain the decision; I, however, base my dissent upon the views that I have-expressed, and think that the judgment of the Circuit Court of Appeals should be affirmed.