Yeazel v

Burger King Corp., 241 Ga. App. 90, 526 S.E.2d 112 (1999). No evidence of immediate threat. — Although the tenant of a commercial lease may have feared that the landlord would take action if the tenant failed to make the payments in the amount demanded, there was no evidence that the payments were made to counter an immediate threat to person or property so as to come within an exception to O.C.G.A. § 13-1-13. Yeazel v. Burger King Corp., 241 Ga. App. 90, 526 S.E.2d 112 (1999). Payment to recover possession of personalty wrongfully detained not voluntary. — Voluntary payments, though illegally demanded, cannot be recovered back. But a payment made for purpose of recovering possession of personal property wrongfully detained is not voluntary, and may be recovered back. This is true when owner does not know who has possession of property, but makes payment to third person to be used in securing release of goods. DuVall v. Norris, 119 Ga. 947, 47 S.E. 212 (1904). Overcharge of freight paid under protest in order to obtain goods is recoverable. — Carrier is liable to suit by shipper for recovery of overcharge of freight paid under protest in order to obtain the shipper’s 53 13-1-13 true facts and the other party would not be prejudiced by refunding the payment, subject to a weighing of the equities between the parties by the trier of fact. Gulf Life Ins. Co. v. Folsom, 256 Ga. 400, 349 S.E.2d 368 (1986); Graham v. Hogan, 185 Ga. App. 842, 366 S.E.2d 219 (1988); Landers v. Heritage Bank, 188 Ga. App. 785, 374 S.E.2d 353 (1988). Where both parties to a construction contract labored under a mutual mistake of fact that there was a valid contract and since plaintiff made the deposit with the defendants in belief that such was required under the contract, then O.C.G.A. § 13-1-13 has no application because the money was not due and payable under a void contract. Cochran v. Ogletree, 244 Ga. App. 537, 536 S.E.2d 194 (2000). Reliance on computer records. — A jury issue exists as to whether the plaintiff was negligent in relying solely on the plaintiff ’s computer, considering the facts of the current widespread use of computers for the purpose of keeping business records, and that, although the computer here, though negligently programmed by the plaintiff ’s subsidiary, may not have been known to be inaccurate. Gulf Life Ins. Co. v. Folsom, 256 Ga. 400, 349 S.E.2d 368 (1986). There is distinction between mistake and ignorance of law and section applicable only to latter. — There is a distinction between ignorance and mistake of law. Ignorance implies passiveness; mistake implies action. Ignorance does not pretend to knowledge, but mistakes assumes to know. Ignorance may be result of laches, but mistake argues diligence. Mere ignorance is no mistake, but mistake involves more than ignorance. Hence, the statute does not apply to money paid under mistake of law. Whitehurst v. Mason, 140 Ga. 148, 78 S.E. 938 (1913). Money paid under mistaken apprehension of liability not recoverable. — There can be no recovery of money paid by lodge as funeral expenses for member when the amounts were paid out under mistaken apprehension as to lodge’s liability for amount of that benefit. Chapman v. Ellis, 58 Ga. App. 614, 199 S.E. 650 (1938). Affidavit that insurance paid without knowledge of payment by another not proving lack of knowledge. — Affidavit by insurer which stated that claim was paid without Mistake Application to one paying money by mistake, without valid reason for ascertaining truth. — One paying money by mistake without valid reason for failing to ascertain truth cannot recover payment. Barker v. Federated Life Ins. Co., 111 Ga. App. 171, 141 S.E.2d 206 (1965). Section applies not only when one pays money with knowledge of all facts but also when one pays by mistake without valid reason for failing to ascertain truth. Bohannon v. Manhattan Life Ins. Co., 555 F.2d 1205 (5th Cir. 1977); Insurance Co. of N. Am. v. Kyla, Inc., 193 Ga. App. 555, 388 S.E.2d 530 (1989). Money paid under mistake or in ignorance of fact recoverable in appropriate circumstances. — Even where money is paid under mistake of fact, or in ignorance of facts, the money cannot be recovered, unless circumstances are such that party receiving the money ought not, in equity and good conscience, to be allowed to retain the money. In equity and good conscience refers only to acts and intentions of person receiving money as affecting other party to transaction. If one has acted in good faith and in good conscience with person paying money, one is entitled to retain the money, even if one’s actions and intentions may not have been in good faith and in good conscience as regards other persons not connected with transaction. Bryant v. Guaranty Life Ins. Co., 40 Ga. App. 573, 150 S.E. 596 (1929). While money paid under mistake of fact or in ignorance of facts may be recovered back if circumstances are such that party receiving ought not in equity and good conscience retain the money, to entitle a party to recover back money which the party has paid on ground that the money was paid to defendant through mistake or ignorance of facts, which one sets up as showing there was no legal liability on the party to pay, plaintiff should allege and show on trial that at time of payment plaintiff was mistaken as to such facts or ignorant of their existence. New York Life Ins. Co. v. Williamson, 53 Ga. App. 28, 184 S.E. 755 (1936). In an action for money had and received, the plaintiff generally can recover a payment mistakenly made when that mistake was caused by the plaintiff ’s lack of diligence or the plaintiff ’s negligence in ascertaining the 54 13-1-13 not void a contract on grounds of duress merely because one entered into the contract with reluctance, the contract was very disadvantageous to the party, the bargaining power of the parties was unequal or there was some unfairness in the negotiations preceding the agreement. Graham v. Cook, 179 Ga. App. 603, 347 S.E.2d 623 (1986). Threat of prosecution not necessarily duress. — Mere threats of prosecution of one who has committed no crime, or by one who has apparently made no moves toward carrying out of such threats, do not amount to duress in law. Taranto v. Richardson, 50 Ga. App. 851, 179 S.E. 202 (1935). Claim for rescission of a settlement agreement was meritless where, at the time of the settlement, plaintiff was acting on a court order with full knowledge of all the extant facts and was not under immediate threat of seizure of property. Sellers Bros., Inc. v. Imperial Flowers, Inc., 232 Ga. App. 687, 503 S.E.2d 573 (1998). knowledge of any other policy or that payments had been made under any other policy was not sufficient to prove lack of knowledge. Aetna Life Ins. Co. v. Cash, 121 Ga. App. 8, 172 S.E.2d 629 (1970). Mistake of law. — While money voluntarily paid may not ordinarily be recovered, this rule is not without exception. If payment was made in ignorance of law, recovery is barred; if in mistake of law, recovery is permitted. Emond v. State Farm Mut. Auto. Ins. Co., 175 Ga. App. 548, 333 S.E.2d 656 (1985). Duress In order for payment to be involuntary it must be paid under duress, and if payment is made under urgent and immediate necessity therefor or to prevent an immediate seizure of person or property, it is made under duress. Taranto v. Richardson, 50 Ga. App. 851, 179 S.E. 202 (1935). Disadvantage and unequal bargaining power not grounds of duress. — One may