#### FIRST STATE BANK OF FORT MEADE v. SINGLETARY.

Supreme Court of Florida, Division A.

July 8, 1936.

Johnson, Bosarge & Allen, of Bartow, Nat J. Patterson, of Fort Meade, and Waller & Pepper, of Tallahassee, for plaintiff in error.

Jésse H. Willson, of Bartow, for defendant in error.

DAVIS, Justice.

This was a suit by Norah D. Single-tary, the plaintiff below, to recover for an alleged overpayment of interest made by her to the defendant below, First State Bank of Fort Meade. The jury returned a verdict for overpaid interest on $7,500 note paid May 21, 1931, $906.67; *408interest at 8 per cent, overpaid interest from May 21, 1931, to April 3, 1935, $280.40; total for plaintiff, $1,187.07. Judgment for that amount having - been entered pursuant to the verdict, the case is here on writ of error sued out by the losing party in the court below.

There is substantial evidence from which the jury could have found a lawful verdict for the plaintiff, 'as it did, with respect to the item of alleged overpayment of interest in the sum of $888.12. The proof is that $1,710 interest was actually paid over by Mrs. Singletary at the bank’s request, and upon its representation that such amount was the amount so dire to be paid over; that such payment was paid over on the obligation the bank was then holding. There is proof also from which the jury could have lawfully found as a fact that no more than $821.88 was the amount that ought to have been demanded and collected by the bank under the circumstances disclosed.

The trial judge, who saw and heard the witnesses, has approved the probative weight and effect of the evidence as being sufficient to sustain the plaintiff’s recovery. While we, as jurors, may not have rendered the verdict the jury rendered in this case, we find no substantial ground in the record for saying that the jury, acting as reasonable men, were unwarranted in finding the merits of the controversy in favor of the plaintiff. So the verdict and judgment for plaintiff in that particular should not be disturbed.

The predicate for plaintiff’s right to recover in this case is to be found in the count for money had and received in the form of the alleged overpayment of interest which plaintiff, by the' representations of the defendant, was induced to make in the belief on her part that she was obligated to make such payment because of her supposed factual liability for the amount demanded of and paid by her.

The action for money had and received, although a legal action, is equitable in its nature and is said to resemble a bill in equity and to lie whenever a bill in equity would lie with reference to recovery of the particular sum involved upon plaintiff’s affirmative rescission or avoidance of the transaction concerning it. Osborn v. Bell, 5 Denio (N.Y.) 370, 49 Am.Dec. 275; Culbreath v. Culbreath, 7 Ga. 64, 50 Am.Dec. 375; Note, 52 Am. Dec. 751; Citizens’ Bank v. First National Bank, 101 Fla. 908, 132 So. 478; Cox v. Grose, 97 Fla. 848, 122 So. 513.

When the fact is proved that one has money received from another, if the recipient cannot show a legal and equitable ground for retaining it, the law creates the privity and promise necessary to sustain the action for money had and received. And it is settled that money paid under a mistake of facts may be so recovered, it being considered unconscionable that money so paid should be detained from the payor on his discovery of the mistake and demand for the money’s return. Where the mistake is mutual, notice of the mistake must precede the right of recovery, and the statute of limitations does not run until the mistake is discovered and demand made.

In the case at bar, whatever mistake was made was necessarily a mutual mistake on the part of the bank and the plaintiff growing out of the significance to be attached, to certain indorsements o'f payment made on the note in question between the parties at the time the alleged overpayment of interest was made. When plaintiff discovered what she considered was a mistake in the amount of interest due to be paid as compared with what she had paid, she at once rescinded the transaction of payment pro tanto, and brought suit. Her recovery therefore should have been for no more than the amount of overpayment, $821.88, with interest thereon at 8 per cent, from the date of demand or institution of suit; the doctrine of rescission of the transaction of payment pro tanto being applicable. Peninsula Terminal Co. v. Zaring, 113 Fla. 87, 151 So. 514.

The judgment will be affirmed, on condition that an appropriate remittitur in conformity with the holding of this opinion be entered in the court below; otherwise the judgment will stand reversed for a new trial on the issue of damages. ■One-half of the costs of appeal will be taxed against defendant in error.

WHITFIELD, C. J., and BROWN, J., concur.

ELLIS, P. J., and TERRELL and BUFORD, JJ., concur in the opinion and judgment.