as conferred on the
other party in performing the contract.

If a member of a firm gives a promissory note signed by the
partnership name, for a debt of his own, which his partner is
compelled to pay, he may recover the money from the other. So, if a
carrier by mistake delivered goods to the wrong person who keeps them,
and the carrier is obliged to pay for their value, he can recover the
amount of the other person who thus wrongfully keeps them.

Whenever a person makes a payment to another under such a mistake of
the material facts as to create a belief in the existence of a
liability which does not really exist, the money may be recovered
back. Such an obligation arises where money is paid as due on the
basis of erroneous accounts, and on a true statement of account is
found not to have been due. A voluntary payment with knowledge of all
the facts cannot be recovered, even though there may have been no
obligation to pay.

A person cannot recover money paid under a mistake of fact who has
received the equivalent for which he bargained, because there is no
failure of consideration. Nor is the fact immaterial that he need not,
and would not have made the payment had he known the true state of
things. A bank, for example, that pays the check of a depositor under
the erroneous belief that it has sufficient funds, may not recover
from the payee the excess to the depositor's credit. But if the
purchaser of goods has paid the price, and the seller fails to deliver
them, the purchaser may recover his money. And in any case, a person
who has paid money under an agreement which he may rescind and does
so, because there was a failure of consideration, may recover what he
has paid. An action will lie against a person who sells goods as his
own, but which do not belong to him, whenever the real owner claims
them from the purchaser. In like manner an action will lie against a
person who sells bills, notes, bonds, stock or other securities which
prove to be worthless, or against a person who agrees to transfer the
title to land which, for lack of title or other reason, cannot pass.

As a rule, the consideration of a contract must totally fail to
entitle a person to recover back the money he has paid. If the
consideration has only partly failed, the remedy, if there is any, is
for a breach of the contract, and not to recover back the money he has
paid. Thus, if an article is sold with a warranty of its quality, and
it is not wor