It paid over funds to Jennings Lumber for an alleged debt of Wallick and, in breach of its contract with Wallick, charged that payment against Wallick's account. "Except where otherwise provided by statute, it is a well settled general rule that a person cannot, either by way of set-off or counterclaim, or by direct action, recover back money which he has voluntarily paid with full knowledge of all the facts, and without any fraud, duress, or extortion, although no obligation to make such payment existed." 70 C.J.S. Payment ยง 133. Baldwin v. Scott County Milling Co., 343 Mo. 915, 122 S.W.2d 890 (1938), rev'd on other grounds 307 U.S. 478, 59 S.Ct. 943, 83 L.Ed. 1409; R. S. Jacobs Banking Co. v. Federal Reserve Bank of St. Louis, 34 S.W.2d 173[3-5] (Mo.App. 1930). And, see Restatement of the Law, Restitution, Chapter 1, Sec. 2. While the bank characterizes its defense as mitigation of damages, it is more properly a set-off.
Passing any question of pleading resulting from failure to charge either fraud or mistake in the counterclaim, the validity of defendants' argument depends, in the final analysis, upon acceptance of defendants' evidence that O'Reilly, intending to pay the Godfrey note, did not enter Jarvis' place of business but waited outside, and that O'Reilly accepted the note (marked "paid" by George upon his return) in the mistaken belief, induced by George's misrepresentation, that it was the Godfrey note when it actually was the $2,900 Oliver note. Certainly, plaintiff's evidence affords no foundation for a finding of either fraud or mutual mistake. Baldwin v. Scott County Milling Co., 343 Mo. 915, 122 S.W.2d 890, 895(6), reversed on another ground 307 U.S. 478, 59 S.Ct. 943, 83 L.Ed. 1409, rehearing denied 308 U.S. 631, 60 S.Ct. 65, 84 L.Ed. 526; Ferguson v. Butler County, 297 Mo. 20, 247 S.W. 795, 796(2), 26 A.L.R. 1519; American Brewing Co. v. City of St. Louis, 187 Mo. 367, 376, 86 S.W. 129, 131; Claflin v. McDonough, 33 Mo. 412, 415; R. S. Jacobs Banking Co. v. Federal Reserve Bank, Mo.App., 34 S.W.2d 173, 183(3); Columbia Building Loan Ass'n v. Gill, Mo.App., 285 S.W. 181, 182(4); Pritchard v. People's Bank of Holcomb, 198 Mo.App. 597, 200 S.W. 665, 666(1). Since defendants charge "a mutual mistake," we do not discuss the right to recover on a unilateral mistake.