Restitution for Mutual mistake. Neither negligence nor imputed knowledge on part of plaintiff is a defense if there is an actual mistake and circumstances show unjust enrichment.

 Dover Corp. v. First Wisconsin Mortg. Trust, 139 Vt. 217, 425 A. 2d 97 (1980).

Plaintiff requested restitution based on a mutual mistake of fact relating to tax pro-rations at a closing. The trial court concluded that defendants had been unjustly enriched, and awarded $19,620.58 plus interest, reflecting the credits given defendants because of the mutual mistake as to the taxable year. Defendants appeal. We affirm.

Plaintiff, Dover Corporation, purchased the Mt. Snow ski area from defendants for a specific amount, subject to certain closing adjustments. The parties agreed to prorate the sewage taxes for the taxable year 1977 as of the date of closing. At the closing August 10, 1977,  defendants' agent represented that the sewage taxes had been paid in full for the fiscal year April 1, 1977, to March 31, 1978. Based on this understanding, the sewage taxes were prorated so that defendants received a credit for those taxes paid by them for the period from the date of closing to March 31, 1978.  However in fact the tax year was from January 1, 1977 to December 31, 1977, and the taxes were paid only through June 30, 1977.

Defendants challenge the court's conclusion that plaintiff was mistaken as to the proper taxable year, because  Plaintiff had received a title certificate from a local attorney noting, correctly, that the taxable year for sewage assessments ran from January 1, 1977, to December 31, 1977. Defendants argue that the knowledge of plaintiff corporation controls the issue of mistake and that the court's finding that plaintiff had received the correct facts before the closing adjustment precludes a claim of mistake.

"[A] mistake is an unintentional act or omission arising from ignorance, surprise, imposition or misplaced confidence, and it exists when a person under some erroneous conviction of law or fact does or omits to do some act which, but for the erroneous conviction, he would not have done or omitted." Ward v. Lyman, 108 Vt. 464, 472, 188 A. 892, 896 (1937). See also Restatement of Restitution § 6 (1937). The knowledge which may have been imputed to plaintiff from plaintiff's attorney is not the issue. Certainly here we have an example of misplaced confidence in the mistaken opinion of defendants' agent. We find no error.

Defendants further argue that the trial court abused its discretion in granting relief despite plaintiff's lack of care and vigilance. But negligence of the party injured should not prevent a court from correcting a mutual mistake of fact. Ward v. Lyman, supra. See also Restatement of Restitution § 59 (1937). Whether a mistake is to be corrected depends upon the circumstances of the case. Here defendants were found to be unjustly enriched and plaintiff alone would suffer injury if relief were not granted. We think the case affords a solid ground for relief.

Judgment affirmed.