81 Pa. Super. 486 | Pa. Super. Ct. | 1923
Argued April 24, 1923. The plaintiff, a Pennsylvania corporation having its principal office in Pittsburgh, sold to the defendant twenty tons of paraffine wax, f.o.b. New York. When the wax arrived in New York, the defendant rejected it and notified the plaintiff that the car was being held subject to the plaintiff's orders. The plaintiff then requested the defendant to send to it at Pittsburgh the bill of lading in which the defendant was consignee. In response thereto, the defendant sent the bill of lading to the Bank of Pittsburgh N.A., with instructions to surrender the same to the plaintiff on payment of the sum of $1,151.57, as per sight draft attached, representing the damages which the defendant claimed it had sustained as the result of the plaintiff's failure to furnish the kind of wax purchased. In order to get possession of the wax and prevent further loss, the plaintiff paid the draft, secured the bill of lading, took possession of the wax and resold *488 it. At the time of paying the draft, the plaintiff delivered to the bank a written notice to the effect that payment was made under protest, compulsion and duress. This action was brought to recover the loss resulting from the alleged wrongful refusal to accept and pay for the wax by the defendant. The verdict for the plaintiff establishes the fact that the refusal to accept the goods was wrongful. The single question presented is whether the payment of the draft was a voluntary payment. That money voluntarily paid with full knowledge of the facts, in the absence of fraud, cannot be recovered back is well settled. The contention of counsel for the defendant that the payment was voluntary is based upon the proposition that when delivery was made to the carrier f.o.b. New York, freight prepaid, the sale was complete and title to the wax passed to the defendant; that when the bill of lading was sent to the bank at Pittsburgh, with the draft attached thereto, and the plaintiff paid the amount of the draft, he did not do so to secure the possession of his own property. This contention cannot be sustained. It eliminates the fact that the wax was rejected. When the defendant rejected the wax and notified the plaintiff to dispose of it, whether justifiably or not, and the plaintiff asked for the bill of lading, which was tantamount to a request of a return of the property represented by it, and when the defendant forwarded the bill of lading to the plaintiff at Pittsburgh, both parties treated the property as belonging to the plaintiff. The latter could not obtain immediate possession of the same, which was a somewhat perishable commodity, without the bill of lading. It could not secure the bill of lading without paying the amount of the draft. In order to obtain possession of its own property, it paid the draft and gave notice to the bank that it was done under protest and duress and that the demand was unlawful.
Was the payment made under these circumstances a voluntary payment in contemplation of law? The plaintiff's property was in the hands of the railroad company *489
and the bill of lading, the evidence of title thereto, was being held by the defendant as security for a demand which the jury found to have been unjustifiable. In order to obtain possession of its own property, the plaintiff paid, under protest, the amount unlawfully demanded. That a payment of money may be involuntary because it is the result of duress of goods has long been well settled. As this subject was fully considered by Judge W.D. PORTER in Lowenstein v. Bache,
The judgment is affirmed.