Centre Turnpike Co. v. Smith

12 Vt. 212 | Vt. | 1840

The opinion of the court was delivered by,

Redfield, J.

— In this action the plaintiff seeks to recover, in assumpsit, for tolls due the company, from the defendant, for passing their gate. It is admitted the defendant was allowed to pass the gate by the toll-gatherer, under a claim of exemption from liability to pay toll, by reason of his being a physician and being, at the several times of passing the gate, on the business of visiting his patients in his ordinary ride. This exemption is claimed under that provision, in the charter of the company, which exonerates those persons from paying toll, who have occasion to pass the gate on theordinary domestic business of family concerns.”

Now it is obvious that this exemption must have such a . . , . construction as neither to defeat its own object, nor yet to defeat the object of the incorporation, by depriving the company of all benefit arising from tolls. No one can doubt such was the intention of the legislature. To say, then, that a physician is to pass the company’s gate, toll free, while visiting the sick, because, forsooth, that is his “ ordinary business,” would be to establish a principle which would at once deprive the company of all tolls. For very few men travel, except, in some sense, upon their ordinary business. The proprietors of a stage coach might, with the same propriety, claim to pass the gate toll free, because it is their ordinary business to drive a stage coach, and, with very little extension, the rule might be made to include all travellers, ex-except those who had suddenly abandoned their ordinary business, and, in the spirit of knight-errantry, had taken in hand some new and extraordinary matter.

The reasoning of the learned judge, who delivered the opinion of the court in the case of the Green Mountain Turnpike Company v. Hemmingway, 2 Vt. R. 512, is very full and very satisfactory upon this point. It is there laid down, that a person, in order to claim the benefit of this exemption, must, at the time of passing the gate, not only be upon his “ ordinary business, ” but it must be “ domestic business,” and “ must relate to family concerns.” In other words, it must be the common and ordinary business pertaining, primarily and directly, to the maintenance and support of the family of the person claiming the exemption. From this view, it is very apparent that the defendant was not exempt from paying toll on this ground. But the defendant claims to have been exempt from liability to pay toll, by reason of the neglect of the company to post up, in a proper-manner, their rates of toll. They were required to keep them written or posted upon a board and “ exposed to view.” This, doubtless, means to the view of the traveller, without the house. For if they may be put up within the toll house, it is difficult to perceive why they might not be kept in a still more obscure place. It could hardly be of any importance upon what material they were written, or whether they were written, printed, or painted. It would be absurd to suppose the legislature could have intended any such distinction. And although, in the present case, they have not fully complied with the requisitions of the statute, yet it by no means follows, that, on that account, they are precluded from taking tolls. No such inference is fairly deducible from the act of incorporation. And surely we ought not to in-graft limitations and provisos, or conditions, involving consequences so highly penal, unless such is the expressed, or obviously implied purpose of the legislature. In the present case, a compliance with this requirement is no where expressly, or by any fair implication, made a concurrent condition to the company’s right to take toll. The object to be answered by this provison is to secure the public against imposition, and to assure the traveller, that no more than the legal rate of toll is required of him. The remedy for the company’s neglect, if any, must be sought in a public prosecution, operating upon the neglect and tending to correct it. The conclusion to which we come, then, is, that the defendant was, at the several times of passing the plaintiffs’ gate, liable to pay toll, and had they resisted his claim of exemption, they might, in any of the inodes pointed out in their charter, have compelled such payment.

But,in the present case, the defendant claimed the right to pass the gate without paying toll, on the ground of exemption or privilege, and on that claim be was permitted to pass. There was no express promise to pay, in any event, and will the law, under the state of facts here presented, imply a promise ? If not, the plaintiff must fail in the present action. We know there are many cases in which a person is virtually made liable in assumpsit for a tort. But those cases may he resolved into classes, none of which include the present.

1. Where the defendant has taken personal property and converted it into money. Gilmore v. Wilbur, 12 Pick. 120. By Jackson, Judge, in Cummings v. Noyes, 10 Mass. 433. By Lord Mansfield, in Hambly v. Trott, Cowper, 373. But in these cases the chattels must have been actually converted into money. Such is the language of the books. I find but one case where chattels have been taken by force, arid not converted into money, that assumpsit has been sustained, and that‘case rests upon no very satisfactory basis. Hill v. Davis, 3 N. H. R. 386.

2. When the defendant obtains the goods surreptitiously, under color of sale. Chitty on Contracts, 19. Hill v. Prescott, 3 Taunton, 274. Edmeads v. Newman, 8 E. C. L., 116. In the latter case, the defendant came fairly by the bills, but fraudulently obtained the money upon them. The - case of Clarke v. Shee, Cowper 197, is of the same character.

3. Where one employs the apprentice of another, even when he did not know, of the apprenticeship, he is liable in assumpsit for work and labor. Lightly v. Clouston, 1 Taunton, 112. Bowes v. Tibbets, 7 Greenleaf’s R. 457. See, also, Eades v. Vandeput, 5. East. 39, which involves the same principle.

4. Where the defendant, under false color, has recovered the rent of plaintiff’s estate. 2 Starkie’s Ev. (6th Ed.) 64 and cases-cited. So, also, when the defendant has intruded into plaintiff’s office and, under color of right, has received the fees. Ib.

But I find no case where, as in the present, the defendant is guilty of no tort, and of no fraud, and claims to act by virtue of a legal right, and that claim is recognized, at least pro hac vice, that the party has subsequently been made liable, in assumpsit, as on an implied contract. Hence, when the defendant has received rent, under a claim of title to the premises, he is not liable to be sued therefor in assumpsit. 2 Starkie’s Ev. 65. Cunningham v. Lawrents, Bacon’s Ab. 5th Ed., 260. And in an action for use and occupation, the title cannot, ordinarily, be tried. Peake’s Ev. 258. B. N. P. 133. It is no doubt true, in the present case, that if the plaintiffs had closed their gate upon the defendant, and thus compelled him to pay toll unjustly, he might have maintained assumpsit for the money paid, and thus have tried the question of right. Fearnley v. Morley, 5 B. & C. 25. S. C. 11 E. C. L. 137. But this is upon the ground that the parties are not upon equal footing, and that there is a virtual duress. In every view of this case, then, although in some sense reluctantly, we feel compelled to the conclusion that the action will not lie. Perhaps there is no injustice in this result, as the plaintiffs did not see fit to insist upon their tolls, at the time, and in tiie manner pointed out by their act of incorporation. The most that can be pretended in favor of the plaintiffs, in the present case, is, that, understanding all the facts and circumstances of the case, they have foregone a legal right, under a misapprehension of the law. In such case, it has always been considered, that the party was remediless. Bilbie v. Lumley, 2 East, 469. Lowry v. Bordieu, Doug. 467. East India Company v. Tritton, 3 B. & C. 280. 10 E. C. L. 79.

Judgment reversed and new trial granted.