Cobb v. Charter

32 Conn. 358 | Conn. | 1865

McCurdt, J.

In this case the honesty of th§ plaintiff’s claim and the justice of the verdict are undenied. His tools and implements of trade necessary for upholding life were detained from him by the defendant until they were redeemed by tlie payment of money to which the defendant had no shadow of right. The defense is strictly technical throughout.

The first and principal ground is that the payment was voluntary. It is undoubtedly^ general rule that’money paid voluntarily, without fraud and with a full knowledge of all the facts, can not be recovered back by the party who has so paid it. He is bound to resist an unjust demand in the first instance. To pay when he could successfully defend against-it, and then sue for the money, is a species of frivolity, involving also a circuity of action, which the law does not encourage. The rule is founded on the presumption that defending in such a suit would afford adequate redress. There are many exceptions to it, or rather many instances in which the payments having been made under the pressure of an enforced emergency, are not considered voluntary, but compulsory in law. Among the more common of these cases are illegal exactions of tolls, fees of office, taxes, revenue duties, &c., under an alleged authority of law. An early case of this kind occurs in our own reports, Carey v. Prentice, 1 Root, 91, where the plaintiff’s vessel was detained by the defendant, commander of the fort at New London, because the plaintiff had not given bond according to law, and the plaintiff paid him $145 to let him go to sea without giving bond. The money was recovered back-. In other cases where the money is not extorted in this manner, itis not always easy to distinguish between voluntary and compulsory payments, and the decisions are apparently conflicting. But it is safe to say that wherever money is paid through a necessity to obtain possession of goods illegally withheld, and where the détention is fraught with great immediate hardship, or irreparable injury, the payment is held to be compulsory. It is said in 1st Swift’s Digest, 407, that “ a payment made to procure the possession of goods which another unjustly detains, or to prevent goods which have been distrained from being sold, is not voluntary,” Shaw v. Woodcock, 7 Barn. & Cress., 73; Hills v. Street, 5 Bing., 37. In the 1st Volume of Espinasse’s Nisi Prius, pages 14 and 192, assumpsit is said to lie generally “ to recover back money obtained from any one by extortion, imposition, oppression, or taking an undue advantage of the party’s situation.” Moses v. Macferlan, 2 Burr., 1012. In Oates v. Hudson, 5 Eng. Law & Eq. Rep., 469, the plaintiff paid money to an attorney to obtain his title deeds, saying at the time to the defendant, “ you shall hear of this again,” and the action of assumpsit was sustained. See also Cartwright v. Rowley, 2 Esp., 723. In Astley v. Reynolds, 2 Stra., 915, money unjustly exacted to obtain plate which had been pawned, was allowed to be recovered back. In Maxwell v. Griswold, 10 Howard, 242, the principle is laid down that “ in order to constitute an involuntary payment so that the money may be recovered back, it need not be made under actual violence or physical duress; it is enough that the party pays reluctantly in consequence of an illegal demand, and without being able to regain possession of his property except by submitting to the payment.” Among other authorities on this subject are, Sasportas v. Jennings, 1 Bay, 468; Collins v. Westbury, 2 id., 211; Alston v. Durant, 2 Strobh., 257; Chase v. Dwinal, 7 Greenl., 134; Fleetwood v. City of New York, 2 Sandf., 475; Harmony v. Bingham, 2 Kernan, 99; Shaw v. Woodcock, 9 Dow. & Ryl., 889; S. C., 7 Barn. & Cress., 73; Bates v. N. York Ins. Co., 3 Johns. Cases, 238.

The circumstances of the present case furnish a striking illustration of the necessity of the principle which we sustain. The plaintiff was a mechanic. His chest of tools, which are held by statute sacred even from the touch of a creditor, were seized by the defendant. He refused to deliver them to the owner on demand except upon his paying, without the slightest obligation, the debt of another person. The plaintiff was thus deprived of the means oí his support. Thereupon he left the money with Stratton to be paid to the defendant when the chest should be sent. Stratton so informed the defendant, who at once sent the chest and then received the money.

In view of such extortion, oppression, and taking an undue advantage of the plaintiff’s situation, it seems somewhat bold in the defendant to come into a court of justice and assert that-the payment was voluntary.

A question is raised as to the sufficiency of the demand. It is difficult to see what further was necessary beyond what was done. The demand for the chest was both general and special. In relation to the money illegally extorted* it stands upon the same ground as though it had been taken from the plaintiff’s pocket.

There remains another technical question growing out of the form of the declaration. The motion in arrest and motion in error turn upon the same point, a supposed misjoinder of the counts.

, The first count is the general one, and is undoubtedly proper and sufficient. The second count contains a particular relation of the facts upon which the plaintiff seeks to recover. It is inartihcially drawn and contains superfluous averments, but substantially it is a full statement of the circumstances out of which the law implies a promise of the defendant to pay the plaintiff’s demand, for the recovery of which, as we have seen, assumpsit is the appropriate action. The elements of the plaintiff’s right are well set out, and the defect is one of form. The result of the trial is confessedly just. The defendant has experienced no injury from the looseness of the count, and we see no reason to disturb the verdict.

In this opinion the other judges concurred.