176 Ind. 389 | Ind. | 1911
This is an action brought by appellees against appellants for money had and received and on account. The issues formed were tried by the court without the intervention of a jury. The court made special findings of facts and stated its conclusion therefrom, that the law was with the appellee, and that he was entitled to recover from appellants the sum of $1,019.36. Judgment was rendered accordingly.
The one question presented by this appeal is whether the court drew the right conclusion of law from the facts found, which are, in substance, as follows: (1) That appellee was elected, and that he qualified, as trustee of Harrison township, and thereupon acted as such from November, 1900, to January 1, 1905. (2) That he made his annual settlements as required by law, and on December 31, 1904, he made his final settlement, which was approved by the township advisory board and was filed with the auditor of the
This appeal is founded on the proposition that the facts specially found by the court show that the payment by appellant of the sum over the amount shown to be actually due from him to the township was a voluntary payment, and therefore cannot be recovered. This proposition is supplemented by the additional one that appellee, in delaying his suit more than seventeen months after the removal of the alleged duress was guilty of laches, which would defeat his cause if originally well founded.
Appellee in an effort to sustain the judgment in his favor asserts, and through his counsel argues ably and at length, that there is express statutory authority for his action, and that the payment in question was involuntarily made under duress of imprisonment, and for that reason may be recovered.
These provisions of the statutes, and the numerous decisions cited by counsel for appellee, in which a construction of them is more or less involved, have no direct bearing on the question involved in this case. They deal with the settlements provided for by law between the settling officer and some other officer or board charged with the duty of making or acting on the settlement in behalf of the public. The settlement in this case, if it may be properly so called, is not within the statute. Neither the township nor any officer of it was a party to it, nor was any other public officer upon whom rested any duty to make any settlement with appellee of his official affairs.
In the section of Greenleaf just cited it is said: “If the imprisonment was lawful, that is, if it were by virtue of
In this case appellee was lawfully charged with a crime and was under bond. He employed counsel and came into court with them, and voluntarily proposed to pay on condition that the indictments against him be nolle prossed. He suggested his own terms. When the accountant -had reported the amount of his indebtedness, by which report he had voluntarily agreed to abide, he still was not satisfied, but asked the court to review it, and this was done to his advantage. There is no element of illegal duress in all this. Having suggested to and pressed upon the court and prosecuting attorney the agreement to settle on condition of being relieved of the prosecution for a felony, it does not lie with appellee to claim that he was coerced into making the payment he made to carry out that agreement.
The general rule that must obviously apply to this case is thus stated by Wilmot, C. J., in Collins v. Blantern (1767), 2 Wils. 341, 350; 1 Smith’s Lead. Cas. (11th ed.) 370, 374: “Whoever is a party to an unlawful contract, if he hath once paid the money stipulated to be paid in pursuance thereof, he shall not have the help of a court to fetch it back again.” See, also, Crowell v. Gleason (1833), 10 Me. 325; Shattuck v. Watson (1890), 53 Ark. 147, 13 S. W. 516, 7 L. R. A. 551; Inhabitants of Worcester v. Eaton (1814), 11 Mass. 368; Winchester, etc., Light Co. V. Veal (1896), 145 Ind. 506; 9 Cyc. 546.
The judgment is reversed, with instructions to the trial court to restate the conclusions of law in accordance with this opinion, and to render judgment accordingly.