93 Ind. 266 | Ind. | 1884
— The appellant presented to the board of commissioners of Hamilton county, for allowance, a claim in his favor. It was disallowed by the board, and from its decision he appealed to the circuit court, where he filed an amended complaint, to which a demurrer was sustained, and, refusing to amend, final judgment, on demurrer, was rendered against him, from which he appeals to this court, and assigns as the only error for the reversal of the judgment the ruling of the court below upon said demurrer.
The averments in the complaint show that the money which the appellant seeks to recover back was paid by him with full knowledge of the facts upon which it was demanded from him. The facts that the claim was unjust or invalid, and that the money had been paid under protest, were not alone sufficient to authorize its recovery. The law upon this subject is correctly stated in Wait’s Actions and Defenses, vol. 4, pages 493 and 494, thus: “A person who, without the compulsion of legal process, or duress of goods or of the person, yields to the assertion of an invalid or unjust claim by paying it, can not by a mer'e protest, whether in writing or by parol, change its character from a voluntary into an involuntary payment. The payment overcomes and nullifies the protest. * * * The rule is that, when a person pays an illegal or unjust demand, without an immediate and urgent necessity therefor, with a full knowledge of all the facts, or, unless to release his person or property from detention, or to prevent an immediate seizure of his person or property, the payment is voluntary, notwithstanding it is made under protest. * * * The object of a protest is to take from the payment its voluntary character, and thus preserve to the
In Lafayette, etc., R. R. Co. v. Pattison, 41 Ind. 312, it was held by this court that “ It is well settled by the current and weight of authority that where money is paid with a full knowledge of all the facts and circumstances upon which it is demanded, or with the means of such knowledge, it can not be recovered back upon the ground that the party supposed he was bound in law to pay it, when, in truth, he was not.” Nor can money voluntarily paid on demand upon an unjust and illegal claim be recovered back, where the party paying has full knowledge of all the facts. See, also, Bond v. Coats, 16 Ind. 202.
If the facts stated in the complaint in this case were sufficient to constitute a cause of action, it is because they show that the money for which the appellant sues was paid by him under duress. The supposed' duress, as charged in the complaint, was produced, 1st. By the appellee’s refusal to approve the report therein referred to, unless the appellant would first restore to the county treasury the money paid therefrom to satisfy said warrants; 2d. By the appellant’s fear of incurring the displeasure of the board in refusing to return the money, which might, in the future, result to his detriment in the allowance of claims by the board in his favor for official services; 3d. By threats of prosecution and imprisonment.
The two causes first named were clearly insufficient to create duress, as defined and recognized by the law. If a duty, enjoined by law, rested upon the appellee to examine and approve or reject said reports, and It refused to perform or discharge the duty so imposed, the appellant had an adequate
The power of the board to make allowances to the appellant, as such auditor, for official services rendered by him, was limited and controlled by the statute, which specified the fees or compensation to be paid therefor. The board possessed no discretionary power of determining whether it would or would not make allowances to him for such services, or in fixing the .amounts to be allowed. The duty to make such allowances was enjoined by law, and the amounts to be allowed were specified in the statute. If the board refused to perform its ■duty in making the same, the appellant had his legal remedy to enforce the performance of the duty. His apprehension that the board would not, by reason of his having so incurred its displeasure, perform its duty, was unfounded, and was insufficient to constitute legal duress.
This brings us to the last ground upon which the supposed duress, in complaint averred, rests. The averment is that the appellee claimed that it “had never allowed said items of attorney’s fees, and accused plaintiff of issuing without authority said warrants for said attorney’s fees, and threatened that unless plaintiff paid back to the treasurer said attorney’s fees he would be prosecuted, arrested, and put to great trouble and expense.”
"Was this threat, under the circumstances stated in the complaint, such as would likely place the appellant under duress ? It must be borne in mind that it is shown by other averments
“ In order to constitute a duress of the person by threats •of imprisonment, or by actual imprisonment or restraint, it must appear that a process to that end had actually been issued, or that there was no reasonable doubt that it would be. * * * Mere threats of violence, or of prosecution, are not •enough, there must be a reasonable ground for creating an ¡apprehension that the threats will be carried into execution, in the mind of a man of ordinary firmness and courage, and must operate upon him directly, so as to overcome his will.” 4 Wait Actions’ and Defenses, p. 490. See, also, Landa v. Obert, 45 Texas, 539; Knapp v. Hyde, 60 Barb. 80.
The constraint which takes away free agency and destroys ;the power of withholding assent to a contract must be of a
Applying the law, as enunciated in the cases cited, to the facts averred in the complaint in this case, we must hold that the demurrer was properly sustained.
Pee Curiam. — -The judgment of the court below is affirmed, at the costs of the appellant.