298 Mass. 542 | Mass. | 1937
This suit is now prosecuted against Charles F. Clark and Clarence F. Clark, copartners, to recover back a payment of $2,080.75 made by the plaintiff to the defendants in order to secure the release from the defendants’ storehouse in Sunderland of one thousand bags of “set” onions in which the plaintiff had an interest.
A summary of a part of the master’s findings will serve to indicate the decisive issue and the grounds of this opinion. On August 23, 1928, the plaintiff, doing business as a commission and produce merchant in New York, entered into a written contract with one Goodwyn by which the plaintiff and Goodwyn were to engage in the enterprise of buying and selling onions on joint account, the parties to share equally in the profit or loss, and the plaintiff to supply capital as needed and to have a first lien on the onions for its advances. Onions were purchased, and about twenty-five car loads were stored in the defendants’ warehouse, which was not a public warehouse, “in the joint account name” of the plaintiff and Goodwyn. During the period while the onions were being purchased the defendants made advances to Goodwyn personally, of which on October 17 the sum of $2,050 remained unpaid. On that day, for the purpose of giving the defendants security for this balance, Goodwyn delivered to the defendants a memorandum of sale of the one thousand bags of “set” onions hereinbefore mentioned for $2,050. These were part of the onions belonging to the joint account which were stored at the de
Without discussing the doctrine of duress of goods in general it is at least well established that a payment made to prevent a tortious seizure of property or to release property from a tortious detention is not regarded as a voluntary payment and may be recovered back. Boston & Sandwich Glass Co. v. Boston, 4 Met. 181. Forbes v. Appleton, 5 Cush. 115, 118. Chandler v. Sanger, 114 Mass. 364. Cobb v. Charter, 32 Conn. 358. Whitlock Machine Co. v. Holway, 92 Maine, 414. Cowley v. Fabien, 204 N. Y. 566. Lonergan v. Buford, 148 U. S. 581, 589. Maskell v. Horner, [1915] 3 K. B. 106. Williston on Contracts (Rev. ed.) § 1617. American Law Inst. Restatement: Contracts, § 493 (d).
None of the defences upon which the defendants rely can be maintained. The decree is within the frame of the bill. The bill is framed on the theory that the plaintiff was obliged to pay out its own money in order to bring to an end a wrongful detention of joint account assets in which it had property rights. The decree is consistent with this theory and is within the prayer for general relief. Eastern Bridge & Structural Co. v. Worcester Auditorium Co. 216 Mass. 426, 428. Cole v. Wells, 224 Mass. 504, 514.
The payment by the plaintiff was not a ratification by it of Goodwyn’s purported sale to the defendants. The act of the plaintiff in sending the check to the defendants was no more voluntary as a ratification than it was as a payment.
The plaintiff is under no obligation to repay to the defendants any of the money which they advanced to Goodwyn, even though Charles F. Clark “expected” that the sums advanced would be used for the joint account, and though “it may fairly be inferred that a substantial portion thereof was actually so used.” The finding is explicit that
No demand was required as a condition precedent to the bringing of this suit. When the defendants exacted the payment from the plaintiff they became at once liable to repay it. Perkins v. Davis, 109 Mass. 239, 241.
Decree affirmed with costs.