41 Ind. 312 | Ind. | 1872
—-This was an action by the appellee against the appellants to ‘recover alleged overcharges for freight paid by him to the appellants on cattle shipped from Chicago, Illinois, to Indianapolis, Indiana.
The complaint was in two paragraphs. The first paragraph alleged that the defendants were indebted to the plaintiff in the sum of two thousand dollars for money had and received by the defendants for the use of the plaintiff, which remained due and unpaid.
The second paragraph of the complaint alleged, in substance, that the defendants owned, controlled, and operated different railroads extending from different points, but con
The defendants demurred separately to each paragraph of the complaint; but the demurrer was overruled, and the defendants excepted, and this ruling is assigned for error.
The learned counsel for appellants have been unable to point out any valid objection to the complaint; and’not having discovered any, we conclude that the complaint was good, and that the action of the court in overruling the demurrer thereto was eminently proper.
The defendants answered by the general denial. The cause was submitted to a jury for trial, and resulted in a finding for the plaintiff in the sum of nine hundred dollars. The court overruled the defendants’ motion for a new trial, and rendered final judgment on the verdict, to which rulings proper exceptions were taken.
The appellants have assigned for error eleven causes. The first and eleventh are valid. The first is for overruling the motion for a new trial. The eleventh is for overruling the demurrer to the complaint, which has been disposed of. The other nine are the reasons assigned for a new trial and are covered by the first assignment.
It is contended by the appellants that the court erred in overruling the motion for a new trial, for the following reasons:
First. Because the payments made by the plaintiff were voluntary, and cannot be recovered bade.
Second. That the damages assessed were excessive.
Third. That the court erred in giving instructions to the jury numbered 1, 2, 4, and -—.
Fourth. That the court erred in suppressing the 1st, 2d, and 3d questions of the cross examination by plaintiff in the deposition of Thomas Hoop.
Fifth. That the court erred in sustaining the motion of plaintiff to suppress the re-direct interrogatory by defendants to Homer E. Sargent, and his answer thereto in the deposition of said Sargent.
The first question which we are required to examine and determine is, whether the payments made by the plaintiff were voluntary; and a clear comprehension of the question cannot be had without setting out that portion of the testimony which relates to such payments.
The plaintiff testified that he had a contract with the government to furnish cattle for two months; that he went to Chicago and made a contract with the railroad company to ship cattle from that city to the city of Indianapolis, at the rate of sixty-five dollars per car load, and that he left an agent in Chicago to purchase and ship cattle, and that he returned to Indianapolis to receive such cattle. Pie then testified as follows:
“First shipped two car loads, which were delivered to me at my yards, under arrangements previously existing as to all stock shipped to me in the pork business, with Mr. Par-melee, agent of the L. & I. R. R., and one of the defendants ; a day or two after this, the bill of freight, dated February nth, 1865, for two hundred and one dollars and two cents, was presented to me by a drayman; I thought it too large, and told him I would see Mr. Parmelee; I called to see him, and told him my understanding of the arrangement, and that I would not pay it; he said it put him in an awkward place, as he had delivered the cattle to me, and his instructions were not to deliver until after freights were paid; I told him I was to receive other cattle; he said I must pay the bills for them, or he could not deliver cattle; I had him telegraph in relation to the bill; the answer was that there were other charges; Parmelee said he could give no items other than as appeared from the way-bill; he told me that he could not deliver cattle yet to be shipped to me, unless I paid the bills as they came in; he said he would have to unload the cattle in the railroad yards, unless I paid the bills. I had to have the cattle to fill a government contract, and I agreed to pay the bills for future shipments as they came
Then follows a tabular statement of the sums which he had paid for freight on cattle, amounting in the aggregate to two thousand three hundred and sixty-five dollars and ninety cents.
The plaintiff then testified as follows: “The payments were made at different times; part, for cattle already received, was paid before all the cattle arrived; there had been but the one shipment before this arrangement; the first shipment had been delivered to me before the first bill was presented, and before the conversation above stated; part of the first shipment had been killed by me when this occurred, and part were still in my yards not killed. My recollection is that I paid the first bill at the date of our conversation at Parmelee’s office; afterward I made payment as he sent in the bills; the February shipments were paid before March; the bills per car increased from about one hundred dollars to one hundred and forty dollars; I talked to Mr. Parmelee about this increase, but he could not account for it; he told me that he would make inquiries, and afterward told me that he could not find out much about it; said there were, might be, some charges for feed and- hands for loading; he gave this as an explanation of the amount of the charges; I had no knowledge of any charges aside from freight, except what Parmelee told me; think he gave me one item of fourteen dollars, feed on one shipment, but aside from that, was not more specific than I have stated; I afterward talked to Parmelee about refunding; told him there was a great mistake, and I wanted it rectified; he said it was right that it should be rectified; that the bill was larger than they had ever collected before; I wrote to Lafayette and Chicago to
The plaintiff, on cross examination, testified as follows:
“ These bills now in court are the ones I paid. They may embrace loading, bedding cars; don’t know now, nor did I prior to the payment of them; whether they embraced anything other than freight or not; Parmelee demanded payment of the bills as they are, and I paid them under protest; he made no other demand than is shown by bills; my son went up prior to February 25th; my son went up prior to that; think he came down with the cattle on the 23d of February; all the shipments were a good while on the road; I think I made out a statement of these overcharges and sent to Chicago; Parmelee told me he had no power to do anything in the matter.”
Here follows a statement of contract in reference to the shipment of the cattle. The witness then proceeds as follows: “ I did not pay the freight on any cattle before they were delivered to me; all freights I paid were on cattle that had already been delivered to me; no shipments paid until I had received the same; Parmelee told me, after the first shipment was received, he would deliver no cattle until freights were paid; I told him to send the cattle to my yard as they were brought in by the trains, and I would pay the bills, whatever they might be, reserving the right to have errors corrected; the next shipment was shortly after this agreement was made; after the conversation of Parmelee and myself, as shipments arrived the cars were sent to my yards and the cattle were delivered to me, and I paid the bills as presented, after the cattle had come to my possession.”
; Mr. Parmelee testified as follows:. “In February and March, of 1865, I was local freight agent of the L. & I. R. R.; the cattle were received and delivered to Pattison; the freight bills were made up from the way-bills, and are as follows :” Here follow the, way-bills. The witness then proceeded, as follows: “The charges advanced are not itemized in the way-bill, but in gross; there are, or may be, both
This witness, on cross examination, testified as follows:
“ I did not, at any time, collect freight before the cattle, for transportation of which freight was charged, were delivered; cattle were all delivered first; I claimed payment of him just according to way-bill; I knew of no charges but as shown by the way-bill, and I know of no other now; all I know of items is what the way-bill shows; I know I showed Pattison the way-bill for the first shipment, and some others; I think I • showed him all, but I am not positive that I showed him every one; on a rate of sixty.-five dollars, M. & C. would get sixteen dollars and ninety cents,
There was much testimony in reference to whether there was a special contract for shipping the cattle, and what was the usual rate of freight. The evidence above set out was all there was in reference to the delivery of the cattle to Pattison, and the payment by him of the freight.
It is earnestly claimed by the appellant that it is conclusively shown by the evidence that the payments made by the appellee were voluntary, and cannot be recovered back. On the other hand, it is maintained that the payments were compulsory, ánd can be recovered back.
The antagonistic position of counsel renders it necessary that we should determine what payments are voluntary and what are compulsory.
There is no conflict, in the authorities, upon the proposition that money voluntarily paid cánnot be recovered back, and that money paid under compulsion may be recovered back; but there is considerable conflict among elementary writers and in the adjudged cases as to what are voluntary and what are compulsory payments.
It is settled that where a person is compelled, by duress of his person, to pay money, and he pays the same under protest, such payment is compulsory, and can be recovered back. By duress, in its more extended sense, is meant that degree of severity, either threatened or impending, or ac
The weight of modern authority is, that a deed may be avoided which was obtained by duress, although the imprisonment was under legal process. In Watkins v. Baird, 6 Mass. 506, Parsons, C. J., said: “It is a sound and correct principle of law, when a man shall falsely, maliciously, and without probable cause, sue out a process in form regular and legal, to arrest and imprison another, and shall obtain a deed from a party thus arrested to procure his deliverance, such deed may be avoided by duress of imprisonment. For such imprisonment is tortious and unlawful as to the party procuring it; and he is answerable in damages for the tort, in an action for a false and malicious prosecution; the suing of legal process being an abuse of the law, and a proceeding to cover the fraud.”
Another class of cases is, where the payment of money is made upon an illegal demand by one who has authority to-.levy upon the property of the person upon whom such demand is made, and by a sale of such property to satisfy and' dischargesuch claim; and where payment is made upon such a* demand and to prevent such seizure and sale of property, the payment is also compulsory. Boston and Sandwich Glass Co. v. City of Boston, 4 Metcalf, 181; Amesbury Woollen and Cotton Manufacturing Co. v. The Inhabitants of Amesbury, 17 Mass. 461; Preston v. The City of Boston, 12 Pick. 7.
It is well settled by the current and weight ©f authority
The law is stated with accuracy and fullness by Dewey, J., in the case of Boston, etc., Glass Co. v. City of Boston, supra, where it is said: “The legal principle relied upon, on this point, is this: that if a party, with full knowledge of all the facts of the case, voluntarily pays money in satisfaction or discharge of a demand unjustly made on him, he cannot afterward allege such payment to have been made by compulsion, and recover back the money, even though he should protest, at the time of such payment, that lie was not legally bound to pay the same. The reason of the rule, and its propriety, are quite obvious, when applied to a case of payment upon a mere demand of money, unaccompanied with any power or authority to enforce such demand except by a suit at law. In such case, if the party would resist an unjust demand'he must do so at the threshold. The parties treat .with each other on equal terms, and if litigation is intended by the party of whom the money is demanded, *it should precede payment. If it were not so, the effect would be to leave the party who pays the money the privilege of selecting his own time and convenience for litigation; delaying it, as the case may be, until the evidence, which the other party would have relied upon to sustain his claim, may be lost by the lapse of time and the various casualties to which human affairs are exposed.
“The rule alluded to, when properly applied, is doubtless a salutary one, and is not to be departed from, but in cases resting upon a plain and obvious distinction from such as are ordinarily and familiarly known as embraced within it. But the rule, has its exceptions; and cases are not unfrequent, in which the party paying money upon an illegal demand, and
The case of Astley v. Reynolds, supra, being one of the earliest cases found in the books, and being the one upon which nearly all the subsequent cases are based, deserves a more careful examination than is given in the above case.
The facts of the case are as follows : “ In an action for money had and received to the plaintiff’s use, the case reserved for the consideration of the court was, that about three years ago, the plaintiff pawned plate to the defendant for twenty pounds, and at the three years’ end came to redeem it, and the defendant insisted to have ten pounds for the interest of it, and the plaintiff tendered him four pounds, knowing . four pounds to be more than legal interest. That the defendant refusing to take it, they parted; and at some months’ distance the plaintiff came and made a second tender of the four pounds, but the defendant'still insisting upon ten pounds, the plaintiff paid it, and had his goods: and now brings this action for the surplus beyond legal interest.”
The court say: “The cases of payment by mistake or deceit, are not to be disputed; but this case is neither, for the plaintiff knew what he did, and in that lies the strength of the objection; but we do not think the tender of the four pounds will hurt him, for a man may tender too much,* though a tender of too little is bad; and where a man does not know exactly what is due, he must at his peril take care to tender enough. We think also, that this is a payment by compulsion; the plaintiff must have such an immediate want of his goods, that an action of trover would
In Shaw v. Woodcock, 7 B. & C. 73, reported in 14 Eng. Com. Law Rep. 18, Bayley, J., says: “If a party has in his possession goods or other property belonging tO’ another, and refuses to deliver such property to that other, unless the latter pays him a sum of money which he has no right to receive, and the latter, in order to obtain possession of his property, pays that sum, the money so paid is a payment made by compulsion and may be recovered back.”
in the same case, said: “Upon the question whether a payment be voluntary or not, the law is quite clear. If a party making the payment is obliged to pay, in order to obtain possession of things to which he is entitled, the money so paid is not a voluntary, but a compulsory payment, and may be recovered back; and if the plaintiff below, therefore, was compelled to make the payment in question in order to get the policies of insurance, whether there was a pressing necessity or not, he has a right to recover it back.”
In Moses v. Macferlan, 2 Bur. 1005, Lord Mansfield, after laying down the cases in which an action for money had and received will not lie, says: “But it lies for money paid by mistake; or upon a consideration which happens to fail; or for money got through imposition, (express, or implied;) or extortion; or oppression; or an undue advantage taken of the plaintiff’s situation, contrary to laws made for the protection of persons under those circumstances.”
In Stevenson v. Mortimer, Cowper, 805, the plaintiff recovered, in an action for money had and received, an excess of fees by him paid to a custom-house officer, to obtain a document he was under the necessity of preserving.
In Ripley v. Gelston, 9 Johns. 201, the plaintiff recovered, in assumpsit, of the collector of New York, money .illegally
’ In Clinton v. Strong, 9 Johns. 370, money was reclaimed which had been wrongfully exacted by the clerk of the district court for the redeliveiy of property which had been seized.
In Chase v. Dwinal, 7 Greenl. 134, the court held, that where money 'has been paid under such duress or necessity as may give it the character of a payment by compulsion, such as money paid to liberate a raft of lumber detained in order to exact an Illegal toll, it may be recovered back.
The court, after laying down the rule in cases of voluntary payments, says: “ But this rule applies where the party has a freedom in the exercise of his will, and is under no such duress or necessity as may give his payments the character of having been made upon compulsion. It has been laid down as a general principle, that an action for money had and received lies for money got through imposition, extortion, or oppression, or an undue advantage taken of the party’s situation.”
The case of Maxwell v. Griswold,10 How. U. S. 242, was an action to recover back money paid to the collector of the city of New York, which was alleged to have been illegally demanded and collected. The court found that the collector had demanded and received more money than was due, and that the same had been paid under protest. It was claimed on behalf of the -collector, that the money had been voluntarily paid, and could not be recovered back. Upon that point the court say: “ But the gist of the point is, were these increased duties in truth paid voluntarily, in the meaning of that term as applicable to the present subject? We have already seen, that the importer did not at first propose to enter his goods of such a value as to justify these increased duties. On the contrary, he insisted on entering them at only the price for which he purchased them, with charges, and thus agreeing with his original invoice, while the collector-virtually insisted on having them appraised at
“But this addition and consequent payment of the higher duties were so far from voluntary in him, that he accompanied them with remonstrances against being thus coerced to do the act in order to escape a greater evil, and accompanied the payment with a protest against the legality of the course pursued toward him.
“ Now, it can hardly be meant in this class of cases, that to make a payment involuntary, it should be by actual violence or any physical duress. It suffices, if the payment is caused on the one part by an illegal demand, and made on the other part reluctantly and in consequence of that illegality, and without being able to regain possession of his property except by submitting to-the payment.
“ He was unwilling to pay either the excess of duties or the penalty, and must be considered, therefore, as forced into one or the other by the collector, colore officii, through the invalid and illegal course pursued in having the appraisal made of the value at the wrong period, however well meant may have been the views of the collector.
“The money was thus obtained by a moral duress, not justified by law, and which was not submitted to by the importer, except to regain possession of his property withheld from him on grounds manifestly wrong.”
The following authorities were referred to in the above case: Clinton v. Strong, 9 Johns. 370; Ashmole v. Wainwright, 2 A. & E. n. s. 837; Irving v. Wilson, 4 T. R. 485; Cowper, 69, 805.
But it is maintained by counsel for appellants that the appellee should have refused to pay* the freight demanded, and should have replevied his property. The appellee had the
In the case of Chase v. Dwinal supra, the court say: “The party injured often finds a convenience in being allowed to select one of several concurrent remedies. In the case under consideration, replevin would have restored the property unlawfully seized. But to procure a writ, and an officer to serve it, would have occasioned delay, which might have subjected the plaintiff to greater loss than the payment of the money demanded. Besides, he must have given a bond to the officer to prosecute his suit; and he might meet with difficulty in obtaining sufficient sureties. Had he brought trespass, several months might have elapsed before he could have obtained a final decision, and this delay might have been attended with serious inconvenience. By the course pursued, these difficulties were avoided. Nor is the defendant placed by it in any worse situation.”
The foregoing authorities very fully establish the propositions, that the doctrine of duress applies to property as well as to the person, and that where one person is in possession of the goods or property of another, and refuses to deliver the same up to that other, unless the latter pays him a sum of money which he has no right to receive, and the latter, in- order to obtain possession of his property, pays that sum, the money so paid is a payment by compulsion, and may be recovered back.
But the above propositions of law are not decisive of the case under consideration, for the reason that the appellants were not in the actual possession of the appellee’s cattle at the several,times when the money was paid.
The evidence discloses the following facts: The appellee had, while the recent rebellion was in existence, a contract to furnish the government with a certain number of beefcattlé, which contract extended for only two months. The appellee, for the purpose of filling such contract, went to the city of Chicago, where, as he alleges, and as the jury
The question presented for our decision is, whether money paid, under the above state of facts, in excess of the proper and legal freight, can be recovered back.
In our judgment, the money so paid can be recovered back upon two grounds. In the first place, it was agreed and understood between the parties that the payment should not be regarded as a voluntary payment, and that the appellee should have the right to sue for and recover any money in excess of the just and legal freight; and the appellee having been thus induced to pay an unjust and illegal demand, the appellants ought to be and are estopped from alleging that the money was voluntarily paid.
In the second place, we are of opinion that the money so paid could be recovered back if there had been no valid agreement that it might be. While the appellants were not in the actual possession of the cattle of the appellee, they possessed such power and control over the shipment and delivery thereof as gave them an undue advantage over the appellee, and the necessity of the appellee was so great and pressing as to deprive him of the freedom of his will. The unjust and wrongful demand of the appellants, and the necessities of the appellee, coerced him to make the payments, but he made them under protest, and accompanied them with remonstrances against the injustice of the demand made upon him. In the case of Maxwell v. Griswold, supra, the importer submitted to the unjust and illegal demand made upon him by the collector, to avoid a greater evil, and the court held that he acted under moral duress, and that he could recover back the money which the law thus coerced and extorted from him. The parties did not stand upon equal terms. The appellee had to perform his contract with the government, or sustain not only loss of profit, but subject himself to damages. The contract being
It is next insisted by the appellants that the court erred in giving to the jui-y the fh-st, second, and fourth instructions asked by the plaintiff. We have carefully considei-ed such instructions. In our opinion, it is not necessary to set them out in this opinion, or review them, as they involve the same questions of law that we have so fully considered already. If the instructions complained of stood alone, they might have possibly mislead the jury, but when taken in connection with the very full and accurate instructions given by the court of its own motion, we think they did not do the appellants any harm. The instructions, when considered together, were as favorable to the appellants as they had a right to ask.
It is.next claimed that the court erred in suppressing some portions of the depositions of Homer E. Sargent and Thos. Hoops. We do not think so. The portions suppressed were wholly immaterial and irrelevant to the present case. They related to certain shipments made from Chicago to New Albany. A detailed statement is made of the number of cars loaned by The Michigan Central Railroad Company to The Louisville, New Albany, and Chicago Railroad Com
It is finally maintained that the damages assessed are excessive, and that the verdict is not supported by sufficient evidence. We have read the entire evidence, and entertain no doubt that the verdict was light.
The judgment is affirmed, with costs. .
Osborn, J., was absent, and took no part in the decision of this case.