41 Pa. Super. 552 | Pa. Super. Ct. | 1910
Opinion by
The court below entered judgment in favor of the defend-i ants upon a demurrer to the statement filed by the plaintiff in this action of assumpsit. The plaintiff’s statement averred that in the year 1902 he entered into an agreement with the defendants to act as his bankers, brokers and agents in the buying and selling of stocks on his behalf and in the advancing of sums of money on his behalf, in the making of such purchases, and to hold as collateral security for such loans and advances the stock of plaintiff so purchased; that at the time plaintiff so engaged the defendants to act as his brokers and agents it was orally agreed on behalf of the defendant firm that they would furnish said advances or loans at a fixed rate of five per cent interest, irrespective of the market rate of interest; and said agreement to exist and continue so long as the defendants should be permitted to act as the plaintiff’s bankers, brokers and agents; that defendants continued to act as plaintiff’s bankers, brokers and agents until June 21, 1907, purchasing and selling stocks and other securities from time to time and making advances upon account of such purchases,
The statement sufficiently avers the date upon which the plaintiff’s cause of action rose, if upon the facts stated he is entitled to recover, and the first ground of demurrer is not well taken. The agreement as to the rate at which interest on the advances was to be charged is in the statement set forth in exact terms, the rate was to be five per centum, and the second ground of demurrer cannot be sustained. The exhibits attached to plaintiff’s statement were accounts rendered, but the averment of the statement, that the plaintiff protested to the defendants against the overcharges of interest and that the defendants agreed that they would correct the same, negatives any presumption that any one of the accounts rendered ever became an account stated between the parties; and the third ground of demurrer is without foundation. The court below, as indicated by the opinion filed, did not consider the statement defective for any of the reasons above suggested, but decided against the plaintiff’s right to recover upon the question raised by the last three grounds of demurrer, which squarely raise the question of the right of the plaintiff to recover the money which he paid to the defendants in order to obtain possession of his bonds and stocks and the certificates which were the evidence of title to the same. The court below held that under the facts averred in the statement the payment which the plaintiff made to. the defendants in order to obtain possession of his property was a voluntary payment and could not be recovered back.
The general principle that money voluntarily paid with full
The only effect of a protest is to show the involuntary character of. a payment procured by duress, and the intention to reclaim the money. There must be compulsion, actual, present and potential, inducing the payment by force of conditions which render the person or property subject to the control of the party demanding payment, when the party so paying may give notice of the illegality of the demand, his involuntary payment and intention to reclaim. When the element of coercion is lacking, a mere protest or notice will not change the character of the payment or confer of itself a right to recover, although it may be necessary in some cases, where the element of coercion is present, to pay under protest, that is, with notice of an intention to reclaim, in order to repel the implication, of an assent: Peebles v. Pittsburg, 101 Pa. 304; Borough of Allentown v. Saeger, 20 Pa. 421; McCrickart v. Pittsburg, 88 Pa. 133; Harvey v. Girard National Bank, 119 Pa. 212; De la Cuesta v. Insurance Company, 136 Pa. 62.
The statement averred that the stocks and securities and the certificates which represented title thereto had been in possession of the defendants, who kept the same at their office in the city of New York, and that the plaintiff did not'know the certificate numbers nor could he identify the stock. It is, therefore, manifest that the plaintiff could not have maintained replevin for the stock or the certificates which were the
The judgment is reversed and judgment is entered in favor of the plaintiff and against the defendants for $832.84, with interest on said sum from June 21, 1907, and costs.