*1 presumption application warrant tlie influence, seem are meaning these facts The truth and adverse influence. undue Shelton to ^y any proof defendant °®se^ right to rebut the case of He waived his contrary. might put although by proof his plaintiffs, he prima-facie ease flight presumption. He rested minds rested, And there were instance. when so the first fortune-seeking visit to jury Jones- the facts his of the court fortune-teller; a his conversation burg, the visions of aided Shelton said to the adviser Mr. Reeds which friend me in his “to assist might that it be worth while afflicted woman Judge Hughes’ will,” visit to make and Shelton’s getting her to a (2d) Stelzer, 19 S. W. in Knadler v. true, It is as said office. lawyer’s journey by messenger a concerning l. c. a like a significance can be particular man “no for an afflicted office case, the testi But the instant circumstances.” attached these Hughes Shelton knew what mony Judge shows that defendant information in her will desired Mrs. wanted and that she Shelton These with the will after it was executed. as to what she should do Shelton, Mrs. that Oliver Shelton had discussed with facts disclose him, making will, its terms and its or she with the wisdom of custody. place Obviously with her about he had conference rejected in her will after Mr. Shelton’s Reeds sug-gestion making his, Shelton’s, a will in favor. And unlike fluence her we have not the present, cases which these activities were explanation. benefit He when of Oliver Shelton’s version or rested fortify prima-facie the demurrer was overruled. did not his case. He judgment Cooley Finding prejudicial error, is affirmed. no ~Westimes,CC., concur. foregoing opinion by FitzsimmoNS, 0., PER CURIAM: The opinion judges adopted court. All of the concur. -as the Enameling Stamping Company, Appellant, National & (2d) 593.
St. Louis. Two, July 3, Division *2 George appellant. Barnett and Thomas P. Moore for respondent.
Julius T. Muench Bull for and Richard 8. *3 by judgment upon COOLEY, Appeal plaintiff from a directed C. comes to the writer on re- of defendant. The case in favor verdict assignment. of the of St. Louis in the circuit court was filed This action city plaintiff paid by to said for the certain amounts to recover lawfully amounts due defendant under in of the of water excess
use upon plain- The suit was based in at the time. ordinances effect water at the manufacturer’s to use it was entitled tiff’s claim actually paid for water used under plaintiff rate and meter in force to the effect that rate; that an ordinance meter proper were not charged for water amounts the event the city might officer of the water; shut off the was de- pendent upon water furnished for conduct of its compulsory business that the not were therefore voluntary. petition Payment
The is in seven counts. for water was made period peti- each six-month advance, seven and the counts each, running tion periods are seven different of six months from 1, 1917, June December applicable pleaded ordinances of the of St. Louis By provided
and offered evidence. these ordinances supplied required consumers with water at meter rates should be deposit in pay advance an amount sufficient to at established succeeding* the estimated water to be used months, further, period of not to six exceed should be duty notify of the collector of revenue the water commissioner days non-payment bills within fifteen after the same of water due, and the commission was authorized to shut became being non-payment the water for so notified that bills paid. such bills not been same. answer to each count of the was the defendant’s denial it admitted the ordinances
After alleged one defend a letter answer to written part that it was ant’s amounted to a declaration using that the purposes, Aroluntary estopped rea was a one therefor making petition. forth in its complaint set son of said letter of the suit the up prior to the commencement It further set all for over adjusted claims compromised, settled and parties had charge. *4 covering stipulation each by At trial it was written the admitted during the in force of that ordinances were the the
count use and did plaintiff was authorized to use involved and that time rates; the assessor and by water furnished defendant at meter charged plaintiff at a collector of water rates of defendant stipulation; amount the forth in each count the meter rate set re- of minimum amount by was in of water used excess rate, manufacturer’s entitled quired to be used one to the actually meter paid by plaintiff at amount each count the amount, rate, paid meter rate under the have been that would former manufacturing excess of the purely purposes, and the stipulated. aggregate last of these amount was over the latter pre- if it to recover be entitled which the would amounts $8,000. to approximately action vailed amounted Ackerman, its master witness, who was Mr. Plaintiff offered but one according duties, during whose involved and the time mechanic plant,” used in the control of the water testimony, “included his 652
and whose business it was to tor know what the water was used much testimony how His was used. on examination tended direct during to show period involved used a manufacturing water for purposes as defined in ordinance such toas entitle it it to the manufacturer’s rate it claims should paid. during years
'On 1917 cross-examination he testified that inclusive, computed 1920 he did not know how the bills for water were paid, charged, pre- nor what rates nor what rates were were manager city ordinances; scribed time 1921 that some did; prior him it,” asked “to look into which he then being duty. bills, he had not checked it not his “Q. you, one, up You would be the wouldn’t who would check IWell, from 1917 A. consumption and thereafter? great I suppose was, done a since I but wasn’t deal then. told part to do it. until like about first Not It seems year, year. I probably spring exactly mention couldn’t company what month. that time officials of had never Before thought they being charged they come to told me were me and up 1920, inclusive, I too much. At no time from did take any adjustment We had no with the water rates. official manager 1920 ... I don’t think it was ever taken I was.” up do not think it time. to 1921 prior
The witness further stated that he did not know any any authorizing water commissioner or ordinance consumer; that he had had official shirt off the water attorney subject-matter company’s “about conversation 1921, spring but had never discussed it with of this suit” in the prior him time. to that defendant, deputy
On Robert Ecoff testified that behalf of charge water rates with the of collection of and familiar collector in kept; that of amounts due the records were notices manner which assessor; that if bills were generally were out sent paid,” wasn’t notify water commissioner the bill “we would turning to the water commissioner “had as a the bills over rule the desired effect.” rates, that when Kircheis, supervisor testified
William T. in the business they any idea a customer information, he identified requesting they sent certain letters 13, 1916, answer, plaintiff April a letter written to (still by Mr. Gaibe April written for dated in- trial)', which letters employ at the time of *5 respectively as B and were A exhibits and defendant’s troduced as follows, captions: omitting manufacturing plant maintain “Kindly you if Exhibit A. advise way in what your product and if so what is premises, at above is your process water used in manufacturing beat, outside of power, drinking toilet purposes. and
“A prompt reply to above would appreciated, as this informa- tion necessary is making your before up nest bill.” B. reply your Exhibit “In letter 13th say instant would manufacturing we plant have a Destrehan), (2nd at N. 2nd St. & iron, where we make sheet tubs pails, stovepipe. and city “We use water our drinking boilers and for pur- toilet and poses, purposes for other pickling such as and toilets out in plant we use water from our own waterworks.
“Trusting this is the required, are,” we information etc. It according should stated here that to the above letter, Exhibit B, plaintiff then was not entitled the manufacturing rate. About February, system it abandoned its adopted own waterworks city water, city use of but notify department did not water change. city If notice, had any shown, far so as it im- was plied plaintiff’s from the request notice fact that at its boilers were city’s inspector sealed boiler who was not connected department. water
Mr. Kircheis further that he testified applications handled special rates, manufacturer’s many of which received, were aside plaintiff’s letter above did not know what use making of the water.
In rebuttal introduced the seven water bills which plaintiff. had appeared been sent to On each a statement of the water period” used “this and amount therefor “at- (see rate side),” with following: other data “If not paid by-water Request adjustment will be shut off. of bill must made not later than-- Office, at Water Works Room Oity Hall.” On bill the back of each was a or schedule the special meter rate and also rate for manufactur- ing purposes.
At gave the close evidence the court instruction in the nature directing of a demurrer the evidence and a verdict judgment defendant. Verdict defendant followed. sought is decisive the case whether the duress, plaintiff asserts, be recovered made under or were voluntary. legal
in the sense makes a show The evidence submissible ing special manufacturing plaintiff was entitled to dependent upon ra^e ani^ ^at for water carry without which could its business. The supply power to shut refusal furnish it to refuse failure that, therefor. It conceded demanded pay higher paid meter rate which was charged by plain- rate. If-such was than the *6 654 necessity compulsion
tiff because of of situation and involuntary continue permitted business, order to to its it entitled to recover the excess would be sued for. [Amer 86 Brewing 129; ican Co. 187 Louis, 367, v. St. Mo. S. St. Louis W. Brewing 419, 37 Louis, 525; v. St. 140 Mo. & Assn. Westlake Louis, If, St. 77 therefore, Button Co. Mo. favor v. 47.] plaintiff, reasonably may able to with such as favorable inferences finding shown, be drawn from the facts would authorize a that the compulsion payments were made because such instruction di of given. recting a for defendant should been verdict On which hand, it is well established to payee payor under was not entitled which were made but ignorance law as a mistake of law are not considered or Brewing made recoverable. Co. under duress are not [American Ferguson 20,Mo. County, v. Butler Louis, supra; v. of St. 755, 48 Corpus is Juris, p. 247 W. rule thus stated in S. 795.] Section 312: provided by statute,
“Except it is it is held where otherwise great adjudged under preponderance that, eases where one knowledge ignorance law, law, or but with full a mistake of facts, improper the absence fraud or conduct of all voluntarily compulsion pays upon part payee, without against him, money legally cannot demand not enforceable he back; . . recover having been under payment
To render a recoverable something more the mere existence duress must have been than there power payee compel payment. existence potential op power or the exercise or exercise such must threatened “Duress” payor payment. induce the erated on the mind of wronged person at the mind of the time connotes the condition of sought by which such rather than means of the act avoided Revision, 3d produced. Dict., Law Rawles condition was [Bouvier’s N. citing Sherman, 495, 105 Wis. 81 W. Galusha v. p. 961, compulsion must have furnished R. A. And that L. 417.] sought 21 R. recovered, C. L. payment to be see for the motive Brumagim 265, 79 176. In Tillinghast, 18 Cal. Am. Dec. 169; sec. point, speaking well Brumagim court, this said: ease ground itself illegality constitutes of no “The of the demand addition, compulsion some or coercion be, in There must for relief. mak- assertion, party controls conduct attending which its compulsion coercion under which the is the or ing payment. It gives right him a to relief. If he party supposed to act demand, knowing illegal, is, to be he voluntarily illegal pay voluntarily pay if he such consideration, no course, entitled respecting of the law its ignorance misapprehension demand against for it would be position, no better is in validity, highest policy permit opened grounds transactions to this character.”
Applying the principles well established above stated we think evidence failed to show that was made under duress. knew It facts. The bills submitted showed *7 charged of the water consumed and sum therefor and showed also manufacturing meter rate and the rate. computation charged Mathematical would show that the rate was the Moreover, appellant meter no rate. makes contention that it paid under as to Its mistake the facts. suit theory is compulsory payment. In view of the letters, defendant’s exhibits B, A plaintiff and the fact that never made any protest nor requested adjustment rates, bills or it could be and not is not guilty any contended that the fraud, was improper conduct or concealment. Plaintiff offered witness. but one That witness did during know, not involved, the time ordinance for rates water shutting nor any authorizing that there was ordinance off of water paid. if bills not Nothing were was any said him officers plaintiff company they indicating that better If were informed. not, obviously, payment was not any made threat, because of actual or implied, that otherwise .the water would be shut off. Appellant printed calls attention notice on the bills ren- --- “if paid
dered that not will be shut off.” That was printed a form no date time or space. was inserted the blank quoted accompanied by The was statement the further statement “request adjusment of must bill not than-— later' at,” etc., plainly indicating that such if request, made, would re- If entire ceive consideration. the bills, on to- read gether, presently can be construed as a threat the water would payment promptly, if turned off were not made evidence does motivating causing that was a factor in pay. not indicate to adjust- any request evidence does not Plaintiff’s indicate protest was any ever made. Defendant’s ment or evidence was that complaint protest bywas first or letter dated November payments dispute here after been made. Defendant charged prove special offered thereafter objection proof but on of- rate that offer' Granting protest unnecessary rejected. that a formal where manifestly unavailing, protest any the failure to or it would make significance may have circumstances in determin- objection some voluntarily. not was made In ing or this case the whether ignorant applicable only plaintiff’ ordinance witness provision authorizing shutting ordinance rate and aught paid. appears From were if bills- in the company may equally been officers of un- manager in 1921 first for the fact informed. and that about Ackerman “to look into” the matter time asked Mr. “the discussed plaintiff’s attorney for the first time same time subject-matter who had “control with the witness of this suit” period pay- during the plant,” in the covered water used the ments, adjust- together request protest with the fact that no points strongly made, rate had the conclusion ment of bills or been any it had until realize that that not about that time did either compulsion, bills complaint paid make without data carelessly note, though with the facts and failed to because it paid, than it should have paying higher it, before it was rate to which it was entitled. ignorant or was merely coerced The court could not assume that been existing compulsion could have conditions because under Plaintiff so found. jury properly applied. Nor could is, theory duress, under sought that it had recovery preserve its so in order to and continue because it to do was forced [Douglas upon it out case. rested to make its business. The burden Douglas case 428, 441, City, Mo. v. Kansas 851.] *8 Kansas paid The to taxes to illustrative. suit was recover license territory in annexation City by saloonkeepers located the a number subsequently invalid, wherefore City which to was held Kansas illegal. of- Some Kansas collection the license tax was the and of arrest under threats payments the involved had been made recovery al- for them was involuntary to and were held have been denied, recovery for was illegal, which others, equally lowed. Of the court said:
“No proof pay- offered of the circumstances under these was only regard presented fact ments were in made. The in to inspector. practice stated, the matter as to the license was of the He engaged way, people that he the in in a visited in business got names, territory, reported and them proper their to the they might prosecuted they pay. if officer, so that failed to Blank requiring licenses, to parties, were sent all them to take notices out they arrested, they stating if would be failed to do so and named such notices. This was the char- within the time go It is needless to more into acter of the evidence. detail. to make his case. This burden was on out was not done city. paid They may simply showing that the taxes were to the recovery so in that can voluntarily paid, and event there be no been testimony, (the aught they payors) may . . . For shown it, volun- valid, extension been satisfied with believed the and- taxes.” tarily paid their upon three cases: Westlake &
Appellant cites and relies Button Brewing supra, v. Louis, supra; Louis, Assn. St. St. Louis St. Co. Louis, supra. Brewing Co. v. St. In Westlake & American and illegally paid excessive Company rate Button case the prevent exacted a dernier resort and in order to destruction illegal business, protest unavailing its after and to bave the efforts Brewing Louis excess abated. So St. Louis v. St. Association plaintiff paid compelled where the because to so or suffer do agreed damaged. off its water to cut and While the business out, upon submitted is not facts which that was set case though (140 c. to, opinion, opinion Mo. l. referred shows 423) original that such was the We files fact. have examined office clerk find that ease of this court agreed agreed, opinion statement of facts referred to in the was among entirely dependent things, upon other was city carrying its business times water for the and at all willing pay which it should have offered the rate demanded city accept but that the officials that amount and refused higher exacted rate and threatened to shut the water rate use of unless such demanded to refuse further in order paid, protest was made under prevent being into such from effect. threat carried supra, a de Brewing St. ruled Louis,
American Co. v. court, below. murrer -which had been sustained referring to the announced in West approvingly principles after Assn., Brewing cases, & Button the St. said Co., and Louis lake petition stated facts -was whether the determination qs “made bring within rule as to sufficient to the ease By right continue its business.” (plaintiff’s) a condition to its showing the allegations petition, considering, those with defendant for water and dependence upon required plaintiff exacted excessive demanded and together advance, six months pay license drawn fairly may and reasonably “all the inferences fact the conclusion court reached pleaded,” facts *9 against as petition sufficiently stated cause action demurrer. Brewing Company case
In American the court was not dis- prove sufficiency cussing case stated question involved here. The which is the petition, on the whether stated sufficient facts to rule -within as to made as bring the case a condition right continue its business indicates to the thought express, viz., endeavored to had in mind we court having duress, been made to be recoverable under in order involuntarily and because it was payment must have been necessity. plaintiff.’s and the demand by the defendant’s compelled judgment nothing our militates decision findWe expressed. the views herein against proof ele- failure of essential opinion
In our there awas properly sustained court therefore ment of ease and the the evidence. the demurrer to Fitzsimmons, GO., concur. Westhues and judgment is affirmed. C., foregoing opinion Cooley, adopted PER CURIAM: The judges All concur. the court. opinion of
as the Foy (2d) Appellant. 1074. Ward, State July 3, Two, Division