26 N.C. 372 | N.C. | 1844
Assumpsit to recover back money alleged to have been improperly paid to the company by the plaintiffs.
The plaintiffs alleged that they were contractor to carry the United States mail in four-horse stages from Asheville, N.C. to some point in the State of Tennessee, commencing on 1 January, 1834, (373) for the term of four years, and to do so they had to pass over the defendants' turnpike road; that during the term aforesaid they were citizens of the County of Buncombe, and, as such, had a right, under the charter granted to the defendants to pass their stage over the road without paying toll; that they had been compelled for a number of years to pay a large amount of toll, and this action was brought to recover it back. The plaintiffs then examined one John C. Roberts, who stated that he was gatekeeper for the defendants from 1 September, 1835, to 13 September, 1837; that the was directed by the defendants to exact $1.50 from the plaintiffs for each time they passed over the road with the mail stages; that he did so, and received from the plaintiffs during the said term the sum of $718.81. The witness further stated that a man by the name of Sorrills kept the gate in 1834 and up of September, 1835, and the Sorrills was dead. The plaintiffs then proved by Jackson *278 Sorrills that his father was gatekeeper in 1834 and part of 1835; that in the spring of 1834 he heard his father demand payment from B. W. Newland, one of the plaintiffs, who was then driving the stage, and Newland paid him $1.50; that his father told Newland that he had orders from the company to demand $1.50 for each time the state passed. The plaintiffs then proved by another witness that they resided in Asheville, Buncombe County, from May, 1834, till some time in 1838. The witness also proved that they run their stages over the turnpike road six times a week. The plaintiffs then offered in evidence a copy of a resolution entered on the books of the defendants on 6 October, 1834, in the following words, to-wit:
"Resolved, That the president and directors of the Buncombe Turnpike Company, are authorized to close the gates of this company against the mail stage the week after the sitting of the next Superior (374) Court of this county, and the company will support and sustain them in any costs and damages that may accrue in either law or equity by so doing."
The plaintiffs then proved that they continued to run their mail state over the said road six times each week during 1834, 1835, 1836, and 1837.
The defendants then introduced a witness by the name of Moore, who deposed that in the year 1830 he had a conversation with Samuel Newland, one of the plaintiffs, in which Newland stated that he wished to come to some arrangement with the company about tolls, and if he could not do so he would become a citizen of Buncombe County, and would then have a right to travel the road without paying tolls.
The plaintiffs then examined a witness, who stated that in 1833 Samuel Newland, one of the plaintiffs, lived in Morganton, and, as he understood, removed to Asheville.
The defendants denied that the plaintiffs ever were citizens in Buncombe County, and contended that if they did reside in Asheville in 1834, 1835, 1836, and 1837, they had done so with the intention of defrauding the company of their tolls, and not with the bona fide, intention of becoming citizens of the County of Buncombe; secondly, that the privileges given by the character of the company to the citizens of Buncombe County does not authorize any citizen of the county to run a mail stage on the said road free of toll; thirdly, that the money, if paid at all, was paid by the plaintiffs voluntarily, and therefore they could not recover it back; fourthly, that the order of the company above set forth was no evidence that the defendants had collected more money than was proven by the witnesses, Roberts and Sorrills, before stated.
The court charged the jury that if the evidence satisfied them that the plaintiffs were citizens of the County of Buncombe, in May, 1834, and so continued up to the bringing of this action, they were not liable to pay *279 toll for running their mail stage over the road of the defendants; that if they further believed from the evidence that the defendants required them to pay toll and they did pay it, it was not such voluntary payment as would bar their recovery in this action. The court (375) further charged the jury that if they believed the plaintiffs were citizens of Buncombe during the time aforesaid, and the defendants had collected tolls from them, as alleged, the plaintiffs were entitled to recover whatever sums of money they had paid for tolls between 22 September, 1834, and 22 September, 1837, the day of the issuing of their writ; that if they believed the evidence of John C. Roberts, it was proved that $718.81 had been paid to the defendants. If the plaintiffs had proved to their satisfaction that they had paid tolls from 22 September, 1834, to 1 September, 1835, they would be entitled to recover what they had so paid, and with interest, if they thought proper to allow it.
The jury, under these instructions, found for the plaintiff. The defendants moved for a new trial, because the jury had given damages for tolls alleged to have been paid by the plaintiff from 22 September, 1834, to 1 September, 1837. A new trial being refused, and judgment rendered pursuant to the verdict, the defendants appealed. As the charter to the defendants exempts the citizens of Buncombe from the payment of tolls, and the jury have found the plaintiffs to have been citizens of that county during the whole period involved in this controversy, the plaintiffs were not liable for the sums they paid.
It was, however, objected on the trial, that although the money was not due to the company, the plaintiffs could not recover it back, because they had paid, without suit and voluntarily. But this objection the counsel very properly abandoned here. The payment was not voluntary — that is, as payment of a debt admitted to be due and willingly made — but it was made as a means of obtaining a passage on the road for the mail, which the plaintiffs were obliged to carry, and of keeping their property from being taken from them by distress, and so was compulsory and without consideration. Snowden v. Davis, (376) 1 Taunt., 359.
The remaining objection is, that there was no evidence to be left to the jury that the plaintiffs had paid the tolls between 22 September, 1834, and 1 September, 1835. But, we think, although there was no direct testimony of the collector who received the money for that period, as there was no relation to the time between 1 September, 1835, and *280 September, 1837, yet there were good circumstances tending to establish the payment to the satisfaction of any reasonable mind, and, indeed, all that in the actual state of the case could be expected from the plaintiffs. The defendants' collector for that time was dead, and it did not appear that any accounts were kept of the persons from whom tolls were received. It could not be expected that the collector would give a receipt for every daily toll, nor that the plaintiffs would have a witness by which to prove such payments. But, to supply the want of such direct evidence, it was proved that the shortly before the commencement of the particular period the collector, now dead, did collect toll from the plaintiffs and gave them notice that he was ordered to demand toll every time the coach passed, and that he should do so. Then, to enforce that, without the necessity of suing for the tolls, and perhaps from a doubt of the power to distrain and detain the coach with the mail, the stockholders, a few days afterwards, on 6 October, 1834, in general meeting, passed a resolution that the directors should have the gates on the road closed against the plaintiffs, which must be understood to be, unless they paid the tolls. Then, again, it appeared that, notwithstanding the warning from the gatekeeper and the resolution of the stockholders, the plaintiffs continued to pass six times a week through the period specified, and that immediately thereafter, upon the first coming in of a new gatekeeper, the collection of the tolls was taken up by him as a thing of course and according to an established practice. Can it be doubted that the directors (377) and inferior servants of the company complied with the orders given them, and especially that in obedience to the resolution of the stockholders the gates were closed as a means of compelling prompt payments from the plaintiffs? At all events, it was evidence to the jury, to be weighed by them in connection with the other circumstances, and seems fully sufficient. The plaintiffs could not go further back than 22 September, 1834, to which the court restricted them, because the writ was issued on 22 September, 1837, and the defendants pleaded the statute of limitations.
PER CURIAM. No error.
