37 Vt. 47 | Vt. | 1864
The defendant’s request to the court, and the charge thereon to which exception is taken, are based upon the assumption that the facts are all found by the jury, which the plaintiff’s .evidence tended to prove.
The defendant held two notes against his son, B. F. Bice, of about
The important enquiry is, whether the defendant was entitled to have the jury instructed that the plaintiff’s evidence showed the plaintiff’s note invalid for want of consideration, and that he might have successfully defended against it on that ground, so as to make it a case of voluntary payment of an unfounded claim in law. If the court below acceded to this view when they ought not to, and then allowed the plaintiff to avoid it, by proof of his making payment under protest, which would be no answer if the view were a sound one, it is no error for which the judgment should be reversed. It was only granting to the defendant more than he was entitled to, and putting the jury to find a fact proved by the plaintiff, which he was not bound to prove.
The agreement not to call for payment on the note till the plaintiff should have collected the amount of the defendant’s son, could not of course have been set up, because that would as a defence to the note, have been an attempt to vary the terms of the note by parol.
The note, when paid, did not represent the full amount of the plaintiffs claim ; if entitled to recover at all, he was entitled to the thirty dollars originally deducted, which the defendant then owed to the plaintiff, and the fact that the note had been negotiated by the defendant to a third person, might have seriously interfered with the defence if attempted.
We are therefore of opinion that the plaintiff’s evidence did not show a case of voluntary payment of a note legally invalid for want of consideration, and therefore that the defendant was not entitled to the instruction claimed of the court. We understand that where a party pays money which he is under no legal obligation to pay, with full knowledge of the facts, he cannot recover it back, and though legal proceedings are threatened, or even commenced, to enforce payment, if they are bona fide, and no undue advantage is taken of the situation of the defendant, and thereby the party is induced to make the payment, this does not prevent the payment from being in a legal sense voluntary. And where payment is thus voluntarily made, it amounts nothing to make it under protest or objection. But the case does not really reach this question.
If any question could have been made as to whether the case