39 Neb. 193 | Neb. | 1894
Magnus Weber, on the 3d day of October, 1888, purchased of Flodman & Bruce a retail shoe store in the city of Omaha, and assumed an indebtedness of' $820.71 which his vendors then owed Kirkendall, Jones & Co. Flodman & Bruce had purchased this store of Johnson & Flodman, and they purchased the store of Thursie, Anderson & Flodman. While the latter firm owned the store it became indebted to Kirkendall, Jones & Co., and
The special findings made by the court, material here, are as follows: That Kirkendall, Jones & Co. made no direct threat to attach Weber’s store, but by their acts and expressions they led him to believe that they would attach his stock of goods if he did not pay the $848.70 claimed; that Weber would not have paid this claim had he not believed from the acts and statements made by Kirkendall, Jones & Co. that they intended to attach his shoe store if he did not pay it; that the money paid by Weber was not
In Chandler v. Sanger, 114 Mass., 364, it is said: “A payment by a person to free his goods from an attachment, put on for the purpose of extorting money by one who knows that he has no cause of action, is a payment under duress, and the money paid can be recovered back.”
In Spaids v. Barrett, 57 Ill., 289, goods were wrongfully taken from the owner thereof by means of a writ of attachment fraudulently obtained, and the party in possession refused to surrender the goods on payment of the sum actually due, but demanded more than twice that amount, as a condition of his releasing the attachment and surrendering possession of the goods. The owner paid the sum demanded, and the court held that it was not voluntarily paid and might be recovered back.
In Adams v. Schiffer, 11 Col., 15, Adams agreed to convey to Sehiffer an interest in certain mining property by a deed passing a good title. In pursuance of this agreement he gave Sehiffer a quitclaim deed, which he accepted. A third party made an unfounded claim to the property, which Sehiffer bought up. At the time Adams was a depositor in Schiffer’s bank, and Sehiffer compelled him, by refusing to pay his checks, to settle for part of the sum paid by Sehiffer to such third party. The court held that such a payment was involuntary.
These authorities establish the rule that an illegal payment made by one in order to obtain his property from another who has possession of it, and refuses to surrender it unless such payment is made, is not a voluntary payment and may be recovered back. Counsel for defendants in error admit the correctness of this rule, but say, however,
To do anything voluntarily means to do it with one’s free will and without fear or compulsion of mind or body. The court will not shut its eyes to the every-day transactions of life. Here was a young man in business. A demand is made upon him that he pay some eight hundred dollars that another owes. He protests that he does not owe it. He asks that he be given timé to consider the matter and consult his friends. He is told by defendants in error that he must not leave the building until this matter is settled; that it must be settled here and now. We are now asked to say that he paid this money voluntarily because he did not resist the illegal and unjust demands of defendants in error and allow them to attach his store. But what did the attaching of plaintiff’s store mean to him? If he had other creditors it would have alarmed them; it would have closed his place of business; it would stop his trade; it would probably financially ruin him, and it would destroy his financial credit and reputation, — something more valuable to a business man than money itself. If he weighed and considered these matters he would have very reasonably concluded that from a financial standpoint it was not so bad for him to submit to the unjust demand of the defendants in error as to have his business ruined.
The decree of the district court is reversed and a judgment will be rendered in this court in favor of the plaintiff
Judgment accordingly.