Westlake & Button v. City of St. Louis
77 Mo. 47
Mo.
1882
Check Treatment
Sherwood, J.

The instruction in the nature of a demurrer to the evidence should not have been given. The money sought to be recovered was not voluntarily paid. None of the three cases cited by the defendant are analogous to the present one. Two of them follow in the wake of, and were similar in their essential facts to that of Walker v. City of St. Louis, 15 Mo. 563. There the party who afterward complained, made no objection; paid the taxes; saw them applied to the improvement and enhancement of the value of the property on which they were levied, and years afterward, for the first time, is the complaint made. Of course this was a mere voluntary payment, and no right to recover any excess existed. But no such case is presented by the present record. Here the parties who paid, objected and protested from the first. They vainly called the attention of the officers appointed to assess and collect the amount of the water license, to the fact that such amount was in excess of that allowed by the ordinance; they in .vain appealed to the board of water commissioners. The only answer returned in each instánce was, “pay, or we will turn off the water.” It is easy to see that in such circumstances the payments were not made voluntarily. They were made under what has been aptly termed “moral duress;” the parties paying the excessive amount, and those receiving it, were Dot on equal terms. The city officials possessed the power, and they threatened to exercise It, of cutting off the water supply of Westlake & Button, unless the illegal demands already mentioned, met with Immediate compliance. If this conditional threat had been carried into execution, the foundry of the applicants for license would have been forthwith closed, and from sixty to one hundred hands thrown out of employment. The payment of the excess was, therefore, as much under compulsion, as if the city officials had been armed with a warrant for the arrest of the person or the seizure of goods, in *51which case, but oue opinion would be entertained as to the nature of the payment if made.

The ease of Maguire v. The State Savings Association, 82 Mo. 344, closely resembles, in its salient characteristics, and is decisive of this one. There the collector demanded interest on a personal property tax, an illegal demand, and this demand was coupled with another demand for the personal property tax itself, which was in all respects le^al. The Savings Association objected to the payment of the excess, applied in vain to the county court for an abatement of the interest, and then paid the whole sum, and we held, m an action for money had and received, the excess could be recovered, because “the money was unwillingly and compulsively paid ; paid to one seemingly clothed with power to seize and sell goods, etc., for the payment of the illegal demand, and paid under fear that such unjust demand would be enforced.” If the fear of the seizure of goods in the one case would make the payment of the excess, when made under objection, an involuntary one, certainly a payment made to prevent immediate and incalculable injury to one’s business or property, can be regarded in no other light.

And it is idle to say that a tender should have been made of the exact amount due. No such tender was made or deemed necessary in Maguire’s case, supra, and besides, a U i der of a smaller sum than that demanded, is never nec,o ->ary where it is apparent from the language used, as in '_!is case, that such tender would be a mere nugatory act, md be met with prompt and peremptory refusal to receive he amount if tendered. Hoyt ih Sprague, 61 Barb. 407; Holmes v. Holmes, 12 Barb. 137 ; Deichman v. Deichmann, 49 Mo. 107

Tnerefore judgment reversed and cause remanded.