John M. Forbes vs. William Appleton.
A payment of money, in order to prevent the obligee in a bottomry bond from enforcing the same, by taking possession of the vessel, is not a compulsory but a voluntary payment, which, if the money demanded is not due, does not give the debtor a right of action to recover it back, although he declares at the time of payment, that he makes it under coercion, and intends to reclaim the money by action.
This was an action of assumpsit brought by the plaintiff to recover back a sum of money, paid by him to the defendant, under the circumstances set forth in the following agreed statement of facts : —
In November, 1846, the bark Ackbar, belonging to the plaintiff and Samuel Cabot, of Boston, having met with a disaster at sea, nut into Cape Town, at the cape of Good Hope, to refit. The master, being in want of funds to pay the cost of necessary repairs, estimated at ¿£4662 Os. 9d., advertised for a loan, which was taken and the money furnished by Borrodailes, Thompson, Pillan and company, of Cape Town, at twelve and a half per cent discount, calculating the dollar at four shillings, and insuring the amount. P'or the money so lent, the master drew two bills of exchange on the ■owners, payable in thirty days after sight, for the sum oí $26,640.20, in favor of the lenders, and at the same time gave them a bond, by which he mortgaged, pledged, hypothecated and assigned to them the ship Ackbar and her freight, and the freight laden therein, together with all her tackle, apparel, furniture and appurtenances, as security for the sum of $26,640.20, and not to be delivered to any other purpose or use whatsoever, until payment of the bond should have been first made, together with interest on the sum stated from the day when the same should become due, according to the tenor of the bills of exchange.
The following is a copy of one of these bills: — “Thirty days after sight, &c., pay to the order of Messrs. Borrodailes, Thompson, Pillan and company fifteen thousand two hundred and twenty-two x307x Spanish dollars for value received, and charge the same with or without further advice to the account of ship Ackbar for repairs and disbursements at this port.”
The bill, of which the foregoing is a copy, was sent by the payees therein named, together with the bond above mentioned, to Prime, Ward and King, of New York, duly indorsed and assigned, to be collected for the account of the payees, and the defendant was employed by the holders to collect the same of the drawees in Boston.
The bill was accepted, and when it became payable, the defendant, acting for the holders, required that it should be paid in Spanish dollars, to which the plaintiff replied that he would pay the same in American gold or silver coin. The defendant declared that he was willing to accept payment in American coin, provided the plaintiff would pay the additional sum of $304.44, as an equivalent for not paying in Spanish dollars; tint being the amount of premium, which Spanish dollars bore over American coin, in the markets of New York and Boston at that time; but the plaintiff declined making such farther payment. The demand of payment was then renewed, and the Ackbar being at that time in New York, taking on board a cargo for another voyage, the plaintiff" was apprehensive that the holders might libel the vessel and take possession of her under the bottomry bond, if he refused to pay .the sum demanded, and thereupon inquired of the defendant, whether if he should omit to pay the acceptance as demanded, the defendant would resort to his bottomry bond; to which the defendant replied, that he would resort to all legal remedies for its collection. The plaintiff then paid the sum due on the bill, together with the said further sum" of §304.44; protesting, however, at the same time, that he paid the last-mentioned sum under coercion, all legal remedies therefor being threatened; declaring that he should reclaim the money so paid as unlawfully claimed and paid under coercion; and notifying the defendant not to pay over the said sum of §304.44 to his principal.
This action was brought to recover back the sum of §304.44, so paid by the plaintiff.
B. R. Curtis, for the plaintiff,
to the point that the money paid under protest might be recovered back, cited Boston & Sandwich Glass Co. v. Boston, 4 Met. 181, 189; Fulham v. Down, 6 Esp. R. 26, n.; Hill v. Street, 5 Bing. 37; Snowdon v. Davis, 1 Taunt. 359.
C. G. Boring, for the defendant.
— Dewey, J. (majority)
Dewey, J.
In the view which we have taken of this case, it has become unnecessary to consider particularly the question, as to the original liability of the plaintiff to pay these bills of exchange in the specific coin named in the bills, or, in case of payment in American gold or silver coin, to pay a further sum equivalent to the premium, which Spanish dollars then bore in the market; as the plaintiff, by his voluntary payment of such premium, has thereby precluded himself from questioning his liability to pay the same.
The principle of law is a very familiar and a very salutary one, that where a person, with full knowledge of all the eircum stances, pays money voluntarily, under a claim of right, he shall not afterwards recover back the money so paid. To avoid the application of the rule in the present case, it must appear, that the plaintiff was compelled by duress of his person or goods to pay the same. In general, the cases that have been treated as exceptions are cases where the possession of the property, upon which the lien was claimed, was already in the party demanding the money, or cases in which the party had no other means to save himself from imprisonment, or his property from sale on execution or warrant of distress, but by paying the money demanded. Many cases bearing upon this point will be found cited and commented upon in the cases of Preston v. Boston, 12 Pick. 7, and Boston & Sandwich Glass Co. v. Boston, 4 Met. 181.
The present case, looking at the facts agreed, seems to present nothing beyond the ordinary case of a voluntary payment of money to avoid a law suit. The party demanding the money had not the actual possession of the vessel, which was the subject of the bottomry bond, and could not proceed forthwith to levy upon the same, by means of any process in the nature of an execution or warrant of distress.
The proceeding against the vessel, although a proceeding in rem, and authorizing a sequestration of the vessel, was yet one easily discharged, and which the present plaintiff had it in his power to have at once discharged, by making a deposit of money, or giving proper security to pay such demand and all costs, if the same should be duly established before the proper tribunal. A threatened lawsuit is not that species of duress, which will authorize the party to recover back money voluntarily paid on an illegal claim. Brown v. McKinally, 1 Esp. R. 279. We perceive nothing in the present case to distinguish it from the ordinary case of a payment of a controverted demand. The mere declaration of the party making the payment, that he does it under coercion, and with denial of the right of the other party to recover the same, will not avail. If he. has a good defence to the claim, he should resist it in the outset. If he does not, he waives his right to litigate the matter further. Judgment for the defendant.
