Emery v. City of Lowell

• Decision Date: 23 June 1879
• Citation: 127 Mass. 138
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: William H. Emery & another v. City of Lowell

127 Mass. 138

William H. Emery & another v. City of Lowell

Supreme Court of Massachusetts

June 23, 1879

Middlesex. Contract for money had and received. Answer, a general denial. The case was submitted to the Superior Court and, after judgment for the defendant, to this court, on appeal, on an agreed statement of facts in substance as follows:

On March 28, 1876, the mayor and aldermen of the defendant city at a regular meeting, under the power conferred by the St. of 1875, c. 99, passed a resolution to establish the fees for licenses under that statute, the fee for a license of the first class (to sell liquors of any kind to be drunk on the premises) for innholders being placed at $ 200. On May 2 1876, at a special meeting, the mayor and aldermen of said city passed a resolution in regard to fees for licenses, making some changes in the fees for licenses of other classes, but leaving that of the first class for innholders at $ 200. On May 9, 1876, the mayor and aldermen voted to grant to the plaintiffs a license of the first class. On May 10, 1876, the plaintiffs tendered to the city treasurer the sum of $ 200, and demanded a license; they did not offer any bond to the treasurer, such as is required by § 9 of the statute, and nothing was said about it, but they were ready to give a bond if the license had been ready. The treasurer informed them that the license would not be ready until the next day. On May 11, 1876, the plaintiffs again called upon the treasurer, when they were informed that the mayor and aldermen, the day previous, but after the above tender was made, had voted to change the fee for licenses of the first class from $ 200 to $ 1000. Thereupon the plaintiffs paid to the treasurer the sum of $ 1000, under a written protest, and gave the bond required by law, and the treasurer then delivered to them the license, dated May 9.

The sum so paid was not then placed by the treasurer in the city treasury, but the same, together with all sums received for liquor licenses, was kept separate from the other funds of the city, and deposited in the Appleton National Bank of Lowell, to his credit as "Treasurer on account of liquor licenses," the other funds of the city being deposited in said bank "To the credit of the city of Lowell." On June 1, 1876, the treasurer paid to the treasurer of the Commonwealth, as required by said act, one fourth of the sum so received, viz. two hundred and fifty dollars, and the balance of said sum of one thousand dollars he then put into the city treasury, and the same was subsequently used by the city of Lowell, and before the institution of this suit.

If, upon these facts, the plaintiffs could recover, judgment was to be entered for them for such sum as the court might determine; otherwise, judgment was to be entered for the defendant.

Judgment affirmed.

T. H. Sweetser & G. A. A. Pevey, for the plaintiffs.

G. F. Richardson, for the defendant.

Soule J. Colt & Endicott, JJ., absent.

OPINION

Soule, J.

The plaintiffs paid the money which they sue for with a full knowledge of all the facts in the case. They recognize the well-established principle that money voluntarily paid with such knowledge cannot be recovered. They contend that the payment was not voluntary. Their argument is, that by the vote fixing the license fee at two hundred dollars, the vote to grant them a license, and their tender of the fee and demand for a license, a contract was...