Harbeck v. Sioux City
| Decision Date | 17 March 1925 |
| Docket Number | No. 36427.,36427. |
| Parties | HARBECK v. SIOUX CITY. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Woodbury County; A. O. Wakefield, Judge.
Action at law to recover back money paid either by mistake or under duress. There was a demurrer to the petition, which was sustained. The plaintiff, electing to stand upon his petition, suffered judgment, and has appealed therefrom. Reversed.Sam G. Pickus and Alfred Pizey, both of Sioux City, for appellant.
Paul Hatfield and E. G. Smith, both of Sioux City, for appellee.
It appears from the petition that the plaintiff was a vendor of peanuts and popcorn, and maintained a stand on or near to a sidewalk in the city of Sioux City, and upon premises leased by him from one Nelson. There was a city ordinance in force which required the payment of a license fee for such privilege of $25 per year and no more. The plaintiff entered upon such business about April 1, 1918. He alleged in his petition the following:
“That on or about the 1st day of April, A. D., 1918 this plaintiff was informed by the then commissioner of public safety that the license fee was $25 per month, and that unless he, the said plaintiff, paid the same, his said place of business would be closed by the police department, and he would no longer be permitted to operate or maintain said popcorn and peanut stand; and he was also informed by said commissioner that the proper and lawful license fee was $25 per month; that he believed statements to be true, and because of said representations, and fearing his means of livelihood would be taken from him, he paid the sum of $25 for each month until the 4th day of December, A. D., 1922.”
The demurrer to the petition is predicated upon the ground that the payment was voluntary, and that the plaintiff was thereby estopped from recovering back the money thus paid. We have to determine, therefore, whether it appears upon the face of the petition that the payments were voluntary within the meaning of the law.
[1] It is a rule which has often been applied that the payment of money into a public treasury, where the payer is under no other stress or menace than that of a personal action against him for the recovery of such amount, then the payment is voluntary rather than under duress. The appellee relies upon this line of cases.
[2] It is also the rule that where a person or municipality exacts and receives more than is legally due from the payer, while such payer is under the menace of injurious interference with or seizure of his property or person, such payment will not be deemed voluntary. If the payer be menaced only with a personal action against...
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