Illinois Glass Co. v. Chicago Tel. Co.

• Decision Date: 18 June 1908
• Citation: 234 Ill. 535,85 N.E. 200
• Parties: ILLINOIS GLASS CO. v. CHICAGO TELEPHONE CO.
• Court: Illinois Supreme Court

234 Ill. 535

85 N.E. 200

ILLINOIS GLASS CO.

v.CHICAGO TELEPHONE CO.

Supreme Court of Illinois.

June 18, 1908.

Appeal from Appellate Court, First District, on Appeal from Superior Court, Cook County; Jesse Holdom, Judge.

Action by the Illinois Glass Company against the Chicago Telephone Company to recover amounts paid for telephone service in excess of legal rates. A judgment for defendant was affirmed by the Appellate Court, and plaintiff appeals. Affirmed.

Mayer, Meyer & Austrian, for appellant.

Holt, Wheeler & Sidley (John J. Herrick, of counsel), for appellee.

CARTWRIGHT, C. J.

On January 4, 1889, an ordinance of the city of Chicago was passed authorizing the appellee, the Chicago Telephone Company, to construct, maintain, and operate its lines of telephone wires in said city for 20 years. It was required to file with its acceptance of the ordinance a schedule showing the rates then charged for telephone service, and was prohibited from increasing to its existing or future subscribers the rates so established. The appellee accepted the ordinance and filed its schedule of rates showing that it charged $125 per year for a business telephone within the territory where the office of the appellant, the Illinois Glass Company, was located. Appellant contracted with appellee for a business telephone at that rate and used it for many years, up to October 11, 1897. The telephone so contracted for was known as the ‘grounded line,’ and was the kind in use when the ordinance was passed. With the increase of wires and disturbing influences the telephone grew less efficient, and did not give satisfactory service by reason of humming, spluttering, and hissing noises, which made it difficult to carry on a conversation. An improved service, known as the ‘metallic circuit,’ was devised, which obviated the objection to the grounded line, and, when the credit man of appellant complained to appellee of the service, he was told that, if appellant would procure the improved telephone equipment, it would have better service, and that such improved telephone would cost $50 a year additional, or $175 a year. The credit man said that the price was high, but was informed that the service would be better, and he consulted with a general officer of appellant about the advisability of making the contract. He was authorized to do so, and on October 11, 1897, a contract was executed by which appellant was to pay $175 a year, quarterly in advance. The improved telephone was installed in the office of appellant, and appellee rendered bills quarterly in advance for the service, which were paid for the ensuing five years. The amount so paid was $209.97 in excess of the rate fixed by the ordinance, and on July 17, 1903, appellant brought this suit in the superior court of Cook county against appellee to recover that amount. The declaration was in the common counts, to which the defendant pleaded the general issue and the five-year statute of limitations. There was a trial by jury, and at the conclusion of the plaintiff's evidence the court, on motion of the defendant, directed a verdict in defendant's favor. A verdict was returned under that direction, and the plaintiff's motion for a new trial was overruled and judgment was entered against it for costs. The Branch Appellate Court for the First District affirmed the judgment on appeal and granted a certificate of importance, under which this further appeal was prosecuted.

All the evidence in the case was introduced by the plaintiff, and it was thereby proved that the contract was entered into by it deliberately, after negotiations and with full knowledge of all the facts and conditions; that it was performed by the defendant according to its terms; and that the payments made under it, quarterly, for the period of five years, were made without any objection or protest or manifestation of unwillingness to pay the amount agreed to be paid. In order to be relieved from its contract and to recover back a portion of the moneys paid, the plaintiff assumed the burden of establishing, by the evidence, facts from which the law would draw the conclusion that the defendant had received money which in justice belonged to the plaintiff and ought to be returned. There was neither fraud, misrepresentation, nor mistake of fact, and it is not claimed that the payments were made upon a consideration which subsequently failed, but it is insisted that the fact of overpayment alone was sufficient to sustain the action. The fact of overpayment was established, and is not disputed. The defendant was bound to furnish any improved service or equipment adopted by it to its customers within the territory where the plaintiff's office was located at the rate of $125 a year. People v. Chicago Telephone Co., 220 Ill. 238, 77 N. E. 245. Counsel do not seriously contend that the mere fact of overpayment would authorize a recovery as between private individuals or between individuals and municipal corporations or public officials collecting taxes or generally in other relations, but the burden of their argument is that a distinction has been observed by other courts, and should be observed by this court, where the payment is made to a corporation rendering public service, such as a railroad or telephone corporation. Such a distinction has never been made in any case in this court, and the real question here is whether such a distinction ought to be recognized and a recovery be permitted merely because of a payment in excess of that which defendant had a legal right to demand.

It has been a universally recognized rule that money voluntarily paid under a claim of right to the payment and with knowledge of the facts by the person making the payment cannot be recovered back on the ground that the claim was illegal. It has been deemed necessary not only to show that the claim asserted was unlawful, but also that the payment was not voluntary, that there was some necessity which amounted to compulsion, and payment was made under the influence of such compulsion. The ancient doctrine of duress of person, and later of goods, has been much relaxed, and extended so as to admit of compulsion of business and circumstances, and perhaps a telephone corporation having a system in general operation and connected with customers and other business houses might reasonably influence a business house to make an unwilling payment of an amount illegally demanded, which would make the payment compulsory. The telephone has become an instrument of such necessity in business houses that a denial of its advantages would amount to a destruction of the business.In the case of County of La Salle v. Simmons, 5 Gilman, 513, a payment made for business reasons was declared by the court to be, in law and fact, a compulsory payment. The county commissioners had...