Lester v. City of Baltimore

• Decision Date: 13 November 1868
• Parties: JAMES M. LESTER v. THE MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Maryland Court of Appeals

29 Md. 415

JAMES M. LESTER v. THE MAYOR AND CITY COUNCIL OF BALTIMORE.

Court of Appeals of Maryland

November 13, 1868

APPEAL from the Superior Court of Baltimore City.

This was an action of assumpsit, instituted by the appellant against the appellee. The declaration of the plaintiff contained seven counts, but no evidence was offered to sustain any but the seventh, which was for money had and received by the defendant for the use of the plaintiff, and alleged that for the purpose of preventing a compulsory sale by the defendant, of the plaintiff's lot, the plaintiff paid to the defendant the sum of $2,446.07, &c., as set out in said count; and the plaintiff claimed that as the threatened sale was to enforce the payment of a tax, which was subsequently decided by the Court of Appeals to have been illegally assessed, he was entitled to recover the said sum from the defendant, as for money had and received for his use.

The cause was argued before BARTOL, C.J., NELSON, STEWART, MILLER and ALVEY, J.

Wm. F. Frick, for the appellant:

The tax was wrongfully assessed, and the collection of it was unauthorized and unlawful. Mayor, &c., of Baltimore, et al. vs. Porter, 18 Md. Rep., 284.

The payment by the appellant was not voluntary but compulsory. His assessed property was advertised to be sold by the collector in default of payment of the tax, within a few days. He himself says, "That he paid the bill because he had to pay it, not because he thought it was right. His property was advertised for sale if he did not pay it, and he thought the property worth more than the bill. That he paid it because he did not want the city to sell his property, and he did not want to enter into litigation. He knows that he demurred to paying the bill as an unjust one, and told the collector he paid it because he had to pay it."

Whenever a collector attempts to enforce payment of an unlawful tax by sale or distraint of the property assessed, and the owner pays the claim, not because he considers it lawful, but to prevent sale or distraint of his property, the payment is clearly compulsory and under duress. The remedy of the injured party does not lie solely in his right to an injunction to stay the unlawful proceedings--or in his right to treat the sale or distraint as void--and put the purchaser to his action, for recovery, &c. He has an equal right, if he prefers to take that course, to pay the demand under protest or demur, in order to stop the sale or distraint; and take his action to recover back the sum paid. These principles are well settled. Mayor and City Council vs Lefferman, 4 Gill, 425.

Robt. D. Morrison and Wm. Henry Norris, for the appellee:

From the evidence of the plaintiff himself, it is clear the payment was made by him under a mistake of law. He says, "That at the time of the said settlement, he presumed he was legally responsible for said bill of grading North avenue;" and, "That his property was advertised for sale if he did not pay it, and he thought the property worth more than the bill." Bilbie vs. Lumley, 2 East., 469; Brisband vs. Dacres, 5 Taunt., 143; Mayor & C. C. vs. Lefferman, 4 Gill, 425; Morris vs. Mayor & C. C., 5 Gill, 244.

The payment was voluntary and not compulsory; and no notice was given by the plaintiff to the defendant that he would be held responsible for the amount paid. In the Porter case, the question was asked of the plaintiff here, who was a witness there, "You say that you have settled the bill for grading as presented to you; how came you to settle that bill, if, as you say, Bouldin's plat showed that you had no claim?" To which question the plaintiff replied, "That is rather a difficult question to explain. I considered it my interest to do so, I suppose." In answer to the question, "Please state whether your bill for dirt, furnished by you to the sub-contractors, was only $600?" He says, "I furnished them more dirt than that, sir. The arrangement simply was that I was to get $1,500 for the dirt, $1,000 of which was paid by their grading certain streets, which were outside of the avenue and within my place." To the following interrogatory, "Please state whether or not this contract with the sub-contractors was the inducement to settling your grading bill?" he answers, "" It was one great inducement to my doing so. " Mayor & C. C. vs. Lefferman, 4 Gill, 425; 2 Saunders' Plead. & Evid., part 1, 390, (margin,) title " Money paid, &c., by mistake," and cases there cited; Taylor vs. Board of Health, 31 Penn., 73; Burrough of Allentown vs. Saeger, 20 Penn., 421.

"A count for money had and received will not lie except to recover money retained contrary to equity and right." Green vs. Stone, 1 H. & J., 405.

[Other points discussed in the argument are omitted, as they were not passed upon by the Court.]

ALVEY J., delivered the opinion of the Court.

The main question in this case, (the determination of which dispenses with the necessity of deciding any other raised by the record,) is, whether the money sued for was paid by the appellant to the appellees, or to their use, under such circumstances as to entitle the former to recover it back. And, upon a careful examination of the record, we are clearly of opinion that it was not.

No principle is better settled than that where a person, with full knowledge of the facts, voluntarily pays a demand unjustly made upon him, though attempted or threatened to be enforced by proceedings, as appears to have...