Lyman v. Lauderbaugh

• Decision Date: 12 October 1888
• Citation: 75 Iowa 481,39 N.W. 812
• Parties: LYMAN v. LAUDERBAUGH.
• Court: Iowa Supreme Court

75 Iowa 481

39 N.W. 812

LYMAN

v.LAUDERBAUGH.

Supreme Court of Iowa.

October 12, 1888.

Appeal from district court, Benton county; L. G. KINNE, Judge.

On the 8th day of December, 1886, H. K. Lauderbaugh, the defendant in this case, commenced an action against B. G. Lyman, the plaintiff herein, aided by attachment, to recover the sum of $600. The petition alleged that the money was due for money and property wrongfully taken by Lyman, and converted to his own use, and that he was about to dispose of his property with intent to defraud his creditors. The writ of attachment was served by garnishing a bank in which Lyman had a deposit of $1,300 or more. On the day the action was commenced Lyman paid to the plaintiff therein the sum of $526, and the case was dismissed. A few days before this action was commenced Lyman demanded of the defendant herein repayment of said sum, which was refused. On the 13th day of January, 1887, the plaintiff filed his petition in this case, and subsequently filed an amendment thereto. The first count of the amended petition alleges the commencement of the aforesaid action against plaintiff, and the attachment proceedings thereunder; that all the money in the garnished bank was held under the garnishment, and placed beyond the reach of plaintiff; that plaintiff and his wife were at that time engaged in business in Vinton, and, by reason of said attachment, were unable to meet their engagements when they became due; that in order to release the attached property the plaintiff, under protest, and denying any indebtedness on his part, and under the express verbal promise of defendant to repay the same if the plaintiff could show that he was not indebted to him, paid to defendant the sum of $526; that plaintiff paid said sum to emancipate his property from the said control imposed by defendant, and that he had no other means of immediate relief, except to advance said money as aforesaid. The said count further alleges that plaintiff did not owe defendant anything; that he had not converted the sum of $600, or any other sum or amount, belonging to defendant, to his own use; that said demand was illegal and unjust; that defendant is justly indebted to plaintiff in the sum of $526, with interest thereon from December 8, 1886. The second count alleges the commencement of the attachment suit; the filing of a bond in the sum of $1,500; the issuance and service of the writ, and that the same was wrongfully, willfully, and maliciously sued out, and without probable cause. Judgment was asked on the bond. The answer admits the attachment suit, the issuance and service of the writ of attachment, the payment of the money, and the demand for its repayment. It alleges that the parties hereto fully settled all matters involved in or arising out of the said suit on the day it was begun, and that such matters were satisfied and paid, and the action dismissed at the cost of plaintiff. There was a trial to a jury, and a verdict for plaintiff for $840.46. Defendant filed a motion for a new trial, and, while this was pending, plaintiff filed a paper remitting $299 of the verdict, as all of the damages awarded on the second count of the petition, excepting one dollar. The motion for a new trial was overruled, and judgment rendered in favor of plaintiff for $541.46, and an attorney's fee of $75. Defendant appeals.W. P. Whipple, for appellant.

J. D. Nichols, for appellee.

ROBINSON, J., ( after stating the facts as above.)

1. The appellant complains of the refusal of the court to give to the jury two instructions asked by him, as follows: “(1) That as to the cause of action set out in the first count of the petition you should find for the defendant, because there is no evidence upon which a verdict can be found on said count in plaintiff's favor. (2) As to the claim made by plaintiff in the first count of his petition, you are instructed that if you find from the evidence that plaintiff paid to defendant the $526, when the facts under which the same were claimed from him were known to him, then such payment was voluntary, and plaintiff cannot recover the same back, unless you find that plaintiff paid said sum under compulsion which was illegal and unjust. The suing out of the attachment, and the garnishment thereunder, * * * by defendant's direction, is not such compulsion.” The appellant claims that these instructions were in accordance with the following proposition of law: “To justify recovering back money paid, when all the facts were known to the party paying, such payment must not have been simply an unwilling payment, but a compulsory one, and the compulsion must have been illegal, unjust, and oppressive.” This is substantially the law as announced in Dickerman v. Lord, 21 Iowa, 342: and seems to be sustained by the authorities. Murphy v. Creighton, 45 Iowa, 183; Benson v. Monroe, 7 Cush. 131; 2 Greenl. Ev. § 123; Custin v. City of Viroqua, 67 Wis. 318, 30 N. W. Rep. 515;Mays v. Cincinnati, 1 Ohio St. 269.

But we do not think the instructions asked should have been given. They ignored the fact that the petition alleged, and some of the evidence tended to prove, that defendant agreed, as a part of the consideration for the payment of the money to him, to repay it if plaintiff could show that he was not indebted to defendant. In fact, the latter admits substantially that this was the case. It must be conceded that, so far as appellee was concerned, he knew all the facts as to his liability when he paid the money. He was charged with having wrongfully taken goods from the store and money from the till of defendant. He knew whether he had so taken them or not. Appellee urges that he did not know the facts upon which appellants demand was based when the payment was made; but that only amounts to a claim that he did not know the evidence by which appellant could sustain his demand. Having paid the money with full knowledge of the facts in regard to his alleged liability, we think the appellee cannot recover on the first count of his petition without showing that he did not...