Pingree v. Mutual Gas Co.
| Decision Date | 26 November 1895 |
| Citation | 107 Mich. 156,65 N.W. 6 |
| Court | Michigan Supreme Court |
| Parties | PINGREE v. MUTUAL GAS CO. |
Error to circuit court, Wayne county; William L. Carpenter, Judge.
Action by Hazen S. Pingree against the Mutual Gas Company. Judgment for plaintiff. Defendant brings error. Affirmed.
Henry A. Harmon (Harrison Geer, of counsel), for appellant.
Eli R Sutton (Thos. T. Leete, Jr., of counsel), for appellee.
Plaintiff paid to defendant during the years 1887 to 1892, inclusive for gas consumed upon his premises, an aggregate amount of $181.34, in excess of the rates prescribed by the ordinance under which the company operated. The payments were made upon monthly bills rendered on the first of each month, for the gas consumed during the previous month. The testimony is not reported, but, instead, are concessions; and it is conceded that, at the time of the payment of the bills, plaintiff did not know what the average charge was in the cities named in the ordinance. Plaintiff recovered. Defendant insists (1) that the ordinance does not confer a right of action in favor of a private consumer, and (2) that the payments must be regarded as having been voluntary.
The ordinance provides that "said corporation shall in no instance, nor under any circumstances whatever, charge either public or private consumers higher rates for the supply of light than an average of the rates charged" and paid by such consumers in five cities, naming them. This provision was enacted for the protection and benefit of the consumers. It limited the rate which defendant could lawfully charge, and a charge in excess thereof was illegal, and its collection an illegal exaction. The right to recover money illegally exacted does not depend upon the statute. Weet v. Trustees of Village of Brockport, 16 N.Y. 161, note; City of Brooklyn v. Railroad Co., 47 N.Y. 485; Robinson v. Chamberlain, 34 N.Y. 389; McMahon v. Railroad Co., 11 Hun, 350; McGregor v. Railway Co., 35 N. J. Law, 89; Gray's Ex'r v. Trade Co., 55 Ala. 387.
As to the second point, it appears that the bills were paid in ignorance of the fact that the rates charged were in excess of the average rate in the cities named in the ordinance. It would be extremely technical to give any other construction to the concession made in the record. It is well settled that a voluntary payment cannot be recovered back, but a voluntary payment is one made with a full knowledge of all the circumstances upon which it is demanded, and without artifice, fraud, or deception on the part of the payer, or duress of the person, or goods of the person making the payment. It is equally true that money paid under a mistake of a material fact may be recovered. Ignorance of the existence of the ordinance is not made the basis of the recovery here, but ignorance of the fact that the rates charged and paid were in excess of those in the cities named. The cases relating to the recovery of excessive passenger or freight rates are analogous in principle to the present case. The right of a party from whom has been exacted payment of rates of carriage in excess of those fixed by charter or statute, to recover the overcharge is no longer open to serious question. 1 Wood, R. R. p. 679, � 206; 8 Am. & Eng. Enc. Law, 934; Parker v. Railway Co., 7 Man. & G. 253; Railroad Co. v. Lockwood, 17 Wall. 379; Transportation Co. v. Sweetzer, 25 W.Va. 434; Peters v. Railroad Co., 42 Ohio St. 275; Railroad Co. v. Steiner, 61 Ala. 559; Heiserman v. Railway Co., 63 Iowa, 736, 18 N.W. 903. Arnold v. Railroad Co., 50 Ga. 304, cited by defendant's counsel, holds that a payment made through mere ignorance of the law, or paid when the facts are all known, and there is no misplaced confidence and no artifice or deception, an action will not lie to recover back. In Potomac Coal Co. v. Cumberland & P. R. Co., 38 Md. 226, the action was for excess of freight paid by plaintiff from July 1, 1864, to March 10, 1871. The statute prohibited discrimination. It was held that the money had been paid voluntarily, under no mistake of fact, and, there being no circumstances of duress, fraud, or extortion, the plaintiff was not entitled to recover. In Killmer v. Railroad Co., 100 N.Y. 395, 3 N.E. 293, there was no statute fixing the rate or rendering the charges unlawful. Held, that the common-law duty imposed upon common carriers to carry goods upon being paid a reasonable compensation does not preclude special contracts between railroad corporations and shippers regulating the freight charges; and, where freight has been carried for a long course of years at the schedule price, the shipper making no objection as to the reasonableness of the charge, he must be deemed to have assented to the charge as reasonable, and to have voluntarily waived any objection thereto; at least, the receipt of the freight by the company at the tariff rate has no element of extortion, and an action is not maintainable to recover back any portion thereof, although evidence is given authorizing a finding that the charge was more than a reasonable sum for the...
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