Smart v. White

• Decision Date: 15 April 1882
• Citation: 73 Me. 332
• Parties: ASENATH SMART v. JOHN WHITE.
• Court: Maine Supreme Court

73 Me. 332

ASENATH SMART v. JOHN WHITE.

Supreme Judicial Court of Maine.

April 15, 1882

ON EXCEPTIONS and motion to set aside the verdict.

Assumpsit for money had and received from the pension money of the plaintiff.

The opinion states the case and the material facts.

P G. White, for the plaintiff, cited: 7 Green. 134; 10 Allen 76; 11 Cush. 57; 11 Mass. 376; 61 Me. 376; 4 Mass. 491; Taylor v. Jaques, 106 Mass. 291; U. S. R. S., § § 4445, 5484, 5485, 4785; 2 Pars. Contr. 254, (4th ed.); Concord v. Delaney, 58 Me. 316; Worcester v Eaton, 11 Mass. 376; Bliss v. Thompson, 4 Mass 491; White v. Franklin Bank, 22 Pick. 181; Jones v. Barkley, 2 Dougl. 684; Dicey on Parties, 277; Elliott v. Swartwout, 10 Peters 158; Ripley v Geltson, 9 Jola. 201; Frye v. Lockwood, 4 Cowan 456; Snowdon v. Davis, 1 Taunt. 357, Hearsey v. Pruyn, 7 John. 182; Fowler v. Shearer, 7 Mass. 14; Call v. Houdlette, 70 Me. 313; Townsend v. Wilson, 1 Camp. 396; Story, Agency, § 300; Wharton, Agency, § 520.

Barker, Vose and Barker, for the defendant.

The contract made by the defendant in behalf of the town of Levant, with the plaintiff, was that he would aid her in obtaining her pension, if she would pay over to the town the amount which she might receive as arrears of pension, on account of what she was indebted to the town. This she did less fifty dollars, and the amount the town thus received was less than half what the town expended on account of the plaintiff. This was not a payment of an excessive amount, or any amount, to Mr. White, as fees for obtaining a pension. He was not paid anything for his services, not even the ten dollars allowed by statute. He was not to be paid anything for his services by the plaintiff. She was not to pay anybody anything for White's services, and she did not. She simply agreed to pay something towards her indebtedness to the town, and that is all she did.

This agreement didn't profess to be a mortgage, pledge, assignment or transfer of her pension. It was an agreement not prohibited by statute or good morals, and having carried out the agreement in part, she cannot now repudiate. Bigelow on Estoppel, 51, 515.

As a matter of fact, the original agreement was repudiated by the plaintiff, and what money she paid over to Mr. White for the town, she did voluntarily after the receipt of her pension, when she had a right to appropriate it as she pleased, and did appropriate a little over a hundred dollars (all but fifty dollars) in part payment of a debt she owed the town.

Counsel contended that this could not be called payment under duress, citing: Cooley on Torts, 506; Fellows v. Fayette, 39 Me. 561; Harmon v. Harmon, 61 Me. 229; 1 Pars. Contr. 321; Seymour v. Prescott, 69 Me. 376.

On the question of new trial, counsel cited: Hilliard, New Trials, (2d ed.) 459; Hunnewell v. Hobart, 40 Me. 28; Pollard v. G. T. Ry. Co. 62 Me. 93.

The presiding justice instructed the jury: " I now come to the time when the check was received. The pensioner had the check, it was her property. She indorsed it to the defendant White. What does White say? He swore in clear and explicit terms that he claimed the money by virtue of and under the bargain of April, 1879, under that contract, that he got the check by virtue of that contract. If he got that check and the money on the check by virtue of that contract as he swears he did, he had no business with it, and the plaintiff has the right to recover."

This was an error in fact and in law. Morris v. Platt, 32 Conn. 75; Hill v. Canfield, 56 Penn. St. 454; Care v. Williams, 2 Cald. 239; Chappell v. Allen, 38 Mis. 213; Elliott v. Swartwout, 10 Peters 137; Mowatt v. McClelan, 1 Wend. 176.

PETERS J.

Section 5485, U. S. R. S., provides thus: " Any agent or attorney, or any other person instrumental in prosecuting any claim for pension or bounty land, who shall directly or indirectly contract for, demand, or receive or retain any greater compensation for his services or instrumentality in prosecuting a claim for pension or bounty land, than is provided in the title pertaining to pensions, or who shall wrongfully withhold from a pensioner or claimant the whole or any part of the pension or claim allowed and due such pensioner or claimant, or the land warrant issued to any such claimant, shall be guilty of a high misdemeanor, and, upon conviction thereof, shall for every such offense be fined not exceeding five hundred dollars, or imprisonment at hard labor, not exceeding two years, or both, at the discretion of the court." Another provision of the federal statutes prohibits any sale, pledge or assignment of any claim, right or interest in any pension which has been or may be granted, pronouncing all such transfers void.

The plaintiff, who was entitled to a pension, had been supported by the town of Levant as a pauper. The defendant, an overseer of the poor of the town, assisted her to obtain her pension, under a verbal agreement with her, he said, that whatever back pay might be received should be applied towards her indebtedness to the town for her support. The verdict finds the fact, that the defendant got the back pay from her, under and by force of the contract, excepting that he allowed her to retain fifty dollars of the amount, to induce her to carry the contract (with that variation) into effect.

The presiding judge, in his charge, had ruled, substantially, that the plaintiff had a legal right to dispose of the pension check or its proceeds as she saw fit; that she could voluntarily pay with it her indebtedness to the town; that, although the agreement was not binding upon her, still, if she concluded to carry out the agreement, and without fraud or duress paid the money to the town, the payment would be binding upon her; but that, if the defendant obtained the money from her by means of the contract, without her knowing that she was not compelled to pay it over, then the payment would not be binding upon her, and the money could be recovered back. Thereupon, the defendant requested the court to give the following ruling to the jury: " If the jury find that this money was paid voluntarily by Mrs. Smart to John White, as one of the overseers of the poor for the town of Levant, without fraud or duress, even though paid by mistake, and he had paid it over to the town of Levant before receiving notice from her that she claimed to recover it back, then he is not personally responsible to the plaintiff." This request was properly refused.

The defendant's counsel must have intended, by the phrase, " paid by mistake," a mistake of law, meaning to assert the proposition that the money could not be recovered back, if she paid it in fulfillment of the contract by a mistake of law upon her part; that is, an ignorance upon her part that such a contract was illegal and void.

It cannot be pretended that the defendant should be shielded by any plea of an ignorance of the statute upon his part. It matters not, that he intended no wrong or injury and practiced no duress, and knew not of the statute. The statute does not make the actual intention of its violator an element of the offense. It does not prescribe the penalty against a person who shall fraudulently contract for and receive for services a greater share of a pension than the law allows. Taking the excessive sum is per se an unlawful and punishable act. It is well settled, upon the great weight of authority, that, in merely statutory offenses, of which a morally wrong intent is not a necessary ingredient, guilty knowledge or intent is not necessary to be either alleged or proved, where the statute creating the offense evidently dispenses with such necessity. The statute in question is founded upon a policy of the federal government to protect a class of persons who might be incompetent fully to protect themselves, and it must necessarily be very absolute and rigorous in order to be effective. State v. Smith, 65 Me. 257; State v. Goodenow, Id. 30; Com. v. Railroad, 112 Mass. 412, and cases cited. See 12 Amer. Law Rev. 469, where the question before stated is elaborately discussed and the authorities collected.

But the plaintiff stands in a different attitude. If her pension money was taken from her through a contract declared to be void by the statute, she can have its restoration. She would be entitled to recover it back, even had she known the law, and a fortiori entitled, not knowing it. The parties do not stand in pari delicto. The penalty of the statute is levelled at him and not at her. The punishment is to be inflicted upon the taker and not upon the giver. She is to be protected, not punished. Her ignorance of the law, or her folly, if not ignorant of it, is excusable, but his is not. He commits a wrong; she does not. She cannot defraud herself. The statute would be nullified by a different interpretation.

The principle, that, where the offense is merely malum prohibitum, and not in itself immoral a person may recover back money paid under an illegal contract to the party who is wholly or principally the wrong doer, runs through a long line of decisions which bear more or less analogy to the present case. The case at bar is a stronger case for the application of the principle than...