Wolfe v. Marshal

• Decision Date: 31 March 1873
• Citation: 52 Mo. 167
• Parties: GEORGE C. WOLFE, et al., Plaintiffs in Error, v. WM. D. MARSHAL, et al., Defendants in Error.
• Court: Missouri Supreme Court

52 Mo. 167

GEORGE C. WOLFE, et al., Plaintiffs in Error,

v.WM. D. MARSHAL, et al., Defendants in Error.

Supreme Court of Missouri.

March Term, 1873.

Error to St. Louis Circuit Court.

R. S. McDonald and M. Kinealy, for Plaintiffs in Error. cited: Beckwith vs. Frisbie, 32 Vt., 563; Parker vs. The Bristol R. Co., 6 Exch., 702; Parker vs. G. W. R. Co., 7 Scott, N. R., 835; Astly vs. Renolds, 2 Strange, 916; Tutt vs. Ide, 3 Blatch. C. C., 249; Cobb vs. Charter, 32 Conn., 358; Cunningham vs. Munroe, 15 Gray, (Mass.,) 472; Oates vs. Hudson, 6 Exch 346; 1 Parsons on Contract, Title “Duress”; Chitty on Cont, Title, “Involuntary Payment”; Claflin vs. McDonough, 33 Mo., 415; Dixon vs. Holden, 7 Eq., Cases (Eng.) 488; See Sartwell vs. Horton, 28 Vt., 373.

Sharp & Broadhead, for Defendants in Error.

I. A person who with free knowledge of the facts, voluntarily pays money when demanded by another under a claim of right, cannot recover it back. (Mays vs. City of Cincinnati. 1 Ohio, (McCook,) 268; Claflin vs. McDonough, 33 Mo., 412; Preston vs. Benton, 12 Pick., 7; Brisbane vs. Dacres, 5 Taunton, 143; Sessions vs. Meserve, 46 N. H., 167; Downs vs. Donnelly, 5 Ind., 496; Dickerman vs. Lord, 21 Iowa, 338; Patterson vs. Cox, 25 Ind., 261; Mowatt vs. Wright, 1 Wendell, 355; Baltimore vs. Lefferman, 4 Gill, 425; Cook vs, Boston, 9 Allen, (Mass.,) 393; Brown vs. McKinally, 1 Espinasse, 279; Evans vs. Gale, 18 N. H., 397; Colwell vs. Peden, 3 Watts, 327.)

II. To render a payment involuntary or under duress, it must be made to release the person, or recover the goods of the party making the payment, from the actual custody or possession of another, or to prevent the seizure of either by one who is armed with apparent authority to sieze them without resorting to an action at law, and the fact that the money was paid upon an illegal or unjust demand, does not affect the case. (Lima Township vs. Jenks, 20 Ind., 301; Knibbs vs. Hall, 1 Espinasse, 84, and cases cited above.)

WAGNER, Judge, delivered the opinion of the court.

If we admit what is contended for by the plaintiffs, that the court erred in excluding evidence offered by them in reference to the custom of boats and the knowledge of the defendants when they purchased the boat that plaintiffs had leased the bar for a specific period, still that cannot in any wise change the final result in this cause. Plaintiffs' claim to recover is based solely upon the ground that payment of money was extorted by duress. In their petition they aver in substance that in March, 1864, one T. P. Perkins was the sole owner of the steamboat Magnolia, and that he by an instrument in writing sold and made over to plaintiffs for three years running time the bar on said boat, that by the usages and custom of steamboat trade it was understood that a sale of the bar carried with it to the purchaser the privilege of selling liquor on the boat and being provided with board for the necessary bar-keepers. That in November, 1865, Perkins sold the boat to defendants, and that after the sale and until in May 1866, plaintiffs remained in possession of the bar receiving board. That at the time last mentioned defendants demanded of plaintiffs four hundred dollars for board of bar-keepers from November, 1865 till May, 1866, threatening, in default of payment, to eject plaintiffs, their bar-keepers and goods stored in the bar from the boat. That at the time the defendants were insolvent and that under fear of injury to their persons and property, they paid defendants their demand under protest and duress. There was a second count in the petition for the payment of subsequent board under like circumstances.

The facts as shown in the testimony are briefly these: In the month of November, 1865, defendants purchased the steamboat absolutely of Perkins and received a bill of sale therefor. Shortly after the purchase the boat went down the river and did not return until the following March, 1866. During all this time plaintiffs occupied and used the bar and kept two bar-keepers on board who were boarded and lodged on the boat. When the boat returned to St. Louis, defendants demanded of plaintiffs two hundred and fifty dollars per month for rent of the bar and board of their bar-keepers. Plaintiffs declined paying that or any other amount, and claimed that they had a lease of the bar from Perkins which gave them the right to use the same, and to have two barkeepers boarded on the boat for three years from August, 1865.

Before the matter was settled or any definite arrangement made, the boat again went down the river and did not return till May, 1866. When the boat returned plaintiffs and defendants all met on the boat to effect a settlement. Defendants claimed that plaintiffs were bound to pay them and plaintiffs contended that they were not. Defendants finally declared that unless plaintiffs paid them, they would institute proceedings against them. Plaintiffs asked time till the next day to consult counsel, which defendants granted. On the following day the parties again met on the boat when the plaintiffs said it was a hard case all around and offered as a compromise to pay defendants one hundred and fifty dollars per month in lieu of the two hundred and fifty dollars per month demanded. After some consultation this proposition was accepted and the money was accordingly paid. It does not appear that defendants offered any violence to plaintiffs or their property. The defendants both testify that they made no threats, that they merely told the plaintiffs that if they did not pay they would take legal steps to assert their rights. One of the plaintiffs testified that the defendants said they would dispossess them if they did not pay, but they did not say how they...