Larrimer v. Murphy , 72 Ark. 552 ( 1904 )

Riddick, J.

(after stating the facts). The purpose of this action is to determine the ownership of a fund held by J. A. Hoffman as trustee. The fund was subscribed for the purpose of inducing and aiding the Arkansas Central Railroad Company to construct and put in operation a railroad from Fort Smith to Paris, Arkansas. But the subscriptions were made on certain conditions expressed in the subscription notes, which stipulated that, unless the conditions were performed, the notes were to be void. It is conceded that these conditions were not performed, but it is contended that Hoffman was a trustee for the company only, and that a payment to him was in effect a payment to the company. It has long- been settled that money voluntarily paid in satisfaction of an unjust or illegal demand, with full knowledge of the facts and without fraud, duress, or extortion, cannot afterwards be recovered by the payor. New Orleans & Northeastern R. Co. v. Louisiana C. & I. Co., 109 La. 13, 33 So. 51, 94 Am. St. Rep. 395. So, if a payment to Hoffman was a payment to the company, there could be no doubt that the contention of appellants would be correct.

It is unnecessary to set out or discuss the evidence bearing on that point. It is enough to say that a careful reading of it has convinced us that it is sufficient to support the finding of the court that Hoffman was not the agent or trustee of the company only. The very object of his appointment was to put it beyond the power of the company to take charge of or collect these subscription notes until it had performed the conditions on which they were executed. He was to hold these notes in trust for both parties until the road was completed and running to Charleston, Arkansas, when he was to collect one-half of the amount due on, the note, and pay it to the company, and when the road was completed to Paris, Arkansas, he was to collect and pay over the remaining half. It is thus plain that the company had no right to any portion of this fund until it had completed its road to Charleston. The fact that the trustee collected some of this money before the road was completed to Charleston gave the company no right to it. His duty was to hold for both parties, and not to pay over until the conditions named in the notes were performed. It being conceded that these conditions have not been performed and will not be performed, we are of the opinion that the court properly decided that the funds should be returned to the subscribers. Finding no error, the decree is affirmed.