Schoenfeld v. City of Bradford ( 1901 )

Opinion by

Orlady, J.,

The only question necessary for us to decide in this case is, the right of the plaintiff to recover from the defendant the amount of money paid to the city solicitor under the terms of the written agreement between them, which is made a part of the case stated. On this subject the law is well, settled. A voluntary payment of money under a claim of right cannot in general be recovered back, but it has been held that when a party is compelled by duress of his person or goods to pay money for which he is not liable, it is not voluntary, but compulsory; and he may rescue himself from such duress by payment of the money, and afterwards on proof of the fact recover it back: Christ Church Hospital v. Philadelphia County, 24 Pa. 229; Harvey v. Girard National Bank, 119 Pa. 212; Peebles v. Pittsburg, 101 Pa. 304; Neely’s Appeal, 124 Pa. 406 ; Gould v. McFall, 118 Pa. 455; De La Cuesta v. Insurance Co. of North America, 136 Pa. 62, 658; Payne v. Coudersport Borough School District, 168 Pa. 386.

To entitle a recovery back in such a case there must be compulsion, actual, present and potential, in inducing the payment by force of process available for instant seizure of person or property, when the party so paying it must give notice of the illegality of the demand, and of his involuntary payment. The element of coercion being essential, a mere protest or notice will not change the character of the payment, or confer of itself a right of recovery: Harvey v. Girard National Bank, snpra. The threat of legal process is not such duress, and it has been held that payment of taxes imposed under an act of assembly which was afterwards held to be unconstitutional, was not compulsory because made under a threat, express or implied: Taylor v. Board of Health, 31 Pa. 73.

The facts as detailed in the case stated do not constitute duress either of person or property. The plaintiff claimed the right to conduct a business in the city of Bradford as a permanent one. The city authorities doubted his good faith in the prospective enterprise, and contended that his purpose was to be a transient retail merchant, for which reason the city demanded that he should pay to it the license fee fixed by its ordinance for such a business. This was the sole controversy, and its solution depended upon the character of business the plaintiff intended to conduct. In order to carry on his business, and after he had consulted with counsel as to his liability and duty, he paid to the city solicitor the amount of license fee demanded. No legal proceeding had been instituted against him. By the act of assembly authorizing the city to enact, the ordinance, the only penalty which could have been imposed upon him was a fine of not less than $100, to be collected as all other fines are by law collectible, and in default of payment of said fine and costs to be imprisoned in the jail of said county or city for a period of thirty days; which result could be reached only after due course of law had been had in the matter. The agreement further provided for a reference of the dispute, at the request of the defendant, to .the judge of the court of common pleas, among other matters submitting “ the fact as to the permanency or otherwise of said business ; ” and further that if the plaintiff ceased to do business in said city within three months, the amount paid to the city solicitor should be forfeited to the city. It is this money, which he paid voluntarily, he now seeks to recover.

The fact that the money was paid to the city solicitor and not directly to the city treasurer is not material, as the plain meaning of the agreement was that it should pass to the latter official upon the contingency provided for, and which contingency the plaintiff caused to happen by discontinuing his business within the time mentioned. The court below found as a fact that within less than a month he ceased to do business, left the city, and forfeited his money by the very terms of his contract. The case stated fully warranted this conclusion of fact and. precludes the plaintiff from recovering back the money.

The judgment is affirmed.