New Orleans & N. E. R. v. Louisiana Const. & Imp. Co.

Citations

• 109 La. 13
• 33 So. 51
• 1902 La. LEXIS 102

Syllabus

<p>VOLUNTARY PAYMENT-RECOVERY-EVIDENCE —DURESS.</p> <p>1. A voluntary payment of money under a claim of right asserted by the creditor, and with knowledge by the debtor of the facts, cannot, in general, be recovered back.</p> <p>2. Where the parties were not on equal terms; where the payer had no choice; where the only alternative was to submit to an illegal exaction or discontinue business — these and other like circumstances evidencing pressure or duress under which money or other value is parted with, have never been regarded as embraced within the rule of voluntary acts within the meaning of the maxim “Volenti non fit injuria.”</p> <p>3. But where dispute arises and the debtor, who pays under protest, has at hand other means of immediate relief than by making the payment, his act is not one done under coercion, and his protest does not take the case out of the category of voluntary payment.</p> <p>4. It is not duress to institute, or threaten to institute, civil suits, or take proceedings in court, or for a claimant to declare he intends to use the courts wherein to insist upon what he believes to be his legal rights.</p> <p>5. If the party against whom the demand is made had full opportunity at the time to test the legality of the exaction he should do so.</p> <p>(Syllabus by the Court.)</p>