
    Michael T. Horner, Claimant, Appellant, v. The State of New York, Respondent.
    
      “Piece price" contract for the work of prisoners — additional payments extorted from the contractor by threats to abrogate the contract — they a/re recoverable from the State—an increase as distinguished from a repair of a plant — voluntary payment — unprofitable contract.
    
    A contract entered into between one Horner and the warden of the Auburn State Prison in 1893, and approved by the Superintendent of State Prisons, provided that the former should pay to the State of New York an annual rental for the use of the machinery, -tools and appliances belonging to the “ plant of the hollow ware industry, and also the iron castings industry,” as -then carried on. in said prison; that the warden should furnish 200 convicts to work in such plant upon the “piece price” system, and that Horner should pay specified prices for each article manufactured by them from materials furnished by him.It also provided that Horner should maintain the plant at his own expense during the existence of the contract, a period of three years, and leave the same in as good repair and condition as when received, ordinary wear and tear excepted.
    Shortly after Horner had entered upon the performance of his contract, the warden informed him that the convicts.' were not earning as much as they should, and that unless the prices were inodified so as to produce a certain sum per day for their labor, he would abrogate the contract. Upon Horner’s refusal to modify the contract, the ward'en, vith the assent of the Superintendent of State Prisons, entered upon a: course of conduct designed, by rendering his contract unprofitable, to force Horner to comply with their demands, and subsequently informed Horner that unless he paid the prices demanded, he would be ejected from the prison. Thereupon Horner again refused to modify the contract, but agreed to pay, in addition to the earnings of the convicts thereunder, a sufficient sum to make up the amount demanded by the warden, and consented that such excess: be charged for as labor of men in making flasks and patterns, although he protested against the exaction as unauthorized, and declared that- he would not “ vitiate the contract" in .any way,” but would seek reimbursement from the State.
    The State prison authorities having refused to refund the excess paid by Horner, the Court of Claims was authorized to hear the claim, and upon an appeal from a judgment rejecting it, it was
    
      Held, that the excess paid was not collectible under a provision of the contract which read, “ Out of the number of men aforesaid there shall be employed a sufficient number in the making of patterns and flasks,” as it was evidently contemplated that the price per piece would cover the entire cost of manufacture, and for the further reason that, at the time the excess was exacted, no such claim was advanced;
    That neither could the excess be considered as compensation for services rendered to Horner in keeping the plant in repair -s- a duty imposed upon Horner by the contract — as the making of new flasks and patterns, against which the excess was charged, was not a repair of the plant, but an increase thereof;
    That Horner had no adequate remedy at law, in the event of the abrogation of the contract by the warden, which would relieve the payment of its compulsory character;
    That the State having obtained the money sought to be recovered under no legal right, but rather by taking an undue advantage of Horner’s situation, and Horner having paid it under protest and only to protect himself against loss from the threatened repudiation of the contract, such payment should not be regarded as a voluntary one, and that Horner was entitled to recover such mone)
    That the fact that the contract did not prove to be profitable to Horner, and that he would have lost, nothing had he abandoned it, did not affect his right to recover the money paid in order to prevent the warden from abrogating it. Mérwin, J., dissented.
    Appeal by the claimant, Michael T. Horner, from a judgment of the Court of Claims, entered in the office of the clerk of said court on the 18th day of January, 1899, dismissing the claim of the claimant.
    
      Albert B. Boardman, for the appellant.
    
      John O. Davies, Attorney-General, and John JEE. Coyne, Deputy Attorney-General, for the respondent.
   Pee Cueiam :

The appellant in this matter, on April 25, 1893, entered into a written contract with C. F. Durston, as warden of Auburn State Prison, whereby he agreed to pay to the State of New York the sum of $3,000 per annum for the use of its machinery, tools and all appliances belonging to the “plant of the hollow ware industry, and also the iron castings industry,” as then carried on in said prison.

The warden agreed on the part of himself and his successors to furnish 200 convicts to manufacture in such plant, upon the “ piece price ” system, liollowware and other iron castings, for which labor the- appellant was to pay certain prices therein specified for each article manufactured. The warden was' to keep up and maintain the engine and boilers and main shafting necessary to run the machinery used in the business ; and -the appellant was to keep up and maintain the plant at his own expense during the existence of the contract and leave the same in as good repair and condition as when received, ordinary wear and tear excepted.

All materials for the making of, the articles manufactured were to be furnished by the appellant.

Such contract was to commence -on May 1, 1893, and to continue for three years, and was approved by the Superintendent of State Prisons.

On May 1, 1893, Hurston was "retired and James C. Stout was made warden in his place. After work had progressed for a short time under the contract, Stout notified the appellant that the men could not earn, at the prices therein fixed, as much for the State as they ought to earn ; that they ought to earn at least fifty cents per day per man, making to the State the sum of $100 per day for the 200 men ; and that unless the prices per piece were modified -so as to produce that sum, he would shut up the men and terminate the contract.

The appellant declined to make any modification of the contract; and -it is very clear that thereafter, for some months, the warden, with the assent of the Superintendent of State Prisons, entered upon a course of conduct with reference to the work done under the contract, by which they endeavored to: force the appellant to comply with their terms. A detailed statement of such conduct is not appropriate to an opinion. It is sufficient to say that we are satisfied that such conduct, if continued diuring the term of the contract; would have rendered it unprofitable to the appellant, and that -he thereupon became convinced that liis business under such contract would be thereby practically destroyed. About the 1st of August, 1893, the appellant and the warden, Stout, had an interview, in which the appellant was informed that unless he paid the amount per day which the warden demanded, he would be put out of the prison. Thereupon the appellant refused to make any modification of the prices or of the contract, but agreed that he would pay — over and above the daily earnings of the men, under the contract -prices — a sufficient sum to make up $100 each day during the continuance of the contract, and that such excess might be charged as for labor of mien in making'flasks and patterns. But he at the same time protested against such payments being exacted, claiming that the State had no right to them under the contract, and declaring that he would not vitiate the contract in apy way,” but would come back and get the money afterwards, if he. could, from the State.

From that time forth the work proceeded upon that basis; payments were made each month to the amount of $100 or thereabouts per day, and the excess so paid and charged against the appellant for “labor making flasks” and “patterns” amounted in all to $23,865.34.

Upon the expiration of three years the State adjusted with the appellant' all claims for wear and depreciation of the plant, and all matters arising under the contract, except that' the appellant still claimed that the excess so paid should be refunded to him. To this claim the State prison authorities refused to accede. An act of the Legislature authorized such claim to be heard before the Court of Claims. It was brought to a hearing before such court, and a judgment rejecting it was entered therein, and from such judgment this appeal is taken.

It was claimed upon the part of the State in the court below, and it is urged upon us here, that this excess so paid was in fact collectible under the terms of the con tract j for labor of the men in making patterns, flasks, etc., and such claim is based upon a provision of the contract which reads as follows: “ Out of the number of •men aforesaid there shall be employed a sufficient number in the making of patterns and flasks,' * * ' * and preparation and care of tools, and giving out of stock, and weighing and preparation of the same for use, and for the storing and loading and shipping of the articles produced, and the necessary clerical force in the office of the party of the second part, within said prison.”

It is manifest from the evidence that no such claim was made by the warden when he insisted that the men could not earn enough under the contract, nor was it so claimed when the appellant agreed to pay the excess. Neither party then claimed that the State could collect anything for such labor, but both parties rather seemed to agree that it could not. In our opinion, the provision relied upon does not secure to the State the right to demand any compensation whatever for the time in which any of the 200 men should be employed in such work. There is no provision therein to that effect, nor fixing any basis upon which the value of such service could be adjusted. Nowhere in the contract does the appellant undertake to pay anything extra for such service, and it is evident the provision was not inserted for that, purpose.

There was much work to be done within the. prison to carry on the business of manufacturing such articles, other than the mere work done on the articles themselvós, and it was wise to insert in the contract a distinct provision that su'ch work, which is fairly and substantially specified in the provision; should be done by the convicts. It was work appurtenant to the manufacturing business contemplated and such as must be done by the convicts or else men from outside must have been imported to perform it. Naturally, it was provided that some of the 200 convicts furnished should do it; and it is clear that no extra compensation was provided for such service. The purpose, evidently, was to make the price fixed upon each'article cover the whole service necessary for its creation and shipment.

It is claimed that the contract provides that the appellant is. to do all such work at his own expense. But such claim is not correct. Evidently, most of the work specified in such provision is no pai’t of “ keeping up and maintaining the plant.” The “ repairing of machinery and flasks and preparation and care of tools ” might be included in such obligation; and whatever the convicts did in that respect might possibly have been charged against appellant as work done to his use.; but more than that was not chargeable-against him, and no attempt "was made to keep an account of such services or to agree upon an adequate compensation for them. A sum sufficient to make $100 per day was charged against services in making flasks and patterns. Seemingly, that was an increase, and not a repairing, of the plant. : A large amount of new flasks and patterns were made and subsequently sold to the State; and' it is apparent from the record that the excess received was not considered as services rendered to appellant in keeping the plant in repair.

We are of the opinion that the excess so' paid by the appellant was not collectible under the contract. It was received by the State without giving any compensation in exchange therefor. It was money to which the State had no,legal claim; and the question is squarely presented, whether it was paid under such duress or coercion as will-sustain an action to recover it back.

In Scholey v. Mumford (60 N. Y. 501) it is said: “To constitute a voluntary payment, the party paying must have had the freedom of exercising his will. When he acts under any species of compulsion, the payment is not voluntary.” And such compulsion need not necessarily consist of unlawful restraint or threatened injury to the person, or unlawful detention of his goods.

In Bates v. N. Y. Ins. Co. (3 Johns. Cas. 239), in an action for money had and received, the plaintiff was allowed to recover back the amount that he had paid the defendant in order to procure from it a transfer on its books of certain shares of its stock that he had purchased from the one in whose name they then stood. The company unlawfully required the plaintiff to pay to it a debt which it held against liis assignor, before it would consent to a transfer of the stock. The court said, referring to the action for money had and received: “ The equitable extension of this kind of action has of late been so liberal, that it will lie to recover .money obtained from any one, by extortion, imposition, oppression, or taking an undue adma/ntage of his situation.” Again it is said: “ The money being inequitably demanded of him, he must be presumed to have paid it, relying on his legal remedy to recover it back.” •

In the case of Robertson v. Frank Brothers Co. (132 U. S. 17) money paid to avoid the exaction of an unlawful penalty was recovered back; and it was there held that “ virtual or moral duress is sufficient to prevent a payment made under its influence from being voluntary.” “ When such duress is exerted under circumstances sufficient to influence the apprehensions and conduct of a prudent business man, payment of money wrongfully induced thereby ought not to be regarded as voluntary.” Swift Co. v. United States (111 U. S. 22) is. to the same effect.

In Buckley v. Mayor (30 App. Div. 463) the plaintiff was allowed to recover back money paid to the city to avoid an apprehended detention in the erection of a building in New Yorli city. In that case the question as to what is a voluntary payment is thoroughly discussed, and it is there said: “ There is no iron-clad rule which confines an involuntary payment to cases of duress of person or restraint of goods. Money compulsorily paid to prevent an injury to one’s property rights comes within the same principle.” (See, also, Carew v. Rutherford, 106 Mass. 1; McPherson v. Cox, 86 N. Y. 472, 479.)

Within the principle of the cases above cited, and which seems to be the rule now generally adopted, the payment by the appellant, under the circumstances of this case, should not be deemed a volnntary one. It certainly was not made to adjust any disputed claim, which the State made under the contract, for the State threatened to-repudiate the contract unless the money was paid. The'money was-demanded without a shadow of legal right, and was paid under' protest and only to protect the appellant from what he apprehended. would be a much greater loss. It is argued that, as matter of fact, the contract did not prove to be a valuable one to the appellant, and that he would have lost nothing had it been abandoned. But such fact has no application to the question whether the appellant paid this money voluntarily,- or not. The contract was to run three-years, and he might well expect that it would provfe a profitable one... From year to year he might -hope that the coming market would improve, and that the future would make up for past losses. He= believed the contract would prove a good one and Was not ready to-abandon it, and thus was coerced to (pay the money in order to continue it.

It is argued that the appellant could not have been coerced,, because the action of the State being at most a mere breach of the contract, the appellant was protected against any loss by his right of' action for damages; that such right of action was to him a full substitute for any loss he could sustain by the breach.

But it must be remembered that he had no such right of action' against the State which he could go into the courts and enforce; nor would it be practicable for him to present a claim for such damages to the Board of Claims, because until the expiration of the three-years during which the contract was jo run, it would be impossible-, to ascertain whether or not the contract would prove profitable, or to-ascertain what his damages were because of the warden’s refusal to-proceed with the same. The uncertain and doubtful remedy which, if any, he had against the State for its refusal to proceed with the-contract was by no means an adequate one, and so he was, in fact, at the mercy of those officers who were contracting for the State. He had no means of securing the benefits of the contract save to comply with the warden’s demands. (See Robertson v. Frank Brothers Co., supra; Buckley v. Mayor, supra; Beckwith v. Frisbie, 32 Vt. 559 ; American Exchange Fire Ins. Co. v. Britton 8 Bosw. 153; Stenton v. Jerome, 54, N. Y. 480, 485.)

Two facts seem to be clear in this case:

First.. The State received, and how holds, this money without any lawful right to the same;

Second. In the language used by the court in the early case of Bates v. N. Y. Ins. Co. (supra), it obtained it by “ taking an undue advantage of his situation.”

To such circumstances the maxim “ volenti non fib injuria ” has no application, and an action to recover it back should have been sustained.

. The judgment of the court below was, therefore, erroneous and should be reversed.

All concurred, except Merwin, J., dissenting.

Judgment reversed and a new trial granted, costs to abide the •event.  