
    Henry F. Briggs et al., Appellants, v. Hughs C. Boyd et al., Respondents.
    Where a referee finds, as a legal conclusion, that one party is entitled to recover of the other a specified sum, an exception thereto raises the question whether the successful party is entitled to recover the entire sunt
    Where one having in his- possession the property of another, upon which he claims a lien, refuses to deliver up the same to the owner without payment of the lien, and. thereupon the owner pays the same, under protest, in order to get possession, it is not a voluntary payment; and if the claimant has no right to the sum paid, the owner may maintain an action to recover it back as money extorted by duress of the goods; the burden is upon him, however, of showing the claim to be unfounded.
    Defendants received of plaintiffs a quantity of whisky to sell on commission; for then- services in receiving, caring for and selling the property they were to charge a. commission of two and a half per cent on the sales. A portion of the whisky was sold by them, a portion by an agent of plaintiffs and a portion remained unsold, which plaintiffs demanded. Defendants claimed a lien for the full amount of their commissions on all the whisky, and- refused to deliver without payment thereof. Plaintiffs paid the claim, under protest, in order to obtain the whisky, and brought this action to recover it back. The referee found plaintiffs entitled to judgment for the entire amount so paid, to which defendants excepted. Held, that plaintiffs had no right to rescind the contract and take the property without payment for the services already rendered by defendants, which, in the absence of a contract or usage fixing it, was, as in other cases, what the services were fairly worth; that the burden was upon plaintiffs of showing that they did not owe the money paid, hut that it was extorted from them unjustly, and that the exception to the referee’s conclusion as to the amount due sufficiently covered the question; and that, it appearing that defendants were entitled at least to a portion of their claim, the finding was error.
    (Argued March 27, 1874;
    decided April 7, 1874.)
    Appeal from order of the General Term of the Supreme Court in the fourth judicial department, reversing a judgment in favor of .plaintiff, entered upon the report of a referee.
    This action was brought to recover back moneys alleged to have been extorted by defendants from plaintiffs, by duress of the goods of the latter.
    The referee’s findings were as follows :
    “ Between the 1st days of January and April, 1871, the plaintiffs delivered to defendants, as their agents, a large quantity of whisky, which was to be sold by- defendants, and two and one-half per cent on the amount of sales allowed them for their compensation. On the 1st day of November, 1871, there remained in the hands of defendants, unsold, 193 barrels of such whisky, of the value of $9,300, and there had previously been sold, out of the whisky so delivered, whisky to the amount of $11,408.86, a portion of which last mentioned sales had not been made by the defendants, but by the plaintiffs, through other agents. On the last mentioned day the plaintiffs demanded of the defendants the whisky so unsold, and the defendants declined to deliver up possession of the same, except upon payment of their commissions at two and one-half per cent thereon, and on the whisky not sold by them, amounting in the whole to $517.72, in addition to other charges. The plaintiffs thereupon paid the said sum of $517.72, under protest, for the purpose of obtaining possession of the whisky. The interest on that sum, from the date of payments, amounts to $15.90.”
    As a conclusion of law, he found, “ that the plaintiffs are entitled to recover of the defendants the amounts so paid, under protest, with interest, amounting to $533.62, and judgment is ordered accordingly.”
    The defendants’ counsel excepted to the report of the referee: 1st. Because he finds that the plaintiffs paid the said sum of $517.72 under protest, whereas there is no evidence that any protest was made at or before the time of payment; and, 2d. Because he finds as a conclusion of law, that plaintiffs are entitled to recover of the defendants the amount so paid with interest, amounting to $532.62.
    Further facts appear in the opinion.
    
      John Ganson for the appellants.
    Defendants cannot upon appeal adopt a theory not suggested upon the trial, or reverse the judgment on a ground not taken or suggested below. (Oatman v. Taylor, 29 N. Y., 649 ; McDonald v. Christie, 42 Barb., 36; Briggs v. Smith, 20 id., 409.) The General Term properly found in favor of plaintiffs on the only question raised in that court or on the trial. (Harmony v. Bingham, 12 N. Y., 99; Union Bk. v. Mayor, etc., of New York, 54 Barb., 159; Shaw v. Woodcock, 7 B. & C., 73; Maxwell v. Griswold, 10 How. [U. S.], 241; Atlee v. Backhouse, 3 M, & W., 633, 649; Preston v. Boston, 12 Pick., 7; Chase v. Dwinal, 7 Me., 134; 1 Wait’s L. & Pr., 705, 1076.) The General Term could not have reversed the judgment on questions of fact, for the order, granting a new trial, does not so state. (Sheldon v. Sheldon, 51 N. Y., 354; Lefler v. Field, 47 id., 407; Fabbrie v. Kalbfleish, 52 id., 28.) If the referee’s findings were defective this would not avail on appeal. (Brainard v. Dunning, 30 N. Y., 211; Van Slyck v. Hyatt, 46 id., 259; Draper v. Stouvenal, 38 id., 219; Brush v. Lee, 36 id., 49-52; Fabbrie v. Kalbfleish, 52 id., 28; Bryan v. Baldwin, id., 232.) Even if a person has intrusted his property to a commission merchant for sale, he may sell it himself and need not pay commissions. (Briggs v. Row, 4 Keyes, 426; Chilton v. Butler, 1 E. D. S., 150; 1 Wait’s L. & Pr., 243; Beyor v. Ranch, 42 How. Pr., 22; Lloyd v. 
      Camman, 2 Hilt., 109.) By the contract defendants could only obtain commissions upon what they actually sold. (Ball v. Price, 20 Eng. C. L., 115.) Plaintiffs are entitled to their property upon the repayment of the moneys advanced upon it for insurance, etc. (3 R. S. [5th ed., Banks], 76, §§ 1-8; 2 id., 979; Stevens v. Wilson, 3 Den., 472; Broad v. Hoffman, 6 Barb., 177.) Where commissions are fixed by agreement that must control. (Main v. Ingle, 1 E. D. S., 619; Bull v. Price, 20 Eng. C. L., 115.) The objection that defendants did not receive all the commissions they were entitled to cannot be raised on appeal, as no such question was made on the trial. (Palmer v. Holland, 51 N. Y., ,416; Webb v. Odell, 49 id., 583.)
    
      John B. Greene for the respondents.
    Plaintiffs paid the money to defendants, voluntarily and with full knowledge of the facts and cannot recover. (Fleetwood v. City of N. Y., 2 Sandf., 475; 13 Abb. Pr., 350; Wyman v. Farnsworth, 3 Barb., 369; Clark, v. Dutcher, 9 Cow., 674; Suprs., etc., v. Briggs, 2 Den., 26; Mowatt v. Wright, 1 Wend., 355.) The fact that plaintiffs paid the money under protest does not entitle them to recover. (Fleetwood v. City of N. Y., 2 Sandf., 475 ; Cook v. City of Boston, 9 Al., 393; 13 Abb. Pr., 350; Benton v. Monroe, 7 Cush., 125.) To entitle plaintiffs to recover, some fact must be found showing that the payment was made under compulsion. (Benton v. Monroe, 7 Cush., 125; Preston v. City of Boston, 12 Pick., 13; 24 Conn., 88; 40 Ill., 514; 3 Blatch., 413; 4 Gill., 425; 5 Ind., 261.)
   ■ Grover, J.

The exception taken by the defendants’ counsel to the legal conclusion of the referee, that the plaintiffs were entitled to recover of the defendants the sum of $532.62, raises the question whether the plaintiffs were entitled to recover this entire sum, and, if not so entitled, the General Term committed no error in reversing the judgment and ordering a new trial.

The defendants had in their hands a quantity of whisky belonging to the plaintiffs, which the latter desired to obtain the possession of from them. The defendants claimed a lien upon the property for certain sums to which they claimed to be entitled, and refused to deliver the whisky without payment of such charges. The plaintiffs, insisting that the defendants had no right to the money claimed, paid the same under protest to enable them to get possession of the whisky. This was not a voluntary payment by the plaintiffs, and if the defendants had no right to the money so paid, the plaintiffs can maintain an action against the defendants therefor. It is money extorted by duress of the goods of the party. (Fleetwood v. New York, 2 Sand. [Sup. Court Reports], 475; Cook v. City of Boston, 9 Allen, 393; Benson v. Monroe, 7 Cush., 125.) The inquiry, therefore, is, whether the defendants were entitled to the whole or any part of the money claimed and paid.

The counsel for the appellants insists that if they were so entitled for services rendered in the care of the property, yet that such claim is not available for the reason that it does not appear to have been urged upon the trial. But we have seen that the exception to the legal conclusion, that the plaintiffs were entitled to recover the sum specified, raises the question whether the plaintiffs were entitled to recover that entire amount. The facts found and conclusively proved are, that the plaintiffs were distillers in Buffalo ; that the plaintiffs between January 1st and April 1st, 1871, placed in the hands of the defendants upward of 400 barrels of whisky, under a contract that the latter should sell the same and receive therefor a commission of two and one-half per cent upon the amount of sales, and such money as they should actually expend in the storage, etc., of the whisky. That the defendants, before November 1st, 1871, sold a part of the whisky. That bargains for the sale of whisky, to the amount of rather more than $11,000, were negotiated by agents of the plaintiffs other than the defendants, which were communicated to the latter, and the whisky shipped in accordance therewith by them to the respective purchasers, and the amount entered upon the books of the defendants as sold by them, and the government tax imposed upon sales paid by them. The commission of two and one-half per cent upon these sales constituted a part of the money claimed by the defendants and paid by the plaintiffs. It will be seen that the commissions were all the compensation that the defendants were to receive for their entire services in receiving, taking care of, and selling the property.

, The counsel for the appellants cites Briggs v. Rowe (4 Keyes, 426), and other eases, to show that an owner who has employed a broker to negotiate a sale of property, and who, during the time of such employment, sells the property himself without any agency of the broker in effecting such sale, is not liable for the commissions of the latter. This is not analogous to the present case. The broker has no responsibility for or trouble with the property, in short has nothing to do with it. His contract is simply for the negotiation of a bargain for the sale or producing a purchaser ready and willing to purchase the property upon the terms fixed by the owner, and his commission is by the contract made dependent upon his success in these respects. The owner does not agree that he will not, during the time, sell the property himself or through the agency of another broker; and yet it is settled that if the owner, while the broker- is treating for the sale of the property, interferes and makes a bargain himself with the same person for the sale, upon the terms prescribed for the broker or any other, he is liable for the commissions. In the present case the defendants were not only to negotiate sales of the property, but were to receive, superintend, and take care of it. The latter services had been rendered; and while they were in no default, but ready and willing to proceed with the performance of the contract, it is entirely clear that the plaintiffs had no right to rescind the contract and take the property from them without paying them for the services already rendered.

The case contains nothing as to any usage, fixing the amount of compensation under such a state of facts, nor the compensation to which the defendants were entitled in respect to that part of the whisky remaining unsold, and which was delivered by the defendants to the plaintiffs’ agent, upon receipt of the money by the former. The amount, in the absence of a contract or usage fixing it, must, as in other cases, be what the services were fairly worth.

The plaintiffs having paid the money to the defendants, the onus was upon them to show that they did not owe it, but that it was extorted from them unjustly by duress of their goods. The facts proved, and found by the referee, show that they did owe a part if not all the money for which the referee gave them a judgment. Hence the judgment was rightly reversed by the General Term, and a new trial ordered. The plaintiffs, instead of appealing from the order, should have retried the case, and made the proof showing how much, if anything, was exacted and received by the defendants more than was justly their due.

This court must affirm the Order appealed from, and judgment final must be given against the plaintiffs upon their stipulation.

All concur.

Order affirmed, and judgment accordingly.  