HARVEY v. WEITZENKORN

[Ed. Note. For other cases, see Judgment, Cent. Dig. §§ 188-192; Dec. Dig. § 106.*] 3. JUDGMENT (§ 159*)-RULE FOR JUDGMENT-kes-Barre, Penna.-Dear Sir: Confirming AFFIDAVIT OF DEFENSE.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

subscribed for 15 shares of the stock afore- | been informed, verily believes, and expects said, said subscription being made by the defendant upon the expressed condition named in said above-quoted letter; it being fully understood and agreed between said Steelman and himself that the said subscription should not become binding and effective, unless it was subsequently ratified and consummated by the defendant in accordance with the terms of said written proposal.

to be able to prove upon the trial of this cause that the Dion Manufacturing Company, by its constituted authorities, upon receipt of defendant's letter declaring his decision not to take the stock thus conditionally subscribed for, canceled the said subscription, and while a solvent going concern, never entered the defendant's name upon its books or account as a subscriber, or treated said subscription as an asset of the company."

The court discharged the rule for judgment for want of a sufficient affidavit of defense.

Argued before FELL, C. J., and MESTREZAT, POTTER, ELKIN, and MOSCHZISKER, JJ.

Andrew Hourigan and Thomas Butkiewicz, Jr., for appellant. Joseph D. Coons, for appellee.

"Defendant avers that afterwards no further communication was had between himself and any one else in relation to the matter until, on October 18, 1907, he received a letter from the Dion Manufacturing Company in words and figures following: 'October 18, 1907. Mr. J. K. Weitzenkorn, No. 4 S. Main St., City-Dear Sir: We hand you herewith notice of your subscription to the capital stock of this company, and will appreciate it very much if you will send us a check for the same. We are operating our plant, and need the money in order that we may put our product on the market. Yours very truly, Dion Manufacturing Company. [Signed] E. C. Wagner, Treasurer.' That immediately upon receipt of the letter last aforesaid he replied thereto in a letter to Dr. E. C. Wagner, treasurer (a copy whereof is hereto attached and made part hereof), wherein he declared his decision not to take the stock conditionally subscribed for, and asked that his name be stricken from the subscription list. And defendant avers that from that time on up to May 25, 1909, when he received a letter from O. F. Harvey, Jr., which letter was in words and figures following: May 25, 1909. In re Dion Mfg. Co. Joseph K. Weitzenkorn, Weitzenkorn Bldg., City-Dear Sir: I was duly elected trustee of the Dion Manufacturing Company, bankrupt, and upon going through the books of the company, I find that you made a subscription to the capital stock of the company in the sum of fifteen hundred (1,500) dollars, which has not been paid. As this is an asset of the company, I am obliged to call upon you for payment, and trust that you will favor me with your check at an early date for the above amount. Yours very truly, [Signed] Olin F. Harvey, Jr.'-no demand, verbal or written, of any kind or character, was ever made upon him for any payment, nor was notice of any call or assessment upon such subscription of stock ever given him by the said Dion Manufacturing Company, or any one representing or claiming to represent said company; that he was never notified to attend a meeting of the Dion Manufacturing Company; never did attend any meeting thereof; never had any knowledge of its busi- Manufacturing Co., 223 Pa. 350, 356, 72 Atl. ness; and never at any time regarded himself, nor was any notice brought to him that he was regarded by said company, or its officers, as a stockholder thereof or therein.

POTTER, J. The appellant here alleges that the court below erred in discharging a rule for judgment for want of a sufficient affidavit of defense. The action was assumpsit to recover the amount of a subscription to capital stock. In his affidavit of defense, the defendant alleged that his subscription was conditional, and was made under a collateral agreement, by which he was allowed three months' time in which to decide whether he would take the stock or not. Neither the statement of claim nor the affidavit of defense makes it clear whether the company had been incorporated at the time the subscription was taken. While our cases seem to make a distinction between conditional subscriptions to the capital stock of a corporation, made before incorporation, and those made afterwards, yet the rights of co-subscribers are not to be injuriously affected by any secret agreement. Where other subscriptions are made upon the faith of a signature, it would be unjust to permit a secret arrangement to prevail. See Miller v. Hanover Junction R. R. Co., 87 Pa. 95, 30 Am. Rep. 349. This case was cited in Moore v. Railroad Co., 94 Pa. 324, 328, where it was said: "The defendant Miller set up a secret parol condition in order to defeat his subscription, but it was held that he could not be permitted so to do, on the ground that it would be unjust and a fraud upon his co-subscribers to permit him, on such grounds, to escape responsibility, and thus throw upon them an additional burden." See, also, Phila. & Del. County R. R. Co. v. Conway, 177 Pa. 364, 35 Atl. 716; Marles Carved Moulding Co. v. Stulb, 215 Pa. 91, 64 Atl. 431. In Real Estate Trust Co. v.

695, it was held that a subscriber to the stock of a corporation could set up a secret parol agreement in defense to an action by the assignee of the company, to recover the

Me.)

HOULEHAN v. INHABITANTS OF KENNEBEC COUNTY

449

under the terms of the subscription agree- | less the payment was induced by fraud, or im ment, if he should be relieved of liability, all position, or undue influence. the other subscribers would also be released.

[Ed. Note.-For other cases, see Payment, Cent. Dig. §§ 267-271; Dec. Dig. § 84.*1 3. FINES (§ 19*)-PAYMENT-MISTAKE-RIGHT

TO RECOVER.

[1] Under these and other general authorities which might be cited, the right of the defendant to successfully set up a collateral agreement seems doubtful. But in his affidavit of defense he goes further, and avers that after he had declined to take the stock, and while the company was still a solvent, going concern it canceled his subscription. The general rule is that "a corporation may release a subscriber, so far as to estop it and its assignee in insolvency from suing thereon." 4 Thompson on Corporations (2d Ed. 1909) § 3869. "A subscription contract, like any other contract, may be waived, canceled, or dissolved by the mutual consent of all the parties interested. The interested parties are the subscriber himself, the othered to the law court for determination. stockholders, and the corporate creditors existing at the time of the cancellation." 1 Cook on Corporations (6th Ed. 1908) § 168. "Such cancellations are good when permitted by the governing statute, where there are no creditors, and provided all the stockholders assent." 10 Cyc. 452.

A fine, illegally imposed, but voluntarily paid under mistake of law, is not recoverable. [Ed. Note. For other cases, see Fines, Cent. Dig. §§ 42, 43; Dec. Dig. § 19.*]

Report from Supreme Judicial Court, Kennebec County, at Law.

Action by Peter Houlehan against the Inhabitants of Kennebec County. On report. Judgment for defendants.

[2] The affidavit is not as specific as it might be in setting out the facts as to the alleged cancellation, and does not set out the manner in which it was done; but it does aver, on information and belief, that the corporation, "by its constituted authorities," canceled the subscription. An order discharging a rule for judgment for want of a sufficient affidavit of defense, will not be reversed, except where a pure question of law is raised, and clear error has been committed. Wilson v. Trust Co., 225 Pa. 143, 73 Atl. 1071, and cases there cited.

[3] The present case is by no means so clear as to warrant us in reversing the order of the court below. The specification of error is overruled, and the judgment is affirmed.

(108 Me. 397)

HOULEHAN v. INHABITANTS OF KENNEBEC COUNTY. (Supreme Judicial Court of Maine. Nov., 1911.)

1. FINES (§ 19*)- PAYMENT - RIGHT TO RE

COVER.
Plaintiff having been convicted of offenses,

and sentences of fines and imprisonment im-
posed, the sentences were subsequently amended,
in vacation, after adjournment of a term held
subsequent to that at which the sentences were
awarded, at plaintiff's instance, to impose $1,-
000 fine or 30 days' imprisonment in one case,
punishment in the other case being suspended.
The $1,000 was paid. Held, that plaintiff can-
not recover the payment; it having been made
voluntarily and pursuant to an unlawful ar-
rangement.

[Ed. Note.-For other cases, see Fines, Cent. Dig. §§ 20-22; Dec. Dig. § 19.*]

2. PAYMENT (8 84*)-MISTAKE RIGHT TO RE

COVER.

Money paid under mistake of law, with full knowledge of the facts, is not recoverable, un

received, brought in the Supreme Judicial Action of assumpsit for money had and Court, Kennebec County. An agreed statement of facts was filed, and the case report

Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, BIRD, and HALEY, JJ.

George W. Heselton, for plaintiff. Williamson, Burleigh & McLean, for defendants. Joseph Williamson, Co. Atty., filed a brief for the State.

BIRD, J. [1] This action for money had and received is before us upon report on agreed statement of facts. From the statement it appears that, at the January term, 1910, of the superior court of Kennebec county, county, verdicts of guilty were rendered upon sundry indictments against plaintiff, and subsequently, at the same term, sentence was imposed upon each of the indictments; that upon two of the indictments the sentences involved a pecuniary fine and imprisonment; that exceptions were taken in all the cases, and bond given for their prosecution; that on the 27th day of April, 1910, after the final adjournment of the April term, 1910, of said court, and in vacation, in the presence of plaintiff, his counsel, his bondsmen on exceptions, and the clerk of courts, and without knowledge of the county attorney, the justice of said court "amended the said sentences," and in one of the cases imposed a sentence of $1,000 fine or 30 days in jail, and ordered the entry: "Exceptions withdrawn. On file"-to be made in the other cases; that the "amended sentence" was made on condition that it should be immediately performed, and, in addition, that a bond with sureties should be given by plaintiff, then defendant, to violate none of the provisions of the law under which the indictments had been found; that defendant, now plaintiff, requested a nol. pros. of all the cases upon the payment of the fine of $1,000 and the giving of the bond; that the justice of the court refused, stating that, if the bond was performed, nothing further would be heard from the cases, but that the filing of the other cases after payment of the fine of $1,000 would

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 81 A.-29

gested. The conference was held for the purpose of relieving the plaintiff from imprisonment under the lawful sentences which would be in effect if his exceptions were heard and overruled. The whole transaction was improper, illegal, and in defiance of law, and in it the plaintiff was a prominent and the most interested actor. He must be left where his illegal act placed him. To hold otherwise would be in violation of every consideration of public policy.

be an additional assurance that the bond mittimus was issued, nor was its issue sugwould not be broken; that the defendant, "thus assured that the cases were disposed of and would never be called up, unless he violated his peace bond, and having the alternative to pay or go to jail" on the indictment in which the "amended" fine of $1,000 had been imposed, paid the clerk of courts the fine of $1,000, and on the same day the clerk of courts paid it to the treasurer of defendant county, who made due entry of the amount upon his books as received in payment of the fine; that on the 27th day of June, 1910, all the cases were certified to the law court, and there entered as in order for hearing upon the original exceptions, where they are now pending; that in August, 1910, demand was made on defendant county, through its county commissioners, for the return of the $1,000 so paid, which the commissioners on the 16th day of September, 1910, declined to make. The writ is dated September 16, 1910.

[2] The payment made by plaintiff was not only not made under mistake of fact, but with full knowledge of the facts. And the authorities are abundant that both at law and in equity money paid under mistake of law, with full knowledge of the facts, is not recoverable, unless the payment was induced by the fraud or imposition or the undue advantage of him who received it, or was made under duress. Norton v. Marden, 15 Me. 45, 32 Am. Dec. 132; Norris v. Blethen, 19 Me. 348, 351; Parker v. Lancaster, 84 Me. 512, 517, 24 Atl. 952; Marcotte v. Allen, 91 Me. 74, 39 Atl. 346, 40 L. R. A. 185; Coburn v. Neal, 94 Me. 541, 48 Atl. 178; Elston v. Chicago, 40 Ill. 514, 89 Am. Dec. 361, 365.

There is no suggestion even in the agreed statement that the payment was induced by fraud, imposition, or undue advantage. Nor was there duress. There was no imprisonment, or threatened imprisonment. Unquestionably none of the parties present when the sentence was "amended" contemplated anything in execution of the "amended" sentence but payment of the fine. The agreed statement shows that the present plaintiff must have so regarded it when he requested the justice to nol. pros. all the indictments upon the payment of the fine of $1,000 and the giving of the bond. We cannot infer force or threat in fact from the facts of the agreed statement (Trafton v. Hill, 80 Me. 503, 15 Atl. 64); still less that any force or threat induced the payment (Dunham v. Griswold, 100 N. Y. 224, 3 N. E. 76). It is true that the agreed statement alleges that, when the sentence and docket had been "amended," the plaintiff had the alternative to pay the fine of $1,000 or go to jail. But, as we have seen, the payment of the fine only was contemplated. No

[3] The proposition that a fine illegally imposed, but voluntarily paid under mistake of law, cannot be recovered back, is supported by ample authority. Harrington v. New York, 40 Misc. Rep. 165, 81 N. Y. Supp. 667, Comm. v. Gipner, 118 Pa. 379, 12 Atl. 306; Bailey v. Paullina, 69 Iowa, 463, 29 N. W. 418; McKee v. Anderson, Rice (S. C.) 24. See, also, Houtz v. Uinta County, 11 Wyo. 152, 70 Pac. 840.

If the plaintiff considers it a case of hardship, in the event that judgment be finally entered for the state upon the indictments, redress cannot be afforded the plaintiff by the judicial courts.

Judgment for defendants.

STATE v. CRAY.

(85 Vt. 99)

(Supreme Court of Vermont. Chittenden.
Oct. 9, 1911.)
HEALTH (§ 37*)-OFFENSES - DISTRIBUTING
SAMPLE DRUGS-LIABILITY.

Under P. S. 5902, punishing one who distributes or causes to be distributed a trial sample of a medicine, by leaving the same exposed, a master is liable for the acts of his servant in so that children may become possessed thereof, distributing a free sample of medicine by handing the same to a child four years old, though the servant acts in violation of the express instructions of the master; the question of intent being immaterial.

[Ed. Note.-For other cases, see Health, Dec. Dig. § 37.*]

Exceptions from City Court of Burlington; E. C. Mower, Judge.

Eugene J. Cray was convicted of distributing free samples of medicine, and he brings exceptions. Affirmed.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS, JJ.

Henry B. Shaw, State's Atty., and Guy B. Horton, for the State. Max L. Powell, for respondent.

WATSON, J. The respondent is complained against for distributing and causing to be distributed at Burlington, on the day named, a free sample of a certain medicine known as "De Witt Kidney and Bladder Pills," by handing the same to one Rosie Parrotti, a child of the age of four years, in violation of the provisions of P. S. 5902. By that section,

Vt.)

STATE v. CRAY

451

"a person, firm or corporation that distrib- | and also horses, carts, wagons, etc., to reutes or causes to be distributed a free or main in said highway, a great and unreatrial sample of a medicine, drug, chemical or chemical compound, by leaving the same exposed upon the ground, sidewalks, porch, doorway, letterbox, or in any other manner, that children may become possessed of the same, shall be fined," etc.

No question is made but that on the facts presented this statute was violated at the time and place and in the manner set forth in the complaint, not by the respondent in person, but by his agent or servant, acting with him in distributing at houses in Burlington free samples of the pills named. The record shows that, before sending this agent or servant out to make such distribution, the respondent expressly cautioned and instructed him against delivering the sample boxes to children. The sole question, therefore, is whether the master is liable under the statute for the acts of his servant in violation thereof against his general instructions.

sonable length of time." It was contended that the corporation was not liable to indictment because its agents and officers had erected and maintained a common nuisance, but that the only remedy was against such officers and agents; that it cannot be indicted for positive misfeasance of its agents, inasmuch as such persons are not the company's agents for any such purpose. Holding the corporation liable, the court said an indictment for a nuisance is only a mode of trying the right, in a public form, the same right that is involved in every private action, for the same reason.

In Reg. v. Stephens, Law Rep. 1 Q. B. 702, the respondent was indicted for obstructing the navigation of a public river by casting and throwing, and causing to be cast and thrown, slate, stone and rubbish in and upon the soil and bed of the river, etc. The respondent was the owner of a slate quarry, but because of his great age was unable personally to superintend the working of it. Quantities of rubbish from the quarry were from time to time shot by respondent's workmen respondent's workmen on a certain spot, from which it slid into the river, by means of which navigation was obstructed. Respondent was prepared to offer evidence that the workmen had been prohibited by him and his sons from thus depositing the rubbish, and that they had been told to

This statute is in exercise of the police power, for the general protection by the state, as parens patriæ, of children within its domain; they being incapable of protecting themselves. At common law infants, as well as idiots, are under the care and protection of the sovereign, as persons equally unable to take care of themselves. Eyre v. Countess of Shaftsbury, 2 P. Wm. 102. Lord Hardwicke said that, "in respect of lunatics, idiots, and infants, the king is bound to take care of them." Smith v. Smith, 3 Atk. 304.place it in a certain other place provided This legislation does not prohibit the dis- for that purpose. The trial judge intimated tribution of free or trial samples of such ar- that this evidence was immaterial, and inticles as are therein named, but it does un- structed the jury that, as the respondent dertake to regulate their distribution in the was the proprietor of the quarry, the quarinterests of humanity, by making it a tech-rying of which was carried on for his benenical crime to leave the article exposed in the places named, or in any other manner, whereby the possession thereof may be had by children, persons of limited understanding, perhaps to their own injury, or to the injury of others of the same class. It pertains to their physical well-being, and hence to the interest of the state.

The action given for its violation, though criminal in form, is in substance more particularly civil in nature, designed to prevent

the recurrence of that which constitutes a

public nuisance. No private action can be had by a person to recover damages for a public nuisance, nor for an injunction to abate such nuisance, unless he has suffered an injury peculiar to himself beyond that by the rest of the public. Baxter v. Winooski Turnpike Co., 22 Vt. 114, 52 Am. Dec. 84; Sargent v. George, 56 Vt. 627. It is the general rule that common nuisances against the public are punishable only by indictment. In State v. Vermont Central R. Co., 27 Vt. 103, the railroad company was indicted for a nuisance in obstructing a public highway, by building and maintaining their depots with in its limits, and by "unlawfully and injuriously suffering their engines and cars,

fit, it was his duty to take all proper precautions to prevent the rubbish from falling into the river, and that if a substantial part of the rubbish went into the river, from having been improperly stacked so near the river as to fall into it, the respondent was guilty of having caused a nuisance, although the acts might have been committed by his workmen, without his knowledge and against his general orders. A rule having been obtained for a new trial, on the ground that the judge misdirected the jury that the respondent would be liable for the acts of his workmen in so depositing the rubbish as to become a nuisance, though without his knowledge and against his orders, Judge Mellor said that, though an indictment, it was in substance in the nature of a civil proceeding; that the only reason for proceeding criminally was that the nuisance affected the public at large, and no private individual, without receiving some special injury, could have maintained an action; that the respondent found the capital and carried on the business which caused the nuisance, and it was carried on for his benefit; that the respondent could not say that,