Murphy v. Creighton

Bothrook, J.

. 1. JURISDIO-Strator-dmin" judgment. I. There are a number of causes set- out in the demurrer to the amended answer, but we thinlc 1 nulst be determined on the question of jurisdiction, and to that clause alone we will direct our attention.

The Code, section 2312, provides that: “ The Circuit Court of each county shall have original and exclusive jurisdiction of the probate of wills, and the appointment of such executors, administrators, or trustees, as may be required to carry the same into effect, of the settlement of the estates of deceased persons, and of the persons and estates of minors ” * * .

It is argued that in order to confer j urisdiction upon the court there must he property, or an estate, in the county where administration is granted. This may he conceded, and still we think there was jurisdiction to grant the letters in question. The Code nowhere provides the steps to be pursued to obtain letters of administration, as by petition or otherwise; neither is there any provision as to what evidence shall be adduced .to prove that there is property or an estaté within the county. What evidence there was before the court in this case on that question we are left to conjecture. Property does not necessarily consist of things tangible. It may have been shown to the court that the interests of this estate demanded that affirmative relief be asked in the action. There was an affirmative claim at least for costs. It is not sufficient that it be shown that the evidence of the existence of an estate in the county did not justify the court in finding that there was an estate. The court had jurisdiction of the subject matter and its adjudication cannot be collaterally attacked.

„ pleading. II. The cause of action, set out in the petition, is to recover hack money paid through mistake. The allegation of the petition setting forth the mistake is in these words: « Plaintiffs paid said company at the rate of six cents per pound, as they supposed they were liable to do under the terms of their said contract.”

It is insisted that no recovery can be had upon the allegations of this petition. It is proper to observe that the petition does not charge a fraudulent concealment of the contract *183 with Lowry. If, then, the plaintiffs can recover at all, it must be by reason of paying the excess under a mistake.

No objection was taken to the petition by motion, demurrer, or in arrest of judgment, and we must hold that such objection was waived. Code, Secs. 2648, 2650.

3 paymentvoiuntariiy!recovery. III. It is claimed that the evidence does not show that the money claimed was paid in mistake of fact. The defect ^ie petition in not setting out when the pay-ment was"made, and that at the time of payment plaintiffs did not know of the contract with Lowry, although waived, does not dispense with proof sufficient to sustain the cause of action founded upon mistake. Counsel for appellee concede the rule to be correct as stated in Patterson et al v. Cox, 25 Ind., 261 , in a quotation from the opinion in B. & S. Glass Co. v. City of Boston, 4 Metcalf, 181, as follows:

“If a party, with full knowledge of all the facts in the case, voluntarily pays money in satisfaction or discharge of a demand unjustly made upon him, he cannot afterward allege such payment to have been made by compulsion and recover back the money * * . In such case, if the party would resist the unjust demand, he must do so upon the threshold. The parties treat with each other on equal terms, and if litigation is intended by the party of whom the money .is demanded, it should precede payment.”

A careful examination of the evidence in this case discloses an utter failure on the plaintiffs’ part to show that the payment in question was'made under any mistake whatever. The allegations of the petition are denied, and the burden was on the plaintiffs to prove not only the contract with Lowry, but that when they paid for their shipments they did so without any knowledge of the Lowry contract.

It is claimed that the circumstances attending the shipment of Lowry’s goods and other circumstances in the case show that plaintiffs were ignorant of the terms of Lowry’s contract. We cannot so regard them. The alleged mistake was a fact to be proved. All these circumstances might well be true, and still the plaintiffs may have known of the Lowry *184 contract before they paid the money which they now claim to recover.

4 contbaotaffreightment. IV. It was established on the trial, beyond question, that the Far West, Freight Companj'- did ship to Helena, for A. G. Lowry, a large quantity of merchandise for $5.75 per llimclred. By the contract with plaintiffs their rates to Helena and Deer Lodge were to be six .dollars per hundred, and the contract contains this provision:

“It is further agreed that, if we carry any freight at lower figures than six cents, your rates will be the same as the lowest to the points named.”

Plaintiffs had merchandise shipped to both Helena and Deer Lodge, and there is no evidence that any shipments were made by the Far West Company to Deer Lodge at any rate less than six cents per pound. Under these circumstances we think that no recovery can be had for over-payment on the shipments to Deer Lodge. The fair construction of the contract is that plaintiffs’ rates to Helena were to be as low as the lowest to that point, and that their rates to Deer Lodge were to be as low as the- lowest to that point. The language is, “ your rates will be the same as the lowest to points named.” But Lowry did not ship to “points named,” that is to'Helena and Deer Lodge; he only shipped to one of the “ points named.” The meaning is that plaintiffs’ rates should be the same as the lowest to Deer Lodge, and the same as the lowest to Helena. As it does not appear that any shipment was made to Deer Lodge for less than six cents per pound, plaintiffs cannot claim that their shipments to that point should be less than the contract price.

We see no other error in the record before us. The cause will be reversed and remanded for a new trial.

Reversed.