Aldis, J.
The plaintiff paid the money which he now seeks to recover back, in order to obtain possession of his oats, which the defendants had, and which they refused to deliver up unless the money which they claimed for freight was paid.
The plaintiff claims that the defendants had no right to demand the money which he paid, and that he was under a necessity to pay it to get his goods. From the report of the referee it is obvious that there was a pressing necessity upon the plaintiff to get possession of his oats, in order to sell them. They were in market, their price was falling, and delay involved a loss far greater than the sum alleged to be illegally demanded. He could not wait to settle his rights by law. By payment under protest he sought to avoid what otherwise would have been inevitable loss. Was payment under such circumstances voluntary or compulsory, and can the sum paid be recovered back?
It was decided in the early case of Astley v. Reynolds, 2 Strange 915, that money unjustly demanded by a pawnbroker for the redemption of plate, and paid by necessity and in order to obtain possession of the plate by the owner, could be recovered back. It was held to be a payment by compulsion. The court said “ the plaintiff might have such an immediate want of his goods that the action of trover would not do his business. When the rule volenti non fit injuria applies, it must be where the party had his freedom of exercising his will, which this man had not.” This has been the leading case on the subject, and has often been referred to and approved; see Smith v. Bromley 3 Doug. 695, where the doctrine is approved by Lord Mansfield ; and Cartwright v. Rowley, 2 Esp. 722, where it is [564]*564approved as having been applied by Lord Kenyon to the payment of money through necessity tc the steward of a manor, in order to obtain the production of deeds at a trial, for which the steward had charged extravagantly. In Shaw v. Woodcock, 7 B. & C. 73, Bayley, J., recognizes the general principle thus: “ if a party has in his possession goods or other property belonging to another, and refuses to deliver such property to the other, unless the hitter pays him a sum of money which he has no right to receive, and the latter in order to obtain possession of his property pays that sum, the money so paid is a payment by compulsion, and may be recovered back.” In Atlee v. Backhouse, 3 M. &. W. 650, Parke, Baron, expresses the principle and notices a qualification of it thus : “ if my goods have been wrongfully detained and I pay money simply to obtain them again, that being paid under a species of duress may be recovered back again, but if while my goods are in possession of another I make a binding agreement to pay a sum of money and to receive them back, this cannot be avoided on the ground of duress.” But in neither of these cases did the precise point now in question arise.
The case of Skeate v. Beale, cited by the defendants’ counsel, 11 Adol. & E. 983, (39 E. C. L. 294,) was of an agreement in writing to pay rent illegally demanded in order to get possession of the goods distrained. Upon suit brought on the agreement, the plea alleged that the agreement was given to get possession of the property, which the plaintiff threatened to sell, but the pleas disclosed no necessity for giving the agreement, and did not allege it was given under protest. Lord Denman held the agreement valid, but noticed the distinction between such an agreement and an actual compulsory payment of money.
In a later case, Parker v. The G. W. R. Co., decided in 1844, 7 Mann. & Grang. 253, (49 E. C. L. 252.) where a suit was brought to recover back tolls illegally demanded by and paid to the defendants as carriers, Tindal, Ch. J., says, “ such payments are not voluntary. The parties were not on an equal footing; the plaintiff was acting under coercion, as the defendants would not perform the service to which the plaintiff was entitled until he made such payments.” In a still later case, decided in 1851, 7 Eng. Law & Eq. 528, Parker v. The Bristol & Exeter Rail[565]*565way Co., Parke, Baron, again laid down the rule as expressed by him in. Atlee v. Backhouse. He says, “ if a man pays another money to obtain goods which he has no right to withhold, although duress of goods will not avoid a contract, yet the money so paid may be recovered back and no tender of the smaller sum really due is necessary. The company is bound to know what is a reasonable sum, and charge no more.” This was an action to recover back money paid under protest to a railroad company for illegal tolls and fares demanded by them for the carriage of goods.
There are many other decisions in the English courts which it is needless to refer to, as the above sufficiently indicate the preponderance of authority and the established doctrine. Some of the earlier cases which are cited by the defendants do not seem to affect the principle here involved, but rather to turn upon the nature and peculiar application of replevin as a remedy for a wrongful distress of goods. There are others, however, which it is difficult to reconcile with the general current of authority. We have referred to the most important and the most recent decisions, to those which we think show what the law is at this day in England.
Similar decisions have been made in this country. In Maxwell v. Griswold et al, 10 How. 243, the plaintiff, to avoid being made liable to a penalty under the revenue laws, paid the duties which the collector demanded, but which were more than the law required and then sued to recover them back. The action was sustained.
Judge Woodbury says, in speaking of the distinction between voluntary and compulsory payments, “it can hardly be meant in this class of cases that to make a payment involuntary, it should be by actual violence or physical duress. It suffices, if the payment is caused on the one part by an illegal demand, and made on the other part reluctantly, and in consequence of that illegality, and without being able to regain possession of his property except by submitting to the payment.” See also 10 Pet. 138, Elliot v. Swartwout.
In New York, in the recent case of Harmony v. Bingham, 2 Kern. 99, the same doctrine is applied to payments, made under protest, of unjust charges by carriers, where the payments were [566]*566necessary to regain possession of the property by the owners* The cases are there very fully examined.
So in Maine; see Chase v. Dwinell, 7 Greenl. 134. In our own State there have been no decisions upon the subject, and therefore we have referred more fully than we otherwise should to decisions elsewhere. The principle is, however, stated and recognized in Center Turnpike Co. v. Smith, 12 Vt. 218, by Judge Bedeield, though the decision of the case turned upon another question.
The reason of the rule is obvious* To make the payment a voluntary one the parties should stand upon an equal footing. Then there is the free exercise of will, and compromise or payment is voluntary and binding But where one has the advantage of the other, where delay or a resort to the law is indifferent to the one, but may produce serious loss and injury to the other, it is unconscionable to press such advantage to the obtaining payment of unjust demands. That is extortion.
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Aldis, J.
The plaintiff paid the money which he now seeks to recover back, in order to obtain possession of his oats, which the defendants had, and which they refused to deliver up unless the money which they claimed for freight was paid.
The plaintiff claims that the defendants had no right to demand the money which he paid, and that he was under a necessity to pay it to get his goods. From the report of the referee it is obvious that there was a pressing necessity upon the plaintiff to get possession of his oats, in order to sell them. They were in market, their price was falling, and delay involved a loss far greater than the sum alleged to be illegally demanded. He could not wait to settle his rights by law. By payment under protest he sought to avoid what otherwise would have been inevitable loss. Was payment under such circumstances voluntary or compulsory, and can the sum paid be recovered back?
It was decided in the early case of Astley v. Reynolds, 2 Strange 915, that money unjustly demanded by a pawnbroker for the redemption of plate, and paid by necessity and in order to obtain possession of the plate by the owner, could be recovered back. It was held to be a payment by compulsion. The court said “ the plaintiff might have such an immediate want of his goods that the action of trover would not do his business. When the rule volenti non fit injuria applies, it must be where the party had his freedom of exercising his will, which this man had not.” This has been the leading case on the subject, and has often been referred to and approved; see Smith v. Bromley 3 Doug. 695, where the doctrine is approved by Lord Mansfield ; and Cartwright v. Rowley, 2 Esp. 722, where it is [564]*564approved as having been applied by Lord Kenyon to the payment of money through necessity tc the steward of a manor, in order to obtain the production of deeds at a trial, for which the steward had charged extravagantly. In Shaw v. Woodcock, 7 B. & C. 73, Bayley, J., recognizes the general principle thus: “ if a party has in his possession goods or other property belonging to another, and refuses to deliver such property to the other, unless the hitter pays him a sum of money which he has no right to receive, and the latter in order to obtain possession of his property pays that sum, the money so paid is a payment by compulsion, and may be recovered back.” In Atlee v. Backhouse, 3 M. &. W. 650, Parke, Baron, expresses the principle and notices a qualification of it thus : “ if my goods have been wrongfully detained and I pay money simply to obtain them again, that being paid under a species of duress may be recovered back again, but if while my goods are in possession of another I make a binding agreement to pay a sum of money and to receive them back, this cannot be avoided on the ground of duress.” But in neither of these cases did the precise point now in question arise.
The case of Skeate v. Beale, cited by the defendants’ counsel, 11 Adol. & E. 983, (39 E. C. L. 294,) was of an agreement in writing to pay rent illegally demanded in order to get possession of the goods distrained. Upon suit brought on the agreement, the plea alleged that the agreement was given to get possession of the property, which the plaintiff threatened to sell, but the pleas disclosed no necessity for giving the agreement, and did not allege it was given under protest. Lord Denman held the agreement valid, but noticed the distinction between such an agreement and an actual compulsory payment of money.
In a later case, Parker v. The G. W. R. Co., decided in 1844, 7 Mann. & Grang. 253, (49 E. C. L. 252.) where a suit was brought to recover back tolls illegally demanded by and paid to the defendants as carriers, Tindal, Ch. J., says, “ such payments are not voluntary. The parties were not on an equal footing; the plaintiff was acting under coercion, as the defendants would not perform the service to which the plaintiff was entitled until he made such payments.” In a still later case, decided in 1851, 7 Eng. Law & Eq. 528, Parker v. The Bristol & Exeter Rail[565]*565way Co., Parke, Baron, again laid down the rule as expressed by him in. Atlee v. Backhouse. He says, “ if a man pays another money to obtain goods which he has no right to withhold, although duress of goods will not avoid a contract, yet the money so paid may be recovered back and no tender of the smaller sum really due is necessary. The company is bound to know what is a reasonable sum, and charge no more.” This was an action to recover back money paid under protest to a railroad company for illegal tolls and fares demanded by them for the carriage of goods.
There are many other decisions in the English courts which it is needless to refer to, as the above sufficiently indicate the preponderance of authority and the established doctrine. Some of the earlier cases which are cited by the defendants do not seem to affect the principle here involved, but rather to turn upon the nature and peculiar application of replevin as a remedy for a wrongful distress of goods. There are others, however, which it is difficult to reconcile with the general current of authority. We have referred to the most important and the most recent decisions, to those which we think show what the law is at this day in England.
Similar decisions have been made in this country. In Maxwell v. Griswold et al, 10 How. 243, the plaintiff, to avoid being made liable to a penalty under the revenue laws, paid the duties which the collector demanded, but which were more than the law required and then sued to recover them back. The action was sustained.
Judge Woodbury says, in speaking of the distinction between voluntary and compulsory payments, “it can hardly be meant in this class of cases that to make a payment involuntary, it should be by actual violence or physical duress. It suffices, if the payment is caused on the one part by an illegal demand, and made on the other part reluctantly, and in consequence of that illegality, and without being able to regain possession of his property except by submitting to the payment.” See also 10 Pet. 138, Elliot v. Swartwout.
In New York, in the recent case of Harmony v. Bingham, 2 Kern. 99, the same doctrine is applied to payments, made under protest, of unjust charges by carriers, where the payments were [566]*566necessary to regain possession of the property by the owners* The cases are there very fully examined.
So in Maine; see Chase v. Dwinell, 7 Greenl. 134. In our own State there have been no decisions upon the subject, and therefore we have referred more fully than we otherwise should to decisions elsewhere. The principle is, however, stated and recognized in Center Turnpike Co. v. Smith, 12 Vt. 218, by Judge Bedeield, though the decision of the case turned upon another question.
The reason of the rule is obvious* To make the payment a voluntary one the parties should stand upon an equal footing. Then there is the free exercise of will, and compromise or payment is voluntary and binding But where one has the advantage of the other, where delay or a resort to the law is indifferent to the one, but may produce serious loss and injury to the other, it is unconscionable to press such advantage to the obtaining payment of unjust demands. That is extortion.
The attention of the court has been called to a distinction claimed as existing in these cases which would forbid the application of the rule to the cause at bar, viz: that the authorities cited are those in which the party exacting the money wrongfully has had a lien, or right to some sum in payment, and the amount due could not be ascertained with certainty, while here the plaintiff could tell the precise sum due, and should have tendered that. But we do not find this distinction to exist. On the contrary, in many cases the amount due was ascertainable, and the point has been made that the sum really due should have been tendered, and it has been ruled otherwise. When one having some just claim exceeds his right and exacts an unjust claim, he stands then on the same ground of wrong doing as he who makes a wrongful claim without color of right or office. As the payment in New York, therefore, can have no effect to bar the claims of the plaintiff, if just, we proceed to examine them.
II. The claim of twenty-five dollars for money paid the captain towards freight, is resisted on the ground that the captain had no authority to receive it. It is sufficient to say that the evidence as detailed by the auditor tended to prove it, and we must treat the finding of the referee and the allowance of the [567]*567Item by the county court as conclusive of the fact that he had the authority.
III. As to the item of seventy-five cents for oats fed by the captain to the team while the boat was waiting for the State boat to break the ice, we think that this was an act within the employment' of the servant, and for which the defendants are liable in this action. Whether-, if the suit had been ex delicto against the defendants, they would have been liable, we do not deem it necessary to inquire.
IV. The next charge allowed by the county court is for forty-six dollars and ninety-six cents, paid for storage and care of the oats at Fort Edward.
The defendants’ boat was obstructed by ice at Fort Edward, and could proceed no further till spring. The defendants had used all reasonable diligence and dispatch in proceeding from Burlington to that point, and so far are not chargeable for any fault Or neglect.
The safety of the cargo, and of the boat also, required that the oats should be removed and safely stored, and this was done by the captain.
,, The closing of the canal by ice Was an act of Providence which excused the defendants from proceeding further till navigation opened. Thereupon it was their duty to use ordinary care in preserving the property, and this they did. The inquiry now arises, who shall bear the expense of storing the property safely through the winter, the plaintiff or the defendants ?
Nothing was said about it in the contract. It was not in their contemplation when the bargain was.made, and no provision was made in regard to it. Both expected and intended that the cargo should reach New York that fall, but both knew that the freezing of the canal might prevent it. The price which the plaintiff was to pay the defendants was six cents per bushel, for freight, for transp orting the cargo to New York. It did not contemplate that the property should be stored during the winter at some point while on the way. Had either party expected this the voyage would not probably have been begun. Had the question been raised when the contract was made, it seems very plain to us that the plaintiff could not reasonably have asked, nor would [568]*568the defendants have agreed, that they should bear the expense of it. It is expense bestowed on the plaintiff’s property, and for his benefit; it preserves his property, but does not aid the defendants’ interest, which was simply to transport the cargo to New York. We think that equity between these parties requires that this expense should be borne by the plaintiff. And if he was so liable in equity he could not shift the burden on to the defendants by refusing to pay what it was his duty to pay. The law raises an implied promise on his part to pay the defendants for what they might be obliged to expend in preserving his property, when that duty was thrown upon them by their having his property in their care as carriers, and were prevented from completing their contract by an act of Providence. If he has paid it he cannot recover it back.
In this view of the case we regard the defendants as private carriers, and liable only for reasonable diligence. The report states those facts in regard to their business and this particular contract which clearly bring them within the class of private carriers, and so liable only for reasonable diligence. An examination of authorities to establish this point we deem unnecessary.
The judgment of the county court is reversed, and judgment is rendered for the plaintiff for the twenty-five dollars and the seventy-five cents, and interest from the 20th of May, 1857, as stated in the report of the referee. The defendants’ costs in this court to be deducted.