Joseph Chamberlain vs. George Reed, 13 Me. 357

After a continuance, the opinion of the Court was drawn up by Weston C. J. We are satisfied with the adjustment made by the broker of the general average, and of the specific charges upon the deck-load; and that if no charge of negligence or want of skill was justly imputable to the master, the adjustment was warranted by the facts, upon which it was made. And upon the same assumption only can it be conclusive upon the plaintiff, and upon all concerned.

If it were otherwise, as the adjustment was procured by the master, without the assent or privity of the other parties, upon the protest and other evidence furnished by him, he would escape all responsibility, however gross might have been his negligence, or palpable his want of requisite skill. The papers submitted to the broker, disclose no failure of duty in the master.

It was a point not submitted to his consideration ; and most extraordinary would it be, if the result to which he came, upon facts which he received from the master, should close the door to all liability on his part to those, who had confided their property to bis care. The jury have found that the loss, a part of which was visited upon the plaintiff, -was occasioned by negligence or want of skill in the defendant. It is very manifest, this being ascertained, that he had no just cause to receive the money, sought to he reclaimed in this action.

It is however insisted, that this action ought not to prevail, the plaintiff having a full knowledge of all the circumstances, and the money being voluntarily paid by his agent. A question then arises, was this a voluntary payment ? In Chase v. Dwinal, 7 Greenl. 134, it was decided, upon an examination of the authorities, that a payment made under a moral compulsion, to obtain property improperly detained, was not voluntary. The same principle is distinctly laid down in the case of Shaw v. Woodcock, 7 Barn. & Cress. 73, cited for the defendant.

The master has a lien upon goods liable for contribution, on an adjustment of general average. Accordingly the defendant in this case refused to deliver the plaintiff’s lumber to his agent, until his claim was satisfied. In this he would have been justified, but for the facts now settled by the jury. The agent, protesting that the demand was unjust, and notifying the defendant that the money would be reclaimed, finding that he could not otherwise liberate the lumber, agreed to pay the sum required, and having given a writing to this effect, paid the money after the lumber was delivered.

Payment made under these circumstances, we cannot regard as voluntary. It is contended, that the agent having got the lumber, should have withheld the money. We cannot admit that such a breach of faith became a legal duty, necessary for the protection of the rights of his principal. The moral compulsion was still upon him; and the subsequent payment can, in no fair and just sense, be pronounced voluntary. We are of opinion therefore, that the instructions requested were properly withheld. The testimony in the case is somewhat conflicting; but the jury have passed upon it.

It is their province ; and we perceive no sufficient reason for the interference of the Court. Judgment on the verdict.