The opinion of the court was delivered by: LINDBERG
This is an action brought under the Tucker Act, 28 U.S.C.A. § 1346 wherein it is alleged that the defendant sold and delivered to plaintiff the SS James A. Drain under the Merchant Ship Sales Act of 1946, 50 U.S.C.A.Appendix, § 1735 et seq. The conveyance was accomplished by a bill of sale from the United States Maritime Commission to plaintiff dated April 30, 1947. On August 12, 1948 plaintiff paid the defendant $ 6,239.66 for certain 'special features' admittedly attached to the ship. It is a part of this payment which the plaintiff now seeks to recover, contending that it was in excess of the 'statutory sales price' and that it, the plaintiff, is entitled to recover such excess payment. Prior to the submission of the case to the court for decision on the merits the issues of law and fact involved were fully argued before the court under plaintiff's motion for summary judgment. This motion was made and based on the pleadings and also the affidavit of G. S. Cleverdon, Assistant Treasurer of the Olympic Steamship Co., Inc. The government vigorously resisted the motion and in opposition thereto filed an affidavit attaching a number of exhibits, including certified copies of a preliminary letter from the Maritime Commission to plaintiff, the contract of sale, bill of sale, and three letters subsequent to the bill of sale between the plaintiff and the Maritime Commission and Maritime Administration. After full consideration I denied the motion for summary judgment from the bench for the reason that there appeared to be an issue of material fact with respect to the question of duress. In denying the motion I indicated to the parties that I was of the opinion, granting plaintiff's contention that there was payment in excess of the lawful price, that if such payments had been voluntary and without protest or duress plaintiff could not recover. Thereafter the action was set down for pretrial conference as a result of which a comprehensive pretrial order was agreed upon between the parties and entered by the court. When the matter came on for trial plaintiff advised the court that it had concluded to offer no further evidence and the parties submitted the case for decision upon the pretrial order and the briefs theretofore filed in support of and in opposition to plaintiff's motion for summary judgment. Thus it will be seen that the case is before the court in substantially the same posture it was at the time of the argument upon motion for summary judgment.
Inasmuch as all of the facts to be considered by the court in reaching a decision have been either agreed to by the parties in the pretrial order or are established by the exhibits referred to and made a part thereof there is no need to set forth the facts in this memorandum opinion except as they may appear in outlining the reasons for my decision.
The plaintiff's contentions, as set forth in the pretrial order, are as follows:
'Under the Merchant Ship Sales Act the amount charged plaintiff for special features, $ 6,239.66 should have been added to the depreciated statutory sales price of $ 542,012.58 rather than to the statutory floor price of $ 544,506.
'2. The circumstances in existence at the time the payment for special features was demanded and paid were such that the payment was made under duress and made involuntarily.
'In addition, plaintiff opposes all of defendant's contentions.'
I will consider plaintiff's second contention first and in so doing will assume for the purpose of discussion that the payment for special features should have been added to the depreciated statutory sales price rather than to the statutory floor price.
It would appear that the plaintiff in bringing its action relied upon the decision of the Court of Claims in the case of A. H. Bull Steamship Co. v. United States, 108 F.Supp. 95, 123 Ct.Cl. 520, decided November 4, 1952, and the later but similar case of Southeastern Oil Florida v. United States, 119 F.Supp. 731, 127 Ct.Cl. 409. The defense of estoppel or acquiescence because of voluntary payment apparently was not raised as a defense in either of those cases. While the reported decision in the Bull case, supra, does not reveal whether the payments were made under protest it is clear that protest was made at the time of payment in the Southeastern Oil case. Recognizing that the question of voluntary payment was not in issue in those cases plaintiff urges that the payment here made was under duress and therefore involuntary.
The Court of Appeals for the Ninth Circuit in the case of Shell Oil Co. v. Cy Miller, Inc., 53 F.2d 74, in considering whether a payment was involuntarily made because of duress quoted with approval the language of Justice Field in Radich v. Hutchins, 95 U.S. 210, 24 L. Ed. 409, as follows:
'To constitute the coercion or duress which will be regarded as sufficient to make a payment involuntary * * * there must be some actual or threatened exercise of power possessed, or believed to be possessed, by the party exacting or receiving the payment over the person or property of another, from which the latter has no other means of immediate relief than by making the payment.'
The Court of Appeals then went on to cite the following cases: Lamborn v. County Commissioners, 97 U.S. 181, 185, 24 L. Ed. 926; Union Pac. R. Railroad Company v. Dodge County Commissioners, 98 U.S. 541, 543, 544, 25 L. Ed. 196; Little v. Bowers, 134 U.S. 547, 554, 10 S. Ct. 620, 33 L. Ed. 1016; Chesebrough v. United States, 192 U.S. 253, 259-260, 24 S. Ct. 262, 48 L. Ed. 432; United States v. New York & Cuba Mail S.S.Co., 200 U.S. 488, 494, 26 S. Ct. 327, 50 L. Ed. 569.
In this case it is admitted that plaintiff did not at the time of making payment nor at any time prior to June 30, 1953, almost eight months after the decision of the Court of Claims in the Bull case, supra, make a written or oral protest against the imposition of the charge for 'special features'. It would thus appear as a fair inference that plaintiff did not conceive that there had been an overpayment until after the decision in the Bull case.
Apart from circumstances the only evidence presented upon the issue of duress is the affidavit of G. S. Cleverdon submitted and relied upon by plaintiff in its motion for summary judgment. Countering this affidavit are the documents earlier referred to submitted by the defendant in opposition to plaintiff's motion and later admitted as true and correct by the plaintiff in the pretrial order. Upon such a record I can not make a finding of duress. Rather it appears to me that the evidence establishes that plaintiff was not acting under duress, express or implied, when any part of the payment was made.
We then come to the question of whether or not the transaction is governed by the well-settled rule that where money has been voluntarily paid with full knowledge of the facts it cannot be recovered on the ground that the payment was made under a misapprehension of the legal rights and obligations of the person paying. See Annotations 53 A.L.R. 949, Restatement of the ...