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ings against property are not enough, because ordinary persons do not cease to act voluntarily on account of such threats. But threats of imprisonment may be so violent and forceful as to have that effect. It must also be shown, that the other party to the contract is not, through ignorance of the duress or for any other reason, in a position which entitles him to take advantage of a contract made under constraint without voluntary assent to it. If he knows that means have been used to overcome the will of him with whom he is dealing, so that he is to obtain a formal agreement to it which is not a real agreement, it is against equity and good conscience for him to become a party to the contract, and it is unlawful for him to attempt to gain a benefit from such an influence improperly exerted."

In the first place, then, the threat relied upon to constitute duress must be such as to control the mind and will of the party affected, and prevent his acting as a free agent. Whether or not a given threat is of such a nature depends wholly upon circumstances; but the general rule is, that the threats must be such as would naturally excite fear in a person of ordinary courage, and that that fear must be grounded on a reasonable belief that the person threatening has at hand the means to carry his threat into present execution; Youngs v. Simon, 41 Ill. App. 28. In other words, mere bluster cannot constitute duress; and the man who permits himself to be frightened by empty words, cannot set up his cowardice as a sufficient excuse to release him from the performance of his promise: See Bosley v. Shannon, 26 Ark. 280; Wells v. Studer, 70 N. C. 55. To constitute the coercion or duress, which will be regarded as sufficient to make a payment involuntary, ... there must be some control 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:' Radich v. Hutchins, 95 U. S. 210. Therefore, if the person, who makes the threats, is not, and is not represented to be, in a position to carry out his threats, and has no means of



executing them other than such as are possessed by all members of the community; when the liberty of the person threatened is in no wise restrained, and the threatener has made no complaint, has no warrant, and is not represented to have, nor, in fact, has, or appears to have at hand or within control, any means for carrying into execution his announced purpose, mere threats of arrest do not constitute duress : Youngs v. Simon, 41 Ill. App. 28. Accordingly, threats of loss of life, or bodily injury, made by one who is in a position to execute his threat, will constitute duress: Brown v. Pierce, 7 Wall. 205; Baker v. Morton, 12 Wall. 150; and the deed of one who was pulled from his bed at night by a crowd of men, dragged into the street, and compelled to go to the office of a justice of the peace and there execute the instrument in question, may be avoided: Brown v. Peck, 2 Wis. 261. So, the threat of a husband to separate from his wife, if she have reasonable cause to apprehend that he will put it into execution: Tapley v. Tapley, 10 Minn. 448; or violent behavior toward and cruel treatment of the wife: Goodrich v. Cushman, 34 Neb. 460; amount to duress. A security obtained by a threat of immediate arrest and imprisonment is made under duress: Bush v. Brown, 49 Ind. 573; Morrison v. Faulkner, 80 Tex. 128; Obert v. Landa, 5 Tex. Civ. App. 620; S. C., 25 S. W. Rep. 342; and it may still be duress, though the amount for which the note is given is actually due from the maker to the payee: Taylor v. Jaques, 106 Mass. 291. If one pays an illegal tax to prevent the issuing of a threatened warrant of distress, which must issue of course, unless the tax is paid, he can recover it: Preston v. Boston, 12 Pick. 7; Grim v. Weissenburg School District, 57 Pa. 433. But a mere indefinite threat of criminal prosecution, or one made when neither the warrant had issued nor the proceedings had been commenced, is no duress: Higgins v. Brown, (Mc.), 5 Atl. Rep. 267; Harmon v. Harmon, 61 Mc. 227; Knapp v. Hyde, 60 Barb., (N. Y.), 80; especially if the person threatened knows that the one who makes the threats has no present means of carrying them into execution, by actually taking him into custody, and has, in his knowledge, the power

and opportunity to make a defence to such threatened prosecution: Horton v. Blocdorn, 57 Neb. 666; S. C., 56 N. W. Rep. 321. The mere threat of injury to property, without the power to execute the threat, is not duress: Miller v. Miller, 68 Pa. 486.

The reasonableness of the belief of the party claiming duress in the imminence of the threatened danger, is dependent to a very large extent upon circumstances; and is always a question for the jury. When the defendant had threatened to have the plaintiff imprisoned, and to deprive him of his property, because of certain testimony given by the plaintiff derogatory to defendant, though the testimony was, in fact, privileged, which the plaintiff, who was a weak, ignorant man, did not know; and the defendant was a keen business man, and known to the plaintiff to be a man of determination; a sum of money procured from the plaintiff by such threat was held to have been procured under duress: Baldwin v. Hutchinson, (Ind.), 35 N. E. Rep. 711. Similarly, when the plaintiff, a man 72 years old, ignorant of the law, was threatened by the defendant with prosecution, imprisonment and a fine of $500 for selling cider without a license, unless he would pay the defendant $150, the defendant claiming to have great knowledge of the law; and the plaintiff was confronted with several men, who claimed that he had sold them cider, and was informed by the defendant that the men would so testify on the prosecution; the payment by the plaintiff, under these circumstances, of the sum demanded, was held to have been made under duress, and void, the jury having so found: Cribbs v. Sowle, 87 Mich. 340; S. C., 49 N. W. Rep. 587.

It has been claimed that the threat o! an illegal prosecution is not duress, because the person threatened has really nothing to fear therefrom, and besides, it is his duty to resist a false accusation: Buchanan v. Sahlein, 9 Mo. App. 552; scè Horton v. Bloedorn, 57 Neb. 666; S. C., 56 N. W. Rep. 321. It was held, however, in Bane v. Detrick, 52 III. 19, that though the arrest would be illegal, yet if the threats were such as would terrify a man of ordinary and reasonable firmness,

they would constitute duress. It is difficult to treat such decisions seriously. The mere danger of imprisonment is not the thing to be feared in the case of an innocent man; it is the loss of reputation that inevitably follows on a criminal prosecution, no matter how innocent the accused may be, and however triumphant his acquittal; the annoyance and grief caused his friends and relatives; and the expense of defending himself, with the troubles and worry that the very fact of such an accusation, with its results, will cause any but the most depraved to feel. It is safe to say that nine men out of ten who would defy the chance of being sent to jail under such circumstances, would nevertheless, in view of these other consequences, seck to stifle the accuser, and submit to his demands, rather than run the gauntlet of public criticism under such auspices. The contrary rule, that a contract procured by threat of illegal arrest is obtained under duress, is the only true doctrine. See Lighthall v. Moore, 2 Colo. App. 354: S. C., 31 Pac. Rep. 511.

The threats used must also be such as, if executed, would work a substantial injury to the person threatened; and not be a mere declaration of an intention to assert a legal right. A threat of a civil suit, therefore, is in general no ground for a claim of duress: Mascolo v. Montesanto, 61 Conn. 50; S. C., 23 Atl. Rep. 714; Peckham v. Hendren, 76 Ill. 47; Dausch v. Crane, 109 Mo. 323; Pryor v. Hunter, 31 Neb. 678; McCormick v. Volsack, (S. Dak.), 55 N. W. Rep. 145; nor is a threat to levy a lawful execution: Wilcox v. Howland, 23 Pick. 167. It is not unlawfnl for a creditor to demand and obtain from his debtor a security for a bona fide debt, under a threat of suit if the security be not given; and the debtor cannot avoid payment of the security merely on the ground that it was obtained by means of such a threat: McClair v. Wilson, 18 Colo. 82; S. C., 31 Pac. Rep. 502. But a threat to use oppressive civil process may be equivalent to duress; as, for instance, where a materialman threatened to file a mechanics' lien on a house, unless the owner, who had overpaid the contractor, would pay an indebtedness of the contractor to the materialman for material, alleged to have been used in the house,

representing at the same time to the owner that the filing of the lien would, in the then condition of his affairs, seriously embarrass him, and thereupon furnished a fraudulent statement of the alleged indebtedness, including items furnished to the contractor for use on other buildings; Gates v. Dundore, 18 N. Y. Suppl. 149. See Foerster v. Squier, 19 N. Y. Suppl. 367.

There is some difference of opinion as to whether a threat of lawful imprisonment, made to a person who has violated the criminal laws, can be called duress : Bodine v. Morgan, 37 N. J. Eq. 426. It has been held that a promissory note, taken in payment of money embezzled, is not necessarily voidable because obtained on threats of criminal prosecution,. as there is a good consideration for it, viz., the money embezzled: Hilborn v. Buckman, 78 Me. 482; S. C., 7 Atl. Rep. 272; Thorn v. Pinkham, (Me.), 24 Atl. Rep. 718. But it has also been held that written securities extorted by threats of prosecution for a criminal offence of which the party is, in fact, guilty, but which are in no manner connected with the demand for which compensation is sought, may be avoided by the persons executing them : Thompson v. Niggley, (Kan.). 35 Pa Rep. 290. The true rule seems to be, that when the threat is made merely to enforce the execution of the contract, and to compel the person accused to a settlement, it will be duress; otherwise not. To quote again from Judge Knowlton: "The question is, whether the threat is of imprisonment, which will be unlawful in reference to the conduct of the threatener, who is seeking to obtain a contract by his threat. Imprisonment that is sufficient through the execution of a threat, which was made for the purpose of forcing a guilty person to enter into a contract, may be lawful as against the authorities and the public, but unlawful as against the threatener, when considered in reference to his effort to use for his private benefit processes provided for the protection of the public and the punishment of crime. Onewho has overcome the mind and will of another for his own advantage, under such circumstances, is guilty of a perversion and abuse of laws, which were made for another purpose, and he is in no position to claim the advantage of a

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