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§ 228. Duress by Physical Restraint or Coercion.When a person is isolated from his friends, shut up in a room or other place, kept there by physical restraint or a display of force, and required to execute a note, deed, or other instrument as the only means of obtaining his deliverance, and yields to the pressure thus exerted, the instrument so given is voidable for duress. So where the person named as grantee in a deed procures its execution by forcibly taking the hand of the grantor, who is insensible or too sick and feeble to offer any effectual resistance, placing a pen in it, and making a mark on the paper for the signature of the grantor, the instrument so executed is a mere nullity, in consequence of the duress exerted, and it is said that it is not even necessary to disaffirm it in order to have it set aside.$1

§ 229. Duress of Goods.-Under the law as now settled, there may be duress of goods as well as duress of the person. Or perhaps it is more correct to say that the state of mind which is the essential product of duress, namely, a condition in which the party's free choice and will are taken away and he is coerced into doing something against his wish, may be produced by an illegal restraint of his property as well as of his person. Hence the rule that one who pays money, gives a note, or grants any other concession demanded of him, through necessity and in order to obtain the possession of his property which is unlawfully withheld from him by another, may afterwards avoid the transaction on the ground of compulsion, even though it may not amount to technical duress, and especially where the detention of the property works an immediate hardship or will result in an irreparable injury.82 And this rule obtains, it

80 McNair v. Benson, 63 Or. 66, 126 Pac. 20; Schuster v. Arena, 83 N. J. Law, 79, 84 Atl. 723; Evans v. Begleys, 2 Wend. (N. Y.) 243. And see Fairchild v. Fairchild (N. J. Ch.) 44 Atl. 944.

81 Barkley v. Barkley, 182 Ind. 322, 106 N. E. 609, L. R. A. 1915B, 678. And see Moran v. Moran (City Ct.) 19 N. Y. Supp. 673.

82 Cobb v. Charter, 32 Conn. 358, 87 Am. Dec. 178; Fuller v. Roberts, 35 Fla. 110, 17 South. 359; Spaids v. Barrett, 57 Ill. 289, 11 Am. Rep. 10; Callendar Sav. Bank v. Loos, 142 Iowa, 1, 120 N. W. 317; Hackley v. Headley, 45 Mich. 569, 8 N. W. 511; Wilkerson v. Hood, 65 Mo. App. 491; Fitzgerald v. Fitzgerald & Mallory Const.

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is said, even in cases where there was nothing to prevent the owner from recovering his property by replevin.88 In the leading case on this point, the plaintiff had pledged goods with a pawnbroker for a certain sum, and offered to redeem them, but the pawnbroker refused to surrender them unless he was paid an additional sum, under the guise of interest, which he had no right to exact. The plaintiff paid what was demanded, and was held entitled to recover back the amount illegally exacted, as having been paid under compulsion. In a case in the Supreme Court of the United States, where parties contracted to buy certain cattle and paid a large sum, leaving a small balance due, and could not get possession without completing the stipulated payment, though a part of the property had been transferred to another party, and, unless he took possession of the property, would be at a great risk of loss from want of care during the winter, then just beginning, it was held that the payment of the balance was made under duress.8 85 So, a threat to levy on a person's stock and drive it off the farm unless. he gives a note in satisfaction of an old and outlawed judgment, which is falsely represented as being still in force, may constitute duress of his goods. In a case in Alabama, a suit was brought to cancel a note and mortgage as having been given under duress. It was shown that the plaintiffs were conducting a laundry business, in which they were obliged to employ horses and wagons; that the horses were kept at defendant's livery barn, and that he refused to let the plaintiffs take them out, unless they would give him a note secured by mortgage for a sum which he claimed to be due to him for boarding the horses; that plaintiffs did

Co., 44 Neb. 463, 62 N. W. 899; Harmony v. Bingham, 12 N. Y. 117, 62 Am. Dec. 142; Stenton v. Jerome, 54 N. Y. 480; United States Nickel Co. v. Barrett, 86 Misc. Rep. 337, 148 N. Y. Supp. 325; Adams v. Reeves, 68 N. C. 134, 12 Am. Rep. 627; Smithwick v. Whitley, 152 N. C. 369, 67 S. E. 913; Mays v. Cincinnati, 1 Ohio St. 268; Astley v. Reynolds, 2 Strange, 915; Ashmole v. Wainwright, 2 Q. B. 837. 83 Wilkerson v. Hood, 65 Mo. App. 491.

84 Astley v. Reynolds, 2 Strange, 915.

85 Lonergan v. Buford, 148 U. S. 581, 13 Sup. Ct. 684, 37 L. Ed. 569.

86 McCormick Harvesting Machine Co. v. Mays (Tex. Civ. App.) 33 S. W. 883.

not admit that any such sum was due to defendant, but that they had tendered him the proper amount; that plaintiffs' business would be ruined unless they could obtain their horses, which the defendant well knew; and that, as the plaintiffs had no legal remedy whereby they could secure possession of their property without such a delay as would destroy their business, they yielded to the defendant's demands and gave the note and mortgage in question. On these facts it was held that a proper case was made out for cancellation of the instruments.87 In another case, an aged and infirm man put $2,500 worth of bonds in a safe-deposit box in the name of his daughter-in-law as trustee, with the understanding that she was to collect and pay over the interest and to surrender the bonds on demand, but she afterwards refused to deliver to him $1,000 in bonds at his request, unless he would sign a writing relinquishing his claim to the remainder of the bonds. To this he acceded from the necessity of the case, and it was held that the writing was obtained from him by both duress and undue influThe same principle was applied in a case where the grantee in a deed, who was the son-in-law of the grantors, went to their home when they were both so sick as to be nearly helpless and took away their dead daughter's watch, declaring that he would not return it unless they deeded him certain land, and further making violent threats as to what he would do if they refused to sign the deed. Later he brought a justice of the peace to the house and had him draw up such a deed, which the grantors then signed. It was held that the deed was obtained by duress. and was void.89

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It is also a rule that duress may be exerted not only over goods which are intrinsically valuable or useful to the owner, but also over such as are important only as securities or as evidence. Thus, where one obtains possession of a deed belonging to another, and uses it for the purpose of extorting money, by the threat that he will destroy it, or that he will not surrender it or permit the owner to use it

87 Glass v. Haygood, 133 Ala. 489, 31 South. 973.
88 Puff v. Puff, 31 Ky. Law Rep. 939, 104 S. W. 332.

89 Benn v. Pritchett, 163 Mo. 560, 63 S. W. 1103.

in defending his title, unless his demands are met, a payment made to recover the deed will be considered as involuntary." Real estate may also be in duress, as in cases where there is an illegal demand made against the owner, coupled with a present power or authority in the person making such demand to sell or dispose of the property if payment is not made as demanded. And it is held that a promise to pay rent, or the yielding to any other unlawful demand, made solely to prevent an unlawful eviction, is not binding upon the promisor.92

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But the act of the party compelling the unwilling obedience must be unlawful or wrongful, and there can be no duress of goods in law where the act done or threatened is nothing more than the party has a legal right to do." Again, the fact of duress of goods depends upon the right of the party to demand them as his property; and when one has in fact no right to demand goods except upon the performance of terms or conditions imposed by law, it is not duress for the other party to refuse to deliver them except upon those conditions. And further, where the only interest of a party in certain property is by way of chattel mortgage to secure a debt, and the only necessity for obtaining possession of it is to make it available as such security, the concealment of it by the mortgagor cannot be regarded as such duress of goods as to avoid a contract made by the mortgagee in reference thereto.""

§ 230. Taking Advantage of Financial Necessities.Where no actual or threatened constraint is offered to one's person or property, it is not duress in law, however reprehensible in morals, to take advantage of his financial embarrassment or distress, of the necessities of his business, of

90 Motz v. Mitchell, 91 Pa. 114.

91 Mariposa Co. v. Bowman, Deady, 228, Fed. Cas. No. 9,089.

92 Smith v. Coker, 110 Ga. 654, 36 S. E. 107; Findley v. Hulsey, 79 Ga. 670, 4 S. E. 902. But see Dunfee v. Childs, 59 W. Va. 225, 53 S. E. 209.

93 Fuller v. Roberts, 35 Fla. 110, 17 South. 359; Kansas City, M. & O. Ry. Co. v. Graham (Tex. Civ. App.) 145 S. W. 632; Buck v. Houghtaling, 110 App. Div. 52, 96 N. Y. Supp. 1034.

94 Block v. United States, 8 Ct. Cl. 461.

95 Williams v. Phelps, 16 Wis. 80.

a critical situation in his affairs, or of his impending ruin, and thereby to extort from him a payment or concession to which he would not have acceded if free from pecuniary pressure. Thus, the fact that one accepts payment of part of what is due to him on a contract and gives his receipt for payment in full, only because he needs the money immediately to save him from financial ruin, is not duress and does not affect the conclusiveness of the settlement." And the refusal of a purchaser to pay the contract price on the ground of false representations, and the acceptance by the seller of a less sum on account of financial embarrassment, does not constitute duress if the purchaser has done nothing unlawful to cause such financial embarrassment.o 98 In one of the cases on this subject, it appeared that a company contracted to keep the defendant supplied with ice during a certain period at a fixed price, but during that period, on account of a shortage in the ice crop, refused to continue deliveries under its contract, and demanded a higher price, which defendant acceded to and gave his note for the price, only because he had on hand a large quantity of commodities which would be spoiled if he could not get ice; but it was held that this was not legal duress." In another case, a baker, being deserted by his journeymen, applied to a bakers' union for other men, and was refused aid unless he would give his note to the union for a sum charged as the price of its assistance. In an action on the note so given, it was held that it was no duty of the union to supply de

96 French v. Shoemaker, 14 Wall. 314, 20 L. Ed. 852; Domenico v. Alaska Packers' Ass'n (D. C.) 112 Fed. 554; Smith v. McCourt, 8 Colo. App. 146, 45 Pac. 239; Olson v. Ostby, 178 Ill. App. 165; Buford v. Louisville & N. R. Co., 5 Ky. Law Rep. 503; Crook v. Tensas Basin Levee Dist., 51 La. Ann. 285, 25 South. 88; Emery v. Lowell, 127 Mass. 138; Joyce v. Growney, 154 Mo. 253, 55 S. W. 466; Colonial Trust Co. v. Hoffstot, 219 Pa. 497, 69 Atl. 52; Palmer v. Bosley (Tenn. Ch. App.) 62 S. W. 195; Sanborn v. Bush, 41 Tex. Civ. App. 24, 91 S. W. 883; Custin v. Viroqua, 67 Wis. 314, 30 N. W. 515.

97 McCormick v. St. Louis, 166 Mo. 315, 65 S. W. 1038; Hackley v. Headley, 45 Mich. 569, 8 N. W. 511; Miller v. Coates, 4 Thomp. & C. (N. Y.) 429.

98 Adams v. Schiffer, 11 Colo. 15, 17 Pac. 21, 7 Am. St. Rep. 202. 99 Goebel v. Linn, 47 Mich. 489, 11 N. W. 284, 41 Am. Rep. 723. And see Standard Box Co. v. Mutual Biscuit Co., 10 Cal. App. 746, 103 Pac. 938.

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