fendant with workmen, and that its refusal to do so except upon being compensated did not constitute duress.100 So, threats made by one member of a mining partnership to another that, unless the latter will sign a contract presented to him, the former will advance no more money to develop the mine, which will in consequence be shut down and rendered worthless, do not constitute duress such as to invalidate the contract.101 And one purchasing liquor from an illegal combination of distillers which controls the market and prices, though impelled thereto by business needs and policy, enters into the contract voluntarily and not under duress.102 So, the fear of being suspended or of losing his membership in a stock exchange, for violation of its rules, is not such duress exerted upon a member as to invalidate a contract induced thereby.103 And the fact that plaintiff, in order to make an advantageous agreement with other stockholders in a corporation and relieve the corporate property from a receivership, is forced to accede to exorbitant demands of an individual creditor of his, who has bought up the claims against the corporation, is not duress entitling him to rescind and recover the property conveyed under the alleged duress. 104

But there has been much protest against this rule, and it is evident that, if strictly applied in all cases, it would often compel the courts to connive at very iniquitous transactions. In several noteworthy cases it has been frankly rejected, the courts holding that a contract or conveyance may be avoided when it is shown to have been extorted from a party by taking an unconscionable advantage of his business necessities or financial distress, on the ground that such conduct is a species of fraud, and that, even if it does not amount to technical duress, still it places the injured party under a form of compulsion which is quite as effective, and which, being used as a means of oppression,

100 Grabosski v. Gewerz (Com. Pl.) 17 N. Y. Supp. 528. 101 Connolly v. Bouck, 174 Fed. 312, 98 C. C. A. 184.

102 Dennehy v. McNulta, 86 Fed. 825, 30 C. C. A. 422, 41 L. R. A. 609.

103 White v. Baxter, 41 N. Y. Super. Ct. 358.

104 Dustin v. Farrelly, 81 Mo. App. 380.

makes an equally strong appeal to a court of equity.105 Thus, in one of the cases, it was shown that, after the foreclosure of a mortgage, the mortgagee agreed to reconvey the land to the mortgagor on receipt of a certain sum by a specified date, and that the defendant, for a commission. which he received, agreed to procure a loan of the amount needed for the mortgagor. But he neglected to close the loan until late in the afternoon of the last day allowed for payment, and then, after the mortgagor had signed notes and a trust to the lender, the defendant, taking advantage of the mortgagor's extremity, and without consideration, compelled him to execute two notes for $500 each to him, secured by a second trust deed, on pain of his refusal to complete the loan, which to his knowledge would have resulted in the mortgagor's losing the right to redeem. It was held that equity would grant relief by canceling the second trust and the notes given to the defendant.106 So, in a case in New York, a husband conveyed to his wife land worth more than her inchoate right of dower in all his lands, in consideration of her agreement to release her dower rights in any lands of his, when requested, without further consideration. Thereafter, judgment of foreclosure having been entered on a mortgage on certain of his lands, and he being unable to pay the mortgage and having sold such lands pending suit, she, with intention to oppress him, to take advantage of his necessities, and to extort from him an unconscionable consideration for releasing her apparent right of dower in such lands, refused to release the same unless he should convey to her certain other lands, and he yielded to her demand under compulsion of his necessities. It was held that the latter deed to her was procured by duress and should be set aside.107 So again, army supplies having been paid for by United States vouchers which were evidences of indebtedness, the Secretary of War appointed

105 Rees v. Schmits, 164 Ill. App. 250; Buford v. Louisville & N. R. Co., 82 Ky. 286; Harris v. Cary, 112 Va. 362, 71 S. E. 551, Ann. Cas. 1913A, 1350; Haldane v. Sweet, 55 Mich. 196, 20 N. W. 902; Faulkner v. Faulkner, 162 App. Div. 848, 147 N. Y. Supp. 745. 106 Lappin v. Crawford, 221 Mo. 380, 120 S. W. 605.

107 Van Dyke v. Wood, 60 App. Div. 208, 70 N. Y. Supp. 324.

a military commission and required their approval of vouchers as a condition precedent to their payment. An army contractor presented to the commission four vouchers, and three were approved, but the fourth was ordered reduced in amount. The contractor refused to acquiesce in the reduction, and the commission then refused to return the three approved vouchers except on the contractor's signing a receipt in full for all four vouchers. Being in failing circumstances, the contractor gave the required receipt to avoid bankruptcy, and it was held that it had been obtained by duress and was void.108 So, in an early case in Massachusetts, an actor, by misrepresentations, secured an engagement at a theater at a salary greater than the real value of his services, and after the play was set, he refused to act unless paid the amount agreed. It was held that the payment was compulsory, the court saying: "We think this was a species of constraint sufficient to excuse the plaintiff in paying the money." 109 It should also be observed that in some states (as, for instance, Oklahoma) the statutes make duress include "taking a grossly oppressive and unfair advantage of another's necessities or distress," and under such a provision it has been held that the refusal by a purchaser in possession of personal property to pay for it, to satisfy a mortgage lien on it, or to release it, unless the seller will execute a certain contract, where both parties understand that this threat, if persisted in, will lead to an immediate foreclosure and the ruin of the seller, amounts to duress which will avoid the contract.110 Finally, it has been pointed out in another place that one who obtains property for a grossly inadequate consideration by taking an unconscionable advantage of another's financial embarrassment is liable to an action for rescission or cancellation on the ground of the inadequacy, even if no duress be present.111

108 Livingston v. United States, 3 Ct. Cl. 131.

109 Dana v. Kemble, 17 Pick. (Mass.) 545.

110 Snyder v. Rosenbaum, 215 U. S. 261, 30 Sup. Ct. 73, 54 L. Ed. 186.

111 Supra, § 171.

§ 231. Duress by Threats.-Under the modern rules, duress may be exercised by threats of inflicting injury, no less than by imprisonment or other actual physical coercion, provided, that is, that the threat is accompanied by such real or apparent ability to carry it into immediate execution, that the person to whom it is addressed is convinced of the imminence of his danger, and provided it is of such severity as to overcome his will, deprive him of his free choice, and constrain him to do an act against his will.112 In respect to the kind of threats which may constitute duress, however, the modern doctrines show a great advance over the notions of the common law. In Blackstone's time, duress per minas was recognized only where the threat was of injury to life or limb. He says: "A fear of battery or being beaten, though never so well grounded, is not duress, neither is the fear of having one's house burned, or one's goods taken away and destroyed; because, in these cases, should the threat be performed, a man may have satisfaction by recovering equivalent damages, but no suitable atonement can be made for the loss of life or limb." 118 It is remarked by the court in Minnesota that, "in examining the authorities upon the question as to what pressure or constraint amounts to duress justifying the avoidance of contracts made, or the recovery back of money paid, under its influence, one is forcibly impressed with the extreme narrowness of the old common-law rule on the one hand, and with the great liberality of the equity rule on the other. At common law, duress meant only duress of the person, and nothing short of such duress, amounting to a reasonable apprehension of imminent danger to life, limb, or liberty, was sufficient to avoid a contract, or enable a party to recover back money paid. But

112 Whitt v. Blount, 124 Ga. 671, 53 S. E. 205; Russell v. McCarty, 45 Ga. 197; Rose v. Owen, 42 Ind. App. 137, 85 N. E. 129; Kaus v. Gracey, 162 Iowa, 671, 144 N. W. 625; Liebau v. Miller, 89 Kan. 697, 132 Pac. 173; Bogle v. Hammons, 2 Heisk. (Tenn.) 136. See, also, Civ. Code Cal., § 1570; Rev. Civ. Code Mont., § 4976; Rev. Civ. Code N. Dak., § 5291; Rev. Civ. Code S. Dak., § 1199; Rev. Laws Okl. 1910, § 901. And see Dallavo v. Dallavo (Mich.) 155 N. W. 538; Piekenbrock v. Smith, 43 Okl. 585, 143 Pac. 675.

1131 Blackst. Comm. 131.

courts of equity would unhesitatingly set aside contracts whenever there was imposition or oppression, or whenever the extreme necessity of the party was such as to overcome his free agency. The courts of law, however, gradually extended the doctrine so as to recognize duress of property as a sort of moral duress, which might, equally with duress of the person, constitute a defense to a contract induced thereby, or entitle a party to recover back money paid under its influence. And the modern authorities generally hold that such pressure or constraint as compels a man to go against his will, and virtually takes away his free agency, and destroys the power of refusing to comply with the unlawful demands of another, will constitute duress, irrespective of the manifestation or apprehension of physical force." 114 So, in another case, it is said: "The principle upon which men are relieved from their contracts procured by duress has been greatly extended in recent years. In the time of Lord Coke, no one would have been permitted to avoid his contract for duress unless the duress was such as not only to put him in fear of illegal imprisonment or great bodily harm, but went so far as to be something that a man of ordinary firmness would not be able to resist. No possible loss to his land or property would be sufficient to enable him to avoid a contract which he had made to prevent it. But gradually and by slow degrees the strictness of that rule was abated, until finally it has come to be the rule of law in this country, although perhaps not in England, that where one is presented with the contingency of serious loss or damage to his property or of a submission to an extortionate claim, if he pay the claim or make the contract which is extorted from him, it is not to be considered a voluntary act, and it may be set aside on the ground of duress." 115 One of the federal courts has also observed: "In its more extended sense, duress may be said to be that degree of constraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or in apprehension to overcome the mind and

114 Joannin v. Ogilvie, 49 Minn. 564, 52 N. W. 217, 16 L. R. A. 376, 32 Am. St. Rep. 581.

115 Van Dyke v. Wood, 60 App. Div. 208, 70 N. Y. Supp. 324.