will of a person of ordinary firmness. Decided cases may be found which deny this rule, and hold that contracts procured by menace of a battery to the person, or of trespass on lands, or of loss of goods, cannot be avoided on that account. The reason assigned for thus restricting the general rule is that such threats are held not to be of a nature to overcome the will of a firm and prudent man, because, it is said, if such an injury is inflicted, adequate remedy may be had at law. But the modern decisions in this country hold that contracts procured by threats of battery to the person, or of destruction of property, may be avoided on the ground of duress, because in such a case there is nothing but the form of a contract without the substance." 116

Accordingly it is now well settled that where a contract, a note, or a conveyance is extorted from a party under a threat to kill him, to attack him with a deadly weapon, or otherwise to offer him violence or inflict physical injury upon him, if he refuses, and he is put in fear by the threat and by his belief in the ability and purpose of the other party to carry it into execution, and therefore yields to the unlawful demand, the instrument is voidable for duress.117 Thus, for example, a marriage is not valid where the consent of the husband is not freely given but is coerced by the threat of the woman's father or other relative to kill, wound, or beat him unless he marries her.118 So where a husband compels his wife to deed her property to him, or to join him in conveying it to a third person, by threats of personal violence, by abusive treatment, or by threats to separate her from her children, to drive her from home, or to refuse her support, it is executed under duress and may

116 Andrews v. Connolly (C. C.) 145 Fed. 43.

117 Brown v. Pierce, 7 Wall. 205, 19 L. Ed. 134; Palmer v. Poor, 121 Ind. 135, 22 N. E. 984, 6 L. R. A. 469; Reynolds v. Copeland, 71 Ind. 422; Mollere v. Harp, 36 La. Ann. 471; Couder v. Oteri, 34 La. Ann. 694; Goodrich v. Cushman, 34 Neb. 460, 51 N. W. 1041; Bueter v. Bueter, 1 S. D. 94, 45 N. W. 208, 8 L. R. A. 562; Owens v. Mynatt, 1 Heisk. (Tenn.) 675; Pride v. Baker (Tenn. Ch. App.) 64 S. W. 329. 118 Fowler v. Fowler, 131 La. 1088, 60 South. 694; Quealy v. Waldron, 126 La. 258, 52 South. 479, 27 L. R. A. (N. S.) 803, 20 Ann. Cas.

BLACK RESC.-39

be avoided.119 But a threat of suicide made by a husband to his wife, to induce her to sign a note or deed, does not amount to duress, and cannot be set up as a defense to it or as a ground for its rescission. "Here the threats were made by the husband against his own life. The maker and the object of the threats were the same. Their execution was within his own power of volition. The wife knew that no harm could come to him except by his own act. The present case is utterly unlike an instance of the pressure of some overshadowing danger, uncontrollable by either the wife or the person endangered. There is no trace of a doctrine that the threat of a husband against himself will avoid the contract of his wife, or conversely, and such a rule would lead to an instability in that class of contracts which would be vicious.” 120

But the scope of duress by threats extends much beyond these limits. Injury to one's property or financial interests may be threatened in such a way as to constitute duress under the modern rules. Such is the case, for instance, with a threat to bring ruin upon a person's business,121 or a threat to exert influence with the council of a city to prevent a contractor from being paid for paving one of the city streets,122 or a threat by an employé to leave his employment before the expiration of its term, and to take with him certain funds which he had collected for his employers and also various contracts which he controlled and which were worth several thousand dollars,123 or a threat by a person who is bound to keep certain property insured for the benefit of another, made after the property has been destroyed by fire, that he will destroy the insurance policies and omit

119 Fisk v. Stubbs, 30 Ala. 335; Kellogg v. Kellogg, 21 Colo. 181, 40 Pac. 358; Willetts v. Willetts, 104 Ill. 122; Yount v. Yount, 144 Ind. 133, 43 N. E. 136; Vicknair v. Trosclair, 45 La. Ann. 373, 12 South. 486; Tapley v. Tapley, 10 Minn. 448 (Gil. 360) 88 Am. Dec. 76; Graves v. Graves, 255 Mo. 468, 164 S. W. 496; Kocourek v. Marak, 54 Tex. 201, 38 Am. Rep. 623.

120 Wright v. Remington, 41 N. J. Law, 48, 32 Am. Rep. 180; Metropolitan Life Ins. Co. v. Meeker, 85 N. Y. 614; Girty v. Standard Oil Co., 1 App. Div. 224, 37 N. Y. Supp. 369.

121 Ring v. Ring, 127 App. Div. 411, 111 N. Y. Supp. 713.

122 French v. Talbot Pav. Co., 100 Mich. 443, 59 N. W. 166.

123 Whitt v. Blount, 124 Ga. 671, 53 S. E. 205.

to pay premiums, so as to prevent the collection of the insurance money,1 124 and it seems that duress may be predicated of a threat by an attorney at law to disclose confidential communications of his client, with resultant injury to the latter.125 So, where a company having the exclusive right to sell gas in a city refuses to supply a consumer, unless he will pay the amount remaining due to the company from a former owner of the premises, his promise to do so is voidable.126 By statute in several states, a threat of injury to the reputation or good name of a person may constitute duress,127 and this has also occasionally been ruled without the aid of a statute.128 But it appears that a mere threat to injure one's credit is not such an injury to or deprivation of property as will amount to duress at law. 129

A threat to withhold payment of a debt, to break a contract, to refuse the recognition of a legal right, or to do any other mere civil injury for which there is an immediate and adequate remedy at law, is not duress.130 This principle is illustrated by a case in which the owner of certain barges had executed charter parties of them to the United States for a stipulated sum per month so long as they should be retained in the service of the government. After they had been used for some time, he was informed by the quartermaster general that he must execute a new charter party at a reduced rate of rental. He refused to do this, and demanded the return of the barges, which was refused, but when he learned that the quarter-master general intended to retain possession of them and to refuse all compensation, he executed the required charter party, stating that he

124 Moore v. Putts, 110 Md. 490, 73 Atl. 149.

125 Dyrenforth v. Palmer Pneumatic Tire Co., 145 Ill. App. 62. 126 New Orleans Gas Light Co. v. Paulding, 12 Rob. (La.) 378. 127 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.

128 McSween v. Miller, 1 Heisk. (Tenn.) 104, note.

129 Bancroft v. Bancroft (Cal.) 40 Pac. 488; Coleman v. Merchants' Nat. Bank, 6 Ohio Dec. 1063; F. B. Collins Inv. Co. v. Easley, 44 Okl. 429, 144 Pac. 1072.

130 Tucker v. State, 72 Ind. 242; Cable v. Foley, 45 Minn. 421, 47 N. W. 1135; Doyle v. Trinity Church, 133 N. Y. 372, 31 N. E. 221; Miller v. Miller, 68 Pa. 486; Simmons v. Sweeney, 13 Cal. App. 283,

did so under protest and by reason of financial necessity. From time to time thereafter he accepted payment at the reduced rate for the use of the barges, without protest or objection, but finally brought suit against the United States for the difference between the original and reduced rate of payment, claiming that the last charter party was executed under duress. But it was held that he was not entitled to recover, because he had a full and complete remedy at law for the government's breach of its contract, and need not have made the new agreement at all.131 For similar reasons, a threat by a lessor to eject a tenant unless he consents to pay a sum demanded under the guise of rent does not constitute duress, though the sum demanded is more than is due and though the tenant pays it under protest.132 And a threat by a subcontractor to remove fixtures installed in a building in course of construction, unless paid money not due to him, is not duress such as to entitle the general contractor to recover back the payment induced thereby.138 So, the fact that a first mortgagee was induced to agree to pay a second mortgage by threats of the mortgagor to either convey or lease the land, which the latter had a right to do, does not constitute duress or fraud.134 Nor can a plea of duress be supported by showing a threat of an administrator to resign and have another administrator appointed, though great expense to the estate would ensue.185 And duress arising from threats of destruction of a vessel and cargo belonging to a neutral, captured by a belligerent in time of war, cannot be admitted to avoid a contract of ransom, where the capture was justified by proper cause, and still less where condemnation must have ensued in the regular prize proceedings.138

To constitute duress by threats, they must presage some

109 Pac. 265; Electric Plaster Co. v. Blue Rapids City Tp., 77 Kan. 580, 96 Pac. 68.

131 Silliman v. United States, 101 U. S. 465, 25 L. Ed. 987.

132 Emmons v. Scudder, 115 Mass. 367.

133 James C. McGuire & Co. v. H. G. Vogel Co., 164 App. Div. 173,

149 N. Y. Supp. 756.

184 Goos v. Goos, 57 Neb. 294, 77 N. W. 687.

185 Sackman v. Campbell, 15 Wash. 57, 45 Pac. 895.

186 Maisonnaire v. Keating, 2 Gall. 325, Fed. Cas. No. 8,978.

specific and particular injury or disaster presently to be inflicted upon the person threatened. Vague menaces of harm, or assertions of indefinite future trouble, cannot be supposed to influence, much less to control, the mind and will of any reasonable being. And further, however specific the threats may be, they cannot be called duress unless they awaken a real and not unreasonable apprehension in the mind of the person acted on. Hence they must be accompanied by at least the apparent power to inflict the injury threatened. Whether or not that power exists, they must at least excite a reasonable belief that the person who threatens has at hand the means of carrying his threats into present execution.187 "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. A mere display of anger, or the use of violent and profane language, indefinitely minatory in its character, will not constitute such duress as will relieve a party from a contract into which he has entered under its influence.139 Thus, it is said in a case in New Jersey that mere angry words and looks by a paralytic husband cannot amount to coercion of his wife, on account of his absolute physical inability to do any injury or make good any threats.140 And finally, to make the defense of duress effective, it must have been so great as to take away the voluntary power of action and consent on the part of the person threatened. However much he may have been disquieted or even alarmed by the threats, a perturbed or apprehensive state of mind is not enough to invalidate his action, but the fear of injury must have been so great as entirely to deprive him of a free choice in the matter.141

138

137 Barrett v. Mahnken, 6 Wyo. 541, 48 Pac. 202, 71 Am. St. Rep. 953; Boggess v. Chesapeake & O. R. Co., 37 W. Va. 297, 16 S. E. 525, 23 L. R. A. 777; Ligonier v. Ackerman, 46 Ind. 552, 15 Am. Rep. 323; Vick v. Shinn, 49 Ark. 70, 4 S. W. 60, 4 Am. St. Rep. 26; Brumagim v. Tillinghast, 18 Cal. 265, 79 Am. Dec. 176.

138 Radich v. Hutchins, 95 U. S. 210, 24 L. Ed. 409.

139 Adams v. Stringer, 78 Ind. 175.

140 Van Deventer v. Van Deventer, 46 N. J. Law, 460.

141 Iowa Sav. Bank v. Frink, 1 Neb. (Unof.) 14, 92 N. W. 916.