28 Ga. App. 444 | Ga. Ct. App. | 1922
(After stating the foregoing facts). It is well-settled that where duress is pleaded as a defense to an action on a contract, facts sufficient to show duress in law must be set forth in the polea, and that mere empty threats do not amount to duress. Bond v. Kidd, 1 Ga. App. 801 (57 S. E. 944); Bond v. Kidd, 122 Ga. 812 (50 S. E. 934); Carswell v. Hartridge, 55 Ga. 412. The threat must be sufficient in severity to cause such apprehension as to overcome the mind and will of a person of ordinary firmness. United States v. Huckabee, 16 Wallace, 414 (21 L. ed. 457). And it must appear that the person uttering the threat had the power to make it effective. Wilkerson v. Hood, 65 Mo. App. 491; Horton v. Bloedorn, 37 Neb. 666 (56 N. W. 321); Wilkerson v. Bishop, 7 Coldw. (Tenn.) 25. And a threat for which there is no ground does not constitute duress, as the person
It appears from this plea that the alleged duress consisted of Barrett’s threat to report Blalock to his employer and to cause him to be discharged from his position. It is not, however, alleged in the plea that Barrett could have made this threat effective or even that Blalock feared that Barrett could or would cause him to lose his position. Under the authorities cited above we think that the plea failed to set forth facts showing duress in law, and that it was not error to strike this portion of the plea, on oral motion of the plaintiff.
We think also that the portion of the plea alleging that the notes sued upon “ are without consideration of any sort whatsoever to this defendant ” was insufficient in law and was properly
It is our opinion, however, that the portion of the plea which alleged that the notes sued upon were founded upon an illegal consideration, in that they were given in a transaction involving the sale of cotton futures, was sufficient to withstand an oral motion to strike, and, therefore, that the trial judge erred in striking the entire plea, and that the judge of the superior court erred in overruling the certiorari. Where any part of a plea is good, it is error to strike the entire plea, upon oral motion. See, in this connection, Hudson v. Hudson, 119 Ga. 637 (1) (46 S. E. 874).
Judgment reversed.