9 Mo. App. 552 | Mo. Ct. App. | 1881
delivered the opinion of the court.
The petition in this case states, in substance, that defend
Defendants stated to plaintiff that they had full proof of all facts necessary to show plaintiff’s guilt; that he had been stealing from them for ten years ; that he must make good all the losses of Sahlein, Singer & Co. during that time, or they would expose him and send him to prison. Plaintiff protested his innocence, and asked them to allow him to consider the matter until morning, which they refused. Plaintiff was frantic with fear, and believing that defendants would charge him with theft, arrest and ‘imprison him as they threatened, and ruin his good name and reputation, and being totally deprived of his judgment and reason, and not knowing to what extent the cupidity of
The petition further alleges that plaintiff was all that night crazed with fear; that he continued so for several days; that on the next day defendants informed him that it might lead to his exposure if the deed was recorded, and offered to return the deed and note if he would give them $3,000 cash and his note for $2,000, secured by Lincoln County bonds : that plaintiff, believing himself liable on the note, and that defendants would falsely charge him with a felony and imprison him if he did not accede to their demands, paid thereon all the money he could raise, being $2,000, and delivered to them his three negotiable notes for $1,000 each, at two, four, and six months, together with eight Lincoln County bonds for $500 each, to secure the same, whereupon defendants returned to him the real-estate note and the deed. Plaintiff further states that defendants, by putting him in fear by false charges of felony and threats of criminal prosecution, arrest, and imprisonment, and whilst he was under duress and in the power of defendants, did extort from him the property aforesaid, worth $10,000; that by reason of the premises he suffered great pain of mind, and is damaged $25,000, for which he asks judgment.
The second count of the petition states that for twenty-five years prior to the grievances complained of, plaintiff was a merchant in St. Louis, enjoying a good reputation, and in 1871, and for years thereafter, was salesman and confidential clerk in the clothing house of Sahlein, Singer & Co. ; that on October 1, 1877, defendants confederated together to ruin plaintiff in his good name and business, and to cheat him of $15,000; that in pursuance of this design
Defendants demurred, on the ground that the petition does not set forth facts sufficient to constitute a cause of action. The demurrer was sustained, and plaintiff declining to plead over, there was final judgment.
Involuntary payments, made under compulsions of legal process, or duress of goods or of the person, may be recovered back. In order to entitle the person paying to regain the amount by an action at law, the plaintiff must show, not only that the demand was illegal, b.ut duress. By duress is meant that degree of severity, threatened,-or impending, or actually inflicted, which is sufficient to overcome the mind and will of a person of ordinary firmness. Ex vi termini, a contract is the meeting or drawing together of minds. If the mind of one party to the contract is so far overcome that the freedom of the will is impaired, the contract. may be voidable. If there is duress, the contract is voidable at law. The common law divides duress into duress of imprisonment and duress by threats.
As to the first, a man may execute a valid deed while in prison. But if he is unlawfully restrained of his liberty until he execute the instrument, and he executes it by force of the imprisonment, as the only means of setting him free, then the deed is voidable.
A careful examination of both counts of this petition shows that it contains no sufficient allegation of duress of imprisonment. It' does not allege that plaintiff executed any instrument or made any agreement in order to get out
As to duress per minas, that- is restricted to fear of loss of life, or of remediless injury to the person, or of imprisonment. Co. Lit. 253 b; 2 Inst. 483. But duress by threats of imprisonment must be such as to excite a reasonable fear of immediate imprisonment. We do not think that a threat of prosecution addressed to a man conscious of innocence is such a threat as would induce in any man' of ordinary firmness an overwhelming fear of immediate imprisonment. Had the proper preliminary steps been taken, an affidavit been made before a magistrate or an informaation been filed, or had process issued, the case might be different. But we are not aware of any case in which threats of imprisonment have been held to constitute duress, where the threat was not accompanied at least with the statement that the prosecution had been begun, and that the parties had thus the means immediately at hand of procuring the instant arrest and imprisonment of the person threatened. Harmon v. Harmon, 61 Me. 227.
Nor is fear of imprisonment alleged distinctly in the petition. Fear of disgrace, and of prosecution, and of public exposure is alleged, but not fear of immediate imprisonment.
An attempt to collect a private claim by a resort to a criminal proceeding is undoubtedly specialty odious, and the compounding of a felony is a crime against society; but it does not therefore follow that a threat of criminal proceedings constitutes duress per minas. An arrest by
It is also true that circumstances of extreme necessity and -, distress, though not presenting a case of legal duress, may so overcome free agency, in some particular instance, as to justify a court of equity in setting aside a contract made under such circumstances, on account of the fraud practised upon one who has been morally chained down and deprived of the free exercise of his faculties of mind and will. But this is not a bill in chancery to set aside a contract for fraud, but it is an action at law for damages for an alleged wrong, as plainly appears, not from the prayer for relief alone, but from the whole scope of the petition. - If it be granted that facts are stated which, if coupled with other allegations as to mental or moral infirmities of this particular plaintiff, or as to peculiar confidential relations between the parties, might, in a bill properly framed, furnish ground for some form of equitable' relief, it will not follow that the court erred in sustaining this demurrer.
The petition is not good as an action for deceit, because, though it is alleged that some of the statements made were false, it does not appear that any particular false statements as to matters not equally within the means of knowledge of both parties were made, upon which plaintiff relied, and by which he was deceived to his loss.
The facts set out in the petition seem to make out a case of what is colloquially called “black-mail.” But money paid under the influence of threats such as those set forth must, we think, unless in some special case, be regarded as a voluntary payment. Generally, it may be said that when a person knows that a claim made upon him is unjust, fraudulent, or illegal, the law requires him to resist it; and
The citizen owes to himself and society the duty not to buy silence jyhen threatened with charges that may expose him to disgrace. If the accused knows himself to be guilty, the law will certainly not tíelp him to recover back money paid to compound a felony ; if he is innocent, the law offers him her protection. , And in every system of law the theory is, and must be, that that is enough; that the guilty only will be punished through the machinery of a court of justice. And the law will not only protect the innocent, but also punish those who set on foot a malicious prosecution. Threats of a false prosecution for larceny or embezzlement are not regarded as calculated, in their nature, to overcome a mind of ordinary constancy. The mens consola sibi recti is not frightened by groundless charges. If there are exceptions, no rules, legal or other, are founded on exceptions.
As to the precise character of the threats which would constitute duress of the person or of the goods, no rule can be laid down; each case stands upon its own peculiar facts and circumstances. They must be threats of such bodily harm as will overcome'the mind of a person of ordinary firmness. If the threat is of illegal imprisonment, there must be a reasonable ground of apprehension that the threat will be carried into immediate execution, and the threat must operate so as to overcome the will. If the im prisonment is to be by process, it must appear that process to that end has actually issued, or that there was a moral certainty that it would issue. A mere apprehension that legal proceedings will be set on foot by perjury or other improper means is not enough. Thus, where a person who was co-tenant with the plaintiff demanded of him a portion of the insurance money received by the plaintiff on a policy of insurance, to the whole of which plaintiff was entitled, and threatened, with violent language and curses, that un
A paymaster’s clerk embezzled money belonging to the government, by altering vouchers and checks. ' Upon settlement of the paymaster’s accounts, a deficiency was found in consequence of the embezzlement, and he was suspended until he paid that balance into the treasury. He sought relief under the Disbursing Officers’ Act, after payment and after his accounts were closed, on the ground that the payment was made under pressure of the suspension and his liability to be court-martialed and dismissed. This he set up as a “ moral duress,” a species of duress, as is remarked by Chief Justice Drake in delivering the opinion of the court, that is not known to the law. It was held by the Court of Claims that his payment must be held to be voluntary and to conclude him. Hall v. United States, 9 Ct. of Cl. 270.
A liquor dealer paid a license under au_ordinance which
“No one,” saj' the court in Town Council v. Burnett, 34 Ala. 400, “can be heard to say that he had the right and the law with him, but he feared his adversary would carry him into court, and that he would be unlawfully imprisoned, and that, being deprived of his free will, he yielded to the wrong, and the courts must assist him to reclamation.”
“Threat of legal process,” saj' the court in Preston v. Boston, 12 Pick. 12, “is not such duress” as will authorize the party'to recover back money voluntarily paid on an illegal claim; for the party may make proof and show that he is not liable.
“ The legal principle is, that if a party, with full knowledge of all the facts of the case, voluntarily pajes monej' in satisfaction of a demand unjustly made upon him, he cannot afterwards allege the paymeut to have been made bjr compulsion, and recover the money back, even though he should protest at the time of payment he was not legally bound. The reason of the rule and its propriety are quite obvious iyhen applied to a case of payment upon a more demand of money, unaccompanied with any power or authority to enforce such demand except by a suit at law. In such a case, if the party would resist an unjust demand he must do so at the threshold.” Boston, etc., Co. v. Boston, 4 Metc. 181.
“ By submitting to the demand,” says Gibbs, J., in Brisbane v. Dacres, 5 Taun. 143, “ he that pays the money gives it to the person to whom he pays it, makes it his, and closes the transaction between them.” In the course of the argument in the last case, Best, Serj., advanced the proposition that money shall not be recovered back if it be consistent with honor and conscience to retain it, but otherwise it shall. Gibbs, J., interrupted him, saying: “ 'Fhe principle has always been this : whenever the money has been paid in consequence of a demand as of right, then, although the demand was unfounded, the payment cannot be recovered back. There is a case of money paid under distress for standings in a market; though the party had no right to distrain, the money could not be recovered back.” p. 147.
And it has been repeatedly said that to avoid an act on the ground of menace of arrest and imprisonment, it must appear that the threat was of unlawful imprisonment, and the party put in fear of such imprisonment, and induced bjr such fear to do the act. Alexander v. Pierce, 10 N. H. 498 ; Eddy v. Herrin, 17 Me. 340; Story on Con. 400.
The doctrine of the cases is this: that whilst a contract made under compulsion is void for two reasons, (1) because, if there is compulsion there is no consent, and (2) because such a contract is founded in fraud and wrong, yet it is not all compulsion that has this effect. It must amount to duresse This duress must be actual violence, or threats. Duress by threats exists, not wherever a party has
“There are many cases on the subject,” sa}rs Judge Wagner in Wolff v. Marshall, 52 Mo. 171, “and the conclusion clearly deducible from them is, that a payment of money upon an illegal and unjust demand, when the party is advised of all the facts, can only be considered involuntary when it is made to procure the release of the person or property from detention, or when the other party is armed with apparent authority to seize upon either, and the payment is made to prevent it. But where he can only be reached by a proceeding at law, he is bound to make his defence in the first instance, and he cannot postpone the litigation by paying the demand and afterwards suing to recover it back.”
We think that the petition does not set forth facts to constitute a cause of action. The facts will neither support an action for damages for a wrong, nor an action of assumpsit for money had and received. The payment, giving due weight to the allegations, was not made under any duress which is recognized by the law ; it was, therefore, voluntary in a legal sense, and the transaction between the parties is closed.
The judgment is affirmed.