166 Va. 389 | Va. | 1936
delivered the opinion of the court.
The first count in the declaration filed in this case alleges that Mackall M. Ellis was the assistant cashier and
The other count alleges that the consideration for the payment was a promise by defendants to prevent any information of the embezzlement becoming known, or the prosecution of Mackall M. Ellis, and that the “defendants in violation of their promise, made known the said alleged defalcation and had the said Mackall M. Ellis arrested and sent to prison for a long term of years, on account of his said alleged shortage with the said defendant bank and the plaintiffs are entitled to recover from the said defendants the sum of $2,100, with interest from December 15, 1933.”
To the judgment of the trial court sustaining a demurrer to the declaration, this writ of error was awarded.
It is not clear from the declaration on what theory plaintiffs base the action. It is uncertain whether they seek to recover money paid on an illegal contract, or damages for the breach of such contract. In either event there can be no recovery on the facts alleged.
Numerous cases are cited dealing with contracts executed under duress in which recovery was allowed. These
In the same case he also quotes from Silliman v. United States, 101 U. S. 465, 25 L. Ed. 987: “Duress by threats does not exist wherever a party has entered into a contract under the influence of a threat, but only where such a threat excites a fear of some grievous wrong; as of death, or great bodily injury, or unlawful imprisonment. * * * But where the threat, whether of mischief to the person or the property, or to the good name, was of sufficient importance to destroy the threatened party’s freedom, the law would not enforce any contract which he might be induced by such means to make.”
Duress is a species of fraud, it is immaterial whether we apply the ancient doctrine that the threat of danger must be sufficient to deprive a constant and courageous man of his free will, or the modified doctrine, that
There is an exception to this rule when the subject of the duress is wife, husband, parent, child, or other very near relative. The American Law Institute, in its Restatement of the Law of Contracts, vol. 2, chapter 16, adopts the more liberal attitude in this class of cases. In section 492 of the 16th chapter, it is stated: “The threat need not be such as would put a brave man, or even a man of ordinary firmness, in fear. The question is rather, did it put one entering into the transaction in such fear as to preclude the exercise by him of free will and judgment? Age, sex, capacity, relation of the parties, attendant circumstances, must all be considered. Persons of weak or cowardly nature are the very ones that need protection. The courageous can usually protect themselves; timid persons are generally the ones influenced by threats, and the unscrupulous are not allowed to impose upon them because they are so unfortunately constituted.”
Eliminating technical language from the first count, it alleges simply that officers for the bank and the bonding company informed four business men that their kinsman was short in his account, and unless the shortage was made good he would be prosecuted. They thereupon paid $2,100 on the amount due by the defaulter. “And where
The word “compelled” in the first count of the declaration, suggests duress of that rare class of cases in which the person compelled, or coerced, is a mere mechanical instrument in performing the act apparently indicating assent. An illustration of this class is where A, under the hypnotic influence of B, signs his name to a note, or other contract, and is ignorant of the fact that he signed anything. The other allegations in the count entirely negative this type of duress. There is the allegation of the threat made to four business men to prosecute their kinsman, but there is no allegation as to fear in any form except that indicated or suggested by the word “compelled.” Good pleading requires that both the nature of the threat, and the nature of the fear be alleged. If it were not apparent from the other count in the declaration that there is no merit in plaintiff’s case, the court would be inclined to permit this defect, if it is a defect, to be remedied by a proper amendment.
Plaintiffs in the second count boldly allege that the consideration for the payment of the $2,100 was the promise to stifle criminal prosecution of a person guilty of a felony, and seemingly base the action, in this count, on the breach of this promise. Under the circumstances the law will lend its aid to neither party.
In Camp v. Bruce, 96 Va. 521, 524, 31 S. E. 901, 43 L. R. A. 146, 70 Am. St. Rep. 873, it is said: “Whenever, therefore, the illegality of the contract appears, whether alleged in the pleadings or made known for the first time in the evidence, it is fatal to the case. That defect cannot be gotten rid of either by failure to plead it, or by agreeing
In Levy v. Davis, 115 Va. 814, 80 S. E. 791, plaintiff sued on a furniture contract, the taint of illegality not appearing on the face of the declaration. Defendant alleged and proved that plaintiff sold her the furniture for the specific purpose of enlarging her business as the keeper of a house of prostitution. The court denied plaintiff relief on the universal rule, as stated in 2 Elliott on Contracts, section 1064, quoted by the court, 115 Va. 814, at page 816, 80 S. E. 791, 792: “As a general rule the law will leave all equally guilty of an illegal or immoral transaction where it finds them, and will neither lend its aid to enforce the contract while executory, nor to rescind it and recover the consideration parted with when executed. Tt is a well settled principle of law that the courts will not aid a party to enforce an agreement made in furtherance of objects forbidden by the statute, or by common law, or general policy of law, or to recover damages for its breach, or when the agreement has been executed in whole or in part by payment of money to recover it back.’ ” Rock v. Mathews, supra; Burke v. Shaver, 92 Va. 345, 23 S. E. 749; Roller v. Murray, 107 Va. 527, 59 S. E. 421; Id., 112 Va. 780, 72 S. E. 665, 38 L. R. A. (N. S.) 1202, Ann. Cas. 1913B, 1088; Norfolk and Western Railway Co. v. Dehart Distilling Co., 127 Va. 415, 103 S. E. 594; Standard Island Creek Coal Co. v. Shamrock Coal Co., 86 W. Va. 675, 104 S. E. 106, 108; Shonk Land Co. v. Joachim, 96 W. Va. 708,123 S. E. 444, 448; Raleigh County Bank v. Bank of Wyoming, 100 W. Va. 342, 130 S. E. 476; Bristol v. Dominion National Bank, 153 Va. 71, 149 S. E. 632; American-La France & Foamite Industries v. Arlington County, 164 Va. 1, 178 S. E. 783.
Some authorities make a distinction between cases in which the prosecution has not been instituted and where the prosecution is pending; that is, where the prosecution is threatened, it may he bought off if directed against an innocent party, but there is no innocent party here. The
Plaintiffs contend that, because Code, section, 4513, imposes a penalty to receive a consideration to compound a felony, but imposes no penalty upon the person paying the consideration, that the parties are not in pari delicto, and therefore plaintiff should be permitted to recover. Clay v. Butler, 132 Va. 464, 112 S. E. 697.
Such contracts are illegal regardless of statute, as they tend to suppress evidence and impede the due course of public justice. Justice Cardozo' has so clearly and tersely given the reasons therefor in Union Exchange Nat. Bank v. Joseph, supra, that on this point we are content to adopt the views of that court as our own: “We find no' equality sufficient to set the law in motion at the suit of knowing wrongdoers to undo a known wrong. * * * They had chosen to put private welfare above duty to the State. The State would not concern itself with the readjustment of their burdens unless for some better reason than the fact that indifference to duty had followed hard upon temptation. Excuse would seldom fail if temptation could supply it. * * * Here the suppliant for relief is himself the
Affirmed.