118 Va. 89 | Va. | 1915
delivered the opinion of the court.
The bill in this case states that on or about February 5, 1912, Charles P. Engleman met on the streets of the town of Lexington a young woman by the name of Lillian Ford, who lived in the neighborhood of his home in Rockbridge county, and with whom he was well acquainted; that he was about to take the
The claim is that these notes are invalid because executed under duress and without legal consideration. The plaintiffs further represent that the notes are all negotiable and that Lillian Ford is wholly without property or means of any sort, so that if she should transfer the notes to an innocent holder for value, plaintiffs would be without redress; therefore, they come into a court of equity and pray that she may be required to answer the bill, but not under oath; that said notes may be declared to be null and void and of no binding force or effect; that she may be required to surrender said notes; that a proper decree providing for their cancellation be entered, and that she may be enjoined and restrained from suing upon, negotiating or transferring said notes or any of them until the further order of the court.
Lillian Ford answered this bill, admitted that she was on her way to Clifton Forge when she was joined by the plaintiff, Charles P. Engleman, and he suggested that he would go with her to that place; that she was at the time engaged to be married to him and was glad of his company; that she expected to spend some time in Clifton Forge with friends there, with some expectation of going to Dayton, Ohio, for a more or less extended visit. She alleges that before reaching the city of Clifton Forge Engleman suggested that instead of going to -the-home of her friends in Clifton Eorge at once, they spend the night at the hotel, as they would have a better opportunity to talk over
Upon the issues thus made depositions were taken. O. T. Engleman, in his deposition, states that J. W. Ford came to him and said that something had to be done right away, and that a money consideration would have to be paid or Charlie would have to marry Lillian. He says that he told him that he supposed his brother Charlie would do what was right, and he then said that he had consulted a lawyer in Clifton Forge who told him that Charles P. Engleman was liable to be sent to the penitentiary for ten years, and that they were going to send him to the penitentiary unless he paid some money consideration or married his sister; that subsequently he said to him and to his brother, Charlie, who were together at the time, that if he did not fix things up he would be subject to ten years in the penitentiary; that Charlie told him he did not want to go to the penitentiary, and that he would go out to Dayton with him and they arranged to go a couple of days later. The deposition of C. P. Engleman is pretty much to the same effect. Both Charles P. Engleman and his brother, O. T. Engleman, state
In Clark on Contracts, page 356, section 172, it is said: “Duress is a species of fraud. It means some actual or threatened personal violence against, or imprisonment of, a person, or of his very near relative, by reason of which he is forced or induced to enter into a contract.” “It is of two kinds: (a) Duress of imprisonment—that is, where the person is actually imprisoned; and (b) duress per minas—that is, where he is
In Elliott on Contracts, section 140, it is said: “There are three well defined periods of development in the law relative to duress. By ancient' authorities it was held that duress could only exist where there was such a threat of danger to the object of it as was deemed sufficient to deprive a constant, or courageous man of his free will. The resisting power which every person was bound to exercise for his own protection was measured, not by the standard of the individual affected, but by the standard of the man of courage. At a subsequent period it was stated by text writers and courts of last resort that duress, sufficient to render the contract voidable must be of a nature to overcome the will of a person of ordinary firmness or courage. This statement of the rule is still found in many recent authorities. Within recent years, however, the rule has been further modified and rendered more flexible. Courts now hold and textbooks affirm that the test is not whether the threat was sufficient to overcome the will of a man of courage, or of ordinary courage, but whether it actually overcame the will of the person threatened.”
We know of no Virginia case which throws light upon this subject.
In McClair v. Wilson, 18 Colo. 84, 31 Pac. 503, the general rule as stated in 1 Parsons on Contracts, 393-5, 1 Chitty on Contracts, 269-73, and Silliman v. United States, 101 U. S. 465, 25 L. Ed. 987, is said to be that “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,
It would seem that the modern rule, which only takes into consideration the effect of the threat on the mind of the person subjected thereto, is too loose and uncertain. The validity of contracts would be greatly impaired if the principle enunciated were generally accepted.' The' analogies of the law seem to favor resort to a standard of the man of ordinary firmness and courage. For instance: “Reasonable diligence” means such diligence as an ordinary person would exercise under similar circumstances. Words and Phrases, vol. 7, p. 5958. The expression “ordinary persons,” in common parlance means men of ordinary care and diligence in relation to any particular thing. And so, “ordinary neglect” means want of that care’and diligence which prudent men usually bestow on their own concerns; or such neglect as would not be suffered by men of common prudence and discretion. Words and Phrases, vol. 6, pp. 5046-7.
Such terms, however, do not offer an exact standard by which the subjects to which they are applied can be measured, but do offer some guide for determining the probative value of evidence.
In the case before us there is nothing to show that the Englemans were timid or of inferior intellect. They appear in all respects to have been as ordinary men are. While we incline to the modified rule which holds that the duress which invalidates a contract means that degree of constraint or danger, either actually inflicted or threatened and impending,, which is sufficient in severity or apprehension to overcome the mind and will of a person of ordinary firmness, we are not required in this case to decide the point. Duress being a species of fraud must be clearly proved, and in our opinion the
It is contended, however, that the contract and notes were without consideration. Lillian Eord states in her answer and in her deposition that Charles P. Engleman promised to marry her, and that in consequence of that promise she submitted to intercourse with him. He denies that there was any promise of marriage, and yet he admits that he registered himself and Lillian Eord as man and wife, and that they occupied the same room and the same bed, but says there was no sexual intercourse between them—which those who will may believe. Upon this point the case turns almost wholly upon the testimony of the plaintiff, Charles P. Engleman, and the defendant. His statement is a strain upon credulity, while hers is in accordance with the general experience and conduct of mankind.
In' the contract filed with the bill, and from which we have already quoted, Lillian Eord releases Charles P. Engleman from all claim or claims which she may have against him by reason of the occurrences we have narrated. Her case, as stated in her answer, and which we think she establishes by proof, shows that she had a complete cause of action against him for a breach of promise of marriage, the release of which was a sufficient consideration for the contract made.
Upon the whole case, we are of opinion that the decree should be reversed, and this court will proceed to.enter such decree as the circuit court should have rendered.
Reversed.