112 Va. 362 | Va. | 1911
delivered the opinion of the court.
A demurrer to the original bill filed in this cause was sustained by the Chancery Court of the city of Richmond, and thereupon the complainant, J. W. Harris, by leave of court, filed an amended and supplemental bill, making the original bill part thereof, to which amended bill a separate demurrer was filed by the defendant, W. M. Cary, which was also sustained. From the decree sustaining the demurrer to these bills, and dismissing the same, this appeal was allowed. The original bill being in totidem verbis made a part of the amended and supplemental bill, the two will be treated and considered as one bill.
The more important allegations are, that in January, 1904, J. Samuel MeCue and Caroline H. Harris entered into a contract between themselves and the complainant, that the parties, other than the complainant, would furnish a sum of money sufficient to option, open up, purchase and sell lands and mineral rights in Buchanan county, Virginia, and that the complainant should share equally with them in the net proceeds, after the money advanced, with interest and expenses, had been paid, in consideration of his time and -services in developing, opening and selling the lands and mineral rights so optioned or purchased. It is further alleged that on May 23, 1904, the parties, together with the defendant, W. M. Cary, entered into another contract enlarging the first, and agreeing to advance a larger amount of money for the purchase of additional lands, and further agreeing to organize a corporation to be known as the Buchanan Coal and Coke Company, to which the properties bought should be conveyed. It was further agreed that all moneys advanced and to be advanced should be represented by the preferred stock of the company in proportion to the amount advanced by each; that the common stock was to be likewise apportioned, except that the rights
In the mean time Cary, the defendant, had become the purchaser of all of the interests in the company of J. Samuel McCue, under the contract of May 23, 1904, and had thereby become the owner of three-fourths of the holdings of the company, and was under obligation to advance three-fourths of the money necessary to pay for all the lands bought and the costs incident to their purchase; and holding the majority interest in the company, he was elected president, and his two sons directors, one of them being secretary and treasurer, thereby having complete control of the affairs of the company.
Complainant further alleges that from September 3, 1904, the date of his agreement to take two-ninths of the common stock for his share in the profits, instead of three-ninths, as formerly agreed, to July 19, 1907, there had been no dispute or question raised, or even intimated, as to the meaning of the agreement of September 3, 1904, fixing his interest at two-ninths of the common stock of the Buchanan Coal and Coke Company; that on July 19, 1907, the defendant, Cary, while acting as president of the company, and as such a trustee for complainant, for the purpose of forcing complainant to surrender and sacrifice his interests in the company to him, Cary, wrote a letter to complainant, saying that he had had the two contracts of May and September, 1904, submitted to competent men, and that their finding was, and his interpretation always had been, that complainant’s interest in the common stock was limited to such lands as were optioned to J. Samuel McCue, when the defendant, Cary, knew at the time that complainant had worked for three years, without notice of such construction of the contracts, under his direction, and that at his instance a large part of the lands optioned to McCue had been rejected, and many thousands of acres of other lands
It is further alleged that from the time the letter of July, 1907, was written, until March, 1908, the defendant, Cary, continuously demanded and insisted that complainant should' surrender to him one-half of his two-ninths interest in the common stock, and by every conceivable device tried to persuade, induce and force him to do so, finally threatening complainant that if he did not surrender to him the stock demanded, he would let the whole thing go and the company be sold out, and that complainant would then get nothing.
It is further alleged that at the time of these importunities and threats, complainant had faithfully performed and fully completed his obligations under the contracts between the parties, and that the defendant, Cary, had wholly failed to perform his part of the contracts by advancing the money to pay for the lands that had been bought; that the defendant, Cary, then owed about $50,000 that he had agreed to advance, but instead of paying the same he permitted suits to be brought against the company on the obligations due for land, for the sole purpose of carrying out his threat to have the land sold, and thereby to destroy the entire interest of complainant in the common stock of the company, refusing at the same time to issue to complainant any part of the common stock until he should yield and comply with his demand that part of complainant’s interest be given to him. Complainant further alleges that at the time this force and coercion was being exerted over him by the defendant, Cary, he had no business experience, except that had with the Buchanan Coal and Coke Company, and other work of like character; that all of his life,
Complainant charges that the defendant, Cary, took advantage of the fact that he Avas helpless and in his power, and of his own delinquency in failing to comply with his part of the contract by paying the outstanding debts, and
The prayer of the bill is that the agreements of March 6, and March 18, 1908, by which complainant was forced to surrender to the defendant, Cary, one-fourth of his two-ninths interest in' the common stock of the company, be set aside as null and void, so far as they affect the interest of complainant; that pending the further order of the court the defendant, Cary, be enjoined and restrained from selling or otherwise disposing of the stock acquired by said agreements or either of them, or if said Cary has parted with any part thereof, that he may be compelled to keep in his possession and under his control and ownership, subject to the future order of the court, an equal number of shares of like stock of the company to that obtained from complainant; that the said Cary or the Buchanan Coal and Coke Company be required to transfer or issue to complainant an equal number of shares of the company to that taken from him under the agreements aforesaid; and for general relief according to equity and good conscience, and as may be deemed proper by the court.
The doctrine appears to be well established that where
In civil cases, the rule as to duress has a broader application at the present day than it formerly had. So when concessions are exacted through the necessity of a person, in order to save his property, illegally withheld by another, from destruction or irreparable injury, such a transaction may be avoided on the ground of compulsion, though not amounting to technical duress. Fitzgerald v. Construction Co., 44 Neb. 463, 62 N. W. 899; Vine v. Glenn, 41 Mich. 112, 1 N. W. 997; Brueggestradt v. Ludwig, 184 Ill. 24, 56 N. E. 419; Alston v. Durant, 2 Strob. (S. C.) 257, 45 Am. Dec. 596, and note; Adams v. Schiffer, 11 Colo. 15, 17 Pac. 21, 7 Am. St. Rep. 202; Lonergan v. Buford, 148 U. S. 581, 37 L. Ed. 569, 13 Sup. Ct. 684.
In the case last mentioned, citing Radick v. Hutchins, 95 U. S. 210, 24 L. Ed. 409, it is said that, “to constitute coercion or duress which will be regarded as sufficient to make the payment involuntary, 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.”
In the case at bar, the allegations of the bill, which are admitted to be true by the demurrer, state a case clearly calling for interposition of a court of equity to afford relief. The helpless situation and the extreme necessities of the complainant were taken advantage of to compel him to surrender to the defendant one-fourth of his property, which was under the latter’s control, and to which, as alleged, he had no lawful right, in order to save such property from sacrifice; the choice offered the complainant being financial ruin or immediate compliance with the alleged fraudulent, oppressive and unconscionable demands of the defendant.
It is clear, .both upon reason and authority that the bill states a good cause of action, entitling the complainant to relief, if the facts alleged are established by the evidence to be adduced.
The decree complained of sustaining the demurrer to the bill must, therefore, be set aside, and this court will enter such decree as the chancery court ought to have entered, overruling the demurrer. And the cause will be remanded to the chancery court, which will, in accordance with the prayer of the bill, enjoin and restrain the defendant, W. M. Cary, from disposing of the stock in controversy until the further order of that court; and for further proceedings to be had therein not in conflict with the views expressed in this opinion.
Reversed.