—Thе catalogue of the University of the state for the years 1891 and 1892 containing the following paragraph, amongst others:
“Tuition Charges and Expenses.—Applicants for admission to any of the classes of the law department, or as sрecial students of elective courses, are required to pay the sum of fifty^ dollars for the first year’s attendance and forty dollars for each successive year.
“[Signed] Alexander Martin,
“Dean, Columbia, Mo.”
It appears that the plaintiff examined the said catаlogue, including the above quoted paragraph, after which he concluded to enter the University with the view of availing himself of the entire course of legal study there specified. Accordingly, in October, 1892, he paid the treasurer of the University the sum of $50 and was admitted to the junior class of the law department for the year ending June, 1893.
In September, 1893, the plaintiff, desiring admission to the senior class of said law department for the session ending June, 1894, offered to pay said trеasurer $40 tuition for that year, which offer was rejected, and finding that the sole condition of admission was the prepayment of a tuition fee of $50, he paid that amount under protest, and was thereupon given a matriculation card. In the catalogue of 1893 and 1894 is a paragraph to the effect that law students are
The paragraph in the catalogue of 1892 and 1893 was by its very terms, a public offer to admit persons as students to any of the classes of the law department of the University, on payment of the sum of $50 for the first year and $40 for each successive year. The plaintiff’s payment of $50 and receipt of his matriculation card for the years 1892 and 1893, constituted an implied acceptance and also notice of such acceptance. The contractual relations created between the parties thus became complete and binding. Society v. Broomfield,
Did the acceptance by plaintiff of the defendant’s оffer constitute an entire contract? To determine this, requires a construction of the contract, and in doing so we must not only consider the language employed and the subject-matter, but view them in the light of the circumstances, to ascertain what the parties actually understood or intended. 2 Parsons on Contracts [7 Ed.], 517. It is manifest that the purpose of the defendants was to secure the attendance of students who would complete the entire course by offering them as an inducement a reduction of the tuition for the successive years which would be required to complete the entire course. The undisputed evidence shows that the plaintiff entered for the purpose of taking, аnd did take, the entire course. In view of the language of the
If, as suggested by the plaintiff, it should be contended the offer and acceрtance is a contract for the first year, with an option to take the second year by paying $40, then it is binding on defendants, as the plaintiff not only appeared and demanded the right to enter under the option, before the term еxpired, but paid a valuable, consideration for the option, which could not be withdrawn. Bishop on Contracts [Ed. 1887], section 325; Tiedeman on Sales, section 41; Cherry v. Cook,
But, suppose it' be conceded that under the contract existing betweеn plaintiff and defendants, the former was entitled to admission to the senior class of law department, for the term ending in June, 1894, on payment of a tuition fee of $40; and suppose,-too, it be further conceded that the defendants, by their treasurer, demanded of the plaintiff the payment of the tuition of $50 for said year, as a condition precedent to his- admission, and that plaintiff paid the excess ■above $40 under protest, yet can he recover back such еxcess in an action of assumpsit for money had and received?
In Brisbane v. Dacres, 5 Taunton, 143, it was declared by G-ibbs, J: “When a man demands money ■of another, as a matter of right, and that other, with full knowledge of the facts upon which the demand is founded has paid a sum, he never can recover bаck the sum so voluntarily paid.’ * * * “I think that, by .submitting to the demand, he ’that pays the money ■gives it to the person to whom he pays it and makes it his and closes the transaction between them. * * * It would be most mischievous and unjust if he who has acquiesced in the right by voluntary payment should be at liberty at any time within the statute of limita
In Buchanan v. Sahlein, supra, it is stated that the doctrine of the adjudged cases is that whilst a contract made under compulsion is void for two reasons, first, because, if there is compulsion, there is no consent, and, second, because such cоntract is founded in fraud and wrong; yet, it is not all compulsion that has this effect. It must amount to duress. Duress must be actual violence or threats. Duress by threats exists, not whenever a party has entered into a contract under the influence of a threat, but only when such a threat excites a fear of some grievous wrong, as of death, or great irremediable bodily injury, or unlawful imprisonment, about to be,then and there, or, at least, to be shortly, inflicted. In Wolff v. Marshall,
Westlake v. St. Louis,
Although in the present ease the payment of the ■excess was not made to preserve the inviolability of the person, or to redeem property illegally held, or to prevent its unlawful seizure, yet it was made to secure •admission. It was paid to remove what was otherwise an insurmountable barrier to the ¡completion of plaintiff’s legal education in the University of his state; to •avoid being compelled to go abroad to seek University advantages, amply provided by his own state for all its •citizens; to enable plaintiff to gain admission to the -senior class of the law department and thus speedily ■obtain his degree; and tо prevent an interference and break in the course of his legal education, and the loss •of money expended in reaching the University and providing text-books, etc. The plaintiff and defendants were not on equal terms. The defеndants possessed, and in effect threatened to .exercise, the power •of excluding the plaintiff unless the illegal demand of •their treasurer met with compliance.
Under these circumstances, can it be said the payment wаs voluntary? Was it not under moral duress? Was not the plaintiff under as much compulsion as if the defendants had been armed with a warrant for the •arrest of plaintiff or the seizure of his goods? If the fear of the.seizure of goods, as in 62 Mo., supra, would make thе payment of the extorsive excess, if made under objection, compulsive and involuntary, it would ¡seem that a payment made to prevent the incalculable injury already indicated must be regarded in the same light. According to some of the authorities within
After the proposition contained in the catalogue of 1892 and 1893 had been accepted by plaintiff, and the rights of the plaintiff had thereby become fixed, it was not within the power of the defendants to alter or abridge those rights by withdrawing the рroposition and publishing that contained in the catalogue of 1893 and 1894. And whether plaintiff had notice of that fact before he applied for admission to the second year’s course or not, it seems to us, can make no diffеrence. The proposition contained -in the catalogue of 1892 and 1893 was that of the state, and, when accepted, good faith and fair dealing required it should be carried out on the part of the state to the letter. An enlightened and progressive state can ill afford to trifle with the rights of the citizen in the slightest degree. The court erred in rejecting the theory contained in the plaintiff’s instruction and in adopting that contained in those of the defendants.
The judgment must be reversed and cause remanded, with directions to the circuit court to enter-judgment for the plaintiff.