32 Tex. 183 | Tex. | 1869
This is a suit for interest, payable by instalments, upon a note executed April 6th, 1861, due two years after date, for the sum of one thousand dollars. The petition alleges that the instalments were payable in specie, whereas the payments were actually made in Confederate money, which were not objected to by the payee at the time of the several payments, because he stood in fear of the rebel authorities, who then denounced and threatened all persons that refused to take it in satisfaction of their demands. Is this such duress in law as will avoid the acceptance as a satisfaction of the demand ? We think not.
It is true that the strict rigor of the common law rule in the application of the doctrine of duress to the avoidance of contracts has been much relaxed in modern times in the action of the courts, though the rule itself has never been abrogated by positive law. It is also true that if the duress be imposed by a stranger, even when the beneficiary is no party to the duress, a contract, or obligation thus obtained, may be, and is, invalid, under certain circumstances, and the party imposed upon may avoid it. But that duress must be imposed upon the party by some overt acts of violence or threats, at the moment of making the contract, or of entering into the obtested engagement. Yague and undefined fears of violence from nobody in particular, but from everybody in general, at some uncertain period, without some cotemporaneous demonstration of violence, is not the duress contemplated by law. Besides, a general threat of violence to a whole community for the non-observance of the popular will, is not a personal imposition of that duress defined by law, of which a party may judicially avail himself in avoidance of his contracts or engagements. It is a direct personal imposition of duress, for which a right may be reclaimed, or a defense set up for the l'ecision of such contract or engagement. So that the testimony proposed to be introduced by the appellant on the trial, if it had been admitted, and had fully corroborated all the allegations in the petition in that regard, it would not have made out a case of duress,
Affirmed.
