Story Case

Dan McGrew was the owner of a large tract of land near the Micaba River. But Holborn K. Axford owned the land between the land of McGrew and the river. For many years, McGrew had sought to purchase the land from Axford. The latter, however, refused to entertain any offers for the land. McGrew caused the young son of Axford to be seized and carried away. He then informed Axford that the safety of his son depended upon whether he was willing to agree to sell the land. Axford knew that McGrew was a dangerous and desperate man, and greatly feared for the safety of his son. Consequently, he signed a writing, in which he promised to convey the land in question to McGrew for the sum of $6,500. His son was restored to him in safety. Thereafter, McGrew demanded a conveyance of the land, in accordance with the terms of the agreement above recited. Axford refused to make the conveyance. McGrew then sued for a conveyance of the land. Axford contended that his consent to the agreement was procured by duress, and that the contract was not binding upon him. What should be the decision of the court under the foregoing circum. stances?

Ruling Court Case. Galusha Vs. Sherman, Volume 105 Wisconsin Reports, Page 263; Volume 47 Law Reports, Annotated, Page 417

Galusha had sold some foodstuff to Sherman. The latter claimed that it was unfit for food, and that he had been poisoned by what he had eaten of it. He engaged a lawyer, Sutherland, to direct the course he should pursue. An action was brought against Galusha for damages. After this, he was requested to come to the office of Sutherland. Locked in the room alone with the lawyer, he was told that he had better settle the civil action, or immediate steps would be taken to prosecute him criminally, and that the punishment would be by imprisonment from three to fifteen years. Being overcome by fear, he signed a note for $1,000, executed a mortgage on his home as security for the note, in settlement of the action which was then pending against him. When the note fell due he refused to pay it, and suit was brought upon it.

His defense was the fact that the note was procured by duress; that because of the threats made to him by Sutherland, his will power was overcome and he signed the note, when he would never have done so otherwise.

Decision

Contractual consent is never acquired where one person is forced to enter into the agreement against his will. When a person is threatened with physical violence, or imprisonment, and his will is overcome, an agreement entered into under such circumstances lacks contractual consent, and cannot be enforced against that person. Thus, in this case, the consent of Galusha was procured by unfair means. He was forced into signing the note, because he was threatened with imprisonment. Consequently, the note is not enforcible against him.

Mr. Justice Marshall said: "The making of a contract requires the free exercise of the will power of the contracting parties, and the full meeting and blending of their minds. In the absence of that, the essential of a contract is wanting; and if such absence be produced by the wrongful conduct of one party to the transaction, or conduct for which he is responsible, whereby the other party, for the time being, through fear is bereft of his free will power, for the purpose of obtaining the contract, and it is thereby obtained, such contract may be avoided on the ground of duress".

Judgment was therefore given for Galusha.

Ruling Law. Story Case Answer

When the consent of one of the contracting parties has been procured through duress, his consent is not real and he is not compelled to fulfill the contract, unless he wishes to do so. He may, as it is said, avoid the contract at his election, and the other party has no way of enforcing it against him. Duress consists in forcing a person to agree to a contract, or to give his consent thereto, by means of threats of violence, or threats of imprisonment, or by actual violence or imprisonment. Duress exists, not only when the violence or imprisonment, actual or threatened, is directed against the contracting party, but exists also when it is directed against the wife, husband, child or other near relative of the contracting party. The violence or imprisonment whether actual or threatened must have been such as to overcome the will of the party. It must, moreover, have been the cause of his entering into the contract. Now, in the Story Case, there is no doubt but that the threats of violence to the child of Axford was sufficient to overcome his will, and was the cause of his entering into the contract. This, therefore, constituted duress. The contract is voidable on his part, and having decided to repudiate the contract, nothing can be recovered thereon.