142. Duress is actual or threatened violence or imprisonment, by reason of which a person is forced to enter into a contract. To affect the contract, however,
(a) It must have been against or of the contracting party, or his or her wife, or husband, parent, child, or other near relative.
(b) It must have been inflicted or threatened by the other party to the contract, or by one acting with his knowledge or on his behalf.
(c) It must have induced the party to enter into the contract.
143. OF GOODS. By the weight of modern authority, the unlawful detention of another's goods under oppressive circumstances, or their threatened destruction, may constitute duress.
The ground upon which a contract entered into under duress can be avoided is because there is no real consent. The apparent consent is unreal because of the imprisonment or force, or of the fear caused by the threats. "Actual violence," it has been said, "is not necessary to constitute duress, * * * because consent is the very essence of a contract; and, if there be compulsion, there is no actual consent; and moral compulsion, such as that produced by threats to take life, or to inflict great bodily harm, as well as that produced by imprisonment, is everywhere regarded as sufficient, in law, to destroy free agency, without which there can be no contract, because in that state of the case there is no consent. 'Duress,' in its more extended sense, means that degree of constraint or danger, either actually inflicted or threatened and impending, which is sufficient, in severity or in apprehension, to overcome the mind and will of a person of ordinary firmness." 2
99 Clark v. Thayer, 105 Mass. 216, 7 Am. Rep. 511; Smith v. Livingston, I11 Mass. 342; Southwick v. Bank, 84 N. Y. 420; Gridley v. Bane. 57 I11. 529; Ormsbee v. Howe, 54 Vt. 182, 41 Am. Rep. 841. Set "Bills and Notes," Dee. Dig. (Key-No.) § 373; Cent. Dig. §§ 966-970.
1 See ante, p. 247.
The statement of what constitutes duress, made in this and many other cases,8 requires that the violence or threats shall have been sufficient to overcome a mind of "ordinary firmness," or the mind of a person of "ordinary courage." By the great weight of modern authority, however, both in this country and in England, this test has been rejected. The rule now generally prevailing is that violence or threats employed for the purpose of overcoming the mind, and actually having that effect, constitute duress, although the violence or threats employed would not be sufficient to overcome the mind of a person of ordinary firmness.4
2 Pierce v. Brown, 7 Wall. 205, 19 L. Ed. 134. See, also, Baker v. Morton, 12 Wall. 150, 20 L. Ed. 202; Foshay v. Ferguson, 5 Hill (N. Y.) 154; Eadie v. Slimmon, 26 N. Y. 12, 82 Am. Dec 395; French v. Shoemaker, 14 Wall. 314, 20 L. Ed. 852; U. S. v. Huckabee, 16 Wall. 432, 21 L. Ed. 457; Miller v. Miller, 68 Pa. 486; Guilleaume v. Rowe, 94 N. Y. 268, 46Am. Rep. 141; Harmon v. Harmon, 61 Me. 227, 14 Am. Rep. 556; Fisher v. Shattuck, 17 Pick. (Mass.) 252; Gotwalt v. Neal, 25 Md. 434; Bane v. Detrick, 52 I11. 19; Alexander v. Pierce, 10 N. H. 494; McClair v. Wilson, 18 Colo. 82, 31 Pac. 502; Horton v. Bloedorn, 37 Neb. 666, 56 N. W. 321; Batavian Bank v. North, 114 Wis. 637, 90 N. W. 1016. A threat by a husband to separate from his wife and not support her has been held such duress as to avoid a deed by her to him induced thereby. Tapley v. Tapley, 10 Minn. 448 (Gil. 360), 88 Am. Dec. 76. An angry command by husband to wife, unaccompanied by threats of personal violence, held not duress. Gabbey v. Forgeus, 38 Kan. 62, 15 Pac. 866. Merely to speak roughly to a woman, without threats of personal violence, is not duress. Dausch v. Crane, 109 Mo. 323, 19 S. W. 61. Mere vexation and annoyance is not duress. Brower v. Callender, 105 I11. 88. See "Contracts," Dec. Dig. (Key-No.) § 95; Cent. Dig. §§ 431-440.
3 United States v. Huckabee, 16 Wall. 414, 21 L, Ed. 457; Hines v. Board, 93 Ind. 266; Morse v. Woodworth, 155 Mass. 233, 27 N. E. 1010, 29 N. E. 525; Flanigan v. City of Minneapolis, 36 Minn. 406, 31 N. W. 359; Horton v. Bloedorn, 37 Neb. 666, 56 N. W. 321; Kennedy v. Roberts, 105 Iowa, 521, 75 N. W. 363. See "Contracts," Dec. Dig. (Key-No.) § 95; Cent. Dig. §§ 431-440.
4 GALUSHA v. SHERMAN, 105 Wis. 263, 81 N. W. 495, 47 L. R, A. 417,
It is almost needless to add that the contract must have been made because of the imprisonment, or of fear of the threatened injury or imprisonment; otherwise, there is no duress.5