This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
Threats or conduct which do not involve violence, imprisonment, and the like, can not usually constitute duress. If the conduct apprehended will cause merely vexation and annoyance,1 as a threat to convey or lease property unless the grantor will accept a reconveyance and assume a mortgage thereon;2 or mere importunity by a creditor to obtain security for his debt, though causing worry and excitement thereby;3 a fear that control of a corporation will be lost unless stock is bought at an excessive price;4 or merely demanding settlement of a claim in a rough manner and insisting on prompt action;5 the advice of a debtor's friend to his wife that unless she obtains an extension by signing as surety, her husband will suffer financial injury;6 a threat to manage a corporation in an improper manner;7 or the fact that a chattel mortgage already given to secure rent prevents the mortgagor from moving his goods out of the township to the farm that he has rented,8 none of them amount to duress. The fact that the township officers said that they would not call an election for the purpose of voting on the issue of bonds to be used in building a highway unless a corporation which operated a number of large mills on such highway would bear a portion of the expenses, and that if such corporation had declined to enter into a contract to bear a portion of such expenses, it would have placed it in a bad light before its patrons, does not amount to duress.9 A threat to injure the credit of the adversary party unless he executes a new mortgage in payment of prior mortgages, does not amount to duress.10 A threat of suicide does not amount to duress.11
1Graves v. Graves, 255 Mo. 468, 164 S. W. 496.
2 Graves v. Graves, 255 Mo. 468, 164 S. W. 496.
3Kocourek v. Marak, 54 Tex. 201, 38 Am. Rep. 623; Tapley v. Tapley, 10 Minn. 448 (Gil. 360), 88 Am. Dec. 76.
4 Purdy v. Watte, 88 Conn. 214, 90 Atl. 936.
5Detroit National Bank v. Blodgett, 115 Mich. 160, 73 N. W. 120.
6 Purdy v. Watts, 88 Conn. 214, 90 Atl. 936.
7 Robinson v. Robinson, 77 Wash. 663, 51 L. R. A. (N.S.) 534, 138 Pac. 288. 1 Purdy v. Watts, 88 Conn. 214, 90
Atl. 936; Hagan v. Waldo, 168 111. 646, 48 N. E. 89; Batavian Bank v. North, 114 Wis. 637, 90 N. W. 1016.
2 Goos v. Goos, 57 Neb. 294, 77 N. W. 687.
3Zuccarello v. Randolph (Tenn. Ch. App.), 58 S. W. 453.
4 Gage v.. Fisher, 5 N. D. 297, 31 L. R. A. 557, 65 N. W. 809.
5Dausch v. Crane, 109 Mo. 323, 19 S. W. 61.
6 United States Banking Co. v. Veale, 84 Kan. 385, 37 L. R. A. (N.S.) 540, 114 Pac. 229.
7 York v. Hinkle, 80 Wis. 624, 27 Am. St. Rep. 73, 50 N. W. 895.
The doctrine of duress is carried farther by some courts than is here indicated. Thus where A charged his employe, B, with appropriating A's money, and told B's mother, C, and threatened to inform his father, D, it was held that on these facts alone duress might exist if D was in such physical condition that C feared that such information might cause him to become insane and to prevent such worry and trouble, she gave a mortgage for B's debt, A being informed of D's condition and C's motives.12 A threat of disgrace may amount to duress.13 Instituting proceedings to subject the promisor to guardianship as a spendthrift and dismissing such proceedings after he is compelled to transfer the greater part of his property to the party by whom such proceedings were instituted, may be duress.14
If the person subjected to duress is thereby compelled to perform or agree to perform what he could have been compelled to do legally, such transaction or contract can not be avoided for duress.
Thus if one who has injured another is compelled by duress to compensate to no greater extent than the law would have compelled him for such injury,1 as by giving to the person from whom he has embezzled a note to cover such embezzlement,2 no duress exists. So an assignee for the benefit of creditors can not plead duress of his assignor to avoid a conveyance to pay an honest debt.3 If A's partner has bought from a thief goods stolen from B, A's note to B for the value thereof, given after A has consulted his lawyer and has had opportunity for deliberation, is not given under duress.4 If A has stolen money and bought property with it, taking title thereto in the name of his wife B, B's conveyance of such property to the owner of the fund can not be regarded as caused by duress, so as to enable B to have such conveyance cancelled.5
8 Lamb v. Rathburn, 118 Mich. 666, 77 N. W. 268.
9Electric Plaster Co. v. Blue Rapids City Tp., 77 Kan. 580, 96 Pac. 68.
10F. B. Collins Investment Co. v. Easley, 44 Okla. 429, 144 Pac. 1072.
11 Remington v. Wright, 43 N. J. L. 451.
12Silsbee v. Webber, 171 Mass. 378,
50 N. E. 555. (Further, C was advised in this case by A's attorney. The court divided on the question.)
13McNair v. Benson, 63 Or. 66, 126 Pac. 20.
14Foote v. De Poy, 126 la. 366, 102 N. W. 112. See to the same effect, Hogan v. Leeper, 37 Okla. 655, 47 L. R. A. (N.S.) 475, 133 Pac. 190.
Some courts, however, take the opposite view.6 But if the contract caused by threats of prosecution is not one of restitution, but is on some different subject-matter, duress exists, though the promisor is guilty.7 Thus a threat to prosecute for selling liquor unlawfully,8 or for giving testimony alleged to be perjured,9 may be duress, and notes induced thereby may be avoided. If B has stolen property from A, and A by threat of criminal prosecution compels B to pay an amount of money in excess of the reasonable value of the property thus stolen, B may recover from A the difference between the amount thus paid and the reasonable value of such property.10
1 Hilborn v. Bucknam, 78 Me. 482, 57 Am.. Rep. 816, 7 Atl. 272; Thorn v. Pinkham, 84 Me. 101, 30 Am. St. Rep. 335, 24 Atl. 718; Clark v. Turnbull, 47 N. J. L. 265, 54 Am. Rep. 157; Rostad v. Thorsen, 83 Or. 489, L. R. A. 1917D, 1170, 163 Pac. 987 [modifying decree on rehearing, Rostad v. Thorsen, 83 Or. 489, L. R. A. 1917D, 1170, 163 Pac. 423].
2 Maine. Thorn v. Pinkham, 84 Me. 101, 30 Am. St. Rep. 335, 24 Atl. 718.
Michigan. Miller v. Lumber Co., 98 Mich. 163, 39 Am. St. Rep. 524, 57 N. W. 101; Beath v. Chapoton, 115 Mich. 506, 69 Am. St. Rep. 589, 73 N. W. 806.
New Jersey. Bodine v. Morgan, 37 N. J. Eq. 426.
Pennsylvania. Phillips v. Henry, 160 Pa. St. 24, 40 Am. St. Rep. 706, 28 Atl. 477.
Texas. Largent v. Beard (Tex. Civ. App.), 53 S. W. 90.
"The law does not permit a criminal who has stolen property, to defend against the debt or its written acknowledgment on the ground of threatened prosecution or imprisonment." Beath v. Chapoton, 115 Mich. 506, 69 Am. St. Rep. 589, 73 N. W. 806.
Some courts qualify this doctrine by saying that while duress may exist, the presumption that the criminal was making compensation from honest motives and not because of threats should be a very strong one. Meredith v. Meredith, 79 Mo. App. 636.
3 Phillips v. Henry, 160 Pa. St. 24, 40 Am. St. Rep. 706, 28 Atl. 477.
4 Fred Rueping Leather Co. v. Watke, 135 Wis. 616, 116 N. W. 174.
5 Rostad v. Thorsen, 83 Or. 489, L. R. A. 1917D, 1170, 163 Pac. 987 [modifying decree on rehearing, Rostad v. Thorsen, 83 Or. 489, L. R. A. 1917D, 1170, 163 Pac. 423].
6Taylor v. Jacques, 106 Mass. 291. In many of the cases generally cited on this proposition the person subjected to duress was not the criminal but some near relative such as his wife or parent.
7 Baldwin v. Hutchinson, 8 Ind. App. 454, 35 N. E. 711; Thompson v. Niggley, 53 Kan. 664, 26 L. R. A. 803, 35 Pac. 290.