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.
The original Common Law rules of duress did not allow a contract to be avoided if the person entering into it was induced to do so by a wrongful detention of goods.1 It was more just in allowing recovery of payments extorted by such detention. If A's personal property is unlawfully detained by B, a payment made by A to obtain possession of such property is not a voluntary payment and may be recovered.2 Thus where goods are illegally seized under apparent authority of a writ of sequestration,3 or logs are seized under an illegal claim for toll,4 or a ship is detained for an illegal demand for tonnage,5 or a cargo is detained for an illegal demand for demurrage, 6 or payment illegally exacted as tariff is paid to get possession of goods imported into this country,7 as where the customs officials threaten to add a penalty if the tariff demanded is not paid,8 or goods are seized on an unfounded claim and a lien is asserted thereon,9 payments made to obtain possession of such goods may be recovered. Such a payment is made under "moral compulsion."10 So where A has delivered a printing press to B under a contract of sale by the terms of which it is to remain A's property until B pays the entire purchase price, and B's landlord X takes possession thereof, a payment by A to X to get possession of such machine may be recovered.11 In some opinions, especial stress is laid on the fact that great hardship or serious inconvenience will result to the person whose property is detained unless he can get possession of it, and his right to recover payments made by him to get possession of such goods.12 Thus where property perishable in its nature and liable to deterioration is withheld, payment to obtain possession thereof and to avoid damage has been held to be made under duress, as where cattle are withheld from the owner,13 or where oysters have been taken on a writ of attachment wrongfully obtained.14 So where A, an officer had attached B's bank notes and refused to redeliver them unless B allowed him to keep some as an alleged reward, and X, another officer, was about to attach them, and B allows A to keep some of them as he had demanded, B may recover such amount from A as paid under duress.15 So where a cargo of grain is withheld on an unjust claim for demurrage, and the consignee will be put to serious inconvenience if the cargo is not delivered, a payment of such demurrage may be recovered;16 on similar grounds the right to recover money paid to liberate one's tools of trade has been placed.17 Elimination of these cases, however, leaves a respectable number of authorities in support of the proposition that money paid to regain possession of goods which have been unlawfully taken from the owner, without his having opportunity to be heard in court, may be recovered.
14 Adams v. Bank, 116 N. Y. 606; 15 Am. St. .Rep. 447; 6 L. R. A. 491; 23 N. E. 7.
15 Adams v. Bank, 116 N. Y. 606; 15 Am. St. Rep. 447; 6 L. R. A. 491; 23 N. E. 7.
16 Felton v. Gregory, 130 Mass. 176.
1See Sec. 248.
2Atlee v. Backhouse, 3 M. & W. 633; Maxwell v. Griswold, 10 How. (U. S.) 242; Lafayette, etc., Ry. v. Pattison, 41 Ind. 312; Chamberlain v. Reed, 13 Me. 357; 29 Am. Dec. 506; Weber v. Kirkendall, 44 Neb. 766; 63 N. W. 35; Scholey v.
Mumford, 60 N. Y. 498; Briggs v. Boyd, 56 N. Y. 289; Riggs v. Wilson, 30 S. C. 172; 8 S. E. 848; Taylor v. Hall, 71 Tex. 213; 9 S. W. 141; Buford v. Lonergan, 6 Utah 301; 22 Pac. 164; affirmed in 148 U. S. 581.
3 Clark v. Pearce, 80 Tex. 146; 15 S. W. 787.
4 Carson, etc., Co. v. Patterson, 33 Cal. 334; Chase v. Dwinal, 7 Greenl. (Me.) 134; 20 Am. Dec. 352.
5 Ripley v. Gelston, 9 Johns. (N. Y.) 201; 6 Am. Dec. 271.
6 Fargusson v. Winslow, 34 Minn. 384; 25 N. W. 942.
7 Elliott v. Swartwout, 10 Pet. (U. S.) 137; Erhardt v. Winter, 92 Fed. 918.
8 Robertson v. Frank Bros. Co., 132 U. S. 17.
9 Chamberlain v. Reed, 13 Me. 357; 29 Am. Dec. 506.
10 Chamberlain v. Reed, 13 Me. 357; 29 Am. Dec. 506.
11Whitlock Machine Co. v. Holway, 92 Me. 414; 42 Atl. 799.
12 Fargusson v. Winslow, 34 Minn. 384; 25 X. W. 942.
13 Buford v. Lonergan, 6 Utah 301; 22 Pac. 164; affirmed in 148 U. S. 581.
14Spaids v. Barrett, 57 111. 289; 11 Am. Rep. 10.
15 Lovejoy v. Lee, 35 Vt. 430.