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 principle that a lawful act does not constitute duress in the absence of special circumstances find illustration in the commencement of a civil action. The mere threat of a civil action is not duress or legal compulsion; and a payment made by reason of such threat cannot be recovered.1 The same principle applies where a civil action has been instituted;2 accordingly payment of money on service of summons is not payment under duress and cannot be recovered.3 Indeed if any defense to such cause of action exists, the threatened action is the very means provided for by law for determining its validity. Thus if an action in replevin,4 or attachment,5 or a seizure in admiralty for non-payment of an alleged claim for wharfage,6 or an action against a corporation for the appointment of a receiver,7 or an action by a receiver to enforce a stock liability,8 or a foreclosure suit,9 is either begun or threatened it does not of itself amount to duress. Thus where an overdue note given by A to B bore interest at ten per cent, but B had agreed in writing that it should bear only eight per cent after maturity, and B subsequently sues in foreclosure and demands ten per cent interest, A should set up such agreement as a defense. If he pays the full amount, including interest at ten per cent, he cannot recover the difference.10
1Gulf City Construction Co. v. Ry., 121 Ala. 621; 25 So. 579.
2 Minneapolis, etc., Co. v. Cunningham, 59 Minn. 325; 61 N. W. 329. (Ending such tenancy at will was "nothing more than defendant would have had a legal right to do.")
1 Burke v. Gould, 105 Cal. 277; 38 Pac. 733; Ligonier (Town of) v. Ackerman, 46 Ind. 552; 15 Am. Rep. 323; Muscatine v. Packet Co., 45 la. 185; New Orleans, etc.. R. R. v. Improvement Co.. 109 La. 13; 94 Am. St. Rep. 305; 33 So. 51; Parker v. Lancaster. 84 Me. 512; 24 Atl. 952; Preston v. Boston. 12 Pick. (Mass.) 7; Benson v. Monroe,
7 Cush. (Mass.) 125; 54 Am. Dec. 716; Morse v. Woodworth. 155 Mass. 233; 27 N. E. 1010; 29 N. E. 525; Peebles v. Pittsburgh. 101 Pa. St. 304; 47 Am. Rep. 714. "To pursue or threaten to pursue the usual legal steps for the collection of a debt in the manner provided by law does not constitute duress of property." Burke v. Gould, 105 Cal. 277, 283; 38 Pac. 733.
2 Dawson v. Mann. 49 la. 596; Benson v. Monroe, 7 Cush. (Mass.) 125; 54 Am. Dec. 716: Brummitt v. McGuire, 107 N. C. 351; 12 S. E. 101; Beard v. Beard. 25 W. Va. 486; 52 Am. Rep. 219.