Whitt v. Blount

CANDLER, J. 1. The name “Artope & Whitt Company/’ without more, would import a corporation; but when it is designated in. the plea as “a business known as the Artope & Whitt Company and owned by” defendants, and is considered in connection with all the-other allegations of the plea relating thereto, it clearly appears that, it was not a corporation, but a mere trade name under which defendants were conducting their business. 2. The Civil Code, §3536, declares: “Duress consists in any illegal imprisonment or legal imprisonment used for an illegal purpose, or threats of bodily or other harm, or other means amounting-to or tending to coerce the will of another and actually inducing him. to do an act contrary to his free will.” The language of section 3670 is: “The free assent of the parties being essential to a valid contract,, duress, either of imprisonment or by threats, or other arts, by which the free- will of the party is restrained and his consent induced will void the contract. Legal imprisonment, if not used for- illegal purposes, is not duress.” The provisions of these sections essentially modify the strictly defined doctrine of duress at common law. Under that doctrine duress was divided into two classes, viz.: 1, by imprisonment; that is, when a person is actually imprisoned, (a) for an improper purpose without just cause, (b) for a just cause without lawful authority, or (c) for a just cause and under proper author [674] ity, but for an improper purpose; and, 2, per minas, when a person (a) is threatened with loss of life, (&) is threatened with loss of limb, (e) is threatened with mayhem, or (d) is threatened with imprisonment. Accordingly the English decisions, as well as a number of cases in the United States, adhering to the common-law doctrine, hold that a threat to destroy,-injure, or detain goods or chattels does not constitute such legal duress as to be ground for ■■setting aside a contract made under its influence. 9 Cyc. 444 et seq. Duress consists not merely in the act of imprisonment or other hardship to which the party is.subjected, but the state of mind produced by those circumstances, and in which the act sought to be avoided was done. Ib. 443. An essential element of a contract in the true sense, that is, as distinguished from quasi or constructive contracts, is an agreement or mutual assent of the parties; and as «stated in the Civil Code, §3670, this assent, in order to make the contract valid, must be free, that section declaring that duress, not only of imprisonment or by threats, but by “other arts, by which the free will .of the party- is restrained, and his consent induced, will void the .contract.” ' The language of section 3536; defining duress,1 is equally broad, since it declares that duress consists not only in any illegal imprisonment, or legal imprisonment for an illegal purpose, or threats of bodily or other harm, but also, of other means amounting to coercion or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will. According to the weight .of modern authority, the unlawful detention of another’s goods under oppressive circumstances, or their threatened detention, will avoid a contract on the ground of duress, for the reason that in such’ cases, there is nothing but the form of agreement, without its substance. Clark on Contracts, § 143; 9 Cyc. 451. “Where the parties are not at arms’ length, but one of them is in a position to dictate, the courts will treat agreements which are influenced by threats of injury to or withholding of property as made under duress; as, for example, where a common carrier refuses to deliver or transport freight already in his possession, unless the shipper will sign a separate contract; where illegal charges are exacted bjr a customs officer as a condition of the delivery of property; where a banker refuses to honor a customer’s check unless he accedes to a false and fraudulent claim; where one with the necessary power threatens to prevent the clearance of a vessel; where a [675] gas or water company refuses to furnish gas until a promise which it has no right to exact is made; where a state institution refuses to admit a student unless a payment of an illegal fee is made by him.” 9 Cyc. 452, and cases cited. - See also Clark on Contracts (2d ed.), 243, and cases cited in note 206.' As we have seen, the plea in the present case alleges, in substance, that the defendants, the year before the notes were given, had placed plaintiff in control- of their business in North Carolina, which extended also into the States of South Carolina and Virginia; that he had a thorough knowledge and control of such business; that he had entered into numerous contracts involving large sums of money, for the execution of work pertaining to the business; that he had collected and had imhis possession nearly $850 in money belonging to the defendants; that he also had control of numerous writings, contracts, and other property relating to the business; that under the circumstances no one but plaintiff could carry on the business except at great financial loss to defendants; that the plaintiff had brought about this state of affairs in pursuance of a preconceived plan to coerce the defendants into giving him the notes; that he was insolvent; that he threatened to leave the employment of the defendants and take with him their money, contracts, and-other property unless they gave him the notes and paid him a certain sum of money; and that, fearing he would carry out such threats to their great financial loss, they gave him the notes. We are of the opinion that the plea, while not coming up to the requirements of technical accuracy, was in substance a good plea of duress, and that the court erred in striking it. 3. If the notes were given under duress, they were void. And if the plaintiff agreed to continue in the employment of the defendants for the rest of the yéar in which the notes were executed and to do for the defendants the things set out in the plea, and he, without fault on defendants’ part, failed to comply with his agreement, there was to that extent a failure of consideration. 4: The plea failed to set out in the body thereof, or in an exhibit attached thereto, any specific damages which defendants suffered by Teason of the plaintiff’s alleged breách of his agreements. It was therefore not a good plea of recoupment, and was subject to the special demurrer. Atlanta Glass. Co. v. Noizet, 88 Ga. 44. Judgment reversed. ■All the Justices concur.