Adder v. Holman & Moody, Inc.

MARTIN, Judge. The trial court treated the release as a bar to plaintiff’s action for damages and allowed defendant to recover on the promissory note. It also found that the release and the note were signed by plaintiff in order to regain possession of his car. The question arises as to whether the release and note were obtained by duress or, to be more accurate, by duress of goods. “Duress exists where one, by the unlawful act of another, is induced to make a contract or perform or forego some act under circumstances which deprive him of the exercise of free will. . . . Duress is commonly said to be of the person where it is manifested by imprisonment, or by threats, or by an exhibition of force which apparently cannot be resisted. Or it may be of the goods, when one is obliged to submit to an illegal exaction in order to obtain possession of his goods and chattels from one who has wrongfully taken them into possession.” Smithwick v. Whitley, 152 N.C. 369, 67 S.E. 913 (1910) ; Joyner v. Joyner, 264 N.C. 27, 140 S.E. 2d 714 (1965). See 13 Williston, Contracts, § 1616 (3d ed. 1970). [591] Clearly,, plaintiff signed the release and note in order to obtain possession of his car and would not have signed them otherwise. In his testimony plaintiff indicated that he wanted his car because it had been sitting at defendant’s place of business for “a good while” and he needed it and had to have it. He further testified that he was “over a barrel” because he had a $10,000.00 car sitting there and “couldn’t see losing it for a signature.” In accordance with a telephone conversation between the attorneys for the respective parties, plaintiff obtained a certified check for $2,500.00 and returned to get his car back when defendant demanded a release and promissory note as well. Under the circumstances, plaintiff was forced into signing the documents. The remaining question for determination is whether defendant’s refusal to return plaintiff’s car was “wrongful.” In our opinion it was. Defendant had no right to retain possession of the car in the face of plaintiff’s demand for same. Any possessory lien which defendant might have acquired under G.S. 44A-2 for its prior services was terminated when defendant voluntarily relinquished possession of the car to plaintiff after completion of the work. See G.S. 44A-3. Possession is necessary to the existence of the lien. Reich v. Triplett, 199 N.C. 678, 155 S.E. 573 (1930). “The reacquisition of possession of property voluntarily relinquished shall not reinstate the lien.” G.S. 44A-3. There is no evidence that defendant performed additional work after the car was returned to it. It is clear that defendant had no intention of preserving its lien. Having no right to retain possession of the car, defendant wrongfully exacted a release and promissory nóte from plaintiff. Consequently, neither the release nor the note are enforceable. Of course, defendant may still have his claim for the underlying debt representing the balance due on the contract. Reversed. Chief Judge Brock concurs. Judge Vaughn dissents.