Cram v. Powell

BROWN, J. At the threshold the writer will repeat a common observation of the courts when discussing cases of this character: Each case founded upon the ground of duress must rest upon its own peculiar facts and circumstances. ¡ 1. It is a well-established principle that a payment made under compulsion, coercion or duress may be recovered. It is equally well settled that a payment made by the debtor on his own motion, without compulsion, is voluntary, and an action will not lie for its recovery. The evidence set down in the statement, together with the following, is substantially the testimony of plaintiff as a witness, in support of the allegations — 717 — in his complaint that the payment made by plaintiff to defendant was involuntary. In the summer of 1918, Mr. Baldwin (T. M.) notified witness that the bank’s mortgage must be paid by the first of January, 1919. After receiving this notice, he made an attempt to recover on everything he could turn into money and tried to obtain loans from a number of persons. When he sold his wheat he received a check for $4,300 and sent it to the bank by his son to be applied on his indebtedness to Mr. Baldwin personally, who refused to accept it because he said the hank’s money had to come first. Witness testified that he made every endeavor to raise the money on part of his place without interfering with the Powell loan, but without success; that, when he paid off the principal of his mortgage to Powell, he did so under protest. He further testified that “the forcing of this proposition all came from Mr. Baldwin”; that subsequent to Mr. Baldwin’s death, plaintiff met H. Baldwin, son of Mr. Baldwin, and, after expressing regret at the passing of his father, stated: “The one regret that I had in his father’s passing at that time was that I had not been able to pay him before he died, because he had been very considerate with me and had really gone further than good business rules would admit.” That after the death of Mr. Baldwin, no one representing either the estate or the bank made any threat to foreclose or bring suit; that Manford Nye had never refused a substantial payment upon his claim, nor had the First National Bank; that the only creditor who had ever refused to take a substantial payment was Mr. Baldwin, and his refusal was to accept it upon his personal account in lieu of applying it upon the claim due the bank. — 718 — ■' This court, in the case of Siverson v. Clanton, 88 Or. 261, 267 (170 Pac. 933, 935), approved the following definition of “duress”: “To constitute duress, it is sufficient if the will he constrained by the unlawful presentation of a choice between comparative evils; as inconvenience and loss by the detention of property, loss of property altogether, or compliance with-an unconscionable demand. It has been held, however, that duress of' property cannot exist without there being a threat to do some act which the threatening party has no legal right to do, — some illegal exaction, or some fraud or deception. The restraint must be imminent and such as to destroy free agency without present means of protection.” 9 R. C. L. 723, par. 12. In the recent case of Southern Oregon Co. v. Cage, ante, p. 424 (197 Pac. 276), Mr. Justice Burnett said: “What constitutes sufficient duress to authorize recovery of money paid under its influence is a difficult question. The issue is affected by the disposition and capacities of the parties. Many instances are cited where a mere threat to sue somebody who was of weak mind and easily influenced constituted such duress. ; The principle is thus stated in Lehigh Coal & Nav. Co. v. Brown, 100 Pa. 338: ‘It may be said in general that there must be some actual or threatened exercise of power # * possessed by the party exacting or receiving the payment, from which the latter has no other means of immediate relief.’ ” 2. Before an involuntary payment may be recovered, it must be established that the payment was exacted under duress by the person against whom the action was brought. /! Does the evidence in this case establish that the payment made by plaintiff to defendant was by duress proceeding from the defendant against the plaintiff1? 21 R. C. L. 145, §169; United States v. New York etc. Mail S. S. Co., 200 — 719 — U. S. 488 (50 L. Ed. 569, 26 Sup. Ct. Rep. 327, see, also, Rose’s U. S. Notes); note, 45 Am. Dec. 154. The authorities in this note are to the effect that', the duress must proceed directly or indirectly from the party receiving payment. However, if Powell knew that he had no right to the money and that it was paid under duress, he could be compelled to refund, although the duress did not proceed from him. We carve the following excerpt from an opinion sustaining a defense to an action upon a note obtained by means of duress by plaintiff from one Ogilvie, executed in consideration of the debt of another : y “In examining the authorities upon the question as to what pressure or constraint amounts to duress justifying the avoiding of contracts made, or the recovery back of money paid, under its influence, one is forcibly impressed with the extreme narrowness of the old common-law rule on the one hand and with the great liberality of the equity rule on the other. At common law, ‘duress’ meant only duress of the person, and nothing short of such duress amounting to a reasonable apprehension of imminent danger to life, limb or liberty was sufficient to avoid a contract or to enable a party to recover back money paid. But courts of equity would unhesitatingly set aside contracts whenever there was imposition or oppression, or whenever the extreme necessity of the party was such as to overcome his free agency. The courts of law, however, gradually extended the doctrine so as to recognize duress of property as a sort of moral duress, which might, equally with duress of the person, constitute a defense to a contract induced thereby or entitle a party to recover back money paid under its influence. And the modern authorities generally hold that such pressure or constraint as compels a man to g;o against his will, and virtually takes away his free agency, and destroys the power of refusing to comply with the unlawful demand of another, will — 720 — constitute duress, irrespective of the manifestation or apprehension of physical force.” Joannin v. Ogilvie, 49 Minn. 564 (52 N. W. 217, 32 Am. St. Rep. 581, 16 L. R. A. 376). . 3, 4i The writer agrees with the doctrine stated in that case. However, we are bound by the facts peculiar to the case at bar. From the evidence of record, we hold that the apprehension of the plaintiff that Baldwin or the bank might institute foreclosure proceeding’s, does not render the payment to Powell involuntary in the sense that it can be recovered back”: Mayor etc. of Baltimore v. Leffermann, 4 Gill, 425 (45 Am. Dec. 145, and extensive note); Weber v. Kirkendall, 44 Neb. 766 (63 N. W. 35); Town of Ligonier v. Ackerman, 46 Ind. 552 (15 Am. Rep. 323, and note). (This case has since been overruled on another point.) It has been held that, if a party pays rather than litigate, he is without a remedy: Lester v. Mayor etc. of Baltimore, 29 Md. 415 (96 Am. Dec. 542); Benson v. Monroe, 7 Cush. 125 (54 Am. Dec. 716). It has been written that: “When the person making the payment can only be reached by a proceeding at law, he is bound to make his defense in the first instance and he cannot postpone the • litigation by paying the demand in silence and afterwards suing to recover the amount paid.” 21 R. C. L. 143, par. 166. “It is the well-established general rule that it is not duress to institute or threaten to- institute civil suits, or take proceedings in court, or for any person to declare that he intends to use the courts wherein to insist upon what he believes to be his legal rights.” 9 R. C. L. 722, par. 11. There is a class of cases where, although there is a legal remedy, a person’s situation, or the situation of his property, is such that the legal remedy would not be adequate to protect him from irreparable pre — 721 — judice: 21 R. C. L. 150, par. 175. The cases of Joannin v. Ogilvie, 49 Minn. 564 (52 N. W. 217, 32 Am. St. Rep. 581, 16 L. R. A. 376), and Kilpatrick v. Germania L. Ins. Co., 183 N. Y. 163 (75 N. E. 1124, 111 Am. St. Rep. 722, 2 L. R. A. (N. S.) 574, and cases in the note), are illustrative of the principle. But the case at bar does not come within the principle. The defendant’s motion for a nonsuit should have been sustained: Section 182, subd. 3, Or. L. 5, 6. We realize that a motion for nonsuit admits the truth of plaintiff’s testimony, and if there is any competent evidence tending to support the cause, he is entitled to have it go to the jury. But, when there is no evidence that tends to sustain plaintiff’s cause of action, it is the duty of the court to grant the non-suit and withdraw the case from the jury. '' In fact, the plaintiff’s own testimony proves that his payment to Powell was not made under duress. He testified, in referring to the payment of his indebtedness, that “the forcing of this proposition all came from Mr. Baldwin,” and that “he [Baldwin] had been very considerate with me and had really gone further than good business rules admit.” It has never been decided that the demands of a considerate creditor upon a debtor to pay his just obligations constitute coercion, compulsion or duress. After the denial of defendant’s motion for nonsuit, he offered testimony in his own behalf.' It has been held by this court that a motion for nonsuit is not waived by the defendant’s introducing evidence after the motion has been denied, unless it cures the. defect in plaintiff’s evidence: Carney v. Duniway, 35 Or. 133 (57 Pac. 192, 58 Pac. 105); Northern Pac. Ry. Co. v. Spencer, 56 Or. 250. (108 Pac. 180); Dryden v. Pelton Armstrong Co., 53 Or. 421 (101 Pac. 190); — 722 — Patty v. Salem Flouring Mills Co., 53 Or. 363 (96 Pac. 1106, 98 Pac. 521, 100 Pac. 298). This case is reversed and remanded for further proceedings not inconsistent with this opinion. Reversed and Remanded. Rehearing Denied. Burnett, C. J., and McBride and Harris, JJ., concur.