Minneapolis Stock-Yards & Packing Co. v. Cunningham

Mitchell, J. In the first of these actions the defendants by way of counterclaim alleged that in consideration of their removing their place of business to plaintiff’s stock yards the latter agreed to furnish them office room at a specified monthly rent, and when they ceased to occupy the office to refund to them all the rent thus paid. The defendants produced no evidence of any such contract as alleged, but there was some evidence tending to prove that plaintiff agreed to furnish defendants office room rent free, but that, after defendants moved their business, the plaintiff charged them rent, which they paid under circumstances which they claim amounted to duress. It does not appear from the record, however, that plaintiff consented to try any such issue, for all the testimony bearing on it came out incidentally in the introduction of evidence material upon the issues made by the pleadings. When the evidence closed, defendants asked leave to amend their answer so as to conform to the proof, which the court refused to grant. The proposed amendment so entirely changed the basis of the counterclaim that the court was certainly not guilty of any abuse of discretion in refusing to allow it to be made. The amendment was also properly disallowed, for the reason that the [328] evidence was entirely insufficient to establish a payment ünder duress. It did not even make out as strong a case as did the allegations of the complaint in the second action, to which we shall now refer. 2. After being defeated in the first suit, Cunningham & Haas brought the second suit to recover the money which they sought to recover by way of counterclaim in the first. The complaint alleges that, in consideration of plaintiffs’ removing their business to defendant’s stock yard, the latter agreed to furnish them office room free of rent as long as they continued their business at that place, but that, after they had so removed their business, and “after their business had been so arranged that they could not without great loss and damage remove from said yards,” the defendant, contrary to its agreement, “commenced to charge” plaintiffs rent for the office occupied by them; “that they were powerless in the premises, and'could not resist said charges, for the reason that defendant owned all the property and buildings at the yards, and plaintiffs could not obtain any other office therein”; that by reason of the premises the plaintiffs were compelled to pay the rent demanded by defendant. While it is true, as counsel suggests, that the doctrine of “duress” has been somewhat extended by the modern authorities, yet under no rule, even the most liberal, would the facts stated render a payment involuntary. It is not even alleged that the rent was paid under protest, or that plaintiffs were threatened with suit for its collection in case they refused payment; and, even if they had, it would not have amounted to duress, for they had a perfect defense to such an action. It is suggested on the argument that if plaintiffs had not paid the rent defendant might or would have terminated their tenancy. There is no allegation that any such thing was threatened. But, even if it had been, it would have been nothing more than defendant would have had a legal right to do, for it is conceded that the tenancy was merely one at will, hence terminable at the will of either party by giving the notice required by statute. It is not enough to allege that a payment was made under duress; the facts constituting the duress or compulsion must be pleaded. Rand v. Board of County Commissioners, 50 Minn. 391, (52 N. W. [329] 901.) Upon the subject of payment under duress or compulsion, see Joannin v. Ogilvie, 49 Minn. 564, (52 N. W. 217.) In each case the order appealed from is affirmed. Gilfillan, C. J., absent on account of sickness, took no part. (Opinion published 61 N. W. 329.)