Davis v. Mississippi Central Railroad

Tarbell, J. : The plaintiff in error holding the note of defendants in error and having also against them an open account, received payment thereof in October, 1862, in Confederate money. In 1868 Davis sued -the company to recover the amount of the note and account. Upon the trial the question was, whether the facts and circumstances attending the said payment constituted a duress of Davis, by which such payment was void or voidable ; and, conceding that Davis accepted such payment against his will and because of duress, whether he had not, nevertheless, subsequently ratified it. There were two jury trials. The first resulted' in favor of plaintiff for $5,600 ; the second verdict was for defendants. The first was set aside on motion of defendants. To this the plaintiff objected, and the granting of that motion is assigned here for error. Upon the rendition of the second verdict, the plaintiff applied for a new trial, but his motion therefor was overruled, and this is also assigned for error. Several instructions were given by the court to the jury for the respective parties, one of the series asked for defendants on the first trial being refused. On the second trial, twelve instructions were given for the plaintiff, none being refused — 561 — for him on either trial, and these were given on the second trial: nine charges for defendants, one, the 10th, being refused. The giving of the 2d, 4th, 5th, 6th and 9th charges for defendants is assigned for error. Davis offered to testify on the second trial, that he would not have taken Confederate money but for military orders. This testimony the court excluded, and this is assigned for further cause of error. A'portion of the testimony of Judge Orr was also excluded, and this constitutes another allegation of error. The facts attending the payment are these : Davis had for twenty years been a contractor of the Mississippi Central Railroad Company; being in the office of the company on the 21st day of October, 1862, to get an account allowed, payment of the note and account sued on was tendered by the officers of the company; the note is dated May 24,1862, for $5,000, with interest at ten percent per annum; the open account is for labor, wood, lumber, etc., amounting to $5,707 92 ; the tender and payment was on October 21,1862. The plaintiff, testifying as a witness in the cause, says, “I was called into the railroad office, where the president, Mr. Goodman, the secretary, Mr. McConnico, and the treasurer, Mr. Mason, were ; I was informed that they desired to pay all they owed me; I was unwilling to receive it and objected to its payment; Goodman or some other officer present, said I must receive it; that the road was unwilling longer to pay interest on the debt; I still objected; said I owed a debt which I was afraid I could not pay with the money; that I was living near the lines of the federal troops; that they were reported moving southward and it was unsafe to have so much money at my house ; that the railroad office was going south and they could better take care of it, and I preferred the debt to remain as it was. To all this they replied I must take it. I said I did not have the note with me and therefore could not settle, but was assured a receipt would be sufficient. * * * I took the money and executed receipts in full of the note and account. * * * Nothing was said about the military order when the money was562 paid and no threats were made. Did not state at the time that I objected to receive the money because it was Confederate money.” Mr. Mason, the treasurer of the company, testified that the plaintiff was a large contractor with the company; that he was very indulgent and kind to the company, and that the very best feelings existed between the officers of the company and plaintiff. When the payment was made plaintiff objected to receiving it, stating, as one reason, that he was fearful his creditor, Gronnan, would not take it from him in payment of a debt he owed him. No threats were used, or reference to military orders. On the second trial, this witness added to the foregoing, that, at the time of payment, plaintiff said it was hard to force him to take Confederate money, when he had waited so long on the company. The foregoing embraces all the testimony relating to the immediate transaction of payment, and the conversation on that occasion. As to external surroundings, proof was made of the condition of the country ; the presence of a portion of the Confederate army at Holly Springs; the existence of a military order forbidding the depreciation of Confederate currency, and requiring it to be received in payment of debts, under penalty of arrest, trial and punishment by military tribunals ; the arrest of some parties for declining to receive this money, and the disregard of the refusal of others to accept it; the approach of Grrant’s army; the value of Confederate money in 1862-3 ; the transactions of the plaintiff, in Confederate money, for himself and for his neighbors; the situation of plaintiff with reference to Grrant’s army, etc. Proof was also made of the conversion, into Confederate bonds, of the money paid by defendants to plaintiff, and of. the efforts of the latter to induce the former to compromise this claim after the war and before suit. The testimony bearing upon the question of duress, as affected by the military orders, and other external circumstances, was this: The plaintiff testified that, at the time of — 563 — the payment, the Confederate army, under Price or Yan Norn, was at Holly Springs, and at this time an order of the Confederate military authorities was in existence, requiring all persons to receive Confederate m oney in payment of debts, and provided that all persons who refused to take it, as aforesaid, should be arrested by the provost marshal, and dealt with by said military authorities. On the second trial, in addition to the foregoing, Navis testified that he knew of the military order, and that, in the summer of 1862, several citizens of Henderson county, near his residence, were arrested and confined for violating it; that he lives one mile south of the line of Henderson county. William Crump testified that he refused to receive Confederate money in June, 1862, and was not disturbed for it. William Mills testified that, in the summer of 1862, he offered to pay a citizen Confederate money, which he refused until threatened with arrest. William H. Jones testified that he was provost marshal at Holly Springs in 1862, until November of that year, and that he arrested one man for refusing to receive Confederate money. Judge Orr testified that he was in command of the Confederate forces at Holly Springs, with ample authority to arrest suspicious persons; that in some instances military force was applied to compel citizens to accept Confederate treasury notes as money, and arrests were made by Confederate officers under orders of Generals Yan Norn and Bragg. Of the arrest and release of one Hawkins under this military order, Navis knew nothing. Mr. Strickland testified to the disbursement of large sums of Confederate money in the subsistence department of the Confederate army between Grenada and the Tennessee line ; he forced no one to take it, and knew of no one having been forced to take it. Captain Clarke testified, that he was with the army of Yan Norn, as commissary, at Holly Springs ; disbursed large amounts of Confederate money for supplies, and no one refused to receive it from him. It appears that the plaintiff was for many years a large contractor for the railroad, working at times as many as — 564 — thirty or forty hands; that he was on the most friendly' terms with the company. Notwithstanding the payment .in 1862, of which he now complains, he applied to the company for work after the war; and we understand the complainant to intimate that he was regarded as “a very great rebel.” Very much of the testimony is devoted to the value of Confederate money at different periods, and in various localities, as affected by the presence or absence of the federal or Confederate troops. Much of it, also, goes to show the hardship of the particular transaction upon the plaintiff. The excluded testimony of Judge On* related to his military power in theoretical eases. All this we think foreign to the main fact to be established to entitle the plaintiff to recover. However much we may sympathize with the plaintiff in his loss in this case, we are not at liberty to dispose of the case.upon such grounds. We may observe upon this point, however, that the history of this state will show that during the years 1862, 1863 and 1864, if not early in 1865, lands, in portions of Mississippi, .were readily purchased with Confederate money. In fact, the evidence shows that in 1862 and 1863, Confederate money was freely and generally received in North Mississippi for property of all kinds, except in the immediate presence of the federal troops. These facts, however, are immaterial, for the question to be solved is, whether, when the payment by. the defendant to plaintiff was made, the latter was under duress. The burden of proof was upon the plaintiff. He was dealing with those with whom he had been on the most friendly relations and with whom he had been a large contractor for twenty years; they were probably also politically in sympathy ; no threats were made; the question was not even asked as between old friends, if they meant to force him to accept Confederate money ; even the military order was not referred to by plaintiff as an existing fact, which would prevent his refusal to comply ; he did not even ask the meaning of,the use of the word “must” by the officers of — 565 — tlie company; even after the war, when lie complained of tlie hardship of paying him in Confederate money, which he still held, he did not aver that he wonld not have taken Confederate currency but for the military order; only upon the second trial does the plaintiff testify or offer to testify, that, in the absence of the said order, he wonld not have accepted the currency paid him by defendants ; he did not at any time intimate fear to refuse the payment as made; his own creditor, Gorman, did not hesitate to refuse the same money; whether the plaintiff attempted to employ the military order to compel Mr. Gorman to accept the money does not appear ; he was at liberty to appeal to it if it possessed any virtue as a compulsory process ; but he assigned to the officers of the railroad company, as a reason for objecting to Confederate money, the probable refusal of his creditor to receive it; and no intimation or suggestion of compulsion upon him was thrown out; no test was created or proposed by plaintiff to ascertain the meaning of the officers of the railroad company in their use of the word “must,” or of their action or the probabilities of his arrest in case of his refusal to comply with their wishes ; the plaintiff was confessedly a great rebel; he apparently operated largely in Confederate currency, taking to Aberdeen at one time, to fund for his neighbors, $75,000 of that money; being within the federal lines he was ordered to remain therein, but, in violation of this order, he left the federal jurisdiction, coming within the Confederate lines and going to Aberdeen to bond his Confederate money, showing that he then sustained and approved of a policy of which he now complains as affording just cause for avoiding his contracts. A minute examination shows the case to be wholly wanting in proof of force or threats of force to induce the plaintiff to accept the payment made him by the officers of the railroad company, and not only so, but the idea of compulsion is negatived by the parties to the transaction. The reasons given by the plaintiff at the time of payment for objecting — 566 — thereto were these: that he was afraid his creditor would not receive the money ; that he was living near the lines of federal troops, and it was unsafe to have so much money in his house ; the office of the railroad company was going south and they could better take care of it. The reasons assigned by the officers of the company for the payment was the unwillingness of the railroad company to pay interest longer. The plaintiff retained the money paid him until the winter of 1863-4, when he went to Aberdeen to invest it in cotton, but concluded to bond it. He did not then seek the officers of the railroad company with a view to return the money, but after the war he called on the defendants for work and then complained only of the hardship of losing the money. Thus the proof of force or threats of force is not only wanting but disproved, for we must accept the explanations of these parties of the motives of their conduct as they have given them, and we cannot assume that they were actuated by motives directly the reverse of those which they have given under oath. Only by indulging in the wildest imagination, by ascribing to the parties feelings and purposes the converse of those declared, by conceiving in proof an unbridled soldiery and unprincipled officers, impelled by improbable resentments, not susceptible of demonstration by testimony because only problematical at best, can we make out a case for the plaintiff. Accepting the testimony of the parties as the truth, and construing their language according to its ordinary use, the essential facts constituting duress are wanting. In a word, the plaintiff failed to make out his case. Conceding all the plaintiff proved and all he proposed to prove, which was excluded, and still a verdict for him would be contrary to the law and evidence. Hence, the court did not err in setting aside the first verdict herein, and with our views we need not discuss the rulings and the instructions given and refused on the trial. Neither is it necessary to lay down any rule on the subject of duress. With a slight modification of, or addition by, the Ameri — 567 — can authorities, to the fourth “instance” stated by Coke, the elements of duress have remained unchanged from that time to the present. This branch of the law is fairly discussed by the courts of Tennessee, to whose decisions we are referred by counsel. Greenleaf states the modern rule clearly and succinctly. Greenl. Ev., title Duress. United States v. Keehler, 9 Wall., is conclusive of the case at bar. As in that case, so in this, force, actual, present, menacing and impending, susceptible of demonstration and proof, or threats of force, are wanting. Keehler, a resident of the Confederate States, had money belonging to the United States. In obedience to an order by the Confederate authorities, and a law of the Confederate congress, he paid the money upon the above order. The supreme court of the United States held him without justification, in the absence of force, actual, impending, menacing and threatening. We know of no case wherein the plea of duress has been sustained unaccompanied with force or threats of force. Without force, actual or threatened, with a reasonable ground of apprehension, there can be no duress. Such is the uniform doctrine. Tompk. Law Dict.; Bouv. Law Dict; Burrill’s Law Dict; Chitty on Cont.; Black. Com.; Kent; Bacon’s Abr; Greenl. Ev.; Stark. Ev., title Duress; 31 N. H. 508; 8 ib. 386; 6 Mass. 506; 13 Me. 146; 17 ib. 338; 5 Hill, 154; 1 ib. 343; 2 Kern. 99; 2 Comst. 82; 26 N. Y. 9; 7 Wall. 214; 9 ib. 83; Van Der Hoven v. Nette, 32 Texas, 183. Blackstone says: “Duress is of two sorts: duress of imprisonment, where a man actually loses his liberty ; and duress per minas, where the hardship is only threatened and impending.” “Duress per minas” says this learned commentator, “is either for fear of loss of life, or else for fear of mayhem, or loss of limb. And this fear,” he says^ “must be upon sufficient reason.” In continuation of the subject, he adds: £ £ And the law so much discourages unlawful confinement, that if a man is under duress of imprisonment, which we before explained to mean a compulsion by — 568 — an illegal restraint of liberty, until he seals a bond or the like, he may allege this duress and avoid the extorted bond. But if a man be lawfully imprisoned, and, either to procure his discharge, or on any other fair account, seals a bond or a deed, this is not by duress of imprisonment, and he is not at liberty to avoid it.” “By duress, in its more extended sense,” says Greenleaf, “is meant that degree of severity, either threatened and impending, or actually inflicted, which is sufficient to overcome the mind and will of a person of ordinary firmness.” In Robinson v. Gould, 11 Cush. 57, the supreme judicial court of Massachusetts say, that “duress by menaces, which is deemed sufficient to avoid contracts, includes a threat of imprisonment, including a reasonable fear of loss of liberty,” and this case indicates, probably, the extent of the modification of the common-law rule on this subject by the American authorities. An arrest, though for a just cause, and under lawful authority, yet, if it be for an unlawful purpose, is duress of imprisonment (8 N. H. 886), and a bond given for maintenance, as required by law, is void for duress, if the warrant and other proceedings are not according to statute. 17 Pick. 252. Where there is an arrest for improper purposes without just cause; or an arrest for a just cause but without lawful authority; or an arrest for a just cause, and under lawful authority, for an improper purpose, and the person arrested pays money for his enlargement, he may be considered as having paid the money by duress of imprisonment, and may recover it back in an action for money had and received. 3 N. H. 508. In 13 Me. (1 Shepl.) 146, it was held, that if a person act freely and voluntarily, although under unlawful detention, the obligation is valid. One ground of defense in United States v. Keehler, supra, was, that throughout the year 1862, the Confederate government had force sufficient to enforce its orders, and did enforce them in that part of North Carolina where the defendant resided, and that no protection was offered to the citizens — 569 — of that part of the state, by the United States government, dining that period. In regard to this defense, the court say: “It will be observed that this statement falls far short of showing the application of any physical force to compel the defendant to pay the money to Clements, * * * nor does it prove that he would have suffered any inconvenience, or been punished by the Confederate authorities, if he had refused to pay the draft of the insurrectionary post-office department on him. We cannot see that it makes out any such loss of the money, by inevitable overpowering force, as could, even on the mere principle of bailment, discharge a bailee. We cannot concede that a man, who, as a citizen, owes allegiance to the United States, and, as an officer of the government, holds its money, as property, is at liberty to turn over the latter to an insurrectionary government, which only demands it by ordinances and drafts drawn on the bailee, but which exercises no force or threat of personal violence to himself or property in the enforcement of his illegal orders. See, also, Brown v. Pierce, 7 Wall. 205, and numerous cases therein cited. Vide, also, 3 Cal. 166; 2 Wend. 243; 15 Johns. 256; 2 Edw. 601; 26 Barb. 122. We do not make these references and quotations for the purpose of criticism, or to enunciate any rule, but mainly to illustrate the defect in the plaintiff’s case. His arrest upon a refusal of Confederate money was not a certainty. A-few only had been arrested for such cause. Ho other injury to such, than arrest, is shown. Whether any suffered beyond temporary arrest does not appear. Violence is not pretended in any case. Many refused Confederate currency with perfect impunity, as plaintiff might have done. Construing the evidence most favorable to plaintiff his arrest was an uncertainty, speculative and problematical only. To sustain the plea of the plaintiff would engraft a modification upon the doctrine of duress, unsound, in principle and dangerous in policy. It would do more ; it would virtually declare the citizens of Horth Mississippi and the soldiers and officers in that locality in 1862 to have been actuated by — 570 — a demoniacal spirit, which we are unwilling to believe. To liold that there can be duress without menace or threat, would be like finding fraud without misrepresentation. The fear of arrest or injury must be well grounded. If, in the case at bar, the fear of the plaintiff was reasonable, without force impending or threatened, the cause for such fear does not appear in the record. To determine that there was duress of plaintiff in this case, we must give to the testimony a meaning directly contrary to the usual import of the words employed; or must also determine that a public sentiment existed among the people and on the part of the soldiery which only a Bunyan -or a Milton might attempt to portray. In short, as in United States v. Keehler, the facts “fall far short” of constituting duress. In this era courts of justice do not uphold claims unsupported by evidence. The law favors diligence and in times requiring prudence and courage a party cannot fold his hands and shut, his eyes, and, when despoiled, apjoeal to the courts to relieve him from his own indolence. The plaintiff when tendered payment ought to have tested the motives of the defendants by declining the money until arrested in fact, or, at least, until threatened with the perils of the military order. With our view of the case another trial would be useless, nor is it necessary to advert to the questions presented by the exclusion of testimony, or by the giving or refusing instructions. The case on the part of the plaintiff is not and, we judge from the record, cannot be made out. Judgment affirmed.