Brown v. Worthington
| Decision Date | 09 January 1912 |
| Citation | 142 S.W. 1082,162 Mo.App. 508 |
| Parties | ALVAH W. BROWN, Respondent, v. J. A. WORTHINGTON, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis County Circuit Court.--Hon. G. A. Wurdeman Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Selden P. Spencer and F. C. Donnell for appellant.
(1) Neither does the petition allege nor the evidence prove that at the time the note and check were given, or at the time they were paid, the facts were such as to constitute duress and consequently, even if it be held that defendant was not then entitled to the alleged excess payment, the plaintiff who paid his money with full knowledge of the facts, is not entitled to recover the payment made to defendant. (a) The general rule forbids recovery. Cyc. 30; 1311; Buchanan v. Sahlein, 9 Mo.App. 552; Glass Co. v. Boston, 4 Metc. (Mass.) 181; Parker v. Lancaster, 84 Me. 512; Wood v. Telephone Co., 223 Mo. 537. (b) The petition fails to allege that duress existed when the note and check were paid, and the allegations of prior compulsion, fail to remedy its fatal weakness, for prior compulsion, not continued to the date of payment, gives no right of recovery. 22 Am. & Eng. Enc. 614; Fellows v. School District, 39 Me. 559; Cunningham v. Boston, 15 Gray (Mass.) 468; Teem v. Ellijay, 89 Ga. 154. (c) Meaning of duress. Wolfe v. Marshall, 52 Mo. 167; Buchanan v. Sahlein, 9 Mo.App. 552; Wood v. Telephone Co., 223 Mo. 537, 22 Amer. & Eng. Enc., 614. (d) The only instances where recovery on ground of duress has been permitted, do not include such cases as the one at bar. Wood v. Telephone Co., 223 Mo. Mo. 537; 35 Cyc. 27; Brewing Co. v. St. Louis, 187 Mo. 367; Hackley v. Headley, 45 Mich. 569; Armstrong v. Latimer, 165 Pa. St. 398. (c) Refusal to perform contract does not constitute duress. Wood v. Telephone Co., 223 Mo. 537; 9 Cyc. 448; Tucker v. State, 72 Ind. 242; Silliman v. United States, 101 U.S. 465. (d) No showing that Brown did not have adequate legal remedy. Benjamin on Sales (5 Ed.), page 578; 2 Schouler on Personal Property (3 Ed.), secs. 284-286, page 292; 6 Amer. & Eng. Ency. 467; Buchanan v. Sahlein, 9 Mo.App. 552; Wood v. Telephone Co., 223 Mo. 537; 30 Cyc. 1311. (2) Error was committed in rejecting evidence to show the withdrawal by defendant of the offer made to plaintiff on July 10, 1907, before it was accepted, there being evidence to the effect that the offer was made without consideration. Lawson on Contracts (2 Ed.), sec. 32, page 39. (3) Error was committed in sustaining plaintiff's objection to being questioned as to the reason for delaying the filing of his suit approximately two years from the time the money was paid. Greenleaf on Evidence (16 Ed.), section 195-a, page 325; 1 Wigmore on Evidence (1904 Ed.), page 367, section 284. (4) Error was committed in giving plaintiff's instruction number 1 for the reason that it substitutes the opinion of the court for that of the jury as to whether the facts in evidence constitute duress, and ignores the right of the defendant to have the jury pass on the question as to whether those facts were sufficient to overcome the mind and will of a person of ordinary firmness. Buchanan v. Sahblein, 9 Mo.App. 552; Wood v. Telephone Co., 223 Mo. 537; 30 Cyc. 1325. (5) Error was committed in the court's refusal to give defendant's requested instruction number 2, to the effect, that if defendant was acting within his authority as agent of a corporation, and that plaintiff knew he was so acting at the time he signed the agreement of July 10, 1907, and knew that he did not intend to bind himself personally, the verdict should be for the defendant. Emery, Bird, Thayer v. Coomer, 87 Mo.App. 404.
R. L. Shackelford and J. C. Kiskaddon for respondent.
(1) Where one is compelled, for the purpose of meeting a pressing and imminent emergency, to pay for what he ought not to pay or become liable to suffer loss, then such payment is not voluntary, and he can recover the amount thus paid. Font v. Geraldin, 64 Mo.App. 165; Niedermeyer v. Curators, 61 Mo.App. 654; Wells v. Adams, 88 Mo.App. 215; Westlake v. St. Louis, 77 Mo. 47; Kerrigan v. Kelly, 17 Mo. 275; Quinnette v. Washington, 10 Mo. 53; Wilkerson v. Hood, 65 Mo.App. 491; Lappin v. Crawford, 186 Mo. 462; Tandy v. Com. Co., 113 Mo.App. 409; Warrensburg v. Moeller, 77 Mo. 56; Douglas v. Kansas City, 147 Mo. 428; Brewing Co. v. St. Louis, 187 Mo. 367; State v. Slayback, 90 Mo.App. 300; Construction Co. v. Hays, 191 Mo. 248; Railroad v. Patterson, 41 Ind. 312; Spaids v. Barrets, 57 Ill. 289, 293; 30 Cyc. 1303; Glass Co. v. Boston, 4 Metc. (Mass.) 181; Lingenfelder v. Brewery Co., 103 Mo. 578. (2) And it makes no difference, even if the moral duress arises out of a breach of contract, if the necessity of the person paying is pressing and imminent. See a number of cases cited to point 1 among them the following: Niedermeyer v. Curators, 61 Mo.App. 654; Tandy v. Com. Co., 113 Mo.App. 409; Wells v. Adams, 88 Mo.App. 215; Construction Co. v. Hays, 191 Mo. 248; Lappin v. Crawford, 186 Mo. 462; Lingenfelder v. Brewing Co., 103 Mo. 578. (3) And it is no answer to an allegation of compulsory payment that the party has another remedy. Wilkinson v. Hand, 65 Mo.App. 491; Wells v. Adams, 88 Mo.App. 215; Peysor v. Mayne, 70 N.Y. 497.
This is a suit for money had and received to plaintiff's use, through moral duress imposed upon plaintiff by defendant. Plaintiff recovered and defendant prosecutes the appeal.
Under Sec. 3939, R. S. 1909, the case was transferred to the Springfield Court of Appeals for determination, and that court disposed of the same, as will appear from its opinion, reported under the title of Brown v. Worthington, 152 Mo.App. 351, 133 S.W. 93. Subsequently, the Supreme Court declared the legislative act, authorizing the transfer of cases from one court of appeals to another, to be unconstitutional and the proceedings had in the Springfield Court thereunder to be coram non judice. Because of this, the appeal has been argued and submitted here, and upon consideration we find ourselves unable to concur in the view of the case expressed in the opinion of the Springfield Court.
Plaintiff resides at Grand Rapids, Michigan, and is a dealer in hogs. Defendant resides in this state and is engaged in the same avocation. On July 10, 1906, defendant possessed a large drove of hogs on Chesley Island, in the Mississippi river near St. Louis, and of these plaintiff desired to purchase a considerable number. On that day, defendant submitted to plaintiff a written proposition touching the sale of 1250 of the hogs on Chesley Island to him, which by its terms accorded plaintiff thirty days for acceptance. The writing is as follows:
"Received $ 5.00." (On separate sheet.)
The evidence tends to prove that plaintiff paid defendant five dollars at the time as earnest money, and the correspondence between the parties reveals, beyond question, that he accepted, within due time, the proposition pertaining to the sale of 1250 hogs for $ 18,500 to be paid in cash or drafts cashable. A few days thereafter, plaintiff entered into a written contract with one McPherson, a dealer, of Omaha Nebraska, whereby he sold to McPherson 1000 head of the hogs purchased by him from defendant, which were to be delivered to McPherson on July 30, 1906, at Chesley Island. Plaintiff wrote defendant that he would be in St. Louis about July 28 or 29 to settle for the hogs, and, though several letters of defendant to plaintiff concerning the same are in evidence, in none of them does it appear that he objected in any manner to carrying out the contract. Indeed, all of defendant's letters suggest that he expected to deliver the hogs to plaintiff on the terms agreed upon, for cash and cashable drafts, that is, $ 18,500. In accordance with his promise, plaintiff came to St. Louis on July 29, the day before he was to deliver the hogs to McPherson, and tendered to defendant cash and cashable drafts to the amount of $ 18,500 for the 1250 hogs. Defendant, then, for the first time, objected and declined to receive this amount in payment. The parties parleyed about the matter for some time during the afternoon of that day, and it appears from plaintiff's evidence that he informed defendant he had sold 1000 of the hogs to McPherson for delivery on the following day. It is said defendant finally agreed to abide by the...
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