Buchanan v. Sahlein

• Citation: 9 Mo.App. 552
• Parties: ALEXANDER S. BUCHANAN, Plaintiff in Error, v. DAVID H. SAHLEIN ET AL., Defendants in Error.
• Decision Date: 15 February 1881
• Court: Missouri Court of Appeals

9 Mo.App. 552

ALEXANDER S. BUCHANAN, Plaintiff in Error,

v.DAVID H. SAHLEIN ET AL., Defendants in Error.

St. Louis Court of Appeals, Missouri.

Feb. 15, 1881.

1. Where a payment of an illegal demand is made by one not under duress, and without an urgent necessity, the money so paid cannot be recovered back.

2. The duress which will enable one to avoid his contract and recover money paid must be threats or actual violence.

3. Duress by threats and duress of imprisonment defined.

4. Where it is sought to recover back money paid under a claim of right, and the petition does not set forth facts which constitute legal duress, the facts will neither support an action for damages nor an action in assumpsit for money had and received, and the petition is demurrable as not setting forth constitutive facts.

ERROR to the St. Louis Circuit Court, LINDLEY, J.

Affirmed.

JOHN P. ELLIS and HENDERSON & SHIELDS, for the plaintiff in error: The threat of unlawful imprisonment constitutes duress per minas. Lord Coke says the fear of imprisonment is enough.--2 Inst. 433; Co. Lit. 253 b. And so the rule has been understood ever since that time.--Vin. Abr., tit. “Duress,” B, pl. 23; 2 Com. Dig., tit. “Pleader,” W, pl. 20; Bac. Abr., tit. “Duress,” A; Chitty on Con. (ed. 1839) 168; 13 Me. 146; 17 Me. 338; 1 Cow. Tr. 264. To constitute duress per minas, there need only be threats of that kind of imprisonment which, if carried into execution, would result in duress of imprisonment. Illustrations of duress.-- Watkins v. Baird, 6 Mass. 506; Richardson v. Duncan, 3 N. H. 508; Davis v. Luster, 64 Mo. 43; Bush v. Brown, 49 Ind. 573; Brown v. Pierce, 7 Wall. 214; Baker v. Morton, 12 Wall. 140; Eddy v. Herrin, 17 Me. 338; Alexander v. Pierce, 10 N. H. 494; Schultz v. Culbertson, 46 Wis. 313; Taylor v. Jacques, 116 Mass. 291. Although the facts do not disclose a case technically amounting to legal duress, yet there is shown such compulsion or moral duress as to take away the voluntary consent necessary to a valid act or contract.-- Davis v. Luster, 64 Mo. 43; Moses v. McFarlen, 2 Burr. 1012; 2 Story's Eq. Jur. 239.

GLOVER & SHEPLEY, with E. T. ALLEN and SAMUEL KNOX, for the defendants in error: Payment is not made under duress unless made to redeem the person or property from actual existing duress.-- Radich v. Hutchins, 95 U. S. 210; Thompson v. Lockwood, 15 Johns. 256; Fuller v. Green, 26 Mich. 70; Smith v. Redfield, 27 Me. 145; Wolff v. Marshall, 52 Mo. 167; Story on Con., sect. 523. Lawful imprisonment is no duress.-- Eddy v. Herrin, 17 Me. 338. Consequently, a threat of lawful imprisonment is no duress. Duress by threats only exists when the threatened violence is such that the law affords no protection.-- Claflin v. McDonough, 33 Mo. 412; Knoop v. Hyde, 10 Barb. 80; Harmon v. Harmon, 61 Me. 227; Burr v. Burton, 18 Ark. 233; Russell v. McCarty, 45 Ga. 97; Fulton v. Hood, 34 Pa. St.--; Davis v. Luster, 64 Mo. 43. The following are cases in which there were threats of prosecution, but no step taken towards one, no process issued, no assertion of a present power to avert, consequently no immediate danger, no reason to fear any, and in which it was held there was no duress per minas.-- Miller v. Miller, 68 Pa. St. 486; Plant v. Gunn, 2 Wood C. Ct. 372; Landa v. Obert, 45 Texas, 539, 548; Harmon v. Harmon, 61 Me. 227; Mayhew v. Insurance Co., 23 Mich. 105; Russell v. McCarty, 45 Ga. 197; Davis v. Luster, 64 Mo. 42. In the following cases process was sued out, but there was no abuse of the process, and it was held there was no duress.-- Meek v. Atkinson, 1 Bailey, 84; Shommer v. Farwell, 56 Ill. 542; Feller v. Green, 26 Mich. 70; Eddy v. Herrin, 17 Me. 338; Holmes v. Hill, 19 Mo. 159.

BAKEWELL, J., delivered the opinion of the court.

The petition in this case states, in substance, that defendants, on October 12, 1877, conspired together for the purpose of injuring plaintiff and extorting money and proprety from him by false and fraudulent pretences; that they inveigled him into the back office of Glover & Shepley, in St. Louis, and then and there locked the door, so that he could not escape, and then and there, with the intent of extorting the money from him, charged him with stealing from their store in St. Louis, and falsely stated to him that they had full proof of his crime in the employees of their store, and then and there threatened immediately to arrest and imprison plaintiff for a felony, and to prosecute him and put him in prison, if he did not immediately pay over to defendants $10,000; that he had been for a number of years in the employ of defendants Sahlein and Singer, as salesman and confidential clerk, had been always honest and faithful to them, and of good repute; that he was overwhelmed and totally unfitted, by the suddenness and enormity of the charge, from understanding what he was saying and doing, and begged defendants to allow him to consult his friends; but they refused, saving that if he did not then and there pay them $10,000 they would arrest and imprison him for a felony, and ruin him and his family, and destroy the good name for honesty which he had acquired.

Defendants stated to plaintiff that they had full proof of all facts necessary to show plaintiff's guilt; that he had been stealing from them for ten years; that he must make good all the losses of Sahlein, Singer & Co. during that time, or they would expose him and send him to prison. Plaintiff protested his innocence, and asked them to allow him to consider the matter until morning, which they refused. Plaintiff was frantic with fear, and believing that defendants would charge him with theft, arrest and imprison him as they threatened, and ruin his good name and reputation, and being totally deprived of his judgment and reason, and not knowing to what extent the cupidity of defendants would lead them to testify against him, and finding that escape was impossible, submitted to their demands, and paid over to them Ozark Iron-Works bonds of the value $5,000, and also executed to them his note for $5,000, and, to secure the same, executed a deed of trust on real estate, and delivered these to defendants.

The petition further alleges that plaintiff was all that night crazed with fear; that he continued so for several days; that on the next day defendants informed him that it might lead to his exposure if the deed was recorded, and offered to return the deed and note if he would give them $3,000 cash and his note for $2,000, secured by Lincoln County bonds; that plaintiff, believing himself liable on the note, and that defendants would falsely charge him with a felony and imprison him if he did not accede to their demands, paid thereon all the money he could raise, being $2,000, and delivered to them his three negotiable notes for $1,000 each, at two, four, and six months, together with eight Lincoln County bonds for $500 each, to secure the same, whereupon defendants returned to him the real-estate note and the deed. Plaintiff further states that defendants, by putting him in fear by false charges of felony and threats of criminal prosecution, arrest, and imprisonment, and whilst he was under duress and in the power of defendants, did extort from him the property aforesaid, worth $10,000; that by reason of the premises he suffered great pain of mind, and is damaged $25,000, for which he asks judgment.

The second count of the petition states that for twenty-five years prior to the grievances complained of, plaintiff was a merchant in St. Louis, enjoying a good reputation, and in 1871, and for years thereafter, was salesman and confidential clerk in the clothing house of Sahlein, Singer & Co.; that on October 1, 1877, defendants confederated together to ruin plaintiff in his good name and business, and to cheat him of $15,000; that in pursuance of this design they inveigled him into the back office of Glover & Shepley, in St. Louis, and then and there, they and their paid attorney did falsely and without cause charge plaintiff with having stolen, from 1871 to October 12, 1877, from Sahlein, Singer & Co., $12,000 worth of goods, and did then and there demand that he pay over to Sahlein, Singer & Co. $10,000 to make good these losses; and threatened that unless plaintiff would pay over this money they would prosecute and imprison him, and bring disgrace on him and his family. Plaintiff protested his innocence, whereupon defendants then and there falsely represented to him that they had witnesses then and there in that house to prove his guilt, and unless he then and there made settlement and paid over to them $10,000 they would prosecute him for larceny, imprison him, attach all his property, and expose and disgrace him. Plaintiff, being convinced that defendants had conspired to cheat him, and believing from their statements that they intended to do what they threatened, unless he complied, and believing that they could produce false witnesses to testify as they said, and being excited, crazed, and paralyzed in mind by the suddenness and enormity of the charge, delivered to defendants $5,000 in bonds of the Ozark Iron Company, worth their face, and executed and delivered to defendants his negotiable promissory note for $5,000 secured by real estate. Plaintiff states that he was overcome by this conspiracy, and wandered round St. Louis the whole of next night, in great mental excitement, and not knowing what he was doing; that early next morning, whilst he was in the same state of mental disturbance, defendants, in pursuance of their conspiracy, suggested to plaintiff that to record the deed would lead to exposure, and would be dangerous for him, and that it would be better to make arrangements with Sahlein, Singer & Co. to prevent recording the deed, and proposed that plaintiff pay to Sahlein, Singer & Co. the further sum of $2,000 cash, and give his notes, at two, four, and six months, for $3,000, secured by eight $500 Lincoln County bonds. Believing these...