Caldwell v. Auto Sales & Supply Co.

• Court: Texas Court of Appeals
• Writing for the Court: Rice
• Citation: Caldwell v. Auto Sales & Supply Co., 158 S.W. 1030 (Tex. App. 1913)
• Decision Date: 25 June 1913
• Parties: CALDWELL v. AUTO SALES & SUPPLY CO.

158 S.W. 1030

CALDWELL v. AUTO SALES & SUPPLY CO.

Court of Civil Appeals of Texas. Austin.

June 25, 1913.

Appeal from Travis County Court; R. E. White, Judge.

Action by the Auto Sales & Supply Company against T. J. Caldwell. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Caldwell & Caldwell, of Austin, for appellant. Geo. Mendell, Jr., of Austin, for appellee.

RICE, J.

Appellant left his automobile with appellee at their shop in San Antonio for repairs; and, according to his contention, it was understood that the charges therefor should not exceed $100. After the machine had been repaired, appellant went to San Antonio, and was allowed to take the same out in charge of a chauffeur for the purpose of testing it. They were out several hours, and returned to the garage, where, according to appellant's contention, the automobile was unconditionally delivered to him without the payment of the bill for repairs. He took the machine away, and used it about the city during the day; but, owing to the fact that it was about to rain, returned it to the garage for the purpose of leaving it until the shower was over. Later in the day he went to the garage, but was not allowed to take the machine out until he paid appellee for repairs, which appellee claimed amounted to the sum of $196.62, which he at first refused to do. Finally, in order to obtain possession of the automobile, he gave appellee his check on the American National Bank of Austin for said amount, whereupon the machine was delivered to him, and he returned to Austin that night. He, however, stopped payment of said check, and this suit was brought by appellee to enforce payment thereof.

Appellant, after a general denial, relied upon a plea of duress, and also set up the fact that appellee had no legal right to refuse delivery of said machine after having voluntarily and unconditionally surrendered the same to him. There was a jury trial, resulting in a verdict and judgment in behalf of appellee, from which this appeal is prosecuted. Without reviewing the evidence in detail, we think that introduced in behalf of appellant is sufficient to raise the issue of duress, as pleaded by him.

It is urged under the first and second assignments of error that the court erred in submitting this issue to the jury in this: That said charge, in effect, in addition to requiring that in order to find for appellant the jury must not only believe that plaintiff knew that defendant was not indebted to him in the amount of the bill as presented, but likewise that said demand therefor on the part of appellee must be made for the purpose of defrauding defendant; and, further, in telling the jury that if they believed from the evidence that the plaintiff's claim against the defendant was made in good faith, and in the belief that the same was due the plaintiff from the defendant, then they were instructed that the plaintiff had the right under the statute to hold said automobile until such sum was paid. It is the contention of appellant, with which we agree, that if he was compelled to submit to an unlawful exaction on the part of appellee in order to obtain his machine, and in doing so executed a check for a greater amount than appellee was entitled to, that then appellee could not recover thereon, irrespective of whether they demanded more than was due thereon for the purpose of defrauding defendant, and irrespective of whether their claim was made in good faith or not. Hackley v. Headley, 45 Mich. 569, 8 N. W. 511; Lamborn v. Dickinson Co. Com'rs, 97 U. S. 181, 24 L. Ed. 928; Taylor v. Hall, 71 Tex. 216, 9 S. W. 141; Oliphant v. Markham, 79 Tex. 548, 15 S. W. 569, 23 Am. St. Rep. 363; Galveston City Co. v. Galveston, 56 Tex. 494; M. K. & T. Ry. Co. v. Carter, 9 Tex. Civ. App. 677, 29 S. W. 575; Ladd v. S. C. P. & M. Co., 53 Tex. 193; Harmony v. Bingham, 12 N. Y. 112, 62 Am. Dec. 142; Wilkerson v. Hood, 65 Mo. App. 491; Glass v. Haygood, 133 Ala. 489, 31 South. 976; Clark & Loftus v. Pearce, 80 Tex. 149, 15 S. W. 787; Davie v. City of Galveston, 16 Tex. Civ. App. 13, 41 S. W. 147.

In Hackley v. Headley, supra, it is said that "duress of goods may exist when one is compelled to submit to an illegal exaction in order to obtain them from one who has them in possession, but refuses to surrender them until such exaction is submitted to." In Ladd v. S. C. P. & M. Co., supra, the court says: "To entitle the party voluntarily paying money to recover it back on the ground of duress, he must, at the time of such payment, be under the necessity of either then making the payment, or of resorting to the courts to get possession of the property wrongfully detained, or to recover his liberty, or at least to show that there was an apparent necessity for resorting to the courts for one or the other of these purposes." In Wilkerson v. Hood, supra, it is held, as shown from the syllabus, that when one of the parties to a contract in possession of the property of the other, without lawful right or excuse, refuses to surrender it until a certain contract between them is entered into, and thereupon such other party executes this contract in order to get possession of the property, the contract is obtained by duress; and this though the property could have been recovered by the owner by replevin.

From a review of the above cases we think it appears that if one, in order to obtain possession of property unlawfully withheld from him, submits to an unlawful exaction, and pays money or executes a check in order to obtain possession thereof, that it is immaterial what purpose actuated the party making such demand, and the other party will be relieved in either event, irrespective of such purpose. We think the court erred in giving the charge complained of, and sustain said assignments.

Appellant requested and the court refused to give the following charge: "If you believe from the evidence that previous to the time defendant returned his automobile to the garage of plaintiff on the afternoon of February 9, 1911, and after the work done by plaintiff on said automobile was completed, that plaintiff had unconditionally and voluntarily surrendered possession of said automobile to the defendant, then any further holding of said...