Lewis v. Fahn

• Decision Date: 12 September 1952
• Citation: 113 Cal.App.2d 95,247 P.2d 831
• Parties: LEWIS et al. v. FAHN et al. Civ. 8123. Sac. 6242.
• Court: California Court of Appeals Court of Appeals

Page 831

247 P.2d 831

113 Cal.App.2d 95

LEWIS et al. v. FAHN et al.

Civ. 8123.

Sac. 6242.

District Court of Appeal, Third District, California.

Sept. 12, 1952.

Hearing Denied Nov. 10, 1952.

Albert L. Wagner and E. R. Vaughn, Sacramento, for appellant.

Lewis & Lewis, Sacramento, for respondent.

VAN DYKE, Justice.

A demurrer was sustained to plaintiffs' second amended complaint. No request was made for leave to further amend and no further amendment having been proffered judgment followed in favor of defendants, from which judgment this appeal is taken.

The complaint contains three counts. The first is for the recovery of moneys paid under duress; the second is supplementary to the first; and the third is an action to recover moneys alleged to be due by contract. By the first count plaintiffs alleged the following: On May 19, 1944 they entered into a written lease with defendants whereby they leased certain real property in Sacramento City, consisting of two contiguous parcels of land in the heart of the city. The lease provided the rental for one parcel should be $725 per month, except that until the lessee should have completed certain remodeling which the lease provided should be done by them, the rental for the parcel would be $575 per month. Remodeling was not completed until August 9, 1950. Plaintiffs for said period paid the full sum of $725 per month, but only under protest and solely because the defendants made written and verbal threats that unless they did so they (the defendants) would cancel plaintiffs' lease and institute legal proceedings to evict plaintiffs from the leased premises. The payments so made, in excess of the amount properly demandable under the lease, amounted to the total sum of $8,100. The lease provided that as rental for the second parcel plaintiffs should pay the sum of $610 per month, but that during the period of remodeling, and for not exceeding two and a half months, a reduction in the rental for that parcel of $250 per month would be made. The remodeling was completed in two and a half months, but plaintiffs were allowed no reduction and paid the full rental, an excess of $500 over the amount due. This payment likewise was made under protest and solely by reason of the same verbal and written threats under the compulsion of which they paid the $8,100. Under the remodeling provisions lessors had agreed to reimburse the plaintiffs in respect of certain of the expenditures therefor by way of a credit upon accruing rents and these accrued credits amounted to $2,450 which should have been credited upon rents falling due. Notwithstanding the foregoing, plaintiffs paid the full sum accruing, thus paying $2,450 in excess of what was justly due. These payments likewise were made under protest and by reason of the same threats as hereinbefore referred to.

By the third count plaintiffs alleged the following: By the terms of the lease and in respect of the remodeling it had been agreed between the parties, inter alia, that if the cost of the remodeling exceeded $20,000 then the defendants would pay to the plaintiffs 60% of such excess up to a total cost of $24,000. The remodeling cost $21,482.18, wherefore defendants became indebted to plaintiffs in the sum of $889.30, being 60% of $1,482.18, which sum had not been paid.

In respect of the remodeling requirements of the lease plaintiffs were guilty of great prolixity in their pleading. The ultimate facts to be pleaded in that respect were the actual completion of the remodeling as required by the contract, the date thereof and the cost, thus fixing the period for the reduced rental of the first parcel, credit upon rentals of the second parcel and the amount whereby the remodeling cost exceeded $20,000, bringing into play the obligation of the defendants to pay 60% of such excess. But in attempting this comparatively simple task plaintiffs pleaded matter having to do with a great amount of strife which arose between the parties over the proper construction of the agreement between them, including a recital of the history and ultimate result of a suit which they brought against the defendants for declaratory relief in respect of such meaning. There was also pleaded detailed history of the strife over who had the right to dictate the sort of remodeling called for and the extent and cost thereof, coming finally to allegations that each party secured an architect of their own choice to prepare plans and specifications in detail for such remodeling. Both sets of plans and specifications were annexed to the pleading as exhibits thereto. Out of the welter of confusion thus introduced into the pleading by the plaintiffs the simple purpose and scope of the pleading seems to have been largely lost. We think it may fairly be said that the pleading stands as an excellent example of how not to plead. However, we also think that by a careful and studious scrutiny the pleading can be reduced to the matter we have stated.

Just what must be made to appear in order to justify recapture of money paid under duress has been subject to constant change as courts have liberalized the strict common law rules governing such action.

'Generally speaking, duress may be said to exist whenever one, by the unlawful act of another, is induced to make a contract or to perform some other act under circumstances which deprive him of the exercise of free will.' 17 Am.Jur. p. 873.

It is also said in 17 American Jurisprudence 'Duress and Undue Influence', pages 882-885:

'Anciently, duress in law by putting in fear could exist only where there was such a threat of danger to the object of it as was deemed sufficient to deprive a constant or courageous man of his free will, and the circumstances requisite to that condition were distinctly fixed by law. That is to say, the resisting power which every person was bound to exercise for his own protection was measured, not by the standard of the individual affected, but by the standard of a man of courage; and those things which could overcome a person, assuming that he was a prudent and constant man, were not left to be determined as facts in the particular case, but were a part of the law itself.

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'* * * [D]uress is still often defined as that degree of constraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or in apprehension to overcome the mind and will of a person of ordinary firmness. By many if not most of the modern authorities, however, the true doctrine of duress is held to be that a contract, deed, or any obligation obtained by so oppressing a person by threats regarding the safety or liberty of himself, or of his property or of a member of his family, as to deprive him of the free exercise of his will and prevent the meeting of minds necessary to a valid contract, may be avoided on the ground of duress, whether the oppression causing the incompetence to act be produced by what was formerly deemed duress, and relievable at law as such, or wrongful compulsion remediable only by an appeal to a court of equity.

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'There is no legal standard of resistance with which the person acted upon must comply at the peril of being remediless for a wrong done to him, and no general rule as to the sufficiency of facts to produce duress. The question in each case is, Was the person so acted upon by threats of the person claiming the benefit of the contract, for the purpose of obtaining such contract, as to be bereft of the quality of mind essential to the making of a contract, and was the contract thereby obtained? Hence, under this theory duress is to be tested, not by the nature of the threats, but rather by the state of mind induced thereby in the victim. The means used to produce that condition, the age, sex, state of health, and mental characteristics of the alleged injured party, are all evidentiary, merely, of the ultimate fact in issue, of whether such person was bereft of the free exercise of his will power. Obviously what will accomplish this result cannot justly be tested by any other standard than that of the particular person acted upon. His resisting power, under all the circumstances of the situation, and not any arbitrary standard, is to be considered in determining whether there was duress.' (Italics added.)

In 17 C.J.S., Contracts, § 175, headnote, page 533, it is stated:

'Under the modern doctrine there is no standard of courage or firmness with which the victim of duress must comply at the risk of being without remedy; the question is merely whether the pressure applied did in fact so far affect the individual concerned as to deprive him of contractual volition; if it did there is duress, if it did not there is none.'

A reading of the California cases of later vintage leads us to believe that the relaxed and modern rule of the subjective test of duress as stated in the foregoing quotations from American Jurisprudence and Corpus Juris Secundum is the controlling rule in California and particularly is this so we think in respect of that form of duress with which we are here concerned and which has sometimes been termed 'illegal business compulsion'. This type of duress is the subject of an annotation appended to the report of the case of Ramp Buildings Corp. v. Northwest Building Co., 164 Wash. 603, 4 P.2d 507, 79 A.L.R. 651, and in our own state has been the subject of discussion in Young v. Hoagland, 212 Cal. 426, 298 P. 996, 75 A.L.R. 654; Millsap v. National Funding Corp., 57 Cal.App.2d 772, 135 P.2d 407; LaTelle v. American Trust Co., 64 Cal.App.2d 830, 149 P.2d 385; McNichols v. Nelson Valley Building Co., 97 Cal.App.2d 721, 218 P.2d 789; Steffen v. Refrigeration Discount Corp., 91 Cal.App.2d 494, 205 P.2d 727. In the last case cited it was said 91 Cal.App.2d at page 498, 205 P.2d at page 729:

'* * * The test of duress is, at its harshest, what would have influenced the conduct of a reasonable man * * * and many...