Link v. Aiple-Hemmelmann Real Estate Co.
| Decision Date | 07 April 1914 |
| Parties | LOUIS LINK et al., Respondents, v. AIPLE-HEMMELMANN REAL ESTATE COMPANY, Appellant |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. J. Hugo Grimm Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Wm. F Smith for appellant.
(1) Plaintiffs' instruction asked and given was erroneous misleading and fatally defective, in that it omitted to submit to the jury the question as to whether or not plaintiffs had the free exercise of their will, or were constrained by the business necessity revealed to pay the money and stop the sale. The instruction given wrongfully assumes, as a matter of law that if the recited facts of the instruction are found to be true, then moral and legal duress appear, without regard to whether the facts cast a restraint upon plaintiffs sufficient to overcome the will of persons of ordinary firmness so as to destroy their free agency at the time plaintiffs paid to defendant the amount of the deed of trust by the hand of their agent, Cooper. Brown v. Worthington, 162 Mo.App. 508; Pemberton v. Williams 87 Ill. 15; Dunham v. Griswold, 100 N.Y. 224; Adams v. Nat. Bank, 116 N.Y. 606; Wooley v. Railroad (Wis.), 136 N.W. 616. It does not define legal duress, nor does it tell the jury that the alleged duress must have controlled the minds of plaintiffs at the time they paid the money to appellant in discharge of the deed of trust sixteen days before the sale was to take place through their agent, Cooper. Wood v. Telephone Co., 223 Mo. 537; Schultz v. Culbertson, 46 Wis. 313; Schultz v. Culbertson, 49 Wis. 122. (2) The instruction asked by plaintiff below and given by the court as asked purports to substantially follow the averments of fact set forth in the petition; but neither the petition nor the instruction named recites facts sufficient to constitute legal duress or coercion or mental restraint sufficient to avoid the acts done as defined by our Supreme Court in its latest opinion, either as a matter of pleading or as a matter of direction to the jury. Wood v. Telephone Co., 223 Mo. 537; Fred Rueping L. Co. v. Watke, 135 Wis. 616; Wooley v. Railroad (Wis.), 136 N.W. 616. (3) We have collected and here submit a list of authorities defining and applying the law of duress, under varied circumstances, which authorities we think will aid the court, if the court wishes to peruse them. De La Cuesta v. Ins. Co., 136 Pa. 62; Radish v. Hutchins, 95 U.S. 210; McAldon v. Van Alslin, 135 Ill.App. 396; Smithwick v. Whitley, 152 N.C. 369; Fred Rueping L. Co. v. Watke, 135 Wis. 616; 14 Cyc. 1123; Wooley v. Railroad (Wis.), 136 N.W. 616; Morse v. Woodworth, 155 Mass. 233; Shattuck v. Watson, 7 L.R.A. 551; Eberstein v. Willets, 134 Ill. 101; Fairbank v. Snow, 145 Mass. 153; Schultz v. Culbertson, 45 Wis. 122; Seymour v. Prescott, 69 Me. 376; Kingsbury v. Sargent, 83 Me. 230; Buck v. Axt, 85 Ind. 512; Miller v. Lumber Co., 98 Mich. 163; Buchanan v. Sahlein, 9 Mo.App. 552; Reichle v. Beuteule, 97 Mo.App. 52; Dausch v. Crane, 109 Mo. 323; Grimes v. Saunders, 93 U.S. 62; Silloman v. U.S. 101 U.S. 465; Morgan v. Joy, 121 Mo. 677; Dustin v. Farrelly, 81 Mo.App. 380; Shattuck v. Am. Cement Co., 205 Pa. 197; S. C., 97 Am. St. 735; Barnard v. Campbell, 58 N.Y. 73; Burnes v. Burnes, 132 F. 493; French v. Shoemaker, 14th Wall. 314; Ins. Co. v. Meeker, 85 N.Y. 614.
Glendy B. Arnold for respondents.
--This is an action to recover money paid by plaintiffs to defendant upon certain notes executed by plaintiffs, which, after maturity and after the same had been paid, came into the hands of the defendant; plaintiffs having paid defendant the amount of such notes to prevent the sale of their property under a deed of trust securing said notes. The cause was tried before the court and a jury, resulting in a verdict and judgment for plaintiffs, and the defendant has appealed to this court.
On June 25, 1908, plaintiffs executed and delivered to one Vogelsang and his wife their three principal promissory notes, two for $ 300 each and one for $ 400, together with certain interest notes, all secured by a deed of trust on plaintiffs' house and premises at 3525 N. Market street in the city of St. Louis. The two notes for $ 300 each were due and payable one year and two years respectively after date, and the note for $ 400 matured three years after date. About a year after the execution of such notes and deed of trust, i. e., shortly after one note for $ 300 had matured, plaintiffs caused all of said notes to be paid in full. It appears that the transaction respecting the payment of these notes was conducted through an attorney who represented plaintiffs, and that the payees delivered the notes and the deed of trust to such attorney. The notes, which had been endorsed by the payees in blank, were not canceled or marked paid; neither was the deed of trust securing them released of record. It appears that the notes and deed of trust remained in the possession of this attorney until on or about October 17, 1910, at which time he sold and delivered the same to the defendant, without plaintiffs' knowledge, consent or authority, and converted the proceeds thereof to his own use. Prior to such sale to defendant an endorsement had been placed upon the back of each of the two notes which had then matured, i. e., the two notes for $ 300 each, purporting to extend the time of payment thereof to June 25, 1911, the date upon which the note for $ 400 would mature according to its terms. Such endorsement was not over the signatures of plaintiffs, and they knew nothing thereof, but was presumably made by the attorney who disposed of the notes and converted the proceeds thereof.
The note for $ 400 having matured June 25, 1911, and the two notes for $ 300 each being then due according to the spurious extensions endorsed thereupon, and plaintiffs not having complied with defendant's demand for payment of such notes, defendant, in August, 1911, proceeded to foreclose the said deed of trust upon plaintiffs' property, and caused a notice of the sale thereof under such deed of trust to be published in a newspaper in the city of St. Louis. To prevent the sale of their property under the deed of trust, plaintiffs paid to defendant the amount of all of said notes.
The above-mentioned note for four hundred dollars is not here in controversy. That note had not matured when defendant purchased it; and plaintiffs, conceding that defendant was a holder thereof in due course, did not seek to recover the amount paid defendant thereon. This suit, however, is for the recovery of six hundred dollars, the amount of the two notes for three hundred dollars each, with interest thereon, and proceeds upon the theory that the payment thereof to defendant, to prevent the sale of plaintiffs' property under the said deed of trust, was made under duress, entitling plaintiff to recover from defendant the amount so paid.
I. It is insisted by learned counsel for appellant that the latter's demurrer to the evidence should have been sustained upon the ground that the evidence failed to show legal duress, so as to warrant the submission of such question to the jury. We think, however, that the facts adduced in evidence were sufficient to make it a question for the jury whether the payment to plaintiff of the amount of these two notes was made under a species of duress, within the meaning of that terms as viewed by our courts. Though it be true that, at the early common law, nothing short of a reasonable apprehension of imminent danger to life, limb, or liberty was sufficient to constitute legal duress, so as to entitle one to recover back money paid under coercion, the strictness of the common law doctrine on this subject has been greatly relaxed within modern times. Thus the courts now generally recognize the doctrine that threats to destroy property, duress of goods, and acts of like character, under oppressive circumstances, may constitute duress; and that, in general, such compulsion or constraint as compels one to act against his will, virtually depriving him of his free moral agency in the premises and of power to refuse compliance with the unlawful demand of another, regardless of the manifestation or apprehension of force, may constitute what has been termed moral duress, and that a payment of money made under such circumstances will not be regarded as voluntary. The doctrine is one sounding in equity, and proceeds in general upon the theory that it would be inequitable and against good conscience for money or property so obtained to be withheld from the plaintiff. [See Brown v. Worthington, 162 Mo.App. 508, 142 S.W. 1082; Fout v. Giraldin, 64 Mo.App. 165; Wells v. Adams, 88 Mo.App. 215; Niedermeyer v. Curators of State University, 61 Mo.App. 654; Brewing Co. v. St. Louis, 187 Mo. 367, 86 S.W. 129; Westlake v. St. Louis, 77 Mo. 47; Joannin v. Ogilvie, 49 Minn. 564, 52 N.W. 217; White v. Heylman, 34 Pa. 142; Pemberton v. Williams, 87 Ill. 15; Fargusson v. Winslow, 34 Minn. 384, 25 N.W. 942; State v. Nelson, 41 Minn. 25, 42 N.W. 548.]
In Fout v. Giraldin, supra, plaintiffs mortgaged their land to secure a loan, and, as further security for the latter, assigned the rents of such land and other lands. When a part of such loan became due, plaintiffs tendered payment of all thereof, being entitled to pay all of the same at such time, but the mortgagees refused to accept such tender and to release their security unless they were paid a certain further sum of money to which they were not entitled under such circumstances. Plaintiffs, in order to secure a release, complied with the unlawful exactions...
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