Olivari v. Menger

• Decision Date: 01 January 1873
• Citation: 39 Tex. 76
• Parties: PLACIDO OLIVARI v. S. MENGER ET AL.
• Court: Texas Supreme Court

39 Tex. 76

PLACIDO OLIVARI

v.S. MENGER ET AL.

Supreme Court of Texas.

1873.

1. The order of a military commandant in time of war, after martial law has been declared, requiring an act to be performed by the citizen which is contrary to his inclination, constituted as to such an one a condition of duress, though no threats or demonstrations of violence were used at the time the act was performed.

2. Evidence, in such a case, is admissible of the political views of one pleading duress to show that he stood in such position toward the military authorities, as would reasonably make him fear to disobey any military order published.

APPEAL from Bexar. Tried below before the Hon. Geo. H. Noonan.

Suit brought by Placido Olivari, to recover a piece of ground in the city of San Antonio, and to cancel a deed of conveyance which he alleged he signed under duress, on the tenth of September, 1862. The consideration paid was two thousand dollars in Confederate money, which Olivari accepted lest, as he alleged, “he should be imprisoned for refusing to take the same.”

In June, 1861, Placido Olivari entered into a contract with Simon Menger for a lease of the ground for an indefinite time. Under one of the provisions of the lease, Menger was to have the privilege of purchasing the property by paying to Olivari, at any time within three years, the sum of two thousand dollars.

It was in evidence that on the first day of July, 1862, Gen. P. O. Hebert, then in military command of Texas, issued an order requiring all parties to receive Confederate money in payment of debt.

On the tenth of September, 1862, Menger, who had demanded a conveyance of the property, paid to Olivari the sum of two thousand dollars in Confederate money, and received from him a deed.

There was no evidence of threats or intimidation by Menger, at the time, or before the transaction was consummated. The order of Gen. Hebert seems to have been enforced. Rose, a witness, testified that he was incarcerated in jail at San Antonio for refusing to take Confederate money. There was evidence that the provost marshal of San Antonio, Buquor, told appellant he must take the Confederate money; and the testimony of Olivari himself was “that he made the deed and took the money, fearing that if he refused he would have to go to jail.”

The judge below gave the following instructions asked by counsel for Menger, viz.:

“Vague and undefined fears of violence, without some contemporaneous demonstration of such violence, is not duress in contemplation of law. To constitute duress there must be overt acts of violence or threats at the time of making the contract. If there was no such violence or threats at the time of the payment of the money in this case as would constitute duress as here defined, you will find a verdict for the defendant.

Fear of the military authorities, who then denounced and threatened all persons who refused to take Confederate money, is not such duress as will avoid the acceptance of such money in satisfaction of a debt.”

The counsel for Olivari offered to prove on the trial that he was always loyal to the United States government, and that the defendant was a Confederate and disloyal, which was objected to and the objection sustained by the court.

Teel, for appellant, cited Forshay v. Furgerson, 5 Hill, 154; Co. Lit. 253; Vin. Abr. Duress, B. 23; Com. Dig. Pleader, 2; Bac. Abr. Duress, A.; Chit. Con. 168, edition of 1839; Inhabitants of Whitfield v. Longfellow, 13 Me. 146;Eddy v. Herrin, 17 Me. 338;2 Watts, 167;1 Bailey, 84;6 Mass. 511;6 N. H. 508;2 Gall. 337; 16 Ves. 157; 2 Br. Ch. 345; 1 Ves. Jr. 22.

Wælder & Upson, for appellees, cited Donley v. Tindall, 32 Tex. 43;Ritchie v. Sweet, 32 Tex. 333;Burleson v. Cleveland, Bro. & Co. 32 Tex. 397;Reavis v. Blackshear, 30 Tex. 753;Reed v. Nelson, 33 Tex. 471; Vanderhœven v. Nette, 32 Tex. 183.

WALKER, J.

This is an action brought by the appellant to set aside a deed for real estate in San Antonio, made, as he claims, under duress and in consideration of Confederate money.

The duress is denied, but the payment in Confederate money is admitted.

The contract, being executed, will not be set aside, unless it be shown that the receipt of the Confederate money was not voluntary on the part of the appellant, and this is the only question which should be submitted to the jury in this class of cases.

If the case of Vanderhœven v. Nette, 32 Tex. 183, conflicts with this doctrine, it cannot receive the approbation of this court.

It is useless to say that vague and undefined fears of violence from nobody in particular, but from everybody in general, at some indefinite future time and with no contemporaneous demonstration of violence, do not constitute...