Wilbur v. Blanchard

• Decision Date: 25 September 1912
• Citation: 126 P. 1069,22 Idaho 517
• Parties: H. D. WILBUR, Respondent, v. RAY M. BLANCHARD, Appellant
• Court: Idaho Supreme Court

126 P. 1069

22 Idaho 517

H. D. WILBUR, Respondent, v. RAY M. BLANCHARD, Appellant

Supreme Court of Idaho

September 25, 1912

DURESS-WHAT CONSTITUTES DURESS-EXTORTION-RECOVERY OF PAYMENT MADE UNDER DURESS-AMOUNT DUE, THOUGH PAID UNDER DURESS, CANNOT BE RECOVERED.

(Syllabus by the court.)

1. Under the modern rule of law, actual or threatened use or misuse of criminal process, legal or illegal, sufficient to overpower and overcome the will of the party threatened constitutes duress.

2. Duress may exist where one party threatens to cause the arrest of another on a charge of the commission of a crime if such threats overpower his will, although the party threatened is in fact guilty of the offense with which he is accused and for which his arrest is threatened.

3. Under the statute of this state, secs. 7080 and 7081, Rev Codes, extortion is the obtaining of property from another with his consent, induced by a wrongful force or fear or under color of official right, and fear such as will constitute extortion may be induced by a threat to accuse the party of the commission of a crime.

4. Although one party has committed a crime in the theft of property from another, the party whose property is thus taken is not justified, and cannot be protected by the courts, in extorting money from the one who committed the theft under threats of arrest and imprisonment, where he uses such threats as a means of procuring a payment from the guilty party in excess of the reasonable value of the property taken.

5. Where W. was accused by B. of wrongfully and unlawfully converting and appropriating goods and property from B.'s store, and threatened W. with arrest and prosecution, and W thereupon paid B. the sum of $2,150, and W. thereafter prosecuted his action against B. to recover the same on the ground that it was procured through duress: held, that the jury should have been instructed that if they found the payment was made under duress, and that any part of the whole thereof was justly due from W. to B. as the value of property unlawfully converted and appropriated, that W. should not be allowed to recover such part of the payment so made as represented the reasonable value of the property taken or the debt due.

APPEAL from the District Court of the Fourth Judicial District for Elmore County. Hon. Edward A. Walters, Judge.

Action by plaintiff to recover judgment for a sum paid under duress. Judgment for plaintiff and defendant appealed. Affirmed.

Judgment affirmed, with costs in favor of the respondent.

W. C. Howie and J. G. Watts, for Appellant.

In order for the party to recover money, the threat must have been made of unlawful prosecution or unlawful exposure; the party threatened must have been innocent of the offense charged, and in addition thereto the threat must have been made wrongfully and without reason to believe the party threatened was guilty, or it must have been by abuse of process actually issued. (Shattuck v. Watson, 53 Ark. 147, 13 S.W. 516, 7 L. R. A. 551; Sheldon v. School District, 24 Conn. 88; Smith v. Attwood, 14 Ga. 402; Jones v. Peterson, 117 Ga. 58, 43 S.E. 417; Heaps v. Dunham, 95 Ill. 583; Darling v. Hines, 5 Ind.App. 319, 32 N.E. 109; Giddings v. Iowa Savings Bank, 104 Iowa 676, 74 N.W. 21; James v. Dalbey, 107 Iowa 463, 78 N.W. 51; Taylor v. Blake, 11 Minn. (Gil. 170) 255; Eddy v. Herrin, 17 Me. 338, 35 Am. Dec. 261; Hilborn v. Buckman, 78 Me. 482, 57 Am. Rep. 816, 7 A. 272; Beath v. Chapoton, 115 Mich. 506, 69 Am. St. 589, 73 N.W. 806; McCormick Harvester Co. v. Miller, 54 Neb. 644, 74 N.W. 1061; Compton v. Bunker Hill Bank, 96 Ill. 301, 36 Am. Rep. 147; Clark v. Turnbull, 47 N.J.L. 265, 54 Am. Rep. 157; Landa v. Obert, 45 Tex. 539; Comstock v. Tupper, 50 Vt. 597.)

Perky & Crow and L. B. Green, for Respondent.

If payments are made under what the law regards as duress, they are not within the doctrine of voluntary payment, and may be recovered in the absence of special circumstances. (2 Page on Contracts, sec. 799.)

By the weight of modern authority, threats of criminal prosecution which will eventually result in imprisonment may constitute duress. (1 Page on Contracts, sec. 251, and cases cited.)

If the threatened imprisonment is unlawful, duress exists. If the threat is of lawful imprisonment, but it is unlawfully used to obtain the contract, duress exists. (1 Page on Contracts, sec. 252, and cases cited.)

Under the modern doctrine of duress the sole question is: Was the party so affected by the threats as to prevent a meeting of minds? (9 Cyc. 450, 451, and cases cited.)

Where extortion exists, it is immaterial whether the threatened arrest was lawful. (2 Page on Contracts, sec. 800, and cases cited.)

The question as to the existence of duress is a question of fact, and each case must be determined upon its peculiar circumstances. (Galusha v. Sherman, 105 Wis. 263, 81 N.W. 495, 47 L. R. A. 417; Morse v. Woodworth, 155 Mass. 233, 27 N.E. 1010, 29 N.E. 525; Hartford etc. Ins. Co. v. Kirkpatrick, 111 Ala. 456, 20 So. 651; Heckman v. Swartz, 64 Wis. 48, 24 N.W. 473; Richardson v. Duncan, 3 N.H. 508; Heaton v. Norton State Bank, 59 Kan. 281, 52 P. 876; Hunter v. New York & O. W. Ry. Co., 116 N.Y. 615, 23 N.E. 9, 6 L. R. A. 246; Miller v. Bryden, 34 Mo.App. 602; Haydock v. Haydock, 33 N.J. Eq. 494.)

AILSHIE, J. Stewart, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

This action was instituted by the plaintiff for the purpose of obtaining a judgment for $ 2,150, charging the defendant with the extortion of this sum from him on two several dates, the sum of $ 1,500 on the 26th day of November, 1908, and $ 650 on the 16th day of January, 1909. It was alleged that the foregoing sums were extorted from the respondent by threatening to prosecute him for the commission of the crime of larceny. It was admitted by the answer that the plaintiff had paid the defendant the sum of $ 2,150, but defendant denied that the payment had been procured unlawfully or unjustly. The case was tried before the court with a jury, and a verdict was returned and judgment entered against the defendant for the sum of $ 2,000, being $ 150 less than the sum which it was admitted had been paid. The defendant appealed from the judgment.

The only provisions of the statute of this state with reference to extortion are found in the Penal Code. Sec. 7080, Rev. Codes, defines extortion as follows: "Extortion is the obtaining of property from another, with his consent, induced by a wrongful force or fear or under color of official right"; and sec. 7081, Rev. Codes, provides, inter alia, as follows: "Fear, such as will constitute extortion, may be induced by a threat, . . . . (2) To accuse him, or any relative of his, or member of his family of any crime."

The appellant complains of instructions 12, 13, 14, 15 and 16, given by the court to the jury. Those instructions are as follows:

"No 12. In this case certain payments of money aggregating $ 2,150 are admitted to have been made by the plaintiff Wilbur to the defendant Blanchard, and one question for you to determine is, were such payments made while Wilbur was under duress, because of the threats either uttered by Blanchard or implied from his conduct?

"Duress may be defined as an unlawful restraint, intimidation or compulsion of another to such an extent and degree as to induce such other person to do or perform some act which he is not legally bound to do, contrary to his will and inclination.

"No. 13. If you find from the evidence that the defendant Blanchard obtained the sum of $ 2,150 from the plaintiff Wilbur, for which Wilbur was not indebted to Blanchard, and you further find that at the time of such payment, or shortly before, that Blanchard accused Wilbur of theft, and in connection with such charge threatened to accuse him with the commission of such crime, or to cause his arrest therefor, and you further find that such threat to accuse him of crime or cause his arrest caused or induced Wilbur to fear that the defendant would accuse him of crime, or cause his arrest on such charge, and you further find that such money would not have been paid without such threat, and that it was in fact made contrary to Wilbur's will and inclinations, then I say to you the plaintiff is entitled to recover the amount so paid.

"No. 14. The defendant has admitted the receipt of $ 2,150 from the plaintiff, and is defending this action upon the ground that he was justly entitled to that amount and more from plaintiff, and that such sum was paid to him in settlement of claim.

"This is an affirmative defense, and it is incumbent upon the defendant to establish it by a preponderance of the evidence, and in this connection I say to you that if you find from the evidence that the payments in question, or either of them, were extorted from plaintiff because and by reason of threats on the part of the defendant that he would institute a prosecution against the plaintiff or cause his arrest for theft, and that such threats caused plaintiff to fear that defendant would do so, and you further find that such money would not have been paid without such threats, and it was in fact paid contrary to plaintiff's will and inclinations, because of said threats, then such transaction or transactions would not be a settlement, and you will find for the plaintiff in whatever sum or sums was paid by him by reason of such threats of prosecution or arrest.

"No. 15. You are instructed that the defendant cannot defend this action upon the mere ground that the charge of theft which he made against plaintiff was true or, in other words, the truth or falsity of that charge alone is wholly immaterial to this inquiry, as one is not justified in extorting money from even one guilty of...