$ 92. Extension of the Term Duress-Fear. The common law, as has just been seen, restricted the term duress to corporeal violence or restraint exerted by one party to a contract who thereby intimidated the other and extorted his consent. According to the present usage in America the word duress is also used to designate the coercion of a person's will by means of fear or terror generally, and also to designate the compulsion exerted when one man takes advantage of another's dangerous plight or necessitous condition to compel the execution of a contract.

When a man struggling with a murderous footpad promises a great sum to a passer-by if he will deliver him; when a mother promises all her fortune to anyone who will rescue her child from drowning or from a burning building; when a monarch on a desperate field of battle cries out: "My kingdom for a horse”—in all such cases, it may well be considered that the agreement is not enforceable by the person who renders the services asked for because there was a temporary lack of capacity to contract on the part of the promisor, caused by his perturbation of mind. When the terror and dismay are such as to upset the mind and subjugate the will, liberty of choice is destroyed and the consent vitiated.

But when the fear, although not such as to destroy the capacity to contract by reason of fright and dismay, yet is the real reason why the consent is given, and the other party takes advantage of that fear, the contract is voidable for duress.1 If one man finds another lying by the roadside with a broken leg, and demands an exorbitant sum to take him to a place of refuge, which is promised, he has taken unfair advantage of another's distress, and that contract is voidable for duress. If a woman fears that if the knowledge of her son's embezzlement is communicated to her husband, it will make him insane, and promises money to a person who threat

1 When fear, not amounting to panic and dismay, induces a man to contract, he does in fact consent, because he chooses to contract rather than endure the threatened harm, as the lesser of two evils. Si metu coactus, tamen coactus volui. Dig. 4, 2, 21, § 5.

ens to tell her husband if he will keep silence, that promise is obtained by duress."

Also when the fear is not for life or limb or personal safety, but merely of the destruction of property, a contract so extorted is voidable for duress. A contract is voidable, whether under seal or not, when the promisor was induced to execute it by a threat of the other party to destroy valuable property in his possession belonging to the promisor.* If a railway company refuses to transport a man's cattle, then in its possession, unless he will sign a contract which the company has no right to demand, it is voidable for duress."

It cannot, however, be alleged that a contract was obtained by duress merely because the promisee threatened not to carry out another contract with the promisor unless it was made.6

2 Silsbee v. Webber, 171 Mass. 378.

3 In Galusha v. Sherman, 105 Wis. 265; 47 L. R. A. 423, the Court said: "The question in each case is, Was the alleged injured person, by being put in fear by the other party to the transaction for the purpose of obtaining an advantage over him, deprived of the free exercise of his will power, and was such advantage thereby obtained? If the proposition be determined in the affirmative, no matter what the nature of the threatened injury to such person, or his property. or the person or liberty of his wife or child, the advantage thereby obtained cannot be retained." In U. S. v. Huckabee, 16 Wall. 414, the Court said: "Decisions of high authority adopt a more liberal rule, and hold that contracts procured by threats of battery to the person or of destruction of property may be avoided by proof of such facts." See Cleveland v. Smith, 132 U. S. 318; Spaids v. Barrett, 57 Ill. 289; Motz v. Mitchell, 91 Pa. 114.

4 Moore v. Putts, 110 Md. 490. In Central Bank v. Copeland, 18 Md. 319, one of the elements of the duress by which a husband compelled his wife to execute a mortgage of her property was a threat to burn it down if she refused.

An agreement made by an employer in consequence of a threat of a strike by his employees is voidable for duress. O'Brien v. People,

216 Ill. 354.

5 St. Louis, etc., R. Co. v. Gorman, 79 Kan. 643; 28 L. R. A. (N. S.) 638.

6 Silliman v. U. S., 101 U. S. 465; Dickson r. Fowler, 114 Md. 344; Armstrong v. Latimer, 165 Pa. 389.

$93. Money Paid Under Compulsion. While the common law doctrine of duress was confined within the narrow limits previously mentioned, a practical remedy was afforded in many cases to a person who had been compelled to pay money under circumstances of compulsion. The rule is that money paid in consequence of a moral compulsion, when it was not legally due, may be recovered back. Thus, if one pays money to release his property from improper detention, he may recover it. If a mortgagor pays more than is due in order to prevent a sale of his property, he may recover the excess." If excessive rates are paid to a common carrier," or excessive fees to an officer for doing his duty, the payments are compulsory. "To constitute the coercion of duress, which will be regarded as sufficient to make a payment involuntary there must be some actual or threatened exercise of power possessed or believed to be possessed by the party exacting or receiving the payment over the person or property of another from which the latter has no other means of immediate relief than by making the payment.'

***

The general principle under which money thus paid by compulsion may be recovered was thus expressed by Lord Mansfield in his famous judgment in Moses r. Macfarlane,5 speaking of the action of assumpsit for money had and received: "It lies for money paid by mistake, or upon a consideration which happens to fail, or for money got through imposition or extortion, or oppression, or an undue advantage taken of the party's situation, contrary to laws made for the protection of persons under those circumstances."

1 Lonergan v. Buford, 148 U. S. 581; Baltimore City v. Lefferman, 4 Gill, 425; Myers v. Smith, 37 Md. 112; Bradford v. Chicago, 25 Ill. 420; Chandler v. Sawyer, 114 Mass. 364; Flower v. Lance, 59 N. Y. 610; Pemberton v. Williams, 87 Ill. 15.

2 Close v. Phipps, 7 M. & G. 586.

3 Parker v. Western R. Co., 7 M. & G. 253; Baldwin v. S. S. Co., 74 N. Y. 125.

+ Elliott v. Swartwout, 10 Peters, 137; Robertson v. Frank, 132 U'.

S. 17; Swift v. U. S., 111 U. S. 22.

5 Radich v. Hutchins, 95 U. S. 213.

62 Burrows, 1009.

$94. Undue Influence. one party has taken advantage of the necessitous circumstances of another, or of the fear inspired by danger to person or property, to exact an unfair contract have been treated in Equity as the exertion of undue influence.1 In a recent work the rule is thus stated as to dealings with persons peculiarly exposed to pressure: "If a party can prove to the satisfaction of the Court, (1), any circumstances which show that at the time of entering into the transaction he was peculiarly exposed to pressure, and (2), that the terms of the transaction and the conduct of the other party were such as to raise suspicion of unfair dealing; the Court will set aside the transaction unless the other party can prove that it was in fact fair and reasonable."

Some of the instances in which

The term undue influence is generally applied to cases where a contract, conveyance or testament is obtained from a person whose confidence has been abused, or whose will has been overpowered by another's personal ascendency, or by importunities he was too weak to resist." It exists whenever one person has moral power over another and makes an unconscionable use of that power. Equity will annul a contract so obtained.

Confidential relations. Proof by the party complaining that he was made to execute a contract by undue influence is not necessary when a confidential relation existed between the parties, but the presumption then is that undue influence was exerted. The burden is then cast upon the other party to show that the transaction was a righteous one, and the free and voluntary act of the party complaining. There is

1 Wooley v. Drew, 49 Mich. 290; Moore v. Moore, 81 Cal. 195. In Wood r. Abrey, 3 Madd. 423, it is said: "If it be found that the vendor was in distressed circumstances and that advantage was taken of that distress," a Court of Equity will avoid the contract.

2 Potts' Summary of the Law of Contract, 230, citing Nevill v. Snelling, 15 Ch. D. 679; Clark v. Malpas, 4 D. F. & J. 401; Fry v. Lane, 40 Ch. D. 312.

3 Todd r. Grove, 33 Md. 188; Tate v. Williamson, L R. 1 Eq. 528. The leading case is Huguemin . Basely, 14 Vesey, 285.

such a confidential relation between parent and child;1 between trustee and cestui que trust; between guardian and ward; between principal and agent; between lawyer and client; between medical attendant and patient; between religious teacher and disciple.10 Whether there is such a fiduciary relation between husband and wife is the subject of conflicting decisions.11

In the matter of asking for and obtaining a legacy, as distinguished from a contract the natural influence of a parent over a child, or of a husband over a wife, etc., may lawfully be exerted so long as the testator understands what he is doing and is a free agent.12 But a contract with a third person to use influence with the testator is void, because it tends to the use of undue influence.13

$95.

Voidable, Not Void. A contract procured by the use of duress or undue influence is not per se void, but is voidable at the election of the person constrained by such means, in the same manner as contracts obtained by fraud. If duress

4 Thiede v. Startzman, 113 Md. 278; Reck's Executor v. Reck, 110 Md. 497; Reed v. Reed, 101 Md. 138; Bauer v. Bauer, 82 Md. 241: Bainbridge v. Brown, 18 Ch. D. 188.

5 Williams v. Marshall, 4 G. & J. 376; Williams v. Williams, 63 Md. 371.

6 Forbes v. Forbes, 5 Gill, 30; Smith v. Davis, 49 Md. 470; Carter v. Tice, 120 Ill. 277.

7 Horner v. Bell, 102 Md. 435; Brown v. Mercantile Trust Co., ST Md. 377; Frush v. Green, 86 Md. 494.

8 Merryman v. Euler, 59 Md. 588: Place v. Hayward, 117 N. Y. 487; Liles v. Terry [1895], 2 Q. B. 679.

9 Kellogg v. Peddicord, 181 Ill. 22; Mitchell v. Homfray, 8 Q. B. D. 587.

11 Howes v. Bishop [1909], 2 K. B. 390; Bank of Africa v. Cohen [1909], 2 Ch. 129; Ford v. Ford, 103 Pa. 530, hold that there is not. Lewis . McGrath, 191 III. 401; Haack . Weicken, 118 N. Y. 67. contra. See Linnenkemper v. Kempton, 58 Md. 159; Gunther . Gunther, 59 Md. 500. The fact that a testator bequeathed his property to his mistress is not in itself evidence of undue influence. Saxton v. Krumm, 107 Md. 393.

12 Griffith v. Diffenderffer, 50 Md. 484; Tyson v. Tyson, 37 Md. 583. 13 Debenham v. Ox, 1 Ves. Sr. 276. As to undue influence exerted by a third party to obtain a contract for the benefit of another, see Cobbett v. Brock, 20 Beav. 524; ante, § 91, note 2.