Lonergan v. Buford

after stating the facts, delivered the opinion of the court.

There was no error in admitting in evidence the contract of sale to Hawkes of the 2000 steers, that being, according to the testimony, unquestionably the sale referred to in the exception and reservation named in the contract in suit, nor the statements made by Lonergan, the defendant, in reference to the ages of the steers which defendants had sold prior to such last contract, ap.d which they were to except therefrom. This was not testimony varying or contradicting the terms of the written agreement between’the parties; it only interpreted and made certain those terms; it simply identified the property which was to pass thereunder to plaintiffs. The exception was not one by quantity, and simply of 2000 steeds— an exception which might or might not give to the defendants the right to select such steers as they saw fit — but it was an exception by description, to wit, of steers that had been sold, and it was necessary to prove what had been sold in order to determine what could be and were included within the contract. Until the exception was made certain, that which was conveyed could not be certain. Take a familiar illustration : A deed conveys, a tract of land' by metes and bounds, but in terms excepts therefrom a portion thereof ¿heretofore conveyed by the grantor; the former deed is referred to and described, but the boundaries of the ^ract conveyed thereby are not specified. Now, in order that what is conveyed by the deed in question may be known, the land- excepted therefrom must be known, and for that the deed referred to containing the excepted land-must be produced. The production, of such prior deed is no contradiction, and involves no variance of the terms of the latter,•’ but is necessary to make certain that which is in fact conveyed thereby. Or another illustration : Suppose a written contract is made for- the sale of a herd of cattle at $30 a head, excepting-therefrom all yearling steers — would not páról testimony of the number of yearling steers in the herd be necessary in order to show the number of cattle sold, and the aggregate sum to be paid? Evidence that the herd contained 1000 head would not end the question, and parol testimony of the number of yearling steers would not be evidence contradicting the contract; on the contrary, it would be in support thereof, to make certain that which by the' terms of the instrument was not certain.

Again, it is objected that the plaintiffs were not injured by the failure of the defendants to deliver the four hundred and twenty-two yearling steers, the idea seeming to be that steers two years old and upward were delivered instead of such yearlings. Of this, however, there was no evidence, and the court expressly charged the jury that “ the plaintiffs are • entitled to recover from the defendants for such steers of the age called for in the contract so failed to be delivered the value thereof as the testimony and the admission in the answer shall justify you to determine, provided that you do not find that the defendants, in lieu of the steers under the age set forth in the contract so taken away, not delivered, left other steers of the age called for by the terms of the contract, and, if so, then the plaintiffs are not entitled to recover for any steers so left in the place of those taken away, provided the value of the steers so left (if you find that to be the case) was equal to the value of the steers said to have been taken away by the defendants Lonergan and Burke.” The defendants paid for the cattle at an estimate of three head of cattle for calves branded within a specified time. They were entitled to all the cattle belonging to defendants ranging in the places named, excepting those specially reserved; and if there were not enough of steers in those herds, of the kind described, to satisfy the contract which they had made with Hawkes, they could not make good the deficiency by taking steers of a different description, all of which they had sold to plaintiffs before any attempt at delivery to Hawkes. There was no error in the ruling'in this respect.

Finally, it is objected that the last payment was voluntary, and, therefore, cannot be recovered, either in whole or in part, although it was in terms made under protest. It appears from the, testimony that the defendants refused to deliver any of the. property without full payment. This was at the commencement of the winter. The plaintiffs had alreadjT paid $175,500, and without payment of the balance they could not get possession of the property, and it might be exposed to great loss unless properly cared for during the winter season. Under those circumstances, we think the payment was one under duress. It was apparently the only way in which possession could be obtained, except at the end of a lawsuit, and in the meantime the property was in danger of loss or destruction. The, case comes within the range of the case of Radich v. Hutchins, 95 U. S. 210, 213, in which the rule is thus stated: “ To constitute the coercion .or duress which will be regarded as sufficient to make the payment involuntary, . . . there must bé 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. ' As stated by the Court of Appeals of Maryland, the doctrine established. by the authorities is, that ‘ a payment is not to be regarded as compulsory, unless made to emancipate the person or property from an actual and existing duress imposed upon it by the party to whom the money-is paid.’ Mayor and City Council of Baltimore v. Lefferman, 4 Gill, (Md.,) 425 ; Brumagim v. Tillinghast, 18 Cal. 265 ; Mays v. Cincinnati, 1 Ohio St. 268.”

In Stenton v. Jerome, 54 N. Y. 480, the defendants, who were stockbrokers, held two United States bonds belonging to the plaintiff, which they threatened to sell unless she paid a balance claimed by them on account.' On p. 485 ■ the court says: “ Great stress, however, is laid upon the payment by the plaintiff of the balance shown by the account, as rendered, to be due from her. This payment was in one sense voluntary, as she was not compelled by physical duress to pay it. But the defendants held her' two bonds, which they threatened at once to sell unless she would pay this balance. She had great need for the bonds and could not well wait for the slow process of the law to restore them to her, and she paid this balance, not assenting to tbe account and not assenting that it was justly due, for the sole purpose of releasing her bonds. Under such circumstances it is well settled that the law does not regard a payment as voluntary.”

In Harmony v. Bingham, 12 N. Y. 99, 117, it is said : “ If a party has in his possession goods or other property belong- ' ing to another, and refuses to deliver such property to that other unless the latter pays him a sum of money which he has no right to receive, and the latter, in order to obtain possession of his property, pays that sum, the money so paid is a payment by compulsion.” See, also, Baldwin v. Liverpool &c. Steamship Co., 74 N. Y. 125; McPherson v. Cox, 86 N. Y. 472 ; Spaids v. Barrett, 57 Illinois 289; Hackley v. Headley, 45 Michigan, 569.

These are all the questions in this case. "We see no error .in the proceedings below, and the judgment is'

Affirmed.