Bond v. Kidd

50 S.E. 934, 122 Ga. 812, 1905 Ga. LEXIS 337

• Court: Supreme Court of Georgia
• Decided: May 11, 1905
• Status: Published

Opinion

Cobb, J.

Where duress is relied upon in a pleading to defeat a contract, facts sufficient to show duress must be pleaded. Carswell v. Hartridge, 55 Ga. 412. The Civil Code, § 3536, declares that “ duress consists in any illegal imprisonment, or legal imprisonment used for an illegal purpose, or threats of bodily or other harm, or other means amounting to or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will.” Threat of bodily harm is duress. Love v. State, 78 Ga. 66. It may be' that, under the broad language of the section quoted, any conduct which overpowers the will and coerces or constrains the performance of an act which would otherwise not have been performed would be duress. Here there was no threat of bodily harm. Nor do the allegations show a threat to prosecute for a criminal offense, even if such a threat would amount to duress. See Russell v. McCarty, 45 Ga. 197; 10 Am. & Eng. Enc. L. (2d ed.) 341. Construing the petition most strongly against the plaintiff, it is alleged merely that the defendant threatened a civil action, and this of course is not duress in a legal sense. While th petition alleges that the defendant said to the plaintiff that he “ could have sent another man after” the plaintiff, it can not be h Id that this amounted to a threat to prosecute for a criminal offense, in the absense of an averment that in the community in which the language was used the language was well understood to mean a threat to send the sheriff with a warrant: It may be that this was what was intended, and that the plaintiff so understood it, but the court does not judicially know that this apparently harmless language has, in the community in which it was used, the serious import which has been given to it in the argument of counsel. We do not know what sending another man means. In the absence of averments explaining this enigmatical expression we can not hold that there is in the allegation the slightest hint that the plaintiff executed the notes under the duress resulting from a threat to prosecute for a criminal offense. All this could have been made perfectly clear by appropriate averment, and in the absence of such averment we must give the language that construction which is • most beneficial to the defendant and most harmful to the plaintiff. The same construction would result if the language were ambiguous ; the defendant would be entitled to the benefit of the doubt. There are no facts alleged sufficient to show that the plaintiff gave the notes under circumstances which would amount to duress in law; and this being so, the petition was fatally defective, without regard to other objections thereto which were urged by the defendant.

Judgment affirmed.

All the Justices concur, except Candler, J., absent.