OPINION OP THE COURT.
ROBERTS, O. J.
(after stating the facts as above.) — In the third cause of action, stated in the second amended complaint, upon which the cause proceeded to trial, it was alleged that appellees were compelled to.make a 15 per cent, cut from 4,500 head of steers — about 1,000 of which were three years old; — and in making this cut they were compelled to take 701 head of three-vear-old steers. After appellees had introduced their evidence, which showed that the herd contained a less number of three-year-old steers than alleged, but that appellees, because .of the inelusion of such three-year-old steers in the herd, had been compelled to take 300 head of such under age cattle, and by reason thereof had been deprived of the 15 per cent, cut from the proper aged cattle, from which it resulted that they had been forced to accept about 400 head properly subject' to rejection, under the 15 per cent, provision, appellees applied for and were granted permission to amend tlieir complaint in accordance with the aboVe facts.
[1] Appellants contend that this amendment could not be made, and cite in support thereof the case of Loretto Literary Society v. Garcia, 18 N. M. 318,, 136 Pac. 858. In that case the suit was instituted in ejectment, and plaintiff, upon the trial, sought by amendment of the complaint to change the action to one of equity, for the specific performance -of a contract to convey real estate. This we held could not be done, because under the statute the court could not permit an amendment which changed “substantially the claim or defense.’’ In the present case, appellees were seeking to recover the damage which they suffered by being compelled to accept certain cattle, which they were entitled to refuse. They were complaining of the fact that they had not been given the right to make the proper “cut” under the contract. It is true they alleged in their first complaint that the cattle were under age; but the fact that they were entitled to reject the cattle under the contract, on some other ground, did not substantially change plaintiff’s claim.
More serious objections, however, are urged against the action of the trial court in awarding appellees a recovery under the first and second counts of the complaint. By the first count a recovery was sought for alleged negligent handling of the cattle by appellants, after they had been notified by appellees that they would exercise their option under the contract and require them to hold the cattle over for May delivery. The second count proceeded upon the theory that appellants had failed, after the exercise of said option by appellees, to furnish the cattle with sufficient water and grass, whereby said cattle deteriorated in value, by reason of the loss of weight. Under the first count appellees were awarded the sum of $3,-701, and under the second count $18,005. Appellants contend that the trial court erred in the above awards, because the appellees accepted the cattle, without objection, in so far as the matters and things complained of in these counts of the complaint are concerned and voluntarily paid for them; hence they argue that they are precluded from recovering any portion of the money, as it was voluntarily paid. Appellees, on the other han^, contend that the instant case is not a suit for the recovery of money, either voluntarily or involuntarily paid, but that it is a suit to recover damages caused by the breach of contract and the wanton acts and negligence of the appellants. The complaint, in the two counts, after reciting the facts, it is true, prays for damages in a specified sum; but it is obvious that, if the money voluntarily paid under an executory contract of sale cannot be recovered, that no recovery can be had by way of damages, where the property has been accepted by the vendee after opportunity to ascertain the defect.
[2] The rule relative to the recovery of damages' in such cases is stated by the New York Court of Appeals as follows:
“In cases of executory ■ contracts for the sale and delivery of personal property, the remedy of the vendee to recover damages on the ground that the article furnished fails to correspond with the contract does not survive the acceptance of the property by the vendee after opportunity to ascertain the defect. Reed v. Randall, 29 N. Y. 358, 86 Am. Dec. 305; McCormick v. Sarson, 45 N. Y. 265, 6 Am. Rep. 80; Beck v. Sheldon, 48 N. Y. 373; Dutchess County v. Harding, 49 N. Y. 321; Gaylord Mfg. Co. v. Allen, 53 N. Y. 515; Coplay Iron Co. v. Pope, 108 N. Y. 232, 15 N. E. 335; Mason v. Smith, 130 N. Y. 474, 29 N. E. 749.” Waeber v. Talbot, 167 N. Y. 48, 60 N. E. 288, 82 Am. St. Rep. 712.
In the case of Reed v. Randall, supra, the court said:
“The principle that, when the contract of sale is executory, the remedy of the purchaser to recover damages, on the ground that the article furnished does not correspond with the contract, will not survive an acceptance and retention of the property, after opportunity to ascertain the defect, without notifying the vendor, is well supported by authority.”
In this case the court reviews and cites many English and American cases in support of the rule. The case note, in 86 Am. Dec. 305, where this case is reported, shows that this view of the law has been generally accepted by the American courts. See, also, Elliot on Contracts, § 2110.
[3] The contract in the instant case was an executory contract for the sale of cattle. The first, second, fourth, and fifth paragraphs of the contract, which alone are material here, read as follows:
“(1) That parties of the first part, for and m consideration of the payments to be made as hereinafter specified, have contracted and agreed, and hereby contract and agree, to sell and deliver to the parties of the second part, f. o. b. cars at Bovina, Texas, with clean bill of health, about thirty-five hundred (3,500) head of coming four and five year old steers, all to tooth at three years old or older; said cattle constituting all steers of this age now ranging on the ranch of parties of the first part in Chaves county, N. M., and Cochran county, Texas, and being branded ‘X — or Lazy X — ’ on the left side, all of which said cattle are to' be good merchantable steers and dehorned, and to be subject to a fifteen per cent, cut, which said cut is to apply after exclusion of all big-jawed, blind, sway-backed, crippled, and otherwise unmerchantable steers.
“(2) That said parties of the second part have contracted and agreed, and by these presents do contract and agree, to pay the said parties of the first part the sum of $50 per head for said steers upon delivery of same as under the terms of this contract, and that as an evidence of good faith said parties of the second part have this day paid to said parties of the first part the sum of $15,-000, or $5 per bead on said steers, which said $5 per head is to be deducted from the price and allowed on delivery of each steer.
“(4) That said parties of the first part agree to carry any or all of said cattle until May 1, 1913, at the request of said parties of the'second part, but in the event same are carried until said May 1, 1913, said parties of the second part shall pay an additional $5 per head for said extension of delivery.
“(5) That said parties of the first part hereby acknowledge the receipt of the $15,000 earnest money, which is to constitute a part of the purchase money if said deal is consummated by said parties of the second part; but, in the event said parties of the second part fail or refuse to carry out the terms of this contract, said $15,000 earnest money shall be forfeited outright to said parties of the first part. In case the parties of the second part should at any time receive á partial delivery of these cattle and take out only top steers, then the forfeit money of $5 per head is to remain until the last delivery and the full price of $50 per head is paid for the full bunch; but it is understood that cutting cattle for flesh is not to be considered a top.”
Tinder the above contract appellees had the right to demand “good merchantable steers,” and if the cattle offered them did not compty with the terms of the contract they had the right to refuse to accept them and demand a return of their earnest money, and to recover such damages as they were able to prove, for the breach of the contract. Such being the case, we are relegated to the inquiry as to whether appellees accepted the cattle under duress, assuming that the pressing business necessities, hereinafter more fully discussed, amounted to legal du ress, and rendered the acceptance and payment involuntary; and the solution of this question depends upon the facts as established by the record.
While there is some evidence in the record tending to show that the cattle were negligently handled prior to their delivery to appellees, and that they suffered from lack of water, which cause them to deteriorate in weight, and also that appellees at various times called the attention of appellants to the necessity of providing a more ample supply of water, however, when appellees went to receive the cattle in April, 1914, they proceeded to shape up the herds for final acceptance, without saying anything whatever about the condition of the cattle, or entering any objection to receiving them as fully complying with the terms of the contract. In order to facilitate the shaping up of the herd, it was divided into about two equal portions. The parties proceeded to and did cut out practically all the three-year-old steers, and the 15 per cent, cut allowed under the terms of the contract, from the first half of the herd. When no more than 45 or 50 cattle remained in the first herd, 'which the parties were entitled to eliminate, they ceased work on this herd, desiring to shape up the second herd first, in order to ascertain whether it would not be to their advantage to cut out the excess from the second herd. The parties proceeded to shape up the second herd, until a dispute arose as to whether the appellees had exhausted their right to cut out undesirables; appellants contending that they had cut out all the cattle they were entitled to under the terms of the contract, or practically all, while appellees, insisted that they had not begun on the 15 per cent, cut, which applied only to four and five-year-old steers, but that all the cattle they had eliminated were three-year-old steers, which they were entitled to cut out, before exercising their right under the 15 per cent, provision. As to what occurred, Mr. Sowder, one of the appellees, testified as follows :
“We worked on a while, and then Mr. Higginbotham came over to the cattle and said we had our 15 per cent, cut and would have to stop,. and we got to arguing the case, that the three-year-old cattle were not all out, and that we had not cut the 15 per cent. cut. He said, ‘You will take the cattle just as they stand; you will take the cattle just as they are in five minutes, or I will turn them loose;’ and we reasoned with him to quite an extent that it wasn’t right and proper, that it was not the terms of the contract, and according to the' contract, but he said, ‘You will take them right now, or you will not take them at all.’ * * * We told them we would suffer, but would receive the cattle under protest. He said, ‘I don’t care how j^ou receive them, only that you will receive them.’ He was laying us liable. We knew that they had $15,000, and they had $9,000 more money under the contract, in addition to the damage. Then we had $24,-000 involved in the matter, and that the damage we are.liable for if we didn’t receive the cattle and comply with the contract with Fergusson, Nations, and Porter that we were liable for, and he was forcing us to receive the cattle under the circumstances, but receiving them under protest, and wanted him to distinctly understand it.
“Court: Q. What did Mr. Cadwell say to Higginbotham about the cattle at that time? A. He .says, ‘You are forcing us to take these cattle, so as to make us deliver to save ourselves under the contract with these parties, and we are taking them under protest, and I want you to distinctly understand that.’ ”
Appellee Cadwell testified as follows:
“Q. What was said then in your presence, if anything, to Mr. Higginbotham about being stopped and about taking the herd of cattle ? A. Mr. Rogers said we had I don’t remember how many head, 5 or 25 head, yet to cut out of the herd, and Mr. Fergusson insisted that we not exercised the rights on the herd. Mr. Higginbotham says, ‘ * * * You take the cattle as they are in the next five minutes or I’ll turn them loose;’ that’s what he said. Q. What did you say, if anything ? A. I told him, Tí we receive these cattle, it will be under protest,’ and he says, T don’t care how you receive them, just so you take them.’ ”
A witness named Fergusson testified on behalf of. ap pellees as follows:
“Everything went along in pretty good shape until Mr. Eogers came down, when the boys were about ready to cut, and says, ‘There is only 37, or 47, more cattle to come out according to the contract;’ and I said, ‘Mr. Eogers, you know that that isn’t right and he says, ‘I am working for Higginbotham.’ I said, ‘That don’t make any difference; you ought to do what’s right, and you know that isn’t right;’ and so he just got mad, and so did Mr. Sowder. Mr. Higginbotham wouldn’t explain, and started to town; went off in the car. I don’t know what he said. Q. What was it? Give it as near as you can. A. Said they had to take the cattle just as Mr. Eogers said, or they couldn’t have them at all. Says, ‘These cattle are making the boys $25,000,’ and they just had to take them as they were, or could-n’t take them at all, and started off; and I went on, and got him to come back, and said, ‘You know this is wrong; we have got to get together-; these boys sold us the cattle, and we have paid part for them, and we have got to see this thing through.’ So- he finally came back. He said— Higginbotham said, T will give the boys the money back and keep the cattle.’ I went to Cadwell, and he said he would do so. I went down to Mr. Higginbotham again, and he says, ‘No; I won’t give the money back.’ He changed his mind in a couple of minutes, so- that we were up against it. The boys said, ‘We will receive them under protest.’ Q. What did these gentlemen say about not wanting to take the cattle— about the protest that they made? A. Well, Mr. Éogers came up, as he did quite often while we were trying to settle matters, and Mr. Sowder told him, and so did Mr. Cadwell — told Mr. Higginbotham that he protested on taking them that way, and he said, ‘You will take them that way, if you take them at all.’ In the meantime, however, I had been talking quite a bit with Mr. Higginbotham, and he gave me to understand early in the game that he would not move one of the steers for anybody in the bunch unless I would agree to pay for them.”
Again, the witness Sowder testified, in answer to the question as to whether they had cut the 15 per cent, cut, as follows:
“A. No, sir; had not finished. We never was allowed. He stopped us at the time. We reasoned and plead the case with him, and said we had not gotten the cattle. He claimed that we had. Mr. Fergusson talked to him, and so did Mr. Cadwell talked to him.”
Later the witness further, testified:
“Mr. Cadwell told him, ‘I just want you to understand that we are receiving these cattle under protest, and we are going after you.’ ”
All the above evidence shows clearly that the only ground upon which the appellees were objecting to receiving the cattle was the fact that they were compelled to take a number of three-year-old steers, and were being deprived of their right, to exercise their 15 per cent, cut from four and five-year-old steers. During the examinar tion of the appellee Sowder as a witness, the following question was asked by counsel and answered by him as follows :
“Q. Was the condition of the cattle included by you in your protest to him about having to take the cattle? A. At all times it was; yes, sir.”
In their brief, appellees’ counsel, discussing the above question and answer, say:
“This witness evidently referred to the testimony in which he stated that during the entire time from February to the time of delivery he made constant and frequent complaints about overstocking this pasture, and about the scarcity of water, and about bringing 1,000 head of extra cattle there to dip when the water conditions were as short as they were.”
Assuming this construction of the language of the witness justifiable, still we fail to see wherein it supports the judgment of the trial court. There is nothing in the record to show that appellees ever protested against receiving the cattle at any time, other than when they were being finally shaped up for delivery, at which time, as stated, the protest was upon the ground that appellees were being compelled to accept the cattle which they were entitled to eliminate under the provisions of the contract^ All the various'conversations between the parties, relative to the cattle, were testified to in detail, and in all these conversations not a word of objection to receiving the cattle on account of their having been “choused around,” or given insufficient water, was uttered. The above statement of the witness Sowder was a mere conclusion, not justified under the facts. This being true, there is no evidence in the record tending to show that the acceptance of and payment for the cattle by appellees was involuntary, in so far as the first and second counts of the complaint are concerned. So far as the record shows, it might be that, had appellees objected to receiving the cattle on the grounds set forth in. these two counts of the complaint, appellants might have rescinded the contract and have restored to appellees the earnest money paid, or they might have made the proper deduction in the purchase price.
Appellants argue that protest is essential in all cases, in order to show that the payment was involuntary; while appellees, on the other hand, insist that protest is not necessary, where in fact the money is paid under compulsion. Assuming, without deciding, that appellees are correct in their contention, it must be true that the party to whom the money is paid must be made aware in some manner that the payment is being involuntarily made; otherwise, in all cases where money is paid to another, for the purpose of securing possession of property, or completing a contract of purchase, in order to comply with some pressing business engagement, the payor could inspect and accept and pay for such property, or the charge against the same, and thereafter bring suit for damages, or for a return of the money paid, and the party to whom the money has been paid have no prior notice or knowledge of any dissatisfaction on the part of the purchaser, or any knowledge of any intention on the part of such payor to claim remuneration, or a return of the money. In the present case the record contains no facts which tend to show, in so far as the first two causes of action are concerned, that the payment made was not voluntary; hence appellees were not entitled to recover thereunder.
In this court, appellees argue that as a matter of law duress was not absolutely necessary to sustain any of the causes of action, for the reason that the contract, in so far as the first and second counts of the complaint are concerned, contained three elements: First, the contract of sale; second, a contract of agistment and bailment; and, third, an implied contract to handle the steers in a stock-manlike manner. The issues in this case, as framed by the pleadings and as interpreted by the trial court, were upon the theory of duress of goods. The defense offered was: That acceptance, after knowledge of the failure of defendants to keep their agreement, was a waiver of the right to recover damages. The complaint, as to all of the counts, was framed upon this theory, and is, in effect, a plea of confession and avoidance; i. e., the plaintiffs, after pleading the contract, admitted that they had received and paid for the cattle, but claimed that such acceptance and payment did not estop them from recovering damages, for the reason that they were compelled to take the cattle and pay for them under circumstances amounting to legal duress of goods. This was the issue presented by the pleadings, and the theory upon which the case was tried in the lower court. Nothing appears in the record showing that it was appellees’ contention that the contract was one of agistment or bailment, so far as the first and second causes of action are concerned, and the first intimation of this claim is contained in appellees’ brief. The same is true of appellees’ contention that the contract contained an express warranty which survived acceptance and delivery. This brings us to a consideration of two propositions of law:
[4] (a) The appellate court will adhere to the construction of the pleadings made by the trial coupt:
"When the trial court has placed a reasonable construction upon the averments of the complaint, which might bear two constructions, this court will be disposed to adhere to the construction which it received by the trial court.” Comegys v. Emerick, 134 Ind. 148, 33 N. E. 899, 39 Am. St. Rep. 245.
“Where the facts pleaded are such that they may be construed as proceeding on different theories in the statement of a cause of action, the construction placed thereon by the trial court will be followed by the appellate court.” Calloway v. Mellett, 15 Ind. 366, 44 N. E. 198, 57 Am. St. Rep. 238.
“Where a pleading may be construed as proceeding on two or more theories, the theory adopted by the parties and the trial court will be followed by the appellate court.” Anderson Foundry v. Myers, 15 Ind. App. 385, 44 N. E. 193.
“Where a trial court, without objection, placed a certain construction on the wording of a pleading, the pleading admitting of it, such construction will prevail on appeal.” Southern Pac. Co. v. Kennedy, 9 Tex. Civ. App. 232, 29 S. W. 394.
[5] (b) Appellees cannot, in this court, shift the ground on which their complaint proceeds, and the judgment stands, and now advance new theories to sustain the judgment of the lower court. This question was passed upon by the territorial court in the case of San Marcial Land & Improvement Co. v. Stapleton, 4 N. M. (Johns.) 8, at page 13, 12 Pac. 621, at page 622, where the court said:
“Had the pleader, in drawing the bill, relied in any respect upon the insufficiency of the power to warrant the mortgagee in carrying it into effect by a sale as threatened, and had defectively or insufficiently set out the particular reasons or grounds, and the defendant had answered or filed pleas, it would have been too late to make the objection here; but in the record before us the power was not assailed, and constituted no part of the equitable grounds alleged for relief. ‘The Supreme Court, in appeals or writs of error, shall examine the record, and on the facts therein contained alone shall award a new trial, reverse or affirm the judgment of the district court, or give such other judgment as to them shall seem agreeable to law/ Section 2190, Comp. Laws N. M. ‘No exception shall be taken, in an appeal, to any proceeding in the district court, except such as shall have been expressly decided in that court/ Section 2188, Comp. Laws. There is nothing in Section 2190, above quoted, authorizing the court to hear a case brought by appeal or writ of error upon grounds other than such as appear to have been made in the court below and considered there, or to create by construction or intendment new and distinct issues. While it is true that section 2188 applies to appellants, and denies to them the right to assign errors and insist upon them, unless expressly decided in the district court, it will apply with equal force, by inference and analogy, to appellees, who seek to shift the ground on which the bill and decree stand, in order to lay hold of a surer footing in equity, when that ground was not covered in the cause as it stood in the lower court.”
Sections 2188 and 2190 of the Compiled Laws of 1884, referred to in the decision quoted supra, are carried forward without change as sections 37 and 38, chapter 57, Laws of 1907. On the above proposition of law, see, also, Vail v. Long Island R. R. Co., 106 N. Y. 283, 12 N. E. 607, 60 Am. Rep. 449; Beacher v. Schuback, 23 N. Y. Supp. 604; Wilson v. Palo Alto Co., 65 Iowa, 18, 21 N. W. 175; Cotten v. Thompson, 25 Ala. 671; Langley v. Harmon, 97 Mich. 347, 56 N. W. 761.
[6] While the evidence did not justify a finding that the payment for the cattle, in so far as the first and second causes of action are concerned, was involuntary, it does amply support the allegations of the third and fourth counts of the complaint. The facts, as recited by the witnesses, have been heretofore stated, and need not be repeated here. Appellants argue, however, that these facts do not constitute legal duress. The Supreme Court of the United States in the case of Robertson v. Frank Brothers Co., 132 U. S. 17, 10 Sup. Ct. 5, 33 L. Ed. 236, said:
irVhen such duress is exerted under circumstances sufficient to influence the apprehensions and conduct of a prudent business man, payment of money wrongfully induced thereby ought not to be regarded as voluntary. But the circumstances of the ease are always to be taken into consideration.”
•Tested by this rule, the facts in the present case clearly establish legal duress.
[7, 8] The appellees had paid $24,000 to McQuiddy & Williams for the contract, and appellants had received the sum of $15,000 earnest money under the contract from Williams & McQuiddy. Appellees were willing and offered to accept the four and five-year-old steers, which they were entitled to receive under the terms of the contract. Appellants would not deliver to them the four and five-year-old steers, to which they were entitled under the terms of the contract, unless appellees would accept and pay for 300 three-year-olds and about 400 other unmerchantable and cut back steers. At the time appellants knew that appellees were under contract to deliver these ■cattle to Fergusson and others on or about May 1, 1914; that the price of cattle had materially advanced since appellees’ contract to deliver the cattle to Fergusson and his ■associates, who were present and demanding a compliance with their contract. Very clearly, the election of the appellees to refuse to accept the cattle and rely upon an action for damages would have required them either to have paid Fergusson and others the damages due them, together with the return of their money, amounting to $50,000 in all, or to have had two lawsuits to establish their rights— one against Fergusson and others upon their contract of sale, to establish the damages, and the other against the defendants in this case, to recover the same. Under these circumstances, we think a prudent business man would be justified in acting as did these appellees. The case of Lonergan v. Buford, 148 U. S. 581, 13 Sup. Ct. 684, 37 L. Ed. 569, was very much like the case at bar; the only real distinction being that a larger proportionate sum had been paid on the cattle, and the threatened loss of a portion of the cattle by lack of care and attention during the approaching winter. The court said:
“Finally, it is objected that the last payment was voluntary, and therefore cannot be recovered, cither 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 already 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 projoerly 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 ease comes within the range of the case of Radich v. Hutchins, 95 U. S. 210, 213 [24 L. Ed. 409], 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 be some actual or threatened exercise of power possessed, or believed to be possessed, by the party exacting ox 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 & City Council of Baltimore v. Lefferman, 4 Gill (Md.) 425 [45. Am. Dec. 145]; Brumagin v. Tillinghast, 18 Cal. 265 [79 Am. Dec. 176]; Mays v. Cincinnati, 1 Ohio St. 268.”
In the case of Guetzkow Brothers Co. v. Breese, 96 Wis. 591, 72 N. W. 45, 65 Am. St. Rep. 83, the plaintiff could' not obtain certain insurance money due it unless the defendant joined in' executing proofs of loss and in indorsing the drafts. The defendants refused to do these things unless the plaintiff would pay them $666.74, which it did not owe. The plaintiff was in a position where it must obtain its insurance money at once, in order to- go on with its business and fulfill valuable outstanding contracts, or-it would suffer great loss. Under these circumstances it submitted under protest to the unjust demand in order to obtain its money from the insurance company. The court, after reciting the above facts, said: "This, makes a case of legal duress of goods.” See, also, note to the above casein 65 Am. St. Rep. at page 85.
A case as nearly like the instant case as one could expect is White v. Oliver, 32 Okl. 479, 122 Pac. 156. This-was an action by the plaintiff for freight which he had" paid upon certain cattle which he sold the defendant, on account of a portion of the cattle being contrary to the-terms of the contracts. The defendant testified that the cattle were received under an executory contract of sale, and that he was to receive a certain grade of cattle, and that a portion of the cattle were in compliance with the contract and a portion were not, but that the plaintiff refused to allow him to have any of the cattle unless he received and paid for all of them, and that he had already paid a substantial part of the contract price. The court' said:
“We think, under the evidence produced, that the court erred in submitting to the jury the theory that the defendant waived his right to the kind of cattle contracted for by accepting the others, as the uncontradicted evidence establishes that the defendant, while receiving other cattle, did so under protest. * * * And it was error for the court to present this theory of the case to the jury. There is no evidence in the case that the defendant agreed to accept these cattle in the sense in which the word 'accept’ is used in this instruction. It is, of course, true that the defendant received the cattle; but he did so under protest, as the counsel for the plaintiff has admitted in his brief, and receiving them under protest was not an acceptance of them, or an agreement to receive them, under the contract. If it be true that they were received under protest, and under the circumstances of this case, this would not be a waiver of the defendant’s right to claim damages.”
In the case of Vyne v. Glenn, 41 Mich. 112, 1 N. W. 997, in the Supreme Court of Michigan, the court said:
“The defendant informed the plaintiff that he had stopped the payment of certain moneys due the latter from third parties, well knowing plaintiff’s circumstances at the time, and that his failure to get the money so due him would result in his financial ruin, and thus compelling the plaintiff to settle with the defendant in order that the stoppage might be removed. It is idle to say that such settlement was free and voluntary, and that it should be sustained. To say that the plaintiff had a legal remedy if a wrong had been done him, or that the commencement of garnishee proceedings would not vitiate a settlement thereafter made between the debtor and creditor, may be true generally; but where the wrong done, as in this case, was for the evident purpose of forcing a settlement not in accordance with the legal rights of parties, and where delays incident to litigation would but work ruin, which the plaintiff dreaded, to hold that because he had a legal remedy for the wrong, and did not avail himself thereof, would not meet the difficulties in 'a case like the present.”
Appellants contend that as payment was made on the cars, after the cattle had been loaded, that it was made at a timé when there was no duress; hence there can be no recovery. The facts are as follows: Appellees had contracted to sell the cattle to Fergusson and his associates, from whom they expected to obtain the money to complete tire payment to appellants. Appellants refused to permit appellees to load the cattle until they had secured the verbal promise of Fergusson that he would pay the balance due on the cattle before the shipment arrived at its destination. After the cattle were loaded, and were on their way to their destination, Fergusson paid appellants the balance alleged to be due under the contract. It will therefore be seen that, in so far as payment by the appellees was concerned, that had been made before the cattle were accepted, because they no longer controlled the matter'of payment. If goods be released on the promise of a third party to pay the charges against the same, and 'if such third party, instead of resisting payment, pay according to such promise, this does not prevent a recovery of the money back by the party for whom such payment was made, if he has reimbursed, or undertaken to reimburse, such third party for such payment. Chamberlain v. Reed, 33 Me. 357, 29 Am. Dec. 506; Heckman v. Swartz, 40 Wis. 267, 6 N. W. 891.
The contention of appellants that appellee had an adequate remedy at law has been disposed of by what has been heretofore said. It is stated in 30 Cyc. 3 311, that:
“There is a class of cases, however, where, although there is a legal remedy, his situation or the situation of his property is such that it would not be adequate to protect him from irreparable injury, in which case payment will be deemed to have been involuntary.”
While appellants have assigned and discussed errors other than those referred to and discussed above, the remaining assignments are so clearly without merit that no discussion or consideration of the same is required or warranted. It is our conclusion that the trial court erred in awarding any damages under the first and second counts of the complaint, and properly awarded damages in the correct amount under the third and fourth counts thereof.
The cause will therefore be reversed and remanded, with directions to the trial court to enter judgment for the appellees in the sum of $7,402, with interest thereon at the rate of 6 per centum per annum from June 5, 1914, together with the costs properly chargeable against appellants; and it is so ordered.
Hanna and Parker, J. J., concur.