
    NEW JERSEY BRICK COMPANY, RESPONDENT, v. A. M. KRANTZ COMPANY, APPELLANT.
    Submitted December 8, 1919
    Decided March 1, 1920.
    On appeal from the Supreme Court, in which the following per curiam was filed:
    “The plaintiff sold defendant a large quantity of brick at $7 per thousand. Before the deliveries were completed, the plaintiff notified defendant that it would raise the price to $7.50 per thousand. The defendant objected, but as the brick was of peculiar character not procurable in the market, he accepted subsequent deliveries until the contract was fully performed, and then paid'in full at the higher price under protest. He continued buying brick, and more than two years afterward, when sued for a small balance on a later sale, undertook to counter-claim for the alleged overpayment.
    “Clearly, the payment was voluntary. However embarrassing it may have been for the defendant to be without the brick, he cannot now rely on that situation as amounting to duress; when he paid the money he had already had the brick and was no longer subject to embarrassment. He was perfectly free to pay or not, and if he did not pay, to defend on the ground that the plaintiff was entitled only to the original price. He chose not to do iso. He now says he paid this extra price because lie had agreed to do so in order to secure prompt delivery. If this new contract was valid he was hound by it and the payment was only payment of what he owed. If it; was not valid, either because without consideration or because of duress, he should not have paid. He could not in any event create a new cause of action in his favor by failing to assert his rights.
    “Let judgment be entered in this court, affirming the judgment below, with costs.”
    
      For the appellant, Edward F. Merrey.
    
    For the respondent, Roe & Tompkins.
    
   Per Curiam.

The judgment under review will he affirmed, for the reasons set forth in the opinion of the Supreme Court.

For affirmance — The Chancellor, Chibe Justice, Trenchard, Bergen, Minturn, Kalisch, Black, White, Heppenheimer, Williams,.Taylor, Gardner, Ackerson,-Jj... 13.

For reversal—None.  