
    JOHN H. LESTER, Respondent, v. THE UNION MANUFACTURING CO., Appellant.
    
      Contract—disaffirmance of decrees—payment— Confederate money—tender.
    
    A dispute having arisen as to the price at which plaintiff had sold certain property to defendant, an agreement was entered into at Richmond, Va., in 1808, by which the defendant was to pay, and the plaintiff to receive, $50,000 in full settlement of all claims and demands, in fulfillment of which, a check was drawn upon a bank in Richmond, Va., and the same was, upon presentation by' the plaintiff, paid to him in Confederate bills. It appeared from the evidence that the settlement and the mode of payment were all parts of one transaction. This action was brought by the plaintiff, without having tendered repayment of the money, to recover upon the settlement, he claiming that the payment was void on account of duress. Held, that the complaint should have been dismissed: that the court could not affirm one part of the transaction and disaffirm another part.
    It appearing from the evidence that the only kind of money used in the banks at Richmond, at that time, was Confederate bills, and that all checks made payable at those banks were payable in,those bills, held, that the debt created by the contract was payable in Confederate money, and that payment in such money was valid.'
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made on the minutes of the judge presiding at the trial, and also from an order denying a motion for a new trial on the ground of surprise and newly-discovered evidence.
    The complaint alleged that the defendant purchased from plaintiff, machinery and personal property, of the value of $82,888.37, December 1, 1863, and agreed to pay that sum therefor, in the stock of the company; and that afterward, and on December 18, 1863, the plaintiff and defendant had an accounting and settlement, by which the defendant agreed to pay him $50,000 in cash, instead of said stock, which was reduced to writing, and is exhibit “ A,” referred to in the opinion. That plaintiff was afterward compelled, in the same month, by duress, to take Confederate notes for the said $50,000, which were of no value whatever. The answer admitted the settlement, but denied that any force or duress was used to compel the plaintiff to take the Confederate notes.
    The duress, which was attempted to be proved upon the trial, was, that the plaintiff would, if he remained in Richmond, be forced into the Confederate ranks, and that he would not be allowed to leave the city, unless he made the settlement and received payment of the check in Confederate notes.
    The complaint in the action was twice amended.
    
      Wm, A. Goursen, for the appellant.
    
      E. Pierrepont, for the respondent.
   Donohue, J.:

This suit, as the last amendment of the complaint stated, is brought to recover on an agreement, entered into as a compromise of the value claimed for certain articles sold the defendants.

That complaint alleges that the plaintiff had sold the property for $82,000, payable as stated; that thereafter, on a settlément and accounting, defendant agreed to pay plaintiff $50,000 in cash; that after that accounting, the agreement “A” was, by force and fraud, obtained from plaintiff, and that by force and fraud, he was compelled to take Confederate money for the amount, and has never been paid his $50,000. While there is conflict on some points, as there will be in all cases, these are the main points in the case, on which there is no dispute. It is clear that there was a suit pending in Richmond, where all these transactions took place, in favor of plaintiff against defendants, for the purchase-money of this - property, the plaintiff and defendant widely differing in their statements. ■ That about the time of the sale, sued on, the plain till', if he is to be believed, was afraid he would be drafted into the Confederate service. That on that state of the facts, the arrangements, all made at the same time and under the same state of facts, whatever they were, of the sale and mode of payment, were entered into. The plaintiff himself distinctly testifies: “He said I could take my choice, either execute that contract or I would be compelled to remain there.” Again, “ He said if I attempted to leave without executing the contract, receiving this check, and drawing Confederate notes, I would not be permitted to leave the Confederacy” His whole evidence is clear, that the whole transaction, from the agreement of settlement to how it was to be paid, was one. The plaintiff now seeks to offer the contract, on which he sues, and which he puts in evidence as his case, and disaffirm the payment. In this, I think the plaintiff is in error, and the learned judge, when he rested, should have dismissed his complaint. He cannot affirm in part and avoid in part, the one transaction. But supposing he could affirm the sale and disaffirm the payment, in case the payment is not good, how does he then stand? In considering this question, it is necessary to take into account the place and time in which the parties were acting, and the situation is too well known to need repetition. What was then there currency, and in what did he expect to be paid, and what was a payment?

First, if nothing had been said, what did he expect? He is asked: “ Q. What were checks payable in, at that time, in Richmond? A. I think they were all payable in Confederate bills.”

“Q. Do you not know that was the case? A. Yes, sir, unless they were drawn otherwise.”

The check was handed to him, and he further testifies, he has no doubt that it was so payable, and, he expressly testifies he got what he expected—Confederate money. It is hardly worth while to follow the evidence in the case, to show that the debt, created by the contract, was payable in Confederate money, and that such would be a good payment. 16 Wallace, 414; 50 FT. Y., page 638; and 52 id., page 31, seem to be conclusive on this point. This being the state of affairs at the time and place of the payment, how can the plaintiff disaffirm such a payment on the ground that it was forced on him ? A very careful examination has not shown me any case or principle, in which it is announced that the coercing or compelling a man to take payment of his debt, when due, is open to disaffirmance, and that the debtor can be compelled to pay again. It would be useless to cite authorities to show that, on such a tender, if the plaintiff had not accepted it, and the defendant had kept it good, and had the money which he then tendered, to hand over, the plaintiff could not recover.

As the plaintiff has the identical money, the tender, if viewed in the light only of a tender, is sufficient to defeat this claim.

But was there such a duress here as the plaintiff may disaffirm either the contract or the payment ? Suppose it to be established by the plaintiff’s proof, that he wanted to get out of the Confederacy, and was afraid that if he did not settle this he could not, it does not seem to me there is any evidence that the defendants or their servants told him any falsehood or made any misrepresentation to him about the facts; and there results only this, that as matters existed at that time, in Richmond, he had not by any coercion these parties could use, but by the disturbed state of affairs, to settle, to avoid, not the trouble the defendants might give him, but what others might do if he was found there.

Another equally fatal ground seems to be against the plaintiff; he has kept and retained what he received for these goods, and, for aught that appears, he or his family have used it, and yet expect to be able to obtain the money here.

The court, on the trial, when asked, should have dismissed the complaint. The judgment should be reversed and new trial ordered, costs to abide the event.

Davis, P. J., and Daniels, J., concurred.

Judgment reversed and new trial ordered, costs to abide the event. 
      
       U. S. v. Huckabee, 16 Wallace, 414.
     