14. Undue consent of the parties to a contract must be given freely. If it is obtained otherwise, the contract may be set aside, if the person, whose consent has been forced, so desires. Such con tract is voidable, not void ; tho if a person were seized and his hands were forcibly guided to sign his name, say, to a promissory note, it is probable that this contract would'be void, because there would be no con sent.
To secure consent by undue influence would mean that another's weakness of mind, his necessities or dis tress, have been taken advantage of in order to induce his consent. It has been said in a case decided in the United Influence obtained by modest persuasion, and arguments addressed to the understanding, or by mere appeals to the affections cannot be properly termed undue influence in a legal sense; but influence obtained by flattery, importunity, superiority of will, mind, character, or by what art soever that human thought, ingenuity, art or cunning may employ which would give dominion over the will to such an extent as to destroy the free agency or constrain a person to do against his will what he is unable to refuse, is such an influ ence as the law condemns as undue.
What may be undue influence in a particular case it is difficult to say. In attempting to discover whether a person gave his consent freely and deliber ately, the courts will take into consideration the age and capacity of the person, the nature of the transac tion, and all the other circumstances of the case. It may be that the parties stand in such a relation that from habit the one dominates the other, or that under the circumstances one is in a position to use some undue influence. Thus it has been laid down in an English case, that "Where two persons stand in such a relation that while it continues, confidence is necessarily reposed by one, and the influence which naturally grows out of that confidence is possessed by the other, and this confidence is abused, or the influ ence is exerted to obtain an advantage at the expense of the confiding party, the party so availing himself of his position will not be permitted to retain the ad vantage, altho the transaction could not have been impeached if no such confidential relation had ex isted." And, again, Lord Eldon lays it down that: In equity, persons standing in certain relations to one an other, such as parent and child, man and wife, doctor and patient, attorney and client, confessor and penitent, guardian and ward, are subject to certain presumptions when trans actions between them are brought into question; and if a gift or contract made in favor of him who holds the posi tion of influence is impeached by him who is subiect to that influence, the courts of equity cast upon the former the bur den of proof that the transaction was fairly conducted as if between strangers, that the weaker was not unduly im pressed by the natural influence of the stronger, or the inex perienced over-reached by him of more mature intellect.
15. Duress; violence and fear.—A person may give his consent to a contract, but that consent may be induced or extorted by fear. If actual violence is used, or violence is threatened, the party consenting under such influence may have his contract set aside. A distinction may be drawn between duress which in volves actual compulsion, and menace which means the threat of actual compulsion. The term duress, however, covers both, as would also the terms violence and fear. If a man holds a pistol to another man's head and threatens to shoot unless that other sign some deed in his favor, the deed is signed as the lesser evil. Under some of the English decisions, es pecially the older ones, it has been held that to consti tute duress or violence there must have been fear of loss of life or limb or of imprisonment; other cases, however, require that at least there shall be a reason able and present fear of serious injury. Thus mere idle threats which are not intended nor understood in a serious sense will not ordinarily be sufficient.
The courts will consider the age, sex, character and constitution of the party who is threatened. Thus a threat made against a business man might have no effect, whereas it might induce an ignorant country man to enter into a contract. The threat or violence that might terrify a woman into signing might be held insufficient to bring a man to the same result.
Physical violence may be used, as for example where a girl was beaten by her father until she con sented to marry a certain person. It may consist of threats of injury in the future—threats to do physical injury, or to injure the fortune or honor of the victim or even of a relative or friend. In France it has been held to be a case of violence, where the manager of a company which was in financial difficulties threatened several of the employes with dismissal unless they signed bills for it. Again, a young partner in a firm was informed by his co-partners that the books showed him to be $9,000 short in his accounts ; they threatened him with criminal proceedings and refused to let him see the books. Believing that what they said was true he paid them $6,000. On examining the books it was found that he did not owe them any thing, and the judge held that he was entitled to get his money back.
It is not violence if a creditor threatens his debtor with suit, but it would be violence if he threatened the debtor that unless he paid some sum in excess of the debt he would sue him. If A has stolen money from B, B can threaten to have him arrested unless he re turns it. But if A admits that he has stolen $50 from the bank which employs him, and the bank asserts that he has stolen much more, and induces his mother to sign a note for $400, this is held to be a case of vio The person who alleges and proves duress, violence or fear may have his contract set aside.