I concur in the reversal of this case on the grounds stated by the majority. Clearly, I think the appellees were not entitled to show that they were induced to sign the original contract of partnership because of mistake or ignorance of its provision and of representations as to its effect without attacking it for fraud, accident, or mistake. The acceptance of the contract and acting under it for four years and until the partition of the property accumulated thereunder conclusively estopped the appellees at this late day from assailing it. Our Supreme Court has adopted the following rule, where it is said and quoted as follows:
"In Fox v. Windes, cited above [127 Mo. 502], Justice Sherwood quoted approvingly from Herman on Estoppel and Res Adjudicata, as follows: The doctrine of election is founded upon the principle that there is an implied condition that he who accepted a benefit under an instrument must adopt the whole of it, conforming with all of its provisions, and renouncing every right inconsistent with them. The principle is recognized and established in this country almost precisely the same as in England, and rests upon the equitable ground that no man can be permitted to claim inconsistent rights with regard to the same subject and that any one who claims an interest under an instrument is bound to give full effect to that instrument as far as he can. A person cannot accept and reject the same instrument, or, having availed himself of it as to part, defeat its provisions in any other part; and this applies to deeds, wills, and all other instruments whatsoever." Doty v. Barnard, 92 Tex. 104,47 S.W. 712.
I think this rule applies to the partnership contract as well as to the other instruments discussed in this case. However, I may say that I have reached the conclusion that in reversing this case it should be remanded for trial on the item designated "salary contract." No other item, except the maintenance account, is attacked, either by assignment, proposition, or cross-assignment. This case offers a proper instance for the application of rule 62a (149 S.W. x). The issues brought up are severable from the other issues of which no complaint is made.
I am unable to concur in the views of the majority on the salary contract. It is my opinion that assignment No. 4 should be sustained; that is, that the trial court should have instructed a verdict for Shelton on the item of $10,312.50. The question here is: Was there in fact a binding salary contract made on January 5, 1914, or thereafter ratified If there was, Shelton was entitled to the salary contracted and paid him, and the Triggs cannot recover it in an accounting. This contract is assailed on two grounds; that is, that it was without consideration and made under duress of property.
First, as to the consideration, D.C. Trigg testified:
"Shelton was to finance the business and supervise in a way and Steve was to be range man and I was to take charge of the farm and that end of the business; pay off the men and look after the supplies and take care of the cattle down at that end and look after the farm. I was to be down at headquarters and have direction of these general matters and Steve was to have the outside work of looking after the wagon men, taking care of the cattle on the north end, and all the matters pertaining to the ranch. You know the big end of the ranch was north of Channing and by Dalhart and Perico, and also at that time we owned about 118,000 acres out here next to the Mexico line."
By the first clause of the original articles of the partnership the Triggs, father and son, were to contribute their work and labor, under the supervision of Shelton, in taking care of the cattle and horses and conducting the business as to details without charge for such services. As consideration for the contract of January 5, 1914, it is recited therein that —
D.C. Trigg "shall be relieved from the obligation to contribute all his time and labor *Page 781 to the handling of the business; and the duties of the management and supervision of said business will require much more time and attention of the said J. M. Shelton than was originally contemplated by the parties to said contract."
D.C. Trigg was therefore released from his part contained in the first paragraph of the partnership contract, and also released from liability to pay for his substitute, as provided in the third paragraph. Mr. D.C. Trigg testified:
"From January 5, 1914, the time of signing the contract, on down to the dissolution contract, Mr. Shelton continued in possession of the partnership property and controlled the partnership affairs. I hadn't anything to do with it. Occasionally I would go up there to make some deals."
He also testified:
In negotiating the partnership agreement, Shelton said "he wanted Steve to take one end of it and me the other, and he would finance the business. So far as the active management was concerned, he wanted me to take charge of Channing headquarters."
Again:
"I know that the reason that Mr. Shelton wanted me in connection with the business was to relieve him of the active management of that ranch. He didn't want to do any work. He wanted to finance the business and take that side of it and we were to do the work. Steve was to run the outside of it and I was to run the farm and headquarters at Channing."
The other two partners, Shelton and Steve Trigg, corroborated the above in their testimony. The facts are uncontroverted that after the 1st of January, 1914, D.C. Trigg did not stay on the ranch and contribute his labor and skill, but that Shelton took his place in that particular and did the work. D.C. Trigg and Steve Trigg composed a copartnership, under the name of Trigg Son, and before the partnership agreement with Shelton and during its pendency they owned and operated a ranch in Carson county, and perhaps some other business, under the firm name of Trigg Son.
A partnership can only be formed upon agreement, either expressed or implied. A consideration is required for the contract. This element may be supplied by the mutual promises of the respective parties, or their contribution of either money, labor, or skill towards the partnership business. This is universally recognized as a sufficient consideration. A partnership contract may be changed by agreement between the partners, but this, too, must be supported by a consideration. The same character of consideration will support the contract changing the original articles of copartnership. To my mind the facts show there was abundant consideration for the contract of January 5, 1914. D.C. Trigg was released from his obligation to contribute his work and labor in handling the business and caring for the cattle on the ranch, and to relieve him of a charge for a substitute in case he did not furnish an adequate amount of work or labor. In addition to Shelton's other duties under the original contract, he assumed D.C. Trigg's duties. He had advanced $250,000 on the purchase of the business. The original contract evidences, as well as the testimony, that he would be called on to exercise his business judgment or skill in that line of business. It was not contemplated that he go onto the ranch and become an active participant in the daily work or management in the handling of the multitudinous things on a ranch of that kind. But this he did, under the contract of 1914, for more than two years, under the agreement that the partnership should pay him a stipulated sum. D.C. Trigg's work and labor on the ranch was dispensed with by agreement and he could devote it to the service of Trigg Son, if he so desired, without being charged for a substitute.
Mutual and simultaneous provisions constitute a valuable consideration, each party being both promisor and promisee. When the party promising is to sustain some benefit, or the party to whom the promise is made is to sustain some detriment, in either or both cases, the contract has a valuable consideration to support it. James v. Fulcrod,5 Tex. 512, 55 Am.Dec. 743; Lane v. Scott, 57 Tex. 367; Flanders v. Wood, 83 Tex. 277, 18 S.W. 572; Kilgore Lumber Co. v. Thomas, 98 Ark. 219,135 S.W. 858; Hanson v. Wittenberg, 205 Mass. 319, 91 N.E. 383; McCreery v. Day, 119 N.Y. 1, 23 N.E. 198, 6 L.R.A. 503, 16 Am. St. Rep. 793. It may be true, in the absence of an agreement for compensation, a partner cannot recover for his services. The original contract stipulated that the Triggs should, without compensation, contribute their work and labor. Shelton was to have general supervision, and for such no provision was made for payment. If the compensation was simply to pay for the services to be rendered by Shelton, provided for in the original contract, there would have been no con sideration for the contract of 1914. But such is not the fact, as evidenced by both contracts and the undisputed testimony. In the absence of a contract, if Shelton performed, not only the duties imposed on him by the contract, but also those of his partners, with their consent, I see no just reason why an implied agreement to pay for such services may not arise. In discussing this question our Supreme Court, while conceding the general rule that one partner is not entitled to compensation for services in the absence of an agreement, said: *Page 782
"It only embraced the purchase and running of a farm; and if one partner in such case should, at the instance of the other, devote his time and attention to the farm, while the other was devoting his attention to his individual business, we have no doubt but that the law would imply a promise that the former should have compensation for his services." Hooker v. Williamson, 60 Tex. 524.
Certainly the right is stronger where the partners enter into an agreement to that effect and act upon it for more than two years. The fact that Exam was placed in D.C. Trigg's place in June, 1913, does not affect the consideration of the contract of 1914; neither does the fact that Shelton may have misinterpreted his powers given by the contract to substitute Exum in place of Trigg. In that particular the jury found Exum's salary was not properly charged and Shelton should not be allowed a credit therefor. There is no assignment on that finding or item. Those facts, therefore, do not affect the consideration or agreement of 1914, in my judgment, further than they may bear on the question of duress. The question was, as I conceive it, Was there duress in the making of the contract, and, if so at that time, was it afterwards ratified without duress influencing its ratification? I am willing to concur in the holding that at the time of the execution of the salary contract of January 5, 1914, the evidence was sufficient to submit the issue of duress at that time, while I have grave doubts as to its sufficiency to support the verdict. Under the original contract Shelton had the power to wind up the partnership and sell the effects of the partnership without the consent of the Triggs. At that time the partnership was indebted to the syndicate in the sum of $300,000 or $400,000. The Triggs were also indebted to Shelton in the sum of $125,000, and there were other circumstances that may have created a reasonable apprehension in the minds of the appellees that if Shelton should then exercise his power, as threatened, under the partnership contract, their interest in the partnership would be dissipated in paying those debts, and that under such fear they agreed to pay a salary. If this is true, it did not render the contract void; until repudiated or rescinded, it would be binding. It was merely voidable. In this situation the appellees permitted Shelton for more than two years to continue under the salary contract until he had paid off the indebtedness due the syndicate, over $500,000, and until appellees' indebtedness had all been paid Shelton he had no lien or power over them or their interest further than was provided in the original partnership agreement. In about four years, under the management of Shelton, and through his labor and skill, in place of D.C. Trigg's, the then net profits of the concern were over $1,000,000, and, as admitted by Steve Trigg, their interest was over $600,000 net if a dissolution and division was then had. In January, 1916, the appellees sought of Shelton a dissolution and partition, and there were several things necessary to be provided for. The lease by them of the 600,000 acres of land had to be taken care of for the balance of the term, as well as the interest of their sublessees and the things to which the syndicate had obligated the partners jointly. Some agreement for partition was manifestly necessary before a partition could be had. The cattle had to be divided as well as the land, and all personal property. The expenses in making the partition, etc., had to be cared for. In the midwinter, doubtless, it would have been difficult, if not impossible to make partition. It is evident, therefore, the appellees approached Shelton in order to obtain dissolution and partition contract and not for immediate partition. The record shows that Shelton was not then willing to enter into such agreement. It was the Triggs who insisted upon it. They say that ever since 1914 they wanted a dissolution and had the money, or could have arranged to pay their part of the Indebtedness. At any rate, negotiations for partition were entered into when the salary contract was reached and arrangements for its payment discussed. The Triggs were unwilling to have it paid out of the partnership funds. Shelton insisted upon the payment under the contract. Without quoting extensively from the evidence, the record warrants the statement that since 1914, as stated by D.C. Trigg, he had been trying to induce Shelton to agree to a division of the property and a dissolution. Shelton would not agree to it, but insisted on running the full time. D.C. Trigg says he objected to those parts of the two contracts of January, 1916, as to dissolution and partition. With reference to the salary and cutting out certain cattle, he says:
"I discussed my objection with Mr. Shelton and he would not omit those provisions at all. He said he would not make a contract of dissolution without those provisions — would close out the business first. If I did not agree to this dissolution I believed he would close me out and take everything I had, as far as it would go, to pay the debts, which would ruin my business."
The witness further stated:
"We paid Shelton and the Capitol syndicate every dollar before these dissolution contracts of January, 1916, were entered into."
He further states:
That Shelton could ruin them by selling out the business; had it under his control and would not give it up, and wanted to do it and refused to turn it over to him, and, in fact, that a bank had a mortgage on the cattle *Page 783 executed by the appellees, and that he (Trigg) could not sell a hoof. Shelton had control over the cattle if he did not over the bank. He did not know how Shelton could have sacrificed and sold out their interest at that time. "He had been and was then, when we made that 1916 contract just bearing down on us to beat the band, and we were under terrible pressure of duress. I was afraid of him so far as our interest in the property was concerned."
The second clause of the dissolution contract is as follows:
"Subject to the provisions of this contract, said partnership heretofore existing between the said parties shall cease and determine upon the completion of the division of the partnership property, on or about the 1st day of December, 1916, provided that it is expressly agreed and understood that if this dissolution is carried into effect the salary to be paid to the said John M. Shelton under the terms of the contract of January 1, 1914, shall cease from and after the 1st day of October, 1916; but it is expressly agreed and understood that he shall have the right to pay himself such salary from the 1st day of January, 1914, to said date, out of the partnership funds, as assets in his hands at the time of the final dissolution. Nothing herein contained shall affect the right of the said John M. Shelton with reference to winding up the affairs of the partnership as contained in said partnership agreement, except as such provisions may be inconsistent with express provisions of this contract or the contract with reference to the manner of partition of such property."
And the following provision of the partition contract, as part of the dissolution contract, is as follows:
"The three and four year old steers at the north camp and about 1,000 head of oldest cows, which shall be cut out and held separately as the work proceeds, will not be divided until all the other cattle are divided, it being contemplated that they probably will be sold at or prior to the division of said cattle and the funds will be for division instead of the cattle; but if said steers are not previously sold upon completion of the partition of the other cattle, they shall be rounded up and divided in the same manner as the other cattle. In the event the cows have not been sold, and there is not in hand of the partnership funds sufficient to pay off and discharge all partnership liabilities at the time, said 1,000 head of cows, or so much thereof as may be necessary, shall be sold and the proceeds shall go into the partnership fund; but if there should be on hand at such time funds sufficient to pay off and discharge all partnership liabilities, then said 1,000 head of cows shall be divided as the other cattle."
It appears while the cattle were being divided the appellees wanted to divide the cows and steers mentioned in the paragraph quoted from the partition contract. Shelton insisted they should be cut out and held for sale under that provision. Appellees insisted that they were able to pay for their part of any indebtedness due or liabilities by the partnership. Shelton insisted that he must be paid before the cows, etc., were divided or he would then stop the partition. It appears that Trigg went to the First National Bank and through its president made arrangement for the payment. He states he put up his check to hold until November 1, and that he did so under the strictest protest. Shelton asked what he meant and Trigg told him he did not intend this should be taken away from him in this style, but in order to get this business on he was going to turn the check over and it would be paid and that he (Trigg) expected to get it back. I believe this is the substance of the material facts on this issue. This substance of the above is repeated over and over in a voluminous record, in varying form perhaps. It will be seen by the sixth and seventh clause in the original contract of partnership that Shelton had the right to wind up the affairs of the partnership, sell the property, pay off the debts, retain any amount due him by either of the partners, and divide the proceeds between the partners. The right to wind up the affairs by Shelton took precedence and priority over an attempted dissolution made by appellees, and the twelfth clause gave Shelton the right to distribute the net proceeds to the appellees after dissolution. It will not, I presume, be asserted that the contract of dissolution and partition in 1916 was not an express ratification of the contract of January 5, 1914, in the absence of then existing duress, even if the acceptance of Shelton's services to the partnership for two years was not. These contracts, I think, expressly ratified the salary contract and the services rendered thereunder. If there was coercion inducing the appellees to make these contracts so as to make them not their agreements or contracts, the ratification may be defeated for duress. There is considerable divergence in the views as expressed by the courts as to what constitutes duress. A recent author on contracts suggests the law on that subject is still in a transitory stage. It seems to be held by the courts, if circumstances of great hardship exist, a promise to obtain property unlawfully detained may be avoided for duress. If no circumstances of special hardship existed, a wrongful seizure or detention of property may be such detention of property as to constitute duress and invalidate a contract induced thereby; but, if a party alleged to have exercised duress has only done what he had a legal right to do, duress cannot exist.
"By many, if not most, of the modern authorities, however, the true doctrine of duress is held to be that a contract obtained by so oppressing a person by threats regarding the safety or liberty of himself or of his property * * * as to deprive him of the free exercise of his will and prevent the meeting of minds necessary to a valid contract, may be avoided *Page 784 on the ground of duress, whether the oppression causing the incompetence to contract be produced by what was formerly deemed duress and relievable at law, as such, or wrongful compulsion, remediable only by an appeal to a court of equity. According to this view, what constitutes duress is a matter of law." 9 R.C.L. Duress, § 7, p. 716.
"It is never duress to threaten to do that which a party has a legal right to do, and the fact that a threat was made of a resort to legal proceedings to collect a claim which was at least valid in part constitutes neither duress nor fraud, such as will avoid liability on a compromise agreement." Id. § 11, p. 722; Kiler v. Wohletz, 79 Kan. 716,101 P. 474, L.R.A. 1915B, 11.
"It has been held, however, that duress of property cannot exist without there being a threat to do some act which the threatening party has no legal right to do — some illegal exaction, some fraud or deception. The restraint must be imminent and such as to destroy free agency without the present means of protection." Id. § 12, p. 723; York v. Hinkle, 80 Wis. 624, 50 N.W. 895, 27 Am. St. Rep. 73.
The fear that a party will not perform an existing contract according to its terms will not constitute duress. Dickson Tweeddale v. Fowler,114 Md. 344, 79 A. 519. The threat to sell out one's interest in a partnership, in violation of the articles of partnership, is not such duress as will avoid a note executed by another party for the stock of the partnership so threatened. Taylor v. Ford, 131 Cal. 440, 63 P. 770. See, also, Ripy Bros. v. Lillard, 149 Ky. 726, 149 S.W. 1009, with reference to fear from a threatened action, which might cause the servient party to breach a contract. The appellees had no legal right to compel Shelton to make a contract of dissolution or to contract to set over their interest in the property separate from the partnership interest. If there was cause for dissolution and partition, appellees possibly could have forced dissolution by a proper action therefor. They did not urge cause as a ground, but sought an agreement. Certainly Shelton had the right, if such agreement was to be made, to insist and urge his rights or views as to its terms. The appellees had no right to the exclusive possession of the property, or any part of it. One partner has as much right to the possession as another, in the absence of an agreement to the contrary. Partners may agree to put the possession or right to manage and to sell and distribute the proceeds thereof in one member, and when such is the agreement the one so holding the property is not acting illegally, and would not be acting illegally in refusing to deliver the property, or any part of it, so long as the contract giving him that right is in force. Bates on Partnership, § 278. So there could be said to be no duress or coercion, either at law or in equity, in retaining the property under the terms of the partnership agreement and in the refusal to deliver to appellees one-half the property. They had no legal right to then demand it, and a refusal, if there was such, on the part of Shelton, was not illegal.
The contract of partnership stipulated for a continuance for a period of five years, if not sooner dissolved. It was stipulated Shelton had the right to sell the property of the partnership, wind it up, pay the debts, and distribute the proceeds. This right had precedence over dissolution by the terms of the contract, and even if dissolved Shelton still had the right to distribute the proceeds. It was evidently the purpose of the parties entering into the relation of partners that if it should be deemed best not to partition the property, either before dissolution or after, it could be sold and the proceeds divided. They left this question for the determination of Shelton. For nearly four years he had not sought to exercise such rights, but, on the contrary, the undisputed testimony is that he desired to continue the relationship for the full term and insisted that it be so continued. There were certainly reasons that the property, the ranch and cattle, should be held together. The concern had been a success under Shelton's general management. They had paid off more than $500,000 due the syndicate on the purchase of the property; paid the lease money, $60,000 a year, and paid all running expenses, and sufficient had been made to pay the Triggs note to Shelton for $25,000 and place a credit of $17,000 on the larger note; and in addition to that, a considerable sum had been used to pay off, the evidence indicates, vendors' liens on other property owned by appellees, the amount of which they owed individually, and at the time of the dissolution contract in January, 1916, the evidence shows the value of the partnership net was considerably over $1,000,000, with no incumbrance whatever except the rent under the lease contract, which was not then due. It is admitted by one of the appellees that their interest was near $600.000, and I understand this did not include the value of the lease, over and above the agreed price paid, 10 cents an acre, some of which had been sublet for 25 cents an acre, and perhaps other property not included in the estimate. It would appear to this date Shelton had done nothing to seriously frighten the other members for the safety of the property, but they wanted an agreement to partition and Shelton wanted the contract to provide and protect the indebtedness and expenses incident to dividing to pay the remainder of the contract on the lease and to protect the syndicate's property and its rights contracted for under the lease, as well as to pay the sum due him under the salary contract, asking, as I understand, that so many cattle be cut out for this purpose and *Page 785 not partitioned. To this appellees made objections and discuss their objection:
"He (Shelton) said he would not make the contract of dissolution without those provisions; would close out the business first."
In the first place, in my judgment, it is not a threat to close out the business, but is simply a statement that he would not make an agreement omitting those provisions, but would prefer to close the business under the original contract. It implies, if the alternative was up to him to make the agreement demanded or sell and divide the proceeds, he would elect the latter course. But if it was a direct threat, such would not have been unlawful but was in conformity with the terms of the partnership contract, under which for four years the business had been running, such a threat did not, in my judgment, and could not, have amounted to duress or coercion. Railway Co. v. Graham, 145 S.W. 633. D.C. Trigg testified:
"If I didn't agree to this dissolution I believed that he would close me out and take everything I had, as far as it would go, to pay the debts, which would ruin my business."
What debts? The partnership owed nothing except current running expenses. The lease money as it fell due had all been paid, and the partnership was only liable for the quarterly rents as they fell due, none of which were then due. Whether there was a dissolution or not, the partners were jointly and severally liable for the rents. Appellees did not owe Shelton one penny, to which he could apply "everything" they had. There were no debts, either partnership or otherwise, to which Shelton could apply the proceeds in the payment. Appellees so swear, and they must have known it, had they sworn to it. A sane person cannot, as I see it, fear for the safety of his property on account of debts which had no existence. The appellees imply they feared Shelton because he would breach the contract of partnership by taking everything they had and apply to debts which had no existence, and intimate that it would only go a short distance on such debts. The original contract only authorizes Shelton to apply the proceeds on partnership debts and debts owing him. It did not authorize him to pay on debts that did not exist. The presumption is that men will not violate their contracts. Parties cannot build up a man of straw and base their fears on imagination and phantoms of the brain for the purpose of urging coercion. A breach of contract usually is not duress. Silliman v. U.S., 101 U.S. 465, 25 L. Ed. 987. And certainly the fear of such a breach is not a threat to sell out an interest in the partnership, contrary to the contract of partnership. Dickson Tweeddale v. Fowler, 114 Md. 344, 79 A. 519; Taylor v. Ford, 131 Cal. 440, 63 P. 770. If the threat to sell was under the power granted by the original contract, it was not a threat to do an illegal thing. If it is to be interpreted a threat to exercise a power contrary to the contract, it was only a breach of the contract. In either event, it was neither duress nor coercion in law or equity. It is contended the debt at the date of the dissolution contract was an illegal demand. If this shall be admitted, then the threatened safety of the property must be imminent, such as to destroy consent to the contract. The threat, if one at all, was to exercise the right under the contract, which expressly, as to this obligation, provided that it should be paid out of the partnership assets when the business was wound up. There was no immediate danger of this debt being paid at once. It seems to me that appellees would have been in no worse position, in so far as their property was concerned, by leaving its payment according to the contract, than they were in paying it and then suing for it back in an accounting. The agreement to pay an illegal demand is not always voidable on the ground of duress or sufficient to show duress. In the case of Silliman v. U.S., 101 U.S. 465, 25 L. Ed. 987, it was said, if the claimants had stood upon their contract rights, the government could have been compelled to pay the amount stipulated in the original contract.
"Instead, however, of seeking the aid of the law, claimants, with a full knowledge of their legal rights, executed new charter parties and, from time to time, received payments according to the rates prescribed therein; protesting, when the new agreements were signed, that they were executed against their wishes and under the pressure of financial necessity. They now seek the aid of the law to enforce their rights under the original charter parties, upon the ground that those last signed were executed under such circumstances as amounted, in law, to duress. Duress of, or in, what? Not of their persons; for there is no pretense that a refusal, on their part, to accede to the illegal demand of the Quartermaster's Department would have endangered their liberty or their personal security. There was no threat of injury to their persons or to their property, to avoid which it became necessary to execute new charter parties. Nor were those charter parties executed for the purpose or as a means of obtaining possession of their property. They yielded to the threat or demand of the department solely because they required, or supposed they required, money for the conduct of their business or to meet their pecuniary obligations to others. Their duty, if they expected to rely upon the law for protection, was to disregard the threat of the department, and apply to the courts for redress against its repudiation of a valid contract. We are aware of no authority in the text-books or in the adjudged cases to justify us in holding that the last charter parties were executed under duress."
So, at last, this case comes back to the question, Could appellees demand the agreement, or were they entitled to the possession of one-half of all the property? This, I think, they were not. They therefore entered *Page 786 into negotiations for an agreement giving them their portion in severalty, to which they otherwise were not entitled. It was upon their initiative and to accomplish their own purpose and design that they entered into the contract, and not upon compulsion from any one. True, they could not get Shelton's assent to an agreement without acceding to his claim for a salary. They therefore assented. They may have done so reluctantly, and may have haggled, but they agreed. There was no reasonable ground to fear for the safety of their interest in the property, and no threat that they had not themselves written into the original contract four years before, and under which they had prospered as a partnership and under which they had earned net to the partnership the princely sum of over $1,000,000. They simply wanted to set up a separate housekeeping. They got this agreement, and now, having received the benefit of the agreement which destroyed the relationship, they cannot be heard to deny its validity and that the payment of the salary was voluntary. Where it appears, as in this case, that the alleged servient party was active in executing the transaction, and was in fact putting through a fixed purpose of his own, coercion or undue influence cannot be said to exist. Borchers v. Barckers, 143 Mo. App. 72,122 S.W. 357. The above case is one of undue influence, which is closely allied to duress. Duress implies one is coerced against his will. Undue influence denotes the party influenced entered into the contract because of moral, social, or fiduciary relations, so as to control the free action of the will. It must amount to moral coercion. He must be unable to resist. If he is persuaded by argument, affection, or the like, or if actuated by some motive or purpose of his own, then in neither case could he be said to have been morally coerced or placed in duress. Patterson v. Lamb, 21 Tex. Civ. App. 512, 52 S.W. 98.
I again insist that I can find no grounds to base a finding that duress or coercion existed at the time of executing the dissolution agreement, which clearly ratifies the salary contract. There was no financial embarrassment, no immediate danger, no threat to do an illegal act. If there were any debts owing by the appellees the appellant was not responsible for them. The appellees retained all the benefit of the agreement of dissolution and partition for themselves. Upon no just ground can I conceive a right of recovery. French v. Shoemaker, 14 Wall. 314, 20 L. Ed. 852; Sanborn v. Bush, 41 Tex. Civ. App. 24, 91 S.W. 883; Shelton v. Jackson, 20 Tex. Civ. App. 443, 49 S.W. 415. Again, after the contract of 1916 had been entered into, agreeing to hold 1,000 cows out of the partition to meet accruing expenses, debts created, and appellant's claim, and after the parties had proceeded with the partition, appellees desired to annul that part of the contract providing for the holding of 1,000 cows, Shelton said he would not agree to it, but would insist upon it, stop partition, unless his salary was paid, and Trigg agreed to do this. They went to the bank and made arrangements and issued their check. When they did this they say they did so under strict protest, and notified Shelton that the check would be paid but that they would get it back; that their money could not be taken in any such manner. This was dramatic, but a little belated. It has the appearance to me of laying in wait. The partnership first got Shelton's extra service for over two years and released D.C. Trigg from his obligation to do labor and work on the ranch. Appellees then got partition of all property except the cows to be held to pay this debt and other obligations. They then got Shelton to agree to waive the latter provision and accept payment of the salary. After all this, then to announce that they would get that back does not appeal to me as presenting an equitable ground for recovery, and certainly this must be true when they failed to place the parties in statu quo. I thing the contract of dissolution is shown to have been voluntarily entered into and the payment voluntarily made, and the salary contract fully ratified. It is my view that the following cases support such position: Galveston City Co. v. Galveston, 56 Tex. 494; Davies' Ex'rs v. City of Galveston, 16 Tex. Civ. App. 13, 41 S.W. 146; Andrews v. Connolly (C. C.) 145 F. 43; Little v. Bowers, 134 U.S. 547, 10 S. Ct. 620, 33 L. Ed. 1016; Silliman v. U.S., 101 U.S. 465, 25 L. Ed. 987; Wood v. Kansas City Telephone Co., 223 Mo. 537,123 S.W. 6; Railway Co. v. Forrest, 128 N.Y. 83,28 N.E. 137; Connolly v. Bouck, 174 F. 314, 98 Cow. C. A. 184; Miller v. Davis, 52 Colo. 485, 122 P. 793; Hall v. Bollen, 148 Ky. 20, 145 S.W. 1136, Ann.Cas. 1913E, 436; Crook v. Tensas Basin Levee Dist., 51 La. Ann. 285, 25 So. 88; Hughes v. Leonard (Colo.)181 P. 200, 5 A.L.R. 817, on page 822. On the question of consideration for the dissolution contract, I consider the dissolution partition and ratification all one contract. By the testimony of the appellees they made overtures to Shelton for an agreement to dissolve and partition at that time, and the consideration for the agreement was to allow the salary contract. Shelton performed his part of the agreement; they repudiated theirs. The mutual covenants and obligations were sufficient to support this contract. Each party obtained his interest in the property separate from the partnership, and I think this is a sufficient consideration for the dissolution contract. There were several other covenants and obligations mutually binding, which will support the contract. Aside from this, the original salary contract was supported by a consideration, and when it was ratified the ratification had a retroactive effect and related back to *Page 787 the original transaction and to its inception and makes that contract as obligatory as if originally made without coercion, and the consideration for the first contract supports the ratification. Brock v. Jones' Ex'r,16 Tex. 461; Railway Co. v. Chandler, 51 Tex. 416.
As to the maintenance account, I concur in the holding that the estoppel was not conclusively established, and there was no error in submitting the issue and in refusing to take it from the jury.