the opinion of the Court was delivered by
Tkunkey, J.:Dersham’s testimony reveals a dispute between the officers of the bank and himself, respecting a certificate of deposit. He knew all the facts at the time he gave the note in settlement, and he complains of no fraudulent representation. Before the note became due, and without knowledge that it had been indorsed to an innocent holder, he went from his home to the bank for the purpose of paying it, and did pay without objection. The fact of indorsement had nothing to do in moving him to make payment. He says that, pending the negotiations for settlement, the directors threatened him with prosecution for forgery, but, in giving the language of the alleged threat, it was that they “could, prosecute,” not “would.” In the talk with Smith, he offered to pay $50 rather than go to law. Smith saw the others, and then proposed to take $75. Dersham states the conclusion thus: ‘ ‘ He said they could take me for forgery, and could sue me, and get the $200 ; and then I thought sooner than go to law I would pay $75, and I gave them a due bill and promised them to pay in thirty days. If I had money, I would have paid it then.” Such is the alleged duress as shown in the plaintiff ’ s testimony. The testimony on the part of the defendant makes the case no stronger. There is no evidence that the plaintiff is timid or feeble, or not possessed of ordinary firmness by reason of age or other cause. He did not believe they could collect the money back, finally settled and gave the note to avoid a law-suit, and he does not assert that his judgment was overcome, of that he gave the note through fear arising from a threat of criminal prosecution. As bearing on the question of 'duress, his act of payment of the note is as potent as if no transfer had been made — he did not learn of the transfer till in the act of payment. He gave the note and paid it in settlement of a claim for a larger sum. .
The whole testimony, or that on part of the plaintiff, did *472not warrant a finding of “that degree of severity, either threatened and impending, or actually inflicted, which is sufficient to overcome the mind and will of a person of ordinary firmness.” There was no threatened exercise of power from which he needed immediate relief — if sued, he could defend. It may be conceded that the rule has become settled that'any contract produced by actual intimidation is voidable, not only where the circumstances were sufficient to intimidate a man of ordinary firmness, but were sufficient to and did intimidate the particular person, because of his or her infirmity, though insufficient to intimidate one of ordinary firmness. The question of duress ought not to be submitted on a scintilla of evidence. We are of opinion that the fifth assignment of error must be sustained.
It is unnecessary to note the other assignments. The Court charged in effect that a voluntary payment of money without fraud or constraint, though in ignorance of the law or the legal circumstances of the case, cannot be recovered back. There being no sufficient proof of fraud or coercion — no duress — the plaintiff was not entitled to recover.
Judgment reversed.