DENNEHY et al. v. McNULTA et al., 86 F. 825

SEAMAN, District Judge, after stating the case as above, delivered the opinion of the court. Passing technical objections to consider this controversy upon the merits, it is manifest that no liability is chargeable against the Distilling & Cattle-Feeding Company, except upon one or the other of the following propositions:

(1) That the conditions contained in the vouchers may either be ignored or set aside for illegality, and the promise thus segregated may be enforced without performance of the conditions; or (2) that in the original transactions money was paid to this corporation under circumstances from which the law raises an implied promise of repayment, within the doctrine of money had and received, which, ex aequo et bono, belongs to the party by whom it was so paid.

Under either head, the mere fact that the corporation, as one of the contracting parties, may constitute an unjust monopoly, and that its general business is illegal, — a status apparently held in Distilling & Cattle-Feeding Co. v. People, 156 Ill. 448, 41 N. E. 188,—cannot serve, ipso facto, to create default or liability on its contracts generally; nor can such fact be invoked collaterally to affect in any maimer its independent contract obligations or rights. National Distilling Co. v. Cream City Importing Co., 86 Wis. 352, 355, 56 N. W. 864. 1. Can a cause of action be predicated upon the written agreement?

In substance, the instrument promises that, “subject to the conditions named,” and “for the purpose of: securing the continuous patronage” of the purchaser as payee thereof, the Distilling & Cattle-Feeding Company will, in six months after date, pay to the purchaser the amount named, “being a rebate of seven [or five] cents per proof gallon” on a purchase that day made, and to be “valid and payable only on condition” that the purchaser named, his successors and assigns, from date of the voucher to the time of payment, “shall have bought their supply of such goods as are produced” by the promisor corporation “exclusively from one or more of the dealers named on the back,” and “shall also have subscribed to the certificate on the back.” The terms are nne-quivocal that the promise was not to bind the corporation unless the prpmisee performed the acts stated.

In other words, the obligations of the contract are dependent upon a condition precedent; and there can be no default by the promisor without performance of the condition, unless waived or excused by acts or conduct on the part of the promisor. Under the contract in question, compliance with the conditions was neither obstructed on the one side, nor attempted on the other, and it is manifest that no right of action at law has accrued in favor of the promisees.

In view of this status, the appellants contend that the claims are entitled to equitable consideration, because (1) they are presented in the course of a proceeding in equity; and (2) this condition is affixed to the contract as a‘means by which to carry out the illegal purposes of a monopoly operating in restraint of trade, and for that reason a- court of equity should either disregard the condition, or strike it out. But assuming, for the argument, that both premises are well taken, no relief can then be granted for enforcement of the contract, as no consideration is left to support the promise.

The condition is the sole consideration for the promise, and, if that is illegal, the promise falls with it. Even if the consideration were invalid only in part, the same result would follow, the promise being indivisible. Bish. Cont. §§ 74, 487 ; 8 Am. & Eng. Enc. Law, 886; Greenli. Pub. Pol. rule 24. No element of the contract as actually made between the parties remains to be enforced. A court of equity cannot make a new contract for them, nor can it destroy the substance of the one which they have entered into, and at the same time preserve the contract obligation.

Recovery upon the vouchers in question, with the conditions unfulfilled, would have that effect, and must be denied in equity as well as in law. Klein v. Insurance Co., 104 U. S. 88, 91. 2. The second and' final proposition calls for the application of the equitable doctrine on which assumpsit may be maintained as for money had and received, and the right to this remedy must be found in the original transactions and circumstances under which the payments were made to the Distilling & Cattle-Feeding Company.

These were, on their face, simple contracts of bargain and sale, and the only payments referred to were made upon distinct purchases of supplies at stipulated prices. The goods were legitimate subjects of trade, and there was no illegality in the nature of the contract of purchase. There is no pretense that the purchaser was either deceived or mistaken. On the contrary, his purchase, so far as appears, was in exact compliance both with his expectations and his bargain.

It is not asserted that fraud "entered directly into any of these transactions; nor is there impeachment for any cause, except upon the hypothesis for which the appellants contend, by way of collateral attack namely:

(1) That an unlawful combination enabled the seller to control and arbitrarily fix prices upon nine-tenths of the distillery products of the country; (2) that the exigencies of business on the part of the purchasers constrained them to deal with this combination; (3) that the amount named in the vouchers as rebate was beyond the fair price, and a distinct addition to the price which was imposed and withheld to secure continuance of the trade.

And upon the line of testimony introduced as tending in some measure to show this state oí íacts the appellants rest their right to recover the alleged excess hi the prices paid, as money paid under constraint or duress. Without considering whether the testimony referred to was either admissible under the issues, or of the effect alleged, and conceding, for the purposes of the case, the truth of each of the above impositions of fact, there can be no recovery of the money so paid, for the reason that no actual duress is shown, and no element exists to make the payment involuntary or compulsory. Radich v.

Hutchins, 95 U. S. 210, 213; Lonergan v. Buford, 148 U. S. 581, 590, 13 Sup. Ct. 684; 6 Am. & Eng. Enc. Law, 57, tit. “Duress,” and cases cited. In Radich v. Hutchins, supra, it is said: •‘To constitute the coercion or duress which will he regarded as sufficient to make a payment involuntary, ® * * there must be some actual or threatened exercise of power possessed, or believed to he possessed, by the party exacting or receiving payment, over the person or property of another, from which the latter has no other means of immediate relief than by making the payment.

As stated by the court of appeals of Maryland, the doctrine established by the authorities is that ‘a. payment is not to be regarded as compulsory, unless made to emancipate the person or property from an actual and existing duress imposed upon it by the party to whom the money is paid.’ Mayor, etc., v. Lefferman, 4 Gill, 425; Brumagim v. Tillinghasi, 18 Cal. 265; Mays v.

Cincinnati, 1 Ohio St. 268.'’ In the case at bar neither the persons nor the property of the purchasers were within the physical control of the sellers when the contracts of purchase were entered it: to, or when the payments were made thereupon, and in the eye of the law the transactions were voluntary.

At the utmost, the circumstances here assumed show an urgent need for the goods to keep up their stock and continue in trade, and to that end a business necessity to make their purchases from the illegal combination, bechusQ it so far controlled the market that they had reason to fear disastrous results if supplies were sought elsewhere. However urgent this need may have seemed for preservation of business interests, it cannot operate to change the payment made upon such purchases from the voluntary character impressed by the contract into the involuntary payment which may be reclaimed. Emery v.

City of Lowell, 127 Mass. 138, 140; Custin v. City of Viroqua, 67 Wis. in 4, 320, 30 N. W. 515, and cases cited; 6 Am. & Eng. Enc. Law, 71. As the purchaser elected to take the ^oods upon the terms fixed, and with all the circumstances in mind, Ins rights must be measured by the contract, and not by the motives which influenced either party to enter into it.

If the seller took advantage of his necessities, and made the price excessive, it would be subversive of the well-established rules which govern contract rights to receive testimony of such circumstances, to so modify the terms agreed upon, and allow recovery of the excess in price.

In the case of an injurious combination of the nature asserted here, the remedy is by well-recognized and direct proceedings; but: one who voluntarily and knowingly deals with the parties so combined cannot, on the one hand, take the benefit of his bargain, and, on the other, have a right of action against the seller for the money paid, or any part of it, either upon the ground that the combination was illegal, or that its prices were unreasonable. We are of opinion that no foundation is established for either set of claims, and the decree thereupon is affirmed.