ATKINSON et al. v. ALLEN et al., 71 F. 58

SANBORN, Circuit Judge, after stating the facts as above, delivered the opinion of the court. The grounds on which the appellants sought to maintain this suit in equity were that the note and contract upon which the action at law was founded and the account stated, in settlement of which the note was given, were tainted with usury, and were procured, by means of the threat that a civil suit would be instituted in New Orleans to recover the balance of the account, unless a settlement was made and the notes and contract were executed.

Amendment 7 of the constitution of the United States provides: “In suits at common law, wliere the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, ana no fact tried by a juiy shall be otherwise re-examined in any court of the United States than according to the rules of the common law.” The act of congress of September 24, 1789, provides; “Suits in equity shall not be sustained in either of the courts of the United Sta tes in any ease where a plain, adequate and complete remedy may be had at law.” 1 Stat. c. 20, § 16, Rev. St. § 723.

If we concede — and we do not decide — that this note and contract were tainted with usury, it is obvious that this bill cannot be maintained on that ground. Usury was as complete and as available a defense to the action at law as it was a cause of action in equity. Levy v. Gadsby, 3 Cranch, 180; U. S. Bank v. Owens, 2 Pet. 527; Andrews v. Pond, 13 Pet. 65; Lloyd v. Scott, 9 Pet. 418; Junction R. Co. v. Bank of Ashland, 12 Wall. 226; Cockle v. Flack, 93 U. S. 344; Allerton v. Belden, 49 N. Y. 373.

After the charge of usury is laid aside, neither the bill nor the proof presents any-ground "whatever for equitable relief. A threat to bring a civil suit for a balance of an overdue account, a part of which is conceded to be justly owing, does not constitute such duress as will avoid a promise made by the debtor under the threat. Dunham v. Griswold, 100 N. Y. 224, 226, 3 N. E. 76; Gage v. Parmelee, 87 Ill. 329, 333; Whittaker v. Improvement Co., 34 W. Va. 217, 225, 12 S. E. 507; Farmer v. Walter, 2 Edw. Ch. 601; Knapp v. Hyde, 60 Barb. 80; Snyder v. Braden, 58 Ind. 143.

Such a threat is but a notice that a legal right will be exercised. It cannot be wrong to exercise such a right, and a creditor who gives notice that he is about to exercise it is certainly not less courteous nor less considerate of the interests of his debtor than he who commences suit without giving any previous notice of his intention. There was no fraud or mistake in the settlement. The account between the appellants and the appellees was itemized and stated before the notes and contract were signed, and before the settlement was made. This account was carefully examined by the appellant Atkinson.

There was no concealment of any of the items about which complaint is now made. The appellants knew that these items were included in the amount for which the notes were given when they were made. The proof is plenary that Atkinson agreed to the account stated, and signed and delivered the notes for its balance, and the contract for the commissions, with full knowledge of every defense and objection which the appellants now present. For more than a year after it was made they acquiesced in that settlement.

In August, 1885, five months after they made it, they wrote to the appellees: “It is our determination to pay you this winter. Have already given you notes in settlement, and we propose paying them at maturity, just as given. This is contract enough. We hereby confirm the note settlement.” They paid more than $12,000 on the notes which they gave, and first attempted to repudiate the account stated, and to defeat a recovery on their notes and contract, more than 15 months after they were delivered. An account stated cannot be set aside in equity, in the absence of fraud, mistake, or undue advantage. Hager v.

Thomson, 1 Black, 80, 93; Gage v. Parmelee, 87 Ill. 329, 333; Quinlan v. Keiser, 66 Mo. 603. Ho grounds for relief were established by the evidence, and the decree below must be affirmed, with costs. It is so ordered.