demanded the purchase money. Defendant promised to pay it by the next day at noon, whereupon the complainants notified him that the contract would be rescinded unless he paid the money at that time. He failed to do so, and they declared the contract rescinded. It was held that the complainants' acts constituted a proper and effectual rescission of the contract.350 Where the time for payment or performance of a contract is extended by agreement, although no consideration is given for the extension, the contract cannot be rescinded for non-performance until the expiration of the extended time.3 351 But such an extension of time must be shown to have been granted in clear terms and with explicit reference to the contract in question.852 And it should be observed that it does not create a new contract, but constitutes only a modification in that one regard of the original contract, so that, in all other respects, including rights of rescission for causes other than delay in performance, the rights of the parties continue to be governed by their original agreement.353 § 220. Same; Penalty Fixed for Delay.-When a contract fixes a specific time for performance or for completion of the work, and contains a condition by which a certain sum is to be forfeited, or a per diem penalty imposed, if the contracting party fails to perform or to complete by the day appointed, this is regarded as making time of the essence of the contract, so that, on default of punctual performance or completion, a rescission of the contract will be justified.354 But covenants of this kind may often work hardship, and they are construed with some strictness. 350 Miller v. Rice, 133 Ill. 315, 24 N. E. 543. 351 United States v. Derringer, 2 Hayw. & H. 72, Fed. Cas. No. 14,950a. 352 Peterson v. Rankin, 161 Iowa, 431, 143 N. W. 418. 353 Bacon v. Cobb, 45 Ill. 47; Bamberger Bros. v. Burrows, 145 Iowa, 441, 124 N. W. 333; Pinckney v. Dambmann, 72 Md. 173, 19 Atl. 450; Anspach v. Heft, 57 Pa. 326; Akeley v. Carpenter, 87 Vt. 248, 88 Atl. 897. 354 Baumann v. Pinkney, 14 Daly (N. Y.) 241; Wheeling Mold & Foundry Co. v. Wheeling Steel & Iron Co., 62 W. Va. 288, 57 S. E. Thus, it is held that a provision in a contract for supplying materials for a building, that, if the contractor fails fully to perform it by the time stipulated, he shall pay, as liquidated damages, fifty dollars for every day he shall be in default, does not apply to a case of utter abandonment of the contract by him.355 So, in a case in Louisiana, the plaintiff agreed to perform certain work for defendant within a given time, and the contract contained a penal clause empowering the defendant to annul the contract and forfeit payment for the work performed, and to resell the contract, in case of abandonment by the plaintiff, or if he failed to complete the work within the time prescribed. The plaintiff did not succeed in completing the work within the time. But it was held that the defendant, who annulled the contract, but failed to resell, could not enforce the penal clause for damages against the plaintiff.350 855 Gallagher v. Baird, 54 App. Div. 398, 66 N. Y. Supp. 759. 356 Bietry v. City of New Orleans, 22 La. Ann. 149. CHAPTER IX DURESS § 221. Definition and Essential Elements of Duress. 222. Same; Illegality of Demand. 223. Same; Duress as Efficient Cause of Action Taken. 224. Same; By and Against Whom Plea of Duress Available. 225. Duress Renders Contract Voidable, Not Void. 226. Duress as Ground for Rescission or Cancellation. 227. Degree or Measure of Duress Required. 228. Duress by Physical Restraint or Coercion. 229. Duress of Goods. 230. Taking Advantage of Financial Necessities. 231. Duress by Threats. 232. Instituting or Threatening Civil Suits or Foreclosures. 233. Duress of Imprisonment. 234. Threats of Arrest or Criminal Prosecution. 235. Prosecution of Husband, Wife, or Relatives. 236. Duress Exerted by Government or Municipalities. § 221. Definition and Essential Elements of Duress.Duress is a form of coercion, physical or moral, and is said to exist where one person, by the unlawful act of another, is induced to make or discharge a contract, or to perform or forego some other act affecting his rights of person or property, under circumstances which deprive him of the exercise of his free will, subject him to the will of that other, and constrain him to act contrary to his wishes and inclination. The term is also defined in the codes of several of the states, as follows: "Duress consists in (1) unlawful confinement of the person of the party, or of the husband 1 Newburyport Water Co. v. City of Newburyport (C. C.) 103 Fed. 584; McAldon v. Van Alstine, 135 Ill. App. 396; Evans v. Thomas, 4 Ky. Law Rep. 629; Hackley v. Headley, 45 Mich. 569, 8 N. W. 511; Lewis v. Doyle, 182 Mich. 141, 148 N. W. 407; Knight v. Brown, 137 Mich. 396, 100 N. W. 602; Smithwick v. Whitley, 152 N. C. 369, 67 S. E. 913; Guinn v. Sumpter Valley Ry. Co., 63 Or. 368, 127 Pac. 987; Phillips v. Henry, 160 Pa. 24, 28 Atl. 477, 40 Am. St. Rep. 706; Peabody v. Tenney, 18 R. I. 498, 30 Atl. 456; City Nat. Bank v. Kusworm, 91 Wis. 166, 64 N. W. 843; Wolff v. Bluhm, 95 Wis. 257, 70 N. W. 73, 60 Am. St. Rep. 115; Batavian Bank v. North, 114 Wis. 637, 90 N. W. 1016. Duress is unlawful constraint whereby one is forced to do some act against his will. Horn v. Davis, 70 Or. 498, 142 Pac. 544. Duress is a condition of mind resulting from such Thus, it is held that a provision in a contract for supplying materials for a building, that, if the contractor fails fully to perform it by the time stipulated, he shall pay, as liquidated damages, fifty dollars for every day he shall be in default, does not apply to a case of utter abandonment of the contract by him.355 So, in a case in Louisiana, the plaintiff agreed to perform certain work for defendant within a given time, and the contract contained a penal clause empowering the defendant to annul the contract and forfeit payment for the work performed, and to resell the contract, in case of abandonment by the plaintiff, or if he failed to complete the work within the time prescribed. The plaintiff did not succeed in completing the work within the time. But it was held that the defendant, who annulled the contract, but failed to resell, could not enforce the penal clause for damages against the plaintiff. 356 855 Gallagher v. Baird, 54 App. Div. 398, 66 N. Y. Supp. 759. 356 Bietry v. City of New Orleans, 22 La. Ann. 149. CHAPTER IX DURESS § 221. Definition and Essential Elements of Duress. 222. Same; Illegality of Demand. 223. Same; Duress as Efficient Cause of Action Taken. 224. Same; By and Against Whom Plea of Duress Available. 225. Duress Renders Contract Voidable, Not Void. 226. Duress as Ground for Rescission or Cancellation. 227. Degree or Measure of Duress Required. 228. Duress by Physical Restraint or Coercion. 229. Duress of Goods. 230. Taking Advantage of Financial Necessities. 231. Duress by Threats. 232. Instituting or Threatening Civil Suits or Foreclosures. Duress of Imprisonment. 233. 234. Threats of Arrest or Criminal Prosecution. 235. Prosecution of Husband, Wife, or Relatives. 236. Duress Exerted by Government or Municipalities. § 221. Definition and Essential Elements of Duress.Duress is a form of coercion, physical or moral, and is said to exist where one person, by the unlawful act of another, is induced to make or discharge a contract, or to perform or forego some other act affecting his rights of person or property, under circumstances which deprive him of the exercise of his free will, subject him to the will of that other, and constrain him to act contrary to his wishes and inclination. The term is also defined in the codes of several of the states, as follows: "Duress consists in (1) unlawful confinement of the person of the party, or of the husband 1 Newburyport Water Co. v. City of Newburyport (C. C.) 103 Fed. 584; McAldon v. Van Alstine, 135 Ill. App. 396; Evans v. Thomas, 4 Ky. Law Rep. 629; Hackley v. Headley, 45 Mich. 569, 8 N. W. 511; Lewis v. Doyle, 182 Mich. 141, 148 N. W. 407; Knight v. Brown, 137 Mich. 396, 100 N. W. 602; Smithwick v. Whitley, 152 N. C. 369, 67 S. E. 913; Guinn v. Sumpter Valley Ry. Co., 63 Or. 368, 127 Pac. 987; Phillips v. Henry, 160 Pa. 24, 28 Atl. 477, 40 Am. St. Rep. 706; Peabody v. Tenney, 18 R. I. 498, 30 Atl. 456; City Nat. Bank v. Kusworm, 91 Wis. 166, 64 N. W. 843; Wolff v. Bluhm, 95 Wis. 257, 70 N. W. 73, 60 Am. St. Rep. 115; Batavian Bank v. North, 114 Wis. 637, 90 N. W. 1016. Duress is unlawful constraint whereby one is forced to do some act against his will. Horn v. Davis, 70 Or. 498, 142 Pac. 544. Duress is a condition of mind resulting from such |