Rose v. Rose , 162 F.2d 587 ( 1947 )

HOLMES, Circuit Judge.

This appeal is from a judgment sustaining a motion to dismiss the complaint for failure to state a claim upon which relief could be granted. Such motion admitted all of the well-pleaded facts.

The complaint alleges that appellant was a partner of one of the defendants in the retail jewelry business, and that he received notice in 1942 to report for induction into the armed forces of the United States; that the defendants and each of them “thereupon agreed, conspired, and confederated together to oust plaintiff from his partnership” and wrongfully to force him to transfer his interest therein to certain of the defendants. It alleges how, upon the eve of his induction, the scheme was tortiously accomplished and how he was forced to sell his interest for a “negligible fraction” of its true value; that he entered the military service in February, 1942, and continued therein on active duty until March, 1946, when he was honorably discharged after prolonged service in the battle areas of the Pacific.

During his absence overseas, it is alleged, the said jewelry business earned a net profit of upwards of $200,000, of which, but for his wrongful and coercive ouster, the appellant would have been entitled to and would have received one-half. The complaint is in two counts; in the first, he seeks to recover both actual and punitive damages; in the second, he prays that the interest in the partnership business acquired from him he impressed with a trust for his benefit, and for such further relief as may be proper.

Upon these facts, under count one, we think the appellant stated an action for duress of goods under circumstances of great hardship, and is entitled to have his damages assessed by a jury unless an answer is Sled denying the averments or otherwise presenting an issue of fact.¹

Prima facie every partnership is determinable at will; and, since there is no allegation as to its duration, we presume that this one was so determinable; but the motion and judgment below dealt with the complaint in its entirety, and it is unnecessary for us to decide more at this time than that the court erred in its dismissal of the entire suit. Counts one and two do not differ as to the facts alleged, but only in that different and -inconsistent remedies are sought, one of a legal and the other of an equitable nature.

The judgment appealed from is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

1 Hawkins v. Ellis, 168 Mass. 428, 151 So. 569, 570; 14 C.J.S., Coercion, p. 1307; 17 C.J.S., Contracts, § 175, p. 533.

“It has been held that restraint of goods under circumstances of hardship will avoid a contract; [Collins v. Westbury], 2 Bay [S.C.], 211 [1 Am.Dec. 643]; [Ripley v. Gelston], 9 Johns. 201 [6 Am. Dec. 271]; [Elliott v. Swartwout], 10 Pet. 137, [9 L.Ed. 373]; [Spaids v. Barrett], 57 Ill. 289 [11 Am.Rep. 10] ; [Chandler v. Sanger], 114 Mass. 364 [19 Am.Rep. 367] ; [City of Philadelphia v. Miskey], 68 Pa. 49; [Adams v. Reeves], 68 N.C. 134 [12 Am.Rep. 627]; [Radich v. Hutchins], 95 U.S. 210 [24 L.Ed. 409]; 11 Exch. 878. But see [Hazelrigg v. Donaldson], 2 Mete., Ky., 445; [Maissonnaire v. Keating], Fed.Cas.No.8,978; 2 Gall. [325], 337; [Block v. United States], 8 Ct.Cl. 461; [Lehman v. Shackleford], 50 Ala. 437.” Bouv.Law Diet., Rawle’s Third Rev., p. 959, Duress.