Dale v. Simon

10 Citing cases

  1. Peques v. Dilworth

    134 Tex. 169 (Tex. 1939)   Cited 19 times

    We approve the holding of the Court of Civil Appeals on the proposition relating to this question. Neither of the two opinions in Dale v. Simon (Civ. App.), 248 S.W. 703, id. (Com. App.) 267 S.W. 467, relied upon by the buyers, holds to the contrary. It is sufficient to say that in neither opinion did the decision turn on the proposition that the transaction in question, to wit, payment of a lease rental alleged to have been paid by Simon and Brown under duress, was a partnership transaction.

  2. Field v. Natl. City Bank of St. Louis

    343 Mo. 419 (Mo. 1938)   Cited 11 times

    [48 C.J. 742, sec. 293.] "One cannot recover back money paid under compulsion if it is just what he ought to have paid voluntarily." [48 C.J. 753, sec. 307; see also 21 R.C.L. 153, sec. 178; Dale v. Simon (Tex.), 248 S.W. 703, l.c. 709, affirmed 267 S.W. 467; Missouri-Lincoln Trust Co. v. St. Louis Third National Bank, 154 Mo. App. 89, 133 S.W. 357; Slover v. Rock, 96 Mo. App. 335, 70 S.W. 268.] Not only did plaintiff's main Instruction No. 1 fail to require a finding that plaintiff was not indebted to the Republic Finance Corporation, but his Instruction No. 6 affirmatively stated that, even if such indebtedness existed, it "would not be a defense." Under the above authorities, and as a matter of right and reason, any indebtedness would be a defense pro tanto, while an indebtedness greater than the value of the property received by the Finance Corporation from plaintiff would "standing alone" be a complete defense to plaintiff's count one.

  3. Kress Co. v. Rust

    120 S.W.2d 425 (Tex. 1938)   Cited 4 times

    We agree with the Court of Civil Appeals that the findings of the trial court on the issue of duress have substantial support in the evidence, which forecloses the matter here. See in this connection Dale v. Simon (Com. App.) 267 S.W. 457; Sabinal State Bank v. Ebell et al., 294 S.W. 226; Pfeuffer et al v. Haas et al., 55 S.W.2d 111, 10 Texas Jur. p. 73, Sec. 41, par. 2, 9 R. C. L. pp. 716-17. The presence at the time Mrs. Rust signed the release of persons with whom she was on terms of friendliness is but a circumstance weighed by the trial court in reaching the conclusion stated, and cannot be viewed as conclusive that she did not execute the release under duress.

  4. Ottawa County Nat. Bank v. Bouldin

    117 Okla. 104 (Okla. 1925)   Cited 7 times

    93 N.W. 121. See, also, Dale v. Simon (Tex. Civ. App.) 248 S.W. 703; Barker v. Pullman Co. (C. C.) 124 Fed. 555, 134 Fed. 70, 67 C. C. A. 196. In Champion v. Wilson Company, 64 Ga. 191, the court held:

  5. Sea Hoss Marine Enterprises, Inc. v. Angleton Bank of Commerce

    536 S.W.2d 592 (Tex. Civ. App. 1976)   Cited 4 times

    But where the party making the demand has, or is supposed to have, the power to injure the business or property interests of the one upon whom the demand is made, without resort to the courts to enforce the demand, and threatens to do an act which would cause such injury, and which he has no right to do, and thereby enforces compliance with his demand, against the will of such party through fear of injury to his business or property, such threats amount to duress, if it appears that the party making such demand ought not in good conscience to retain the benefit received by reason thereof. Dale v. Simon, 267 S.W. 467, 470, (Tex.Com.App.); Lawrence v. J. M. Huber Corporation, 347 S.W.2d 5, (Tex.Civ.App.)."

  6. Sanders v. Republic National Bank of Dallas

    389 S.W.2d 551 (Tex. Civ. App. 1965)   Cited 35 times
    Holding that there was no evidence of duress when record indicated that rent payment was made voluntarily and provisions of governing contract would permit other party to assert its claim to demand payment

    But where the party making the demand has, or is supposed to have, the power to injure the business or property interests of the one upon whom the demand is made, without resort to the courts to enforce the demand, and threatens to do an act which would cause such injury, and which he has no right to do, and thereby enforces compliance with his demand, against the will of such party through fear of injury to his business or property, such threats amount to duress, if it appears that the party making such demand ought not in good conscience to retain the benefit received by reason thereof. Dale v. Simon, 267 S.W. 467, 470, (Tex.Com.App.); Lawrence v. J. M. Huber Corporation, 347 S.W.2d 5, (Tex.Civ.App.). It is likewise well established that money voluntarily paid with full knowledge of all facts and without fraud, deception, duress, or coercion, cannot be received back although it was paid upon void or illegal demand or upon claim which had no foundation in fact and was paid without consideration. Gibson v. General American Life Ins. Co., 89 S.W.2d 1070 (Tex.Civ.App.).

  7. Chanoux v. Mesa Corp.

    241 S.W.2d 741 (Tex. Civ. App. 1951)   Cited 2 times

    Therefore, since the contract could not have been reformed on the ground of mutual mistake against John W. Chanoux, one of the parties thereto, and specifically enforced, it is our view that the deed which merely put into effect the legal obligation created by it cannot be reformed on the ground of mutual mistake against John W. Chanoux. See as having some bearing on this proposition, though not squarely in point: Dale v. Simon, Tex.Civ.App., 248 S.W. 703, loc. cit. 709(3), affirmed Tex.Com.App., 267 S.W. 467, loc. cit. 471(5); Ann. 28 L.R.A., N.S., 813, loc. cit. 814, citing Dickinson v Glenney, 27 Conn. 104; Ann. 149 A.L.R. 749, citing and quoting from Webster v. Sark, 10 Lea, Tenn., 406, loc. cit. 414. For a more cogent, authoritative and compelling reason we think the judgment cannot be sustained.

  8. Kidd v. Hickey

    237 S.W.2d 389 (Tex. Civ. App. 1950)   Cited 4 times

    Johnson v. Gurley, 52 Tex. 222; McCallister v. Texas Co., Tex.Civ.App., 223 S.W. 859, (Wr. Ref.); Dale v. Simon, Tex.Civ.App., 248 S.W. 703, affirmed, Tex.Com.App., 267 S.W. 467. The lease of November 7, 1926, contains only two express provisions relative to its termination; (1) That subject to other provisions therein contained it should remain in force for a term of five years from its date (the primary term) and as long thereafter as oil and gas or either of them 'is produced in paying quantities from the land hereby leased', and (2) Paragraph 3 above quoted.

  9. Kenyon v. United Salt Corp.

    129 S.W.2d 402 (Tex. Civ. App. 1939)   Cited 2 times

    It is equally well settled that in instances like this — that is, these forfeiture provisions reciting on the face thereof that they were enforceable without resort to any court — the doctrine of duress was none-the-less available to this appellee because it saw fit to yield compliance with the demands for payment so made upon it, without first seeking relief therefrom in court. Dale v. Simon, Tex.Civ.App. 248 S.W. 703, affirmed by the Commission of Appeals in 267 S.W. 467; Austin National Bank v. Sheppard, Comptroller, Tex.Com.App., 71 S.W.2d 242, 243; Atchison, T. S. F. Ry. Co. v. O'Connor, 223 U.S. 280, 32 S.Ct. 216, 56 L.Ed. 436, Ann.Cas. 1913C, 1050; Ward v. Scarborough, Tex.Com.App., 236 S.W. 434; City of Dallas v. Wright, 120 Tex. 190, 36 S.W.2d 973, 77 A.L.R. 709; Kilpatrick v. Germania Life Ins. Co., 183 N.Y. 163, 75 N.E. 1124, 2 L.R.A., N.S., 574, 111 Am.St.Rep. 722; Gray v. Freeman, 37 Tex.Civ.App. 556, 84 S.W. 1105; Williamson, Halsell, Frazier Co. v. Ackerman, 77 Kan. 502, 94 P. 807, 20 L.R.A., N.S., 484. The appellee alleged, and offered proof in support thereof, that it neither did produce nor could have produced salt in paying quantities from the property during either of the years of 1933 and 1934, despite its exercise of the "reasonable diligence" to do so that paragraph 10 of the original lease contract imposed upon it, in consequence seeking refunds for like minimum royalty pay

  10. Stanford v. United States Inv. Corp.

    272 S.W. 568 (Tex. Civ. App. 1925)   Cited 6 times

    "It now seems to be the well-settled law in this state that, where a party who holds a lien demands more than is justly due before he releases the lien, the party paying the same, if he pays it under protest, has a cause of action against the party for money had and received." Appellants cite Bowers v. M., K. T. Ry. Co. (Tex.Civ.App.) 241 S.W. 509; Warehouse Co. v. Spivey (Tex.Civ.App.) 249 S.W. 1086; International Land Co. v. Parmer, 58 Tex. Civ. App. 70, 123 S.W. 196; Dale v. Simon (Tex.Civ.App.) 248 S.W. 703. The first two cases cited above involved the holding of goods for payment of unlawful freight charges and warehouse charges, and great resultant damages by reason of such wrongful withholding of the goods.