Opinion
December 16, 1910.
Nelson L. Keach, for the appellant.
Herman Asher, for the respondent.
The defendant, Illinois Surety Company, appeals from an order denying its motion for leave to serve an amended answer.
The action is to foreclose a mechanic's lien. The appellant is made defendant by reason of its having given an undertaking to discharge the lien, and it alone is defending the action, the owner of the property having made default. The appellant's original answer was practically a general denial. After the trial, before a referee, had proceeded for some time appellant was permitted, with the consent of plaintiff, to amend its answer so as to allege that the contract upon which the action is brought was without consideration, and also that plaintiff had, willfully and intentionally enormously exaggerated its claim, and intentionally by pretense of a fictitious contract sought to enforce and establish a false and fabricated demand under and by virtue of the lien. The defendant now asks to be allowed to further amend its answer by alleging in effect that the contract upon which plaintiff sues was obtained from the owner of the property affected, a corporation known as East One Hundred and Eighty-ninth Street Building and Construction Company, by fraud and duress, consisting of threats to abandon work on the premises, and to induce others to abandon work thereon, unless said owner would make the contract now sued upon. The motion was rightly denied because the alleged defense would be unavailing to appellant. A contract procured by duress exercised by means of threats is not void, but voidable, and as a general rule only the party upon whom the duress was exercised may take advantage of it to avoid the contract. The right of avoidance is purely personal to the party coerced. ( Robinson v. Gould, 11 Cush. 55, 57.) It is true that it has also been held that a surety upon a contract coerced by duress may plead the defense if he was ignorant of the duress when he became surety, but this exception does not apply to the appellant because it was not a surety upon the voidable contract. Its undertaking merely took the place of the lien filed by plaintiff, and it cannot by any defense put the plaintiff in a worse position than it would have been in if the lien had remained undischarged. If no undertaking had been given to secure the lien the right to take advantage of the duress would have rested solely with the owner. And even if it could be said that, for any reason, the appellant has succeeded to the owner's right, still it cannot now be permitted to avoid the contract because it is a fundamental and well-settled rule that one who would repudiate a contract on the ground of fraud and duress must act promptly or he will be deemed to have elected to affirm it. ( Oregon Pacific R.R. Co. v. Forrest, 128 N.Y. 83, 93; Strong v. Strong, 102 id. 69, 73.) The contract alleged to have been induced by duress was executed on August 24, 1909, nearly fifteen months before the motion to amend was made. The owner certainly would not be permitted at this late day to repudiate the contract, and the appellant can stand in no better position. Its own contract upon which it is now sought to hold it liable is not alleged to have been tainted with fraud.
The order appealed from is, therefore, affirmed, with costs.
INGRAHAM, P.J., LAUGHLIN and CLARKE, JJ., concurred; McLAUGHLIN, J., dissented.
Order affirmed, with ten dollars costs and disbursements.