Ackerman v

First Nat’l Bank, 239 Ga. App. 304, 521 S.E.2d 221 (1999). Contract voidable when undue or unjust advantage is taken of one’s economic necessity or distress to coerce one into making agreement. A-T-O, Inc. v. Stratton & Co., 486 F. Supp. 1323 (N.D. Ga. 1980). Detention of another’s chattels under proper circumstances might be sufficient duress to avoid a contract. Charter Medical Mgt. Co. v. Ware Manor, Inc., 159 Ga. App. 378, 283 S.E.2d 330 (1981). Seizure and retention of property until owner executes promissory note constitutes duress. — Seizure of property by force and holding the property until the owner executes promissory notes for the property’s release without semblance of consideration is a species of duress, and court of equity will relieve maker by preventing their collection. Barnett v. Central Line of Boats, 51 Ga. 439 (1874). Unlawful detention of another’s goods under oppressive circumstances, or their threatened detention, will avoid contract on ground of duress, for reason that in such cases there is nothing but form of agreement, without its substance. A-T-O, Inc. v. Stratton & Co., 486 F. Supp. 1323 (N.D. Ga. 1980). Act must be wrongful to constitute duress, and it is not duress to threaten to do what one has a legal right to do. Stroup v. Robbie Jon Dev. Corp., 159 Ga. App. 652, 284 S.E.2d 667 (1981). Threat of losing a job or fear of such loss is not duress which will void a contract. Tidwell v. Critz, 248 Ga. 201, 282 S.E.2d 104 (1981). Threat made without present apparent intent and ability to carry it out, not duress. — Mere empty threats in absence of present apparent intent and ability to carry such threats into execution are insufficient to constitute duress that will void a deed. Calhoun v. Dowdy, 207 Ga. 584, 63 S.E.2d 373 (1951). It is not sufficient to allege that note was 13-5-6 executed because of empty threat made by another; to sustain charge of duress it is necessary to show that there was apparent intention and ability to execute threat that would have coerced action or inaction contrary to victim’s will. Littlegreen v. Gardner, 208 Ga. 523, 67 S.E.2d 713 (1951). Mere threats or empty threats, when there is no apparent intention and ability to execute the threats, are not sufficient to constitute duress. Williams v. Rentz Banking Co., 112 Ga. App. 384, 145 S.E.2d 256 (1965). No duress absent reasonable apprehension that threat will be carried out. — While threat by husband to abandon his wife unless she signs note may in some instances amount to duress which will relieve her of liability on note to holder with notice, where circumstances show that wife had no reasonable apprehension of threat being carried into execution, bare making of it will not be such duress as to render note invalid. Dorsey v. Bryans, 143 Ga. 186, 84 S.E. 467, 1917A Ann. Cas. 172 (1915). Lawful confinement in penitentiary not duress. — Duress is not shown when lack of choice results not from unlawful pressure but from lawful confinement in penitentiary. Price v. Arrendale, 119 Ga. App. 589, 168 S.E.2d 193 (1969). Mere fact of imprisonment alone could not constitute duress, when defendant’s imprisonment was not the result of any action on the part of plaintiff to effect execution of the note. Crockett v. Shafer, 166 Ga. App. 453, 304 S.E.2d 405 (1983). An attorney’s refusal to release file material to a former client prior to settlement of a fee dispute cannot constitute duress sufficient to permit the former client to avoid the client’s obligations pursuant to a promissory note, the execution of which is made a prerequisite for the return of the file material, since the attorney has a statutory right to retain the former client’s file materials in the attorney’s possession until the attorney’s fee claim is satisfied or the attorney is otherwise directed by court order. Crockett v. Shafer, 166 Ga. App. 453, 304 S.E.2d 405 (1983). Note of putative father to settle bastardy proceedings not voidable because given while under arrest. — Note given by putative father to settle bastardy proceeding not void (now voidable), for duress merely because 314 given while under arrest under bastardy proceedings. Jones v. Peterson, 117 Ga. 58, 43 S.E. 417 (1903); Gresham v. Hewatt, 2 Ga. App. 71, 58 S.E. 309 (1907). Lack of choice as to where and by whom surgery will be performed, not duress. — Lack of choice as to where and by whom a surgical operation will be performed does not ordinarily constitute duress so as to render voidable an operative permit signed by the patient. Price v. Arrendale, 119 Ga. App. 589, 168 S.E.2d 193 (1969). Necessary elements to defeat of recovery of payee for duress produced by third party. — In order for married woman to defeat recovery by payee on promissory note made by her, upon ground that her signature thereto was procured by fraud and duress of her husband, she must not only show that such was the fact, but must also show that payee of note was either party to such fraud and duress, or that payee had knowledge thereof. Burgess v. Torrence, 23 Ga. App. 193, 98 S.E. 170 (1919). Settlement of insurance claim. — Insured’s claim that the insured was unduly coerced into settling the insured’s claim because of physical and mental duress brought on by insurer’s refusal to pay benefits, weariness of filing lawsuits against insurer, and compelling compromising offers to settle, pressure to pay medical bills by doctors, and insurer’s telling the insured the contract was being drawn up for settlement under P.I.P coverage were insufficient, as a matter of law, to raise a jury question as to whether the release is voidable. Bailey v. Horace Mann Ins. Co., 207 Ga. App. 633, 428 S.E.2d 604 (1993). Threats of Prosecution or Imprisonment Threatened prosecution must be for act either criminal or which party threatened thought was criminal. Hoover v. Mobley, 198 Ga. 68, 31 S.E.2d 9 (1944). Threats of criminal prosecution before warrant issued or proceedings commenced, do not constitute duress. Hoover v. Mobley, 198 Ga. 68, 31 S.E.2d 9 (1944); Yearwood v. National Bank, 222 Ga. 709, 152 S.E.2d 360 (1966). Absent imminent or immediate danger of prosecution, threat to prosecute does not constitute duress. — In absence of proof 13-5-6 that child was in imminent or immediate danger of prosecution or that the child would in fact be prosecuted if endorsement was not made, statement to endorser that, if endorser failed to endorse, the endorser’s child would be liable to prosecution did not amount to threat or show duress. Augusta Motor Sales Co. v. King, 33 Ga. App. 433, 126 S.E. 866 (1925). It is not duress to bring or threaten to bring civil suit. Chouinard v. Chouinard, 568 F.2d 430 (5th Cir. 1978). Parent may avoid contract given under duress of imprisonment of a child. Bailey v. Devine, 123 Ga. 653, 51 S.E. 603, 107 Am. St. R. 153 (1905); Colclough v. Bank of Penfield, 150 Ga. 318, 103 S.E. 490 (1920); Bank of Penfield v. Colclough, 154 Ga. 222, 114 S.E. 33 (1922). Grantor may avoid conveyance induced by threat to prosecute child, although other consideration was given. — Specific performance of deed will not be decreed against a father, even where threats to prosecute the father’s son were not entire consideration for such contract, but part of consideration was money loaned. Swint v. Carr, 76 Ga. 322, 2 Am. St. R. 44 (1886). Suggestion of criminal responsibility. — The plaintiff did not improperly procure a promissory note under duress, notwithstanding the defendant’s assertion that the plaintiff ’s attorney threatened the defendant with criminal prosecution for writing bad checks, since the plaintiff ’s attorney only intimated that the defendant could have criminal responsibility for writing bad checks. Gouldstone v. Life Investors Ins. Co., 236 Ga. App. 813, 514 S.E.2d 54 (1999). Waiver of defense. — Even if acts could otherwise have been construed as sufficient duress to void a note, reliance upon the defense of duress may be waived. Frame v. Booth, Wade & Campbell, 238 Ga. App. 428, 519 S.E.2d 237 (1999). In an action on a note, where defendant was a sophisticated businessman who had consulted with counsel of choice for three months before signing the note, even if plaintiff ’s actions constituted economic duress, defendant waived any reliance upon this defense. Frame v. Booth, Wade & Campbell, 238 Ga. App. 428, 519 S.E.2d 237 (1999). 315 13-5-7