On appeal from a judgment entered in the Second District Court of the City of Paterson by the judge, sitting without a jury, in the amount of $16.68 plus costs of $6.43, a total of $23.11.
For the plaintiff-respondent, Schwartz & Schwartz (Louis Schwartz, Sol Schwartz and Isadore Rabinowitz).
For the defendant-appellant, Paul Rittenberg and A. Victor Koch.
Before Brogan, Chief Justice, and Justices Case and Heher.
The opinion of the court was delivered by
CASE, J. This is an appeal from a judgment of $16.68 awarded to the plaintiff by the judge of the Second District Court of the City of Paterson sitting without a jury. Plaintiff
is a retail news dealer in Pompton Lakes. It bought the business from John J. Mangus. The state of demand contains the surprising number of 106 counts, of which 36 ground in alleged claims by Mangus for causes that arose before the sale of the business and 70 ground in causes said to have accrued during plaintiff's ownership. The state of demand alleges that defendant is a wholesale distributor and sole distributing agent in plaintiff's territory of the leading eastern newspapers; that defendant unlawfully delivered to Mangus, during his period of ownership, newspapers in excess of his requirements and against his orders, refused to accept the return thereof and by threatening to charge the costs against his standing deposit and to cut off entirely his supply of newspapers put him in duress and wrongfully compelled him to pay charges which he did not properly owe; and that Mangus had assigned to plaintiff all such "sums unduly exacted" from him. The state of demand makes like charges with respect to plaintiff during its period of ownership. The total of the sums alleged to have been paid under duress by Mangus was $54 and by plaintiff $78. A bill of particulars reduced these claims to $10.18 and $6.50, respectively; and the judgment is for the addition of those amounts.
Appellant's points are that the claims of Mangus were personal to him and were not assignable, and that all of the payments made by Mangus and by the plaintiff were voluntary and without duress.
There is authority for considering that an action of this character is not in tort but is an action of contract in the nature of assumpsit, Chandler v. Sanger, 114 Mass. 364, although our study of the state of demand brings us to the conclusion that, notwithstanding a suggestive phrase in one or two of the counts, it does not set up an indebitatus assumpsit for money had and received within the purview of Van Pelt v. Schauble, 68 N.J.L. 638. It is settled that duress, to be available as a defense in an action upon contract, must have been exercised upon him who sets it up as a defense. Travis v. Unkart, 89 Id. 571; Mullin v. Leamy, 80 Id. 484; Hanover Trust Co. v. Rizzo, 110 Id. 581. If that statement of the law is to be credited with all of the implications that
flow therefrom, then a claim founded upon duress is not assignable. If such an assignment may not be used as a defense, it ought not, logically, be used in prosecution. We conclude, therefore, that the Mangus claim was not assignable and that plaintiff may not prevail as to it.
There is proof to sustain the finding of the court below, implicit in the award, that the payments in dispute were made under duress; upon this, more presently. The portion of the judgment that relates to the duress practiced upon the plaintiff is $6.50. We have satisfied ourselves as to some of the items therein and having done that are under no constraint to follow every penny thereof to its source. De minimis non curat lex. Where there is evidence upon which a District Court judgment may rest this court will ...