The opinion
CLAGETT, Associate Judge
(dissenting). While the opinion of the court in this case is highly persuasive, I am unable to agree with the conclusion reached. I can not escape the view that under the circumstances the letter sent by appellee Fanelli to appellant Rizzi constituted duress or undue influence as a matter of law. Fanelli was not only Rizzi’s attorney, but it is particularly significant that Fanelli was a former chairman of the Board of Immigration Appeals, the very Board before which Rizzi’s case was pending. Under such circumstances, Fanelli told Rizzi verbally and wrote him on January 7, 1948, that “You force me to sue you in court. That I am going to do. As soon as I do, your deportation will follow — of this I am certain.” Admittedly, it was as a result of these threats that Rizzi signed the promissory note sued on. The American Law Institute’s Restatement of the Law of Contracts, Vol. 2, § 497, states: “Where one party is under the domination of another, or by virtue of the relation between them is justified in assuming that the other party will not act in a manner inconsistent with his welfare, a transaction induced by unfair persuasion of the latter is induced by undue influence and is voidable.”
In the comment under this section it is stated that, “The protection given parties of the class included under the rule stated in this Section is broader than that given where parties bear no such relation to one another. Duress between such parties has the same effect as between other parties, but unfair persuasion without fear is enough to constitute undue influence within the rule stated in the Section.” Among the relationships stated to be included within such rule is that of attorney and client.
Duress is defined in the Restatement (Vol. 2, § 492) as “any wrongful act of one person that compels a manifestation of apparent assent by another to a transaction without his volition, or any wrongful threat of one person by words or other conduct that induces another to enter into a transaction under the influence of such fear as precludes him from exercising free will and judgment, if the threat was intended or should reasonably have been expected to operate as an inducement.”
Here Rizzi, an Italian immigrant, who had difficulty with the English language and who had already been deported once from the United States, was dealing with his attorney, a former chairman of the Board having Rizzi’s case under consideration. Under such circumstances, can it possibly be said that the contract between the parties was entered into freely? And yet one of the fundamental requirements for a. valid contract is mutual manifestation of assent by the parties.
To me it seems entirely clear that the promissory, note given for the full amount *876 of Fanelli’s bill and extracted under the circumstances here present was given under duress or undue influence as a matter of law. 10 The opinion of the court states, in effect, that the verdict of the jury that there was no duress prevents our determining that there was duress as a matter of law. This, it seems to me, is a non sequitur. Furthermore, the opinion correctly states the rule that there is a presumption of overreaching or duress in contracts regarding compensation between attorney and client after the relationship has once been established. I do not agree, however, that there was any substantial evidence offered against this presumption. Certainly the fact that Rizzi has not yet been deported was not such evidence.
I believe the judgment below should be reversed.
Seo 2 Restatement, Contracts, § 493, illustration 14 under clause (d).