78 Ind. 175 | Ind. | 1881
This was a suit by the appellant, David M. Adams, against the appellees, Elza T. Stringer, J. F. Burkett, and Calvin F. Darnell, recorder of Marion county, Indiana, as defendants. In his complaint, the appellant alleged, in substance, that on December 11th, 1878, the said Elza T. Stringer met him, the appellant, in the town of Findley, Ohio, and then and there represented and pretended that, in the year 1865, 1866, 1867 or 1868, while he, the said Stringer, was engaged in business in the town of Ashland, Ohio, he had sold to the appellant a certain lot of dried apples, amounting to $376, and consigned the same, for the appellant, to Day, Allen & Co., then doing business in Chicago, Illinois, and that the appellant had never paid the said indebtedness, or any part thereof; that the said Stringer, on said December 11th, 1878, at said town of Findley, by force, fraud and duress, by then and there threatening to cause the appellant to be arrested and impris
The defendant Calvin F. Darnell was the recorder of said Marion county, and the said Stringer had said mortgage in his possession, and had said to appellant that he intended to cause the same to be recorded at once in the recorder’s office of said county, and he would do so if not restrained by the order of the court, and the appellant would thereby suffer irreparable loss. The said notes were given without any consideration whatever, and were made payable at the Indiana National
The appellees answered by a general denial of the complaint. The issues joined were tried by a jury, and a verdict was returned for the appellees, the defendants below. Over the appellant's motion for a new trial, and his exception saved, the court at special term rendered judgment against him for the appellees' costs. On appeal, this judgment was affirmed by the court in general term.
The only error assigned by the appellant, in the court below in general term, was, that the court at special term had erred in overruling his motion for a new trial. This alleged error he has. brought before this court, by assigning here, as error, that the court in general term had erred in affirming the judgment of the special term.
In his motion for a new trial, the appellant assigned the following causes therefor:
1. In refusing to give the jury the instructions numbered one, two, three and four, asked for by the appellant;
2. In the several instructions given the jury by the court,, of its own motion;
3. Because the verdict of the jury was not su,stained by sufficient evidence; and,
4. Because the verdict of the jury was contrary to law.
The appellant's learned counsel have devoted a large portion of their elaborate brief of this cause to the discussion of
The only instruction given the jury by the court, of its own motion, complained of in argument by appellant’s counsel, was the fourth, which reads as follows:
“4. A contract made under compulsion may be avoided by the party by whom it was executed. Compulsion, however, to have this effect, must amount to what the law calls duress. Mere angry or profane words, or strong, earnest language, can not constitute such compulsion as will amount to duress, or enable a party to be relieved from his contract. There may, however, be duress by threats. Duress by threats does not exist, wherever a party has entered into a contract under the influence of a threat; but only where such threat excites,*181 ‘ or may reasonably excite/ a fear of some grievous wrong, as bodily injury or unlawful imprisonment.”
The objection to this instruction, as we understand it, is that it does not contain a full statement of the law applicable to the case, and that it was calculated to mislead the jury trying the cause. So far as the first branch of the objection is concerned, it is sufficient to say, that, if the instruction stated the law correctly as far as it went, and we think it did, then it became the appellant’s duty, if he thought the instruction was not sufficiently full, to ask the court for an additional instruction, to supply the supposed omissions in the one given. It was not only his duty to ask for such additional instruction, but if the court refused to give such additional instruction, at his request, it became his further duty to see that it was made a part of the record in one of the modes prescribed by law for that purpose. It seems to us that the instruction complained of contained a fair statement of the law on the subject of duress, as applicable to the case on trial, and we fail to see wherein, or how, it could possibly mislead the jury. The law as stated in the instruction is in strict accord, we think, not only with the decisions of this court, but with the general current of the authorities elsewhere, ‘on the nature and extent of the duress which will enable a party to avoid his contracts. Bennett v. Ford, 47 Ind. 264; Bush v. Brown, 49 Ind. 573; Coffelt v. Wise, 62 Ind. 451; Reynolds v. Copeland, 71 Ind. 422; Tucker v. The State, 72 Ind. 242.
The appellant’s counsel have- criticised, rather than complained of, the third instruction given the jury by the court, of its own motion, which instruction reads as follows:
“ 3. If you believe that the representation, charged and relied upon as false and fraudulent, was, that the plaintiff was indebted to the defendant in a certain sum, and the plaintiff was in fact so indebted, then your finding must be for the defendant upon the question of fraud. This will be so, even though the defendant may have by mistake wrongly stated*182 the items, or some of the items, which formed the consideration of such alleged indebtedness.”
Counsel concede in argument that this instruction looks “ fair and plausible,” and, if applied to a running account between parties, covering numerous transactions, they “ have no doubt it states the law correctly.” This objection to the instruction seems to us to be untenable. The instruction contains a correct statement of the law, and, in our opinion, was as applicable to the case on trial as it would have been if the appellant’s alleged indebtedness to the appellee Stringer had consisted of a running account, covering numerous transactions. If the appellant was indebted to the appellee Stringer in a certain sum, and if Stringer’s representation of the fact of such indebtedness was the only representation charged and relied upon as false and fraudulent, and the jury so found, then, clearly, there could be no other finding, on the question of fraud, than a finding for the appellee Stringer, and the court did not err in so instructing the jury.
Upon the whole case, our conclusion is that it does not appear from the record before us that any error was committed by the court in general term, in affirming the judgment of the special term.
The judgment is affirmed, at the appellant’s costs.
Elliott, C. J., did not take part in the consideration or decision of this cause.