Assuming, but not deciding, that there was evidence in the record on the question of duress sufficient to go to the jury in any event, there was error in the charge as given, and in refusing to give the instruction requested on this subject. Our statute defines "duress" as follows (Rev. Laws 1910, sec. 900):
"First. Unlawful confinement of the person of the party, or of husband or wife of such party, or of an ancestor, descendant, or adopted child of such party, husband or wife.
"Second. Unlawful detention of the property of any such person; or,
"Third. Confinement of such person, lawful in form, but fraudulently obtained, or fraudulently made unjustly, harassing or oppressive."
In Snyder v. Stribling,
"Instructions numbered 7 and 9 relate to the questions of duress and undue influence in the execution of the contract of October 1st, and state the effect upon a contract made without consideration or under duress or undue influence. These questions are regulated by our statutory provisions, and the authorities cited have but little application, and are not controlling.
"The instruction defining duress and undue influence in the execution of contracts is copied from the provisions of the statute (Wilson's Stat. 1903, vol. 1, c, 15, art. 1), and, while such instruction embodies some propositions that have no application to the case, in our judgment, the inapplicable provisions were so palpably foreign that they could in no event have been misleading, and hence, not prejudicial."
In its charge the trial court abandoned the statutory rule by which duress is measured, although expressly asked to instruct the jury in the words of the statute, and laid down an entirely different rule.
We therefore recommend that the judgment be reversed, and the case remanded for a new trial.
By the Court: It is so ordered.