160 Ga. 732 | Ga. | 1925
Lead Opinion
Walter T. Candler filed a petition asking for the cancellation of a note for $20,500, which he alleged had been executed by him and delivered to Clyde K. Byfield. The prayer for cancellation was based upon the ground that the note was void because it was obtained by duress; and it was likewise alleged that the promise to pay was without any consideration, and that for that reason the note was void. Upon Candler’s petition Byfield was restrained from transferring or collecting the note, and a receiver was appointed to hold the note until the further order of the court. By amendment the plaintiff sought to recover a judgment against the defendant Byfield for $4500, consisting of $2000 alleged to have been paid on a check for $25,000 given by Candler to Byfield and $2500 represented by two notes which Byfield owed Candler for borrowed money. Byfield answered and alleged that the note for $20,500 was a legal, valid, and binding obligation voluntarily assumed by Candler in compromise and settlement of a just claim for damages for injuries inflicted upon the defendant •by the plaintiff, and he asked judgment for the amount of the note, with interest. The petition of the plaintiff was more than once amended, but merely to the effect of amplifying and explaining the substantial contentions of the original petition, to the effect that the alleged note was altogether void because obtained by duress and unsupported by any consideration. Upon the trial the jury returned a verdict in favor of the defendant upon his cross-action, for the amount of the note, with interest and costs of suit. The plaintiff moved for a new trial. His motion was overruled, and he excepted. By cross-bill of exceptions the defendant assigned error upon a number of instructions given by the court in his charge to the jury, and upon the refusal of certain requests for instruction which were duly presented; though the defendant did not move for a new trial. The motion for a new trial filed by the plaintiff is based upon the usual general grounds and four assignments of error cpntained in an amendment to the motion.
As to the general grounds: We have carefully considered
It appears from the testimony that Byfield, after this exclamation, struck Candler with his fists. Candler struck him in return, and then Byfield rushed past Candler and began to beat his wife, to whom he gave a black eye -and several bruises upon the nose, breasts, shoulders, and arms, in a frenzy of passion. The fist-fight was then resumed between Candler and Byfield, Byfield seemingly having gotten the worst of it, and wás terminated by the 'interference of the ship’s officers. Mrs. Byfield testified that her husband turned on the light when he entered the room, and that when Candler was turned around by the blow of Byfield his pants were unbuttoned, and that it was when Byfield turned to assault her that he buttoned his trousers; and this testimony was sufficient to explain to the satisfaction of the jury the testimony of the officers that when they came upon the scene a little later Candler appeared fully dressed and there was no exposure of his person. We have not stated all the details, but the above, taken from the testimony of the witnesses, were sufficient, in our opinion, to make the defendant believe in good faith that he had been grievously damaged by the plaintiff. He had the right to believe that he had suffered an actionable wrong. It afforded a basis amply sufficient in law for settlement or compromise, whatever may be thought of such a proceeding as a matter of choice or taste. Under these circumstances, as appears in the testimony which the jury had before them, Candler admitted that he had done injury to the defendant and his business and said he would pay $25,000 as compensation for the injury done. There was evidence to authorize Byfield to believe at that time that the sexual intercourse had been actually consummated, and he stated, even according to Candler, that he could have his wife, whom he denominated by a very foul and opprobrious term, accepted Candler’s proposition, and was given a check on the Central Bank & Trust Company for $25,-000, which was shown to-the inspector, Williams, and the watchman, Bartley, by Byfield, who asked the inspector to make a note of the transaction, as.he did, and according to the testimony of Williams, who was present, admitted that the check was given for wrecking Byfield’s life. We have stated only high points in the evidence;
Many, if not all, of the above statements are contradicted by testimony in behalf of the plaintiff, who himself swore most positively that he made no assault upon Mrs. Byfield; that the latter had hurt her arm by falling at the dance a few minutes before, and that he merely entered the room to ask how she felt, and supposed that her husband was in the room at the time. He states that it was the invariable custom for either Candler or the By-fields to enter the apartment of the other to say good night or good morning at any time when the doors of their respective apartments were not fastened, and that he neither did nor said a single thing which could have injured or affronted either the defendant or his wife. Iiis testimony supports his theory that the case is merely one of blackmail. But the jury are the sole judges of the testimony, and it is not within the power of this court, to revise their finding upon evidence if there is sufficient evidence to authorize the result reached by them. For this reason, it is our opinion that the testimony was ample to show that the note is not void for want of consideration.
Was the note obtained by duress? In the first place it must be borne in mind that the burden of showing that the note was void by reason of the fact that it was the result of duress was upon the plaintiff; and upon a painstaking investigation of the evidence it is our opinion that the plaintiff failed to carry this burden, and in fact the preponderance of the evidence upon this point seems to lie in favor of the defendant. It is true that at one stage of the mélée Byfield asked one of the ship’s crew if he had a pistol, but he made no threat against Candler, though Candler was present. He also said to another witness to whom he was complaining of the occurrence (which he said he had never thought would transpire when he came on board the ship), that he would make him (meaning Candler) pay for it. But there are no circumstances in all the testimony considered either singly or collectively which in our opinion approached the requirement embodied in the definition of the term “duress” as applied in the law. The testimony shows that the plaintiff was cool and collected. Apparently he was superior both in courage and strength to the defendant. He was
The first and second grounds of the amendment to the motion for a new trial assign error upon the exclusion of certain testimony upon the objection that it was irrelevant and immaterial. The court refused to allow the witness Edgar Dunlap to testify that he saw the defendant Byfield playing cards frequently about a week later, on the ship Aquitania with Bernstein and Lyons, on the return trip from Europe to America. The court also refused to allow Thomas C. Erwin to testify to the same facts as those offered to be shown by Dunlap. Even if it be conceded that an important issue in the case was, as contended by the counsel for the plaintiff, whether Bernstein and Lyons were friends of Candler or better friends of Byfield at the time that the check for $25,-000 was exchanged in Paris for a cash payment of $2000 and the surrender by Candler to Byfield of $2500 of his notes for borrowed money, and the giving of the note for $20,500, certainly the fact that several days later these parties were seen gambling with the defendant would illustrate nothing as to what was in the mind of Candler at the time he made the exchange. Byfield had given a letter exonerating Candler from charges which he had previously made. The letter was as follows: “In regard to our misunder1 standing, I wish to say to you that I want to withdraw the statement I made against you with regard to my accusing you of being intimate with my wife, Sarah Byfield, on board the steamer Berengaria. These statements were made in a moment of anger, and I am writing this letter to you in order that I do you justice, as all statements I made at the time and in the presence of others were not so. I am writing this letter to you of my own free will and accord, and without any intimidation.”
• In explanation of this letter Byfield testified as to the reasons which induced him to sign this writing, which at the time of the
The third special ground of the motion complains becausfe the court refused a request to charge the following: “The plaintiff alleges that this note is void for two reasons. First, the plain
The complaint as to the refusal of the requests to charge is that the trial judge did not in so many words tell the jury that, although there might have been a good and valid consideration for the note,'the defendant could not recover upon it if it was obtained by duress. It will be observed from the two excerpts from the charge which we have quoted, as it also appears in other portions of the instructions of the court as a whole, that while the judge did not say that even though the jury did believe Byfield had a claim which might have been legally compromised he could not recover if there was duress, the instructions actually delivered by the court upon the subject of duress absolutely and under all circumstances exclude the right of any recovery upon the part of the defendant if the jury believed either the check or the note was the result of duress. The judge first told the jury that want of consideration would prevent a recovery upon the part of the defendant. He next took up as a distinct subject-matter the question of duress, and the manner and form of his instructions as to the effect of duress upon the validity of both the check and the note was such that the jury could neither have been confused nor misled into any other view than that duress, regardless of any .other element of the ease, if found by the jury to exist, would destroy the defendant’s entire case. We might quote other portions of the instructions of the trial judge upon this point, but it is altogether unnecessary. The charge of the court was a concise, clear, and impartial presentation of the contentions of both parties,
Judgment affirmed.
Dissenting Opinion
dissenting. I dissent from the conclusion reached by the majority that the judgment should be affirmed, on the grounds:
(1) That the evidence referred to in the second division of the opinion rendered by the majority was material; and if it was material, then, being relevant, as the majority of the court concede, it should have gone to the jury for consideration by them in making their verdict. Evidence may be. relevant and yet so completely immaterial as to render its exclusion harmless to the party offering the evidence; but where it is both relevant and material, its exclusion, as a general rule, is a good ground for the grant of a new trial. And in this case the general rule should be applied, for the evidence tended to throw light upon a material issue in the ease.
(2) The court was duly requested in writing to give the following instructions to the jury: “The jury are instructed that if, under the instructions given, you believe that the plaintiff, Walter T. Candler, executed this note under duress, then I charge you that this note is void and can not be collected, and your judgment should be in favor of the plaintiff; and this is true whether there was any actual consideration for the note or not. In other words, if you believe from the evidence that there was a liability of Candler to Byñeld growing out of the transaction on the high seas upon the steamship Berengaria, as alleged in the pleadings of the defendant Byfielcl, still if you believe that Candler gave the note in dispute under duress as I have defined it to you, then your verdict should be in favor of Mr. Candler, and there would be no liability upon this note.” This request to charge was pertinent and legal, and exactly and precisely adapted to one of the contentions of the plaintiff. It was authorized by the evidence, and the court erred in refusing to give it; for the charge upon the same subject failed to deal with this contention of the plaintiff as clearly and appositely as it was dealt with in the written request to charge.