27 Kan. 359 | Kan. | 1882
Lead Opinion
The opinion of the court was delivered by
This case was before this court at the January term, 3880. (23 Kas. 474.
At that time we held that Mrs. Caplice was only entitled to a reasonable compensation for the inconvenience or service in making her signature to the receipt on the back of the insurance policy, and remanded the case. for a new trial. Thereafter the plaintiff in error amended her petition, and declared upon the contract made for services and the agreed price therefor. The trial was had upon such amended petition, to the court without a jury. The following are the findings of fact:
“2. That the services were rendered by the plaintiff, as alleged in the petition.
“3. That at the time of the employment, defendants promised to pay for the services, as shown by the written obligation set forth in the petition.
“4. That the money due on the'insurance policy was paid by the insurance company to the defendants, and the sum for the services specified in the written obligation, set forth in the petition, was demanded by the plaintiff from the defendants more than ten days after the payment of the amount due on the policy, and before the commencement of this action.
“ 5. That the contract of. employment, and promise to pay .therefor the amount specified in the. written obligation set forth in the petition, were made by the parties, with full knowledge of all the facts, and without any fraud or misrepresentation-on the part of the plaintiff, but that she demanded from the defendants a promise to pay her $477.73, and refused to sign the receipt to the insurance company until they executed the agreement to pay her that sum, when the value of her work and labor in signing said receipt was only one cent.”
And as a .conclusion of law, the court found that—
“The plaintiff was entitled to recover the sum of one cent and costs up to the time of the offer to confess judgment, and thereupon rendered judgment in favor of plaintiff and against the defendants for the sum of one cent and her costs herein expended up to the 20th day of June, 1881, at the time of said offer to confess judgment was made, taxed at $-, and that said plaintiff pay the costs thereafter incurred by defendants.”
Notwithstanding the very able and. exhaustive argument presented by counsel for plaintiff in error, we think the case occupies very much the same attitude as when presented upon the former hearing; and perceiving no good reason to change our views of the law as heretofore declared, we think the judgment of the court below must be affirmed. We did not hold before, and do not hold now, that mere inadequacy of consideration alone is a sufficient ground for setting aside or refusing to enforce a contract; and we fully agree with counsel,
Counsel for plaintiff in error refers to the finding, that such agreement was made by the parties with full knowledge of all the facts, and without any fraud or misrepresentation; and upon this insists that the question of the value of the services of plaintiff was solely a question between the contracting parties. If Mrs. Caplice had not been connected with the sale and transfer of the policy to the makers of the contract sued upon, and the makers thereof had employed her to render services for them in the collection of the claim against the insurance company, and had promised to pay her much or little therefor, we suppose the contract could be enforced, however inadequate the consideration. Under circumstances of that kind, if the demand of Mrs. Caplice for her services had been extravagant, the parties would have had the opportunity to reject her services, and employ some other person who was more reasonable in his or her charges; but in this case, Messrs. Kelley & McHale had no choice other than to make the promise in writing demanded of them by Mrs. C., or fail to obtain the money due them until after long delay and costly litigation. Mrs. Caplice and her husband had sold and transferred the policy to the makers of the contract, and as an inducement to purchase, thé latter parties expected to collect the money
“ I am a partner of McHale; had an equal interest in policy with McHale. When policy was due, the company required us to get plaintiff’s receipt on back of policy for the money. I went to plaintiff and asked her to sign the receipt. She said she would not, unless we paid her $477.73, or executed agreement to pay it; that she eould heat us out of all of it, hut would not, if we would give her the-agreement for $4-77.78. She then and there admitted that she had assigned the policy over to us, and had been fully paid for it. She made no claim to any interest in the policy. The signing of the receipt was the only consideration for the agreement sued on. The re
The statements of Mrs. Caplice to Kelley, and the terms of the agreement, satisfy us that there must have been that pressure upon the signers at its execution, which in our view amounts to oppression and extortion. The agreement was so hard and unconscionable that we do not think it ought to be enforced.
Under the circumstances, Mrs. Caplice ought not to recover, if anything, at most only what was, fairly due her for the inconvenience or service for writing her signature.
The judgment of the district court will be affirmed.
[ * Note. — See this case, with an elaborate note on the subject of unconscionable contracts, in 33 Am. Rep., pp. 182-184. — Reporter.]
Concurrence Opinion
I concur in the decision of this case, not because of any mere inadequacy of the consideration for the defendants’ written promise, but because of a total want of such consideration. The real consideration for the promise was not. the mere signature of the plaintiff, but it was the supposed transfer from the plaintiff to the defendants of the right and power to collect from the insurance company the amount of the insurance policy, of which the plaintiff was the expressed beneficiary. (See written instrument, signed by defendants, as copied in Kelley v. Caplice, 23 Kas. 474.) But the plaintiff had in fact no such right or power to transfer to the defendants or to confer upon them, and nothing passed from her to them. She had, long before that time, transferred all her interest in the insurance policy to the defendants, and had at that time nothing to give them. .Their right and. power at that time' to collect the amount of the insurance policy was ample and complete, without any signature or assignment or release from her. Hence their promise to her was wholly without consideration, or perhaps I might more properly say, wholly without any substantial consideration. It is true, the plaintiff attached her signature to the instrument supposed to transfer or release her interest in the policy to the defendants; but her signature was a mere incident to such supposed transfer or release. It was a mere incident to
