88 Wis. 188 | Wis. | 1894
The execution of the. note in suit having been admitted, the plaintiff offered no evidence. On the part of the defendant the evidence, in effect, tends to prove: That on and for some time prior to November 1, 1892, the plaintiff held two promissory notes which it had received
There is no evidence that Mr. Kusworm actually forged any note, but simply that Gebhart charged him with having forged the notes, as mentioned. It is true that the defendant testified to the effect that Gebhart claimed that he had forged notes in the amount of $4,900; but, from the whole evidence, it is very apparent that the real charge made by Gebhart was to the effect that Mr. Kusworm had forged sundry names to the four, five, or six notes, aggregating seven or eight thousand dollars, which the plaintiff held as collateral security for his indebtedness to the plaint
Manifestly the defendant cannot avoid paying the note upon the mere ground that it was given to compound a felony. Catlin v. Henton, 9 Wis. 476; Schultz v. Catlin, 78 Wis. 611. The only defense available, if any, would seem to be that the defendant was prevailed upon to give the note in suit by duress. As a general rule the defense of duress is not available in an action upon a note given to prevent the criminal prosecution of another person. To this rule there are certain well-established exceptions. Among other exceptions, a wife may avoid her contract, otherwise valid, by reason of a threatened criminal prosecution of her husband, and conversely; and so a father may avoid his contract by reason of a threatened criminal prosecution of his son, and conversely. Thus in Bayley v. Williams, 4 Griff. 638, affirmed Williams v. Bayley, L. R. 1 H. L. 200, a son forged his father’s name, as indorser, upon certain promissory notes, and obtained money thereon from his bankers. The fact of the forgeries having been discovered, which the son did not deny, the bankers, without any direct threat of any prosecution, insisted upon a settlement, to which the father was to be a party. The father consented, and agreed in writing to make an equitable mortgage of his property to secure his son’s indebtedness; and it was held that the father was not a free and voluntary agent in the making of such agreement, and hence that the same was invalid. The threatening language to the father in that case was: “ If the bills are yours, we are all right. If they are not, we have only one course to pursue; we cannot be parties to compounding a felony. It is a serious matter. It is a case of transportation for life.” This is exceedingly mild when compared with the language addressed
It is contended, however, that duress is a species of fraud, and that the defendant cannot rescind the contract for du•ress without first restoring to the plaintiff the benefits secured by making the contract. It is undoubtedly true that, if a party invokes the aid of equity to set aside a contract by virtue of which he has received a benefit, he will
The question recurs whether, upon the principles stated, the defendant has done anything to estop her from defending against the note in suit. She is not here invoking the aid of a court of equity. She is simply resisting the enforcement of an executory contract on the ground that her signature to the same was procured by duress. As indicated, her defense, as appears from the record, is complete, unless her conduct has been such as to render it inequitable for her to make it. It certainly cannot be said as a matter of law, upon the record before us, that the defendant received any pecuniary benefit or consideration for signing the note in suit, or that she was in any way liable upon or on account of any of the notes surrendered by the plaintiff at the time she signed that note. If the evidence before us is true, then she signed that note for the sole purpose of saving her sick husband from arrest, prosecution,
There can be no such thing as estoppel in pais, except by reason of something said or done, by the person estopped; certainly not by the independent act of another person,
There seems to be a dearth of authorities upon the precise question here presented. In some of the numerous cases cited., and especially those in equity, restoration was made or tendered or made a condition of the judgment, while in others the question is not mentioned. In Jordan v. Elliott, 12 Wkly. Notes Cas. 56, the victim of the duress was induced to sign a receipt acknowledging the surrender of her son’s note and a policy of insurance on his life held by Jordan as collateral thereto, which he assigned to the defendant. Jordan burned the note in the presence of the defendant, but left the policy and the assignment thereof at her house, Of course, there could be no restoration of the note, and it does not appear that the policy was restored; but the supreme court of Pennsylvania.affirmed the judgment in favor of the mother. There are numerous cases where duress or fraud has been made available as a
By the Court.-— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.
The importance of the principle involved in this case prompts me to state briefly the reasons why I cannot concur in the conclusions of the majority of the court. The evidence in the case is entirely insufficient to show that the note in suit was given to compound a felony. The only defense which the evidence tends to prove is that the note was given by the defendant under duress of threats of imprisonment of her husband. That an execu-tory contract may be avoided or rescinded which has been made under the influence of such duress as the evidence' here tends to prove is quite well established, and I.shall spend no time on that question. The avoidance or rescission in such a case stands on the same ground as avoidance or rescission of a contract induced by fraud. Duress is, in fact, a species of fraud. Cooley, Torts (2d ed.), 592; Reynolds v. Copeland, 71 Ind. 422; 6 Wait, Act. & Def. p. 663, § 12. Logically and necessarily, the same conditions will be imposed in a case of duress as in a case of the more common kinds of fraud. One of these conditions universally insisted upon is that the defrauded party must return or offer to return the consideration, if any has been received, or its equivalent in case return of the specific consideration be impossible. Citation of authorities on this proposition seems unnecessary, and I content myself with one case in this court, where the rule is well stated, with authorities. Van Trott v. Wiese, 36 Wis. 439-448. I know of no exception to this rule, at least as applicable to persons of full age and mental competency. It is true that where a consideration has been received which is worthless or represents nothing of value, its return will not be required, because such return would be a mere idle ceremony. This is not an exception in fact to the rule, but rather a demonstration of the existence of the rule itself, because in such cases failure to return the consideration is always ex
In Foss v. Hildreth, 10 Allen, 76, the party who was seeking to avoid a contract induced by fraud and duress did not return a discharge of a groundless action pending against him, and the court says that such return was not necessary, because “ the discharge is not property of any value to the defendant, nor is it of any use to the plaintiff.”. It appeared in that case, also, that the plaintiff made the voidable contract while intoxicated, and the court remarks that, where a person non compos makes a deed and receives a valuable consideration for it, he may avoid it without first returning the consideration. Manning v. Albee, 11 Allen, 520, was an action of replevin for a quantity of clothing which Manning had been induced to trade to one French in exchange for French’s promissory note, with certain bonds as collateral. The bonds were represented as very valuable, but were in fact worthless. Albee afterwards took possession of the clothing, claiming to have bought it of French, and French disappeared. Manning then ascertained that the bonds were worthless, and brought replevin for the goods against Albee, French not being found. The objection was made that the action could not be maintained without surrender of the note and bonds, but the court holds that to be unnecessary, because it appeared that French could not be found, so that the tender to him was impossible, and the defendant was in no event entitled to them. In Kent v. Bornstein, 12 Allen, 342, the return of a counterfeit bill was held unnecessary, because it was entirely worthless. In Chandler v. Simmons, 97 Mass. 508, it was
In the present case there is absolutely no question but that Mrs. Kusworm received from the bank, in consideration of her note and mortgage, a large amount of negotiable securities. According to the testimony of the witness Stone (which is uncontradicted), Mr. Gebhart handed to him (Stone), when he received Mrs. JTusworm’s note, two notes of $4,100 and $800 respectively, signed “M. Kus-worra,” together with four or five collateral notes signed, by other persons and aggregating seven or eight thousand dollars, which were collateral to the M. Kuswo.rm notes. All of these notes Mr. Stone immediately passed over to
The net result seems to be, from the conclusions reached by the court, that the plaintiff loses, without possibility of recovery, the notes of M. Kusworm, and the collaterals which it lawfully held thereto, as well as the note and mortgage of Mrs. Kusworm. Against such a result I respectfully protest.