228 S.W. 164 | Tex. Comm'n App. | 1921
Defendant in error, R. B. Mallard, instituted this suit against the heirs of W. W. Day, deceased, plaintiffs in error, Bob Miller and Gabriella Miller and Cecil Cook, in trespass to try title to the land described in the petition. In another count, he sought a foreclosure of a vendor’s lien against the land, alleging, in substance: That he sold the land to Cecil Cook, retaining vendor’s lien notes to secure the purchase money; that these notes he deposited with one Tom Conditt to secure the payment to Conditt of $137.50 which he owed him; that W. W. Day accused defendant in error of stealing flour from him and threatened to kill him unless he paid for it; that under fear of this threat, and to prevent Day from attempting to do so, he was induced to assign the vendor’s lien notes to Day and to give an order directing Conditt to deliver the same to Day upon payment by Day of the $137.50; that Day got possession of said notes and, after canceling them in consideration of Cook deeding the land to him, he surrendered the same to Cook. Upon the facts thus pleaded, defendant in error contended that he was entitled to have the transaction between himself and Day rescinded — which would entitle him to the notes. ■
Plaintiffs in error defended upon the grounds; (1) That the notes were assigned to W. W. Day, deceased, to pay for groceries which they alleged defendant in error had stolen from Day; and (2) that the contract between defendant in error and Day was illegal and void in that part of the consideration entering into the agreement was that Day would not prosecute defendant in error in a criminal action then pending against him.
Cecil Cook answered, setting up his minority, and prayed for a cancellation of the notes, but this relief was denied and he did not appeal from the judgment rendered. Bob and Gabriella Miller disclaimed and judgment entered upon their disclaimer.
The case was submitted to the jury upon special issues, and the jury found, among other things: (a) That the agreement between defendant in error and Day included the understanding between them that Day was to drop all prosecution ágáinst defendant in error for taking the flour and other offenses; (b) that part of the consideration to defendant in error for the assignment of the notes was to keep Day from killing him and from prosecuting him on the charge of having stolen the flour; (c) that thfe order by defendant in error to Conditt to turn over the notes was made under fear of the threatened violence by Day which partly deprived defendant in error of the exercise of his free will; (d) that defendant in error was not guilty of stealing goods, wares, and merchandize from Day as charged.
The jury found that two things entered into the agreement: One, that.Day would not attempt to carry out his threat to kill defendant in error; the other, that Day would not prosecute him for a felony.
This action upon the part of Day in threatening to prosecute for a felony when none in fact had been committed shows the absence of any criminal contumacy upon the part of defendant in error in making the agreement, but convicts Day of exercising another form of duress in addition to that employed in threatening to kill.
We recommend therefore that the judgment of the Court of Civil Appeals be affirmed.
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