290 Mass. 93 | Mass. | 1935
This is a bill in equity by which the plaintiff seeks the cancellation of a check, payable to the plaintiff and indorsed by him to the defendant, on the ground that the indorsement and delivery of the check to the defendant were procured by duress exercised by the defendant. The duress alleged was threat of criminal prosecution. The bill also sought an injunction against negotiation of the check. The defendant under leave of court filed a demurrer to the bill with right reserved to answer. The demurrer was overruled and the defendant appealed. Thereafter the defendant filed an answer specifically denying the allegations of the bill upon which the plaintiff relied to establish duress. The case was heard on the merits by a judge of the Superior Court and the evidence was taken by a court stenographer. The judge made the following findings, and order for a decree: “The fundamental issue is simple. The evidence is conflicting to a degree. Considering it all I am unable to find that anything done in the premises by the defendant overcame the will of the plaintiff with reference to his procuring and indorsement of the check in question or compel [led] an assent by him with reference to such procuring and indorsement to an undertaking which he did not enter into voluntarily. No doubt fear of criminal prosecution and imprisonment was a strong factor contributing to the plaintiff’s doings with reference to the check and I find that the defendant knew of the criminal possibilities of the situation but I also find that he made no use of that knowledge which can reasonably be called duress or which could reasonably be characterized as oppressive or as having overcome the plaintiff’s will or having unduly imposed upon him the will of the defendant or of any other person with reference to the check in question.” A final decree was entered dismissing the bill, from which the plaintiff appealed.
The issues before the judge were whether the defendant did any of the acts which were of a character to overcome the plaintiff’s will and to compel assent to the doing of acts not voluntarily performed, but done under duress and fear of criminal prosecution; and also whether the acts done
The judge in the present case found that the defendant knew of the criminal possibilities of the situation, but that the defendant made no use of that knowledge which could reasonably be called duress or oppressive or as overcoming the plaintiff’s will. It is contended by the plaintiff that this latter finding is erroneous since the defendant did call a police officer to discuss the case with the plaintiff. He argues that calling the officer at all was a tacit threat of criminal prosecution. However, the judge could have found that the plaintiff had not been expressly threatened, or presented with the alternative of paying the defendant or facing prosecution. Taylor v. Jaques, 106 Mass. 291, 294. On the contrary the defendant’s purpose in calling the officer was expressly stated to the plaintiff by the defendant at the time to be to get information as to the whereabouts of General Electric stock which had been delivered
The only objection made by the plaintiff with reference to payment could be found to relate solely to the manner of obtaining a loan with which to make the payment. The plaintiff contends that error is shown by the alleged inconsistent finding that “No doubt fear of criminal prosecution and imprisonment was a strong factor contributing to the plaintiff’s doings with reference to the check . . . . ” This finding can reasonably be construed to mean that such
Decree affirmed with costs.