35 Fla. 110 | Fla. | 1895
The proceedings in this case were commenced by •appellee filing a bill against appellants to foreclose a mortgage on property situated in Hillsborough county, in this State. The mortgage sought to be foreclosed was executed by appellants, and conveyed the property therein described to appellee upon the condition that appellants should pay unto appellee, his executors, administrators or assigns, the just and full sum of one thousand dollars, with interest after maturity, •evidenced by a promissory note executed by appellants
Appellants answered the bill, and alleged in substance that on the first day of October, 1887, appellee and Henry. W. Fuller entered into a partnership under the firm name and style of Fuller & Roberts, appellee putting into the business $4,400, and becoming a full and equal partner entitled to one-half of the profits, and liable for one-half of the losses, and that he had charge of the books and office work of the business, and made personally, or supervised the making of all entries in said books; that said business, by reason of depression caused by yellow fever and losses in purchasing oranges, became insolvent in April, 1888, the nominal assets at that time amounting to $32,000, and the liabilities to $30,000; and appellee and Henry W. Fuller being indebted to Henry A. Fuller in the sum of $12,000 for money advanced and liabilities assumed and guaranteed by him, sold to hi m the stock of goods and merchandise amounting to $14,495.48, in payment of the indebtedness to him; his intention being to pay up all indebtedness of said firm and protect the credi
The only question presented here relates to the ruling of -the court sustaining the exceptions to the answer, and as this ruling was before the decree pro confes so was entered, the action of the court in the particular mentioned is fully open for investigation. Garvin vs. Watkins, 29 Fla. 151, 10 South. 818. The sole contention here on behalf of appellants is, that the note was executed under duress. It is further stated in the answer that the note was executed under a mistake as to the true status of said business, and was without any consideration; but it is not averred that appellants did not have free access to the books of the copartnership, and did not have it in their power to inform themselves of the true status of affairs before giving the note. Sheldon vs. School District, 24 Conn. 88. The allegation that appellee kept the books and had charge of the office work of the business, does not imply that the other partners did not have a full opportunity of obtaining all information they desired in reference to the status of the business. We confine ourselves to the point presented, which is, that the note was executed under duress. From the recitals in the mortgage, made a part of the bill of complaint, and the answer, it sufficiently appears that ap_
In his work on Torts (page 507) Judge Cooley says: '“Buress of goods consists in seizing by force or withholding from the party entitled to it the possession of personal property, and extorting something as the condition for its release, or in demanding and taking personal property under color of legal authority, which, in fact, is either void or for some other reason does not justify the demand.” Legal duress implies that a party has been unlawfully constrained by another to perform, an act under circumstances which prevent the exercise of free will. The act of the party compelling the unwilling obedience of another must be unlawful or wrongful, and there can be no duress of goods in law where the act done or threatened is nothing more than what the party had a legal right to do. Hackley vs. Headley, supra; Wilcox vs. Howland, 23 Pick. 167. We do not think the facts stated In the answer of appellants make a defense upon the
The case presented by the answer is not one, as insisted by counsel for appellants, where a party knowing that he had no cause of action resorted to legal proceedings for the purpose of seizing the property of .another, and thereby extorting money or other thing •of value from the owner in order to get the property released, but as shown by the answer itself, there was
We think the court decided correctly in sustaining the exceptions to the answer of appellants, and the result is,' that the decree must be affirmed, and it is so ordered.'