Galusha v. Sherman

105 Wis. 263 | Wis. | 1900

Marshall, J.

The cause does not seem to have been properly determined by the trial court by a finding on each material fact in issue. Presumably the praétice was followed of deciding the issues in a general way and then signing; findings prepared and presented by the successful party, without a sufficient examination of them to see whether all the material issues are properly and specifically determined. It is proper to permit the attorney for a prevailing party to prepare the findings, but his duty in that regard should be strictly confined to the drafting and submitting of a paper which, when signed and filed in the cause, will comply with the statute by containing an express adjudication as to the truth regarding each material issue and the legal results; and the judicial duty should always be performed of testing the paper by the decision made, before making it an official document. True, errors in that regard are not necessarily prejudicial, so as to call for a reversal, but it is the law, which should be followed just the same, that the successful party is entitled to have each material issue decided and to have such determination specifically and separately stated in the findings. While a trial court may neglect or refuse to perform the judicial duty in that regard, and without effect upon the final judgment, it is a matter of which the party so deprived of his legal rights may justly complain, and which this court may properly take noticé of and condemn, in the interest of a careful administration of justice, whether the wrong affects substantial rights so as to call for relief by a reversal of the judgment, or not.

The findings of fact as originally signed in this case contained, as one of the adjudications, a decision that all the material allegations of the complaint were true, while there were several such allegations upon which there was no evidence whatever, and some that were disproved by the un-controverted evidence. That finding was stricken out by the circuit judge when his attention was called to it by the appellants’ attorneys; but there was a refusal to find specifically upon some of the most material issues, either in the findings as prepared and signed, or when duly requested to do so by appellants’ attorneys. For instance, there was no dispute but that Sherman ate meat at Galusha’s table, which, he believed, in good faith, caused him serious illness; that he commenced an action against Galusha to recover the damages caused to him by such illness, and that he and his attorney, and all persons concerned on his side of the controversy, down to and inclusive of the time the note and mortgage were given, honestly believed that Galusha knowingly, or with reasonable means of knowledge, furnished him dangerously impure meat to eat, thereby causing the injury of which he complained; that he was legally entitled to have Galusha make good the damages resulting from such injuries; that the note and mortgage were taken in satisfaction of such claim; and that the claim, in consideration thereof, was duly released. Notwithstanding that, the court refused to 'find, though requested so to do, that Sherman and Sutherland, in commencing and prosecuting the action, honestly believed that Sherman had a good cause of action against Galusha as set forth in the complaint; but on the contrary, found that the note and mortgage were given without consideration. Plain error was thereby committed. The evidence being undisputed'that the claim made by Sherman was an honest claim, the court should have so found. That was the vital question on the subject of whether there was any consideration for the note and mortgage. It being undisputed that the supposed cause of action was released in consideration of the note arid mortgage, the finding that they were given without consideration was directly contrary to the fact. The learned.court, in another part of the findings, seems to have determined that Sherman did not have a cause of action in fact, and to have come to that conclusion because of the result of another action for damages brought against Galusha by a person circumstanced the same as Sherman, in regard to having eaten some of the alleged impure meat,— an action to which Sherman was not a party, and, obviously, by which he was not in any way legally affected. Under what theory the verdict in that case was-evidence against Sherman on the fact, if it were a fact, that Sherman would not have been able, upon a trial of his case,, to have recovered against Galusha, and that it turned the scale against him on the question of whether the note and mortgage were given without consideration, is not understood.

The settlement of an honest controversy between two parties is a good and sufficient consideration to support a contract of settlement. The release of the claim on the one side, and the payment or agreement to pay upon the other,, are, as between the parties, an exchange of equivalents which is irrevocable except upon the ground of mutual mistake, or fraud of one party and- mistake of the other. That is elementary. Inequality of consideration, of itself, is not sufficient to avoid a settlement. It is enough if the controversy be actual, in regard to which the issue may fairly be considered by both parties as doubtful. 1 Parsons, Cont. (8th ed.), 439; Kercheval v. Doty, 31 Wis. 476; Van Trott v. Wiese, 36 Wis. 439; Turner v. Burnell, 48 Wis. 221; Harris v. Kennedy, 48 Wis. 500; Zimmer v. Becker, 66 Wis. 527; Continental Nat. Bank v. McGeoch, 92 Wis. 286. The law favors the right of parties to settle their matters of difference in their own way, and encourages efforts in that regard by holding such settlements conclusive, as above indicated, without regard to which party obtains the best of the bargain. So it is held that, where a claim is asserted on the one side in good faith and denied upon the other, presenting for consideration and determination a question involving a degree of certainty as to where the truth lies calling for a judicial determination to effect a settlement in the absence of an amicable arrangement between the parties, and such parties make such an arrangement settling their matter of difference, such matter is thereby as effectually closed and the result made as binding on them as if it were reached by the solemn and formal judgment of a court having jurisdiction of the parties and of the subject matter. Mistake, as the term is here used, does not refer to the validity of the claim on either side, but to some fact or facts material to the settlement. Courts exist to remedy wrongs where they cannot be otherwise remedied by peaceable means. The whole policy of the law is rather to discourage than encourage a resort to them as a means to that end by promoting efforts to compromise and settle differences by contracts inter faites. If a controversy be actual and in good faith, it is a proper subject for a binding contract of settlement, no matter what the real merits of a claim may be upon either side; and if a ••settlement be made in regard to such subject, free from fraud or mistake, as before indicated, whereby there is a surrender or satisfaction, in whole or in part, of a claim upon ■one side in exchange for or in consideration of a surrender •or satisfaction of a claim in whole or in part, or of something of value, upon the other, however baseless may be the ■claim upon either side or harsh the terms as to either of the parties, the other cannot successfully impeach the agreement .in a court of justice. Such contracts are as binding as any “that parties competent to contract can make. Said this court in Kercheval v. Doty, supra, quoting from a standard text writer with approval: “ If it. were necessary, in order to sustain an adjustment of conflicting claims, to determine their -relative validity and value, no compromise would be possible, •and the uncertainty, delay, and scandal would be incurred, which such arrangements are usually designed to avoid.” “ It is held in general in this country, that compromises are to be favored, irrespectively of the nature of the controversy ■compromised; and that they cannot be set aside because the • event shows all the gain to have been on one side, and all the sacrifice on the other, if the parties have acted in good ■faith, and with a belief of the actual existence of the rights which they have respectively waived or abandoned.” “ A compromise of doubtful rights will not, therefore, be opened or rescinded by chancery, even when unequal or harsh in its operation; nor where the only consideration for the relinquishment of a valid claim on the one side is the abandonment of an invalid one on the other.”

From the foregoing it will be seen that.on the question of whether there was a consideration for the note and mortgage, the primary question was whether a claim was honestly asserted on the one side and denied on the other; not whether the claim was actually valid or invalid. The trial court erroneously refused to find on that material question. Further, it appears that the subject, of whether the claim asserted by Sherman was one upon which he could have recovered against respondents, was not a subject for consideration in this case at all, except as bearing on the question of his good faith; and the finding on that subject, as a basis for a finding of want of consideration for the settlement, was error. Further, the finding that the settlement and the note and mortgage were without consideration, in face of the undisputed evidence that such note and mortgage were given to settle a claim honestly made by Shermcm, was erroneous.

Notwithstanding what has been said, it does not follow that the judgment must be reversed, if the finding on the subject of duress is sustained by the law and the evidence.

The trial court found that when the note and mortgage were executed, Galusha was not in the exercise of his free will, but was under the control of the will of Langdon and Sutherland, and that he was deprived of his own will power by the wrongful acts of the two persons named. That finding was, in the main, based on the circumstance that a complaint had been served upon Galusha, claiming damages to an amount sufficiently large, if established to its full extent, to absorb his entire property, and, upon disputed evidence that Langdon, who served the papers, urged him to visit Sutherland, the attorney for Sherman, and settle the controversy, stating that if he did not do so he would be arrested on a criminal warrant and sent to state’s prison; that through Lcmgdon’s influence, and accompanied by him, respondent went to Sutherland’s oiflce; that he was there locked in a room with Sutherland, or with Sutherland and Langdon, and then threatened again with arrest and imprisonment for 'from three to fourteen years unless he immediately settled the suit by paying $1,000 or securing the payment of such sum'; that such threats were accompanied by profanity on the part of Sutherland and by such demonstrations as to produce a belief in the mind of respondent that he was in danger of personal violence; that under such circumstances respondent submitted to Sutherland’s demand and executed the papers in controversy, and also signed a communication to his wife directing her to sign, and gave such communication to Sutherland to enable him to secure her signature in the absence of her husband.

Appellants’ attorneys contend that, assuming that the evidence on the part of respondents proves all that it tends to proye, the wrongful acts were not sufficient to constitute duress, hence not sufficient to warrant the finding that respondent was deprived of the free exercise of his will. In support of that, many suggestions are made and authorities cited which seem to call for a brief consideration of the law of duress as understood by this court. It is a branch of the law that, in the process of development from the rigorous and harsh rules of the ancient common law, has been so-softened by the more humane principles of the civil law, and of equity, that the teachings of the older writers on the subject, standing alone, are not proper guides. The change from the ancient doctrine has been much greater in some jurisdictions than in others. There are many adjudications based on citations of authorities not in themselves harmonious, and many statements in legal opinions based on • the .ancient theory of duress, which together create much confusion on the subject, not only as it is treated by text writers, but by judges in legal opinions. Anciently, duress in law by putting in fear could exist only where there was such a threat of danger to the object of it as was deemed sufficient to deprive a constant or courageous man of his free will, and the circumstances requisite to that condition were distinctly fixed by law; that is to say, the resisting power which every person was bound to exercise for his own protection was measured, not by the standard of the individual affected, but by the standard of a man of courage; and those things which could overcome a person, assuming that he was a prudent and constant man, were not left to be determined as facts in the particular case, but were a part of the law sitself. Co. Litt. 253. Said Sir William Blackstone (volume 1, p. 130): “ Whatever is done by a man to save either life or member, is looked upon as done upon the highest necessity .and compulsion. Therefore, if a man through fear of death •or mayhem, is prevailed upon to execute a deed or do any •other legal act, these, though accompanied by all the other requisite solemnities, may be afterwards avoided', if forced upon him by a well-grounded apprehension of losing his life, •or even his limbs, in case of his noncompliance.” “ The constraint a man is under in these circumstances is called in law duress.” “ A fear of battery or being beaten, though never so well grounded, is no duress, neither is the fear of having one’s house burned, or one’s goods taken away and destroyed, because in these cases, should the threat be performed, a man may have satisfaction by recovering equivalent damages. But.no suitable atonement can be made for the loss of life or limb.” Duress of imprisonment existed, by the old rule, only where there was actual, illegal restraint of liberty. The doctrine was, “ If a man be imprisoned by •order of law, the plaintiff may take a feoffment of him, or a bond for his satisfaction, and for the deliverance of the defendant, notwithstanding that imprisonment; for tbis is not by duress of imprisonment, because he was in prison by course of law, for it is not accounted in law duress of imprisonment, but where either the imprisonment, or the duress that is offered in prison, or at large, is tortious and unlawful.” 2 Bac. Abr. 771. Thus it will be seen that, in the early days of the common law, duress, strictly so called, was matter of law. It was pleadable as a defense or as material to a cause of action, by alleging the existence of specific circumstances legally sufficient to constitute duress, and was established prima, facie by proving the truth of such allegations. The effect of the facts so established was determinable as an inference of law, not of fact. Oppression of one person by another, causing such person to surrender something of value or some advantage to such other, not amounting to duress within the rigorous rules of law, regardless of whether the oppression actually deprived the oppressed party of the exercise of his free will, was remediless except by an appeal to a court of equity, where a remedy was obtainable on the ground of unlawful compulsion. Id. 772.

It is interesting to follow the development of the law from the early period mentioned. To do so in this opinion would draw it out to a far greater length than is advisable; but we will proceed sufficiently to show the conflict in authorities on the subject, what has led to it, the correct doctrine at the present time, and the unsoundness of the contentions of appellants’ counsel as to the law applicable to this case when tested by such doctrine. That seems to be necessary in order to show that the theories, advanced by appellants’ counsel, to support the claim that the finding as regards respondent suffering from wrongful deprivation of his will power at the time he made the papers in controversy is not warranted by the evidence are unsound. - Those theories are: (1) Oppression does not constitute duress unless sufficient to ■overcome the will of a person of ordinary courage; (2) a threat to arrest a person, for an offense of which he is not guilty does not constitute duress; (3) a threat to arrest a person on a charge that does not constitute a criminal offense does not constitute duress. All of such theories have some support, but all are out of harmony with the real foundation principle of duress, which is that it is the condition of the mind of the wronged person at the time of the act sought to be avoided, not the means by which such condition was produced. Such theories are also out of harmony with the theory upon which duress of a contracting party renders the contract voidable as to him, which is that the free meeting and blending of the minds of contracting parties are-requisite to a binding contract.

Early in the development of the law, the legal standard of resistance that a person was bound to exercise for his own protection was changed from that of a constant or courageous man to that of a person of ordinary firmness. That, will be found by reference to some of the earlier editions of Ohitty on Contracts. See 1 Chitty, Cont. (11th ed.), 272; 2 Greenl. Ev. 301. But the ancient theory that duress was a matter of law to be determined prima facie by the existence- or nonexistence of some circumstance deemed in law sufficient to deprive the alleged wronged person of freedom of will power, was adhered to generally, the standard of resisting power, however, being changed so that circumstances-less dangerous to personal liberty or safety than actual deprivation of liberty or imminent danger of loss of life or-limb came to be considered sufficient in law to overcome such power. The oppressive acts, though, were still referred-to as duress, instead of the actual effect of such acts upon the will power of the alleged wronged person. It is now stated, oftener than otherwise, in judicial opinions, that in determining whether there was or was not duress in aj. given case, the’ evidence must be considered, having regard to the assumption that the alleged oppressed person was a-person, of ordinary courage. The learned counsel for appellants have referred to some such authorities to support their claim that the finding under discussion is contrary to law, in that the threats made to respondent, assuming his evidence to be true, were not sufficient to deprive a person of ordinary firmness of his free will power. From that it is argued that the finding is unwarranted.

That one should be led astray on the question of there being a'legal standard of resisting power, by which the sufficiency of the oppressive conduct claimed-to have produced duress in a given case must be tested, is most natural in view of the number and character of the authorities to that effect. As we have seen, the text of Chitty and of Greenleaf both so clearly indicate. In U. S. v. Huckabee, 16 Wall. 414, a case generally cited as giving a very clear definition of duress according to the modern doctrine on the subject, Mr. Justice Clieeord said: “Unlawful duress is a good defense to a contract if it includes such degree of constraint or danger, either actually inflicted or threatened and impending, as is sufficient in severity or apprehension to overcome the mind and will of a person of ordinary firmness.” On the same line, Mr. Justice Coleeick, in Hines v. Comm’rs of Hamilton Co. 93 Ind. 266, said, citing from 4 Wait, Act. & Def. 490: “ Mere threats of violence, or of prosecution, are not enough to constitute duress. There must be a reasonable ground for creating an apprehension that the threats will be carried into execution, in the mind of a man of ordinary firmness and courage, and must operate upon him directly, so as to overcome his will.” Similar language is used in legal opinions of courts of many of the states, as will be shown by reference to the following: Youngs v. Simm, 41 Ill. App. 28; Harmon v. Harmon, 61 Me. 227; Morse v. Woodworth, 155 Mass. 233; Higgins v. Brown, 78 Me. 473; Wolfe v. Marshall, 52 Mo. 167; Burr v. Burton, 18 Ark. 214; Flanigan v. Minneapolis, 36 Minn. 406; Horton v. Bloedorn, 37 Neb. 666. In the last case cited the following instruction to the jury was approved: “ The threats, if any were in fact, made, must have been of such a character as to naturally overcome the mind and will of. a person of ordinary firmness, and deprive him, for the time being, of the power of mind and will to resist the demand by the person making such threats.” Those authorities indicate adherence to the doctrine of a legal standard of resistence 'by which to test the alleged wrongful acts; also adherence, generally, to the old doctrine of the legal sufficiency of particular threats or acts to produce duress, the only change in the former element, from the ancient common law, being the substitution of resisting power of a person of ordinary firmness for that of a prudent and constant man; and the only change in the latter element being the addition of elements of less severity than actual imprisonment or danger of loss of life or limb, as being sufficient to deprive a person, of the legal standard of resisting power, of his free will, leaving the only question of fact to be determined by the jury, whether the will power of the oppressed person was in fact overcome in the particular case, the presumption, in the absence of evidence to the contrary, being in the affirmative.

It will be noted in an examination of the cases that the means used to overcome the person threatened are uniformly referred to as the duress, instead of the condition of mind produced thereby. In U. S. v. Huckabee, 16 Wall. 414, it is said, “ Decisions of high authority adopt the liberal rule that contracts procured by threats of battery to the person, or of distraint of property, may be avoided by proof of such facts.” In Harmon v. Harmon, supra, it is said that mere threats of criminal prosecution do not constitute duress without threats of immediate imprisonment. Similar language is found in Hilborn v. Bucknam, 78 Me. 485, and Thorn v. Pinkham, 84 Me. 101. In Knapp v. Hyde, 60 Barb. 80, it was held, fol lowing tbe old common-law doctrine, that in order to avoid an act on the ground of menace of arrest or imprisonment, it must appear that the menace was of unlawful imprisonment; while in Hartford F. Ins. Co. v. Kirkpatrick, 111 Ala. 456, it is said that the guilt or innocence of the alleged, wronged party, or the lawfulness or unlawfulness of the threats, are immaterial, the material and only material question being, "Was the threat made for the purpose of overcoming the will of the person threatened, and did it have that effect, and was the contract thereby obtained?

Sufficient has been said to show the conflict that exists on the subject under discussion. The moro advanced doctrine is that stated in the Alabama case cited. Under it, advantages obtained by what was considered duress by old common-law rules, or such rules as changed, in respect to the standard of resisting power which the threatened person is legally bound to exercise for his own protection or be-re-mediless at law for the consequences, and in respect to the nature of the threats deemed legally sufficient to overcome a person of the legal standard of resisting power, and also advantages wrongfully obtained, though not by duress, in law, an.d remediable as such, but remediable in equity upon the ground of unjust compulsion, are now practically in one class. Duress, in its broad sense, now includes all instances where a condition of mind of a person, caused by fear of personal injury or loss of limb, or injury to such person’s property, wife, child, or husband, is produced by the wrongful conduct of another, rendering such person incompetent to contract with the exercise of his free will power, whether formerly relievable at law on the ground of duress or in equity on the ground of wrongful compulsion.

■ The.making of a contract requires the free exercise of the will power of the contracting parties, and the free meeting and blending of their minds. In the absence of that, the essential of a contract is wanting; and if such absence be produced by the wrongful conduct of one party to the transaction, or conduct for which he is responsible, whereby the other party, for the time being, through fear, is bereft of his free will power, for the purpose of obtaining the contract, and it is thereby obtained, such contract may be avoided on the ground of duress. There is no legal standard of resistance which a party so circumstanced must exercise at his peril to protect himself. The question in each case is, Was the alleged injured person, by being put in fear by the other party to the transaction for the purpose of obtaining an advantage over him, deprived of the free exercise of his will power, and was such advantage thereby obtained ? If the proposition be determined in the affirmative, no matter what the nature of the threatened injury to such person, or his property, or the person or liberty of his wife or child, the advantage thereby obtained cannot be retained. The idea is that what constitutes duress is wholly a matter of law and is simply the deprivation by one person of the will power of another by putting such other in fear for the purpose .of obtaining, by that means, some valuable advantage of him. The means by which that condition of mind is produced are matters of fact, and whether such condition was in fact produced is usually wholly matter of fact, though of course the means may be so oppressive as to render the result an inference of law. It is a mistaken idea that what constitutes duress is different in case of an aged person or a wife ‘or child than in case of a man of ordinary firmness. As said in Wolff v. Bluhm, 95 Wis. 257, the condition of mind of a, person produced by threats of some kind, rendering him in-\ capable of,exercising his free will, is what constitutes duress. The means used to produce that condition, the age, sex, and mental characteristics of the alleged injured party, are all evidentiary, merely, of the ultimate fact in issue, of whether such person was bereft of the free exercise of his will power. Obviously, what will accomplish such result cannot justly ‘be tested by any other standard than that of the particular person acted upon. His resisting power, under all the circumstances of the situation, not any arbitrary standard, is to be considered in determining whether there was duress. The more modern text writers so state the law to be.

In Eishop on Contracts (§ 719) it is said, in substance, that the proposition found in many of the cases that the threat must be such as would excite the reasonable apprehension ■of a person of ordinary courage, is certainly incorrect; that it originated in the failure of the old writers (referring to Coke on Littleton) to distinguish between the mind acted upon and the thing menaced; that the law of contracts considers the quality of the contracting mind, and therefore holds the apparent, not real, consent of the subject or timid person, or person of inferior intellect, as invalid as that of the strongest and most independent understanding, though the latter would not have been enthralled where the former was. In the last revisions of Chitty on Contracts, brought out in 1890 and 1896 (page 199 of the latter), the old text on the subject undór discussion was changed to conform to the doctrine as stated in Eishop on Contracts. A compari.son of it with the early text is one of the best demonstrations that can be given of the great change that has taken place in the law under discussion from the early rules on the subject. The following is the new text: “It has been ■sometimes said that in order to avoid a contract entered into through fear, .the fear must be such as would impel a person of ordinary courage to yield to it. I do not think this an accurate statement of the law. Whenever from natural weakness of intellect, or from fear — whether reasonably entertained or not — either party is actually in a state of mental incompetence to resist pressure improperly brought to bear, there is no more consent than in the case of a person of stronger intellect and more robust courage yielding to a more serious danger. The difficulty consists not in an uncertainty of the law on the subject, but in its application to the facts of each individual case.”

In Ohitty’s work on Commercial Law, printed in 1824 (p. 56), it is said that “fear, which is sufficient to avoid a contract, must be a present fear, occasioned by some present or future danger, not a mere suspicion of the approach of danger, nor such an apprehension as would arise in the mind of a weak or timorous man, but such as would alarm a firm man, such as the fear of death or of bodily torment; that the fear of battery, which may be slight, will not amount to duress as will the fear of mayhem or loss of life.” In support of the later text of Bishop and Chitty, Jr., see 10 Am. & Eng. Ency. of Law (2d ed.), 341; Cribbs v. Sowle, 87 Mich. 340; Overstreet v. Dunlap, 56 Ill. App. 486; Parmentier v. Pater, 13 Oreg. 121; Earle v. Norfolk & N. B. H. Co. 36 N. J. Eq. 192; Jordan v. Elliott, 12 Weekly Notes Cases, 56; Williams v. Bayley, 1 App. Cas. 200; Scott v. Sebright, 12 Prob. Div. 21.

From the foregoing it will be seen that the true doctrine of duress, at the present day, both in this country and England, is that a contract obtained by so oppressing a person by threats regarding his personal safety or liberty, or that of his property, or of a member of his family, as to deprive him of the free exercise of his will and prevent the meeting of minds necessary to a valid contract, may be avoided on the ground of duress, whether the oppression causing the incompetence - to contract be produced by what was deeined duress formerly, and relievable at law as such, or wrongful compulsion remediable by an appeal to a court of equity. The law no longer allows a person to enjoy, without disturbance, the fruits of his iniquity, because his victim was not a person of ordinary courage; and no longer gauges the acts that shall be held legally sufficient to produce duress by any arbitrary standard, but holds him who, by putting another in fear, shall have produced in him a state of mental incompetency to contract, and then takes advantage of suck condition, no matter by what means such fear be caused, liable at the option of such other to make restitution to him of everything of value thereby taken from him.

The law as indicated, though not discussed at any great length in previous adjudications of this court, has always been the ruling principle of its decisions. In Brown v. Peck, 2 Wis. 261, it was said that if menaces are used, or equivalent acts of violence, such as to have an undue influence upon the party and to prevent the exercise of his own free will in executing the contract, it is voidable. True, the court was there speaking of the power of a court of equity to remedy a wrong, but the situation calling for such remedy was, as the court said, that there was no contract existing between the parties for want of assent by one party on account of the oppression to which he was subjected on behalf of the other.

In City Nat. Bank v. Kusworm, 91 Wis. 166, and Wolff v. Bluhm, 95 Wis. 257, the doctrine was stated.in effect thus: Where one, by the wrongful act of another, is put in fear and thereby induced to make a contract or to forego some act under circumstances which deprive him of the exercise of His free will, duress exists; the wrongful act does not constitute the duress, but the condition of mind produced thereby. The act must be of such a nature and made under such circumstances as to constitute a reasonable, adequate cause to control the mind of the threatened person, and must have that effect; and the act sought to be avoided must have been performed by such person while in such condition. It will be noted that it was said, the cause producing incompetency to contract through fear need only be reasonably sufficient to overcome the will power of the particular person acted upon. That it may be more or less than that required to overcome the mind of a person of ordinary firmness, according as the person acted upon is above or below the average in mental ability to protect bimself against the influence of fear, is obvious. There was unnecessarily added to a correct statement of the law, in Wolff v. Bluhm, a reference to the doctrine of the supreme court of Maine, as to the sufficiency of certain circumstances to constitute duress, not in harmony «with the law as stated in this opinion. An arbitrary rule, that a threatened lawful arrest and imprisonment not implying harsh or unreasonable use of criminal process, and where no warrant has been issued and there is no danger of the threat being immediately carried out, is not sufficient .to produce duress, seems unreasonable. Such, however, is the doctrine of the supreme court of Maine, and tho cases supporting it will be found very generally cited by text writers and judges. That rule goes naturally with the doctrine that every person, without regard to actual mental power, is bound to come up to the standard of average men in that regard or suffer the consequences.

We have now reached a point where it clearly appears that the contention of counsel for appellants, that the testimony of the plaintiff, undisputed, is legally insufficient to produce duress, cannot be sustained, and it remains to be seen whether the finding that duress was in fact produced by the conduct of Sutherlcmd and his confederate, Lcmgdon, is contrary to the clear preponderance of the evidence.

Looking at the testimony of the several witnesses, as printed in the record, it is by no means certain but that the evidence preponderates to the side of the appellants, and that no clear case is made out such as is required to impeach a transaction for fraud. Rut when the circumstances disclosed are taken into consideration, the interest which the different witnesses had in the result, the opportunity that each had for knowing the facts in respect to which he testified, and everything appearing that aids in weighing the -evidence and determining where the truth lies, doubt is produced as to the correctness of tbe findings, which is reasonably resolved in their favor by giving due weight to those things which were available to the trial judge, and presumably were considered by him, that could not be made a part of the record. This is peculiarly a case where opportunity to see the witnesses and observe their manner while testifying is of great importance in judicial search after truth. That the learned judge who made the findings studied the situation with the light th^t such opportunity cast upon it cannot be doubted, and the result is embodied in the findings which we are asked to reverse. There is a finding that respondent is a very nervous man and easily subject to be imposed upon in the manner in which it is claimed he was wronged. That circumstance was of importance in the case. There is very little evidence in the record in regard to it, but it is obvious that a personal study of the man during the trial, by one skilled in such matters, could hardly have failed to reveal the truth, without any direct evidence of the fact. Considering respondent as a man of average firmness, intelligence, and experience, it wóuld be unreasonable to say that the preposterous assertions of Langdon and Sutherland, as to what they could and would do with him in the event of his not settling the Sherman claim, emphasized even by loud and vehement expressions, by profanity and gesticulations, would have affected him otherwise than by producing anger, amusement, or disgust; but a view of respondent and study of him in court may easily have satisfied the trial court that he was a man liable, under the circumstances in which he was placed, to be deluded, and to regard falsehood as truth and mere shamming as serious reality.

The record shows that a hard-working,middle-aged farmer,not of sufficient intelligence to know his legal rights, was, without previous negotiations for a settlement of an existing doubtful claim, sued upon it for a sum perhaps in excess of bis entire fortune, the papers being served by a shrewd person specially erhployed for that purpose, instead of by an officer; that on the same day such person accompanied the defendant to the presence of the plaintiff’s lawyer, and that an agreement was there obtained from such defendant to pay, in settlement of the controversy, an amount representing a large portion of his entire property,— probably the accumulation of many years of labor,— and to secure such agreement by a mortgage upon his home. The transaction, of itself, is unnatural and unexplainable upon any reasonable theory other than that respondent was a weak man, easily influenced, and that considerable pressure was put upon him to produce the result accomplished. The probabilities point that way in the absence of evidence explaining how the thing was brought about. The explanation on the part of appellants is that respondent went to Sutherland's office of his own free will and out of a desire for an immediate settlement of the claim on the best terms possible, and that he desired the presence and assistance of Langdon. That explanation does not strike one as reasonable. Why should respondent desire, expect, or rely on help from the agent of the attorney for the adverse party in. making a settlement? Why did he not go to some neighbor, acquaintance, or friend, or some lawyer, for counsel instead of relying on Langdon? Those questions are not answerable from the record except by respondent’s own evidence that he was induced, by Lcmg-don's threats, to believe that it was best for him to visit Sutherland and settle immediately in order to avoid arrest and imprisonment. Why did he finally settle with the attorney for the adverse party and agree to surrender, in satisfaction of the claim made upon him, such a large proportion of his property, without taking time for reflection or making an effort to obtain counsel, when he could not have been prejudiced by waiting at least till near the expiration of the twenty days allowed in which to answer the complaint, before making a settlement ? Nothing in the record furnishes an answer to that, except the evidence of respondent that he was threatened with arrest and imprisonment if he did not submit to the demand for a speedy settlement. The very fact that respondent went to the office of Sutherland and settled a claim of such a serious nature in the manner in which the settlement was made, without an effort to take counsel in respect to it, is a very strong circumstance tending to show that he was of that mental make-up liable to be controlled and moved to action, to his disadvantage, by fear.

Looking to the direct evidence of what occurred, that of respondent and Langdon in regard to the threats made when the papers were served is in direct conflict. The probabilities, however, are in favor of the former. That of Langdon and Sutherland as to what occurred at Sutherland's office is in direct conflict with that of respondent; but the probabilities are rather in favor of the truth of*he material part of the respondent’s story, to the effect that he was actually threatened with arrest and imprisonment unless he made the settlement demanded, and was told and-made to believe that the offense alleged against him was one that might subject him to arrest and punishment by a long term of confinement in state prison.

We have not overlooked any of the evidence bearing on the question under consideration. It has all been read with care. Respondent may be mistaken as to having been locked in a room with Sutherland, but there is no dispute but that he was taken into Sutherland's private room where what was said between the two could not readily be heard by persons in the general office if the door between the two 'rooms was closed; and there is evidence independent of respondent’s testimony, showing that such was'its condition at least part. of the time. It may be that Sutherland did not use profane language in threatening respondent, and that when the former went into the main office after the settlement agreed upon the persons there did not observe in him any appearance of excitement, yet it be true that he threatened the respondent with arrest and imprisonment, and produced in his mind a conviction that such would be the result of a refusal to speedily settle the claim, and that he was thereby rendered incapable of exercising his judgment in respect to complying, or refusing to comply, with the demand made upon him; and that in taking the latter course he merely carried out Sutherland's will instead of his own. As we view the record, the issue as to whether the threats were made as claimed turns on the evidence of respondent on the one side, and Sutherland and Langdon, considered practically as one person, on the other, and the circumstances characterizing the whole transaction. The unnaturalness of the occurrence of giving the note and mortgage, under all the circumstances, except as explained by mental weakness on the part of respondent and fear of punishment as a criminal if he did not settle the claim made upon him, is such that in view of the corroborating evidence we cannot say but that the trial court’s determination, that respondent’s story is in the main true, is ’ correct. There is evidence to the effect that the attorney declared, to persons who partook of the alleged impure meat with Sherman, that he had scared respondent into a settlement of the Sherman claim, for the purpose of inducing them to make a like claim. That evidence is disputed, it is true, but it cannot be ignored. There is also the circumstance of the attorney and his alleged confederate arming themselves with a written direction from respondent for his wife to sign the papers, and their going to his farm immediately after he executed such papers to obtain her signature thereto in the absence of her husband. It undoubtedly appeared to the trial court that if respondent had been anxious to make the settlement, as appellants claim, and acted of his own free will, he would have taken the attorney to his home to obtain her signature to the papers in his presence, or would have procured her-presence at tbe attorney’s office; and that no unusual or hasty method would have been resorted to for the purpose of obtaining such signature. There are many other circumstances to which special reference has not been made, that throw some light on the transactions under consideration, but further discussion of the evidence is unnecessary. We are unable to say that the trial court was not justified in-saying that the charge of duress was established by clear and satisfactory evidence. True, in a case of this kind the facts essential to the cause of action must be established by a greater degree of certainty than in a case where fraud is-not the foundation of the cause of action; but when a trial court says that the requisite certainty is established by the evidence, that decision must prevail on appeal unless clearly wrong.

The finding of fact to the effect that appellant Soallon- and his assignor are each chargeable with notice of the manner in which the note and mortgage were obtained from respondent, cannot be disturbed. It is not deemed necessary or advisable to discuss the evidence in regard to it. There-are many circumstances shown tending to prove that the-transfer of the securities was made, first to Sutherland and then to Soallon, in order to avoid the very attack made upon them by the bringing of this action. Moreover, as respondents’ counsel contends, since the note was payable to Sher-mans order and was not indorsed by him to Sutherland on-by Sutherland to Soallon, the latter cannot claim the protection of the law merchant. . He stands in precisely the-same position as Sherman did, the note being subject to all the equities of the respondent the same as if no transfer of it had taken place. Terry v. Allis, 16 Wis. 478; Howard v. Boorman, 17 Wis. 459; Daniel, Neg. Inst. § 741, and cases cited.

By the Court.— The judgment of the circuit court is affirmed.