Graham v. Marks & Co., 98 Ga. 67

Graham v. Marks & Co.

98 Ga. 67 | Ga. | 1895

Atkinson, Justice.

The official report states the facts.

1. The execution of a promissory note, although under *70moral or physical constraint, may nevertheless bind the maker to its payment, provided it rest upon a sufficient legal consideration. Assent may, in a legal sense, be free, notwithstanding the person assenting be induced thereto by fear of an impending evil to which, by reason of his own conduct, he has become lawfully exposed. It is therefore that the maker of a bond or promissory note upon a sufficient consideration otherwise legal, is held to be bound notwithstanding he execute the instrument to relieve himself from imprisonment and arrest, provided the imprisonment and arrest be not illegal, or, being legal, be not in the • execution of an illegal purpose.

The presumption is that every arrest by an officer authorized to make it, is legal and is done in the execution of a legal purpose; and hence when, in order to relieve himself from the custody of an officer, a person so arrested executes a promissory note, upon a consideration otherwise sufficient, but with the further understanding and with the further purpose to secure his release from such arrest, and is after-wards sued thereon, in order to discharge himself from liability he must plead and prove, either that the arrest and imprisonment were illegal, or being legal, the processes of the law wei*e prostituted to the accomplishment of an illegal purpose.

A surety upon such a paper is presumed to have knowledge of the circumstances surrounding his principal at the time he becomes his surety; and hence, in order to discharge himself from liability upon Ms contract, he must not only plead and prove, either the duress of his principal by unlawful imprisonment, or duress by lawful imprisonment but for an illegal purpose, and, in the latter event, must prove not only the duress of the principal, but likewise his ignorance of such duress at the time he became surety; for if he know of the imprisonment, it being legal and not used for an illegal purpose, his risk is in no measure increased by any fact unknown to him, beyond that of a surety under ordinary cir*71■cumstances. If he incur a greater peril because of Ms becoming surety for one so circumstanced, he does it of Ms •own free will, and there is no good reason in law or morals why he should not respond.

Tested by the principles above announced, the plea of the •surety, the defendant in the present case, in so far as the ■same rested upon the duress of the principal, whether acconqolished by threats or imprisonment, was wholly insufficient. It will be observed that there is no averment that the arrest of Davis was without authority of law; that his imprisonment was illegal, nor that, being legal, it was accomplished for an illegal purpose. The nature of the transaction by means of wMch Brown Brothers were alleged to have been defrauded was not outlined, nor is the nature of the process or action under which they undertook to bring .about the imprisonment of Davis disclosed. It is possible for his arrest to have been perfectly legal; for if in buying lumber from Brown Brothers in Alabama he had intended to defraud them, the title would not have passed, and it ■would have been competent for them to have sued out bailtrover and thus held the principal to bail. Indeed there are many purposes for which in connection with this matter he might have been lawfully arrested, and none of these are negatived by an averment in the plea as to how and in wThat manner the arrest was unlawful, nor, being lawful, to what unlawful use the processes of the law were being employed. We are bound to presume then that what was done was. accomplished in some lawful manner. There was ample' consideration, in the pre-existing indebtedness of Davis to Brown Brothers, to support the promise of the principal. The surety had full knowledge of all the facts, signed the note to bring about the discharge of the principal from lawful custody, accomplished that result; and accordingly, in -so far as the averments of her plea sought to negative her liability, she was legally bound. 2 Woods’ Reports, 372; 75 Ga. 549 (3); 81 Ga. 804.

*722. The plea of the surety to the effect that she was induced to sign the note because of the promise of the arresting officer to secure the appointment of her principal to an office -of public trust and emolument, was wholly without merit. Admitting that the promisor had authority to make the appointment, if the averments of the plea be true, the contract could amount to nothing more than a corrupt bargain upon the part of the surety to buy, and. upon the part of the officer to sell, a public office. Such transactions the law does not countenance, and therefore propositions of that character coming from the officer to the-surety could not, in contemplation of the law, mislead her. There was sufficient consideration to support the promise of the surety in the legal obligation of the principal to pay. So that while the matter stated might have operated upon the mind of the surety as an inducement to become such, it was no part of the consideration upon which her obligation to pay rested; and it is only where the element of illegality enters into and infects the consideration of the contract, that the law pronounces it void. The law charges every person with knowledge of its limitations upon the power of public officers, and of the barriers which it throws around public office to protect it against influences which tend to corrupt. Therefore the surety must have known that the officer had no right to make,-much less power to execute his promise; and therefore such representations could not possibly have misled or induced her to act to her prejudice.

3. In so far as the plea attempted to allege that it was given for the purpose of settlement of a criminal prosecution, it was entirely without merit. It pleaded a simple-conclusion of law. It did not allege that the principal had committed any offense, or aver the facts from which the court could determine either that he was being prosecuted or the nature of the offense charged against him. In the-absence of such averments, it could not be judicially determined that the note was given for the purpose of suppress*73ing a prosecution. Tbe demurrer admitted only such facts as were well pleaded, but does not admit conclusions either of law or fact, where the facts are not averred upon which such conclusions are supposed to rest.

Judgment affirmed.