167 P. 789 | Or. | 1917
delivered the opinion of the court.
W. S. Phillips, who at the time the note was executed was the plaintiff’s manager at Portland, Oregon, testified that his principal, retaining the title, consigned pianos to L. F. Savage, who was authorized to sell them, retain his commission, and send the remainder of the purchase price to the plaintiff, and that such broker sold musical instruments receiving therefor $650.95 as the plaintiff’s part of the money, which he converted to his own use. J. F. Savage testified that having been called by a phone message from a farm where he was living to Salem, Oregon, on the day the note was given he met W. S. Phillips, who informed him that L. F. Savage had sold pianos belonging to the plaintiff and embezzled all the money received therefor; that such manager requested the witness to sign a promissory note for the sum so appropriated; that he refused to comply with the request because he was unable to pay that amount, whereupon Mr. Phillips, referring to L. F. Savage,
“then told me the boy would be prosecuted if there wasn’t something of the kind dune, if I didn’t sign the note, or the money wasn’t coming, one way or the*642 other. * * A kind of dispute arose between my son and Mr. Phillips, and Mr. Phillips told my son that he was lying, and told him if he didn’t quit lying he would send him to the penitentiary; that is where he ought to be anyhow; that he ought to go there from the way he was doing. * * We finally got together and I signed this note under protest, thinking the boy would be prosecuted. * * That was the terms under which I signed the note, for to save my son from prosecution. * *
“Q. Now, Mr. Savage, what was the inducement and sole cause that impelled you to execute this note and subsequently pay a part of the principal and interest?
“A. Why, to save my son from being prosecuted, was the only motive I had in it. I owed them nothing, never had owed them, nor my son, a dollar.”
W. S. Phillips further testified:
“That no threat or insinuation of threat was made by him to, or in the presence of, defendant that L. F. Savage, the defendant’s son, would be prosecuted or sent to the Oregon State Penitentiary, or other criminal proceedings taken against him in the event said note was not jointly executed and delivered by defendant. ’ ’
Based upon this testimony an instruction was given as follows:
“Not every threat of imprisonment or of prosecution for a supposed crime will constitute duress. I charge you, gentlemen of the jury, that before the defendant J. F. Savage can avoid liability in this action on the ground of alleged threats constituting duress inducing the execution of the note, you must find from a preponderance of the evidence that such threat was made by plaintiff importing ah illegal, wrongful imprisonment, or that such threat was made by the plaintiff importing a resort to a criminal prosecution for an improper purpose or from a wrongful motive, and you must futher find from a preponderance that such threat was accompanied by such circumstances as would indicate a prompt or immediate execution of the*643 threat. And in case you fail to so find I charge you, gentlemen of the jury, you will find for the plaintiff and against the defendant upon this defense. * * A threat of lawful arrest of a person justly amenable to criminal prosecution does not constitute duress, and an instrument executed under pressure of such threat, there being no circumstances of oppression or fraud, is not void upon that ground.”
“The courts differ on the question as to whether threatened lawful imprisonment constitutes duress. If the threatened imprisonment is unlawful, duress exists. If the threat is of lawful imprisonment, but it is unlawfully used to obtain the contract, duress exists.”
That case was a suit by a wife to set aside conveyances of her real property which she had executed at the request of her husband and upon his representations of threats of imprisonment in order to avoid his arrest and prosecution for the commission of a crime and to secure the payment of a sum of money which he had misappropriated. The first deed so made was
The testimony received at the trial of this action shows that L. F. Savage was indebted to the plaintiff in the sum evidenced by the promissory note on account of money which he had received from the sale of its pianos and converted to his own use. The question to be considered is whether a legal obligation thus created can form the basis of a threat to institute criminal proceedings against the accused, which menace when made by a creditor to induce a father or mother, husband or wife, parent or child, brother or sister to
‘ ‘ The courts are not in accord as to whether duress may be predicated on threats of the lawful prosecution of a child. Thus in some jurisdictions it is held that a threat of lawful prosecution against a child does not constitute duress in such a sense as to discharge the parent from a contract induced by such threats. * * But in other jurisdictions the rule is stated to be that a threat made to a parent to obtain the arrest of his child on a criminal charge constitutes such duress as will serve to vitiate a contract, if the threat in fact overcomes the will, without reference to the question whether it is a threat of a lawful arrest for adequate cause. * # It is generally held that a contract made by a parent to stifle the criminal prosecution of a child, where the child is in fact guilty of the offense, is against public policy as compounding a felony and is illegal and void.”
See the cases cited in that note supporting the conflicting legal principles thus asserted.
It is a creditor’s threat to offer in a court the necessary testimony of the commission of a crime by a child, which evidence may result in his conviction and punishment of the offense, that induces his parent to secure the payment of or to discharge the debt and thus to suppress the criminal prosecution. Such threats whether true or false tend to arouse a parent’s fears, disturb his mind, and usually to render him, for some time, incompetent to transact ordinary business. To permit a creditor, after communicating such threat to a parent, to take advantage of the mental disturbance which he thus creates in order to reap a profit which he could not otherwise obtain would be sanction
The lawfulness or unlawfulness of the threatened prosecution herein when made to the father is immaterial, and this being so an error was committed in charging the jury as hereinbefore stated.
“If you find in this case that the note in question was executed by the defendant J. F. Savage under duress, as alleged in his answer, but that after the removal of the duress, if it was removed, such defendant voluntarily made a payment or payments on the note, that such act on the part of J. F. Savage operates to remove the defense of duress in this case, and if you so find from a preponderance of the evidence, you will re*647 turn a verdict for the plaintiff and against the defendant, so far as this defense is concerned.”
By reason of the error committed in giving the instruction first hereinbefore quoted the judgment is reversed and a new trial ordered.
Reversed and Remanded.
Rehearing Denied.