53 Kan. 146 | Kan. | 1894
The opinion of the court was delivered by
Dalton, the plaintiff below, claimed damages for a breach of a verbal contract with McCormick, the defendant below, to grade a mile of the roadbed of a railway. The principal defense was, that after some preliminary conversation between the parties concerning grading, a written contract was finally consummated between them for the grading of one-half a mile only. Upon the trial, the court instructed the' jury that, if they believed the written contract was the only one entered into between the parties, Dalton had no case whatever. Dalton testified upon the trial, among other things, that after the verbal contract had been made, and on or about the 14th of August, 1887, a written contract was presented to him by McCormick, which he refused to sign, giving as his reason that the contract was not as previously agreed upon; that McCormick, on his refusal to sign the contract, said to his men, “I will stand good for no more work you do for Dalton,” and “that he [Dalton] could sign the contract or stop work;” that he (Dalton) “rested a few days, and, after studying over the matter, signed the contract for the grading.” He was unable to carry on the work, on account of his financial condition, unless McCormick paid the men or stood good for their pay. Upon the trial, this evidence was objected to, but the court overruled the objection,
“The defendant denies in tato that he made any contract with the plaintiff for him to grade one mile. On the contrary, he claims that he entered into a written contract with - him (which was the only contract he did enter into), which was finally consummated for one-half mile, and that the plaintiff graded the one-half mile, and he paid him for it. Now, if you believe that is the contract, then the plaintiff has no case whatever, and you must find a verdict for the defendant. If they simply had a talk or had negotiations about one mile, but afterward it all culminated in a written agreement for one-half mile, then, of course, the plaiptiff-cannot recover; but if the contract was a verbal contract for one mile, and af-terwards the defendant, by duress and b.y taking an unfair means, compelled him to accept a written contract for this half mile, and he afterward insisted on his right to grade the other half mile and was not allowed to, the plaintiff may recover the damages he has suffered.”
It is apparent from the evidence given by Dalton upon the trial that the execution of the written contract was not procured by duress. (Cable v. Foley, 47 N. W. Rep. [Minn.] 1136; Hackley v. Headley, 8 id. [Mich.] 511; Peckham v. Hendren, 76 Ind. 47; Emmons v. Scudder, 115 Mass. 367.) Duress, in its more extensive sense, is that degree of constraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or in apprehension to overcome the mind and will of a person of ordinary firmness. Text writers divide the subject into “duress per minas,” and “duress of imprisonment.” (See Anderson v. Anderson, 9 Kas. 112; Helm v. Helm, 11 id. 19; National Bank v. Croco, 46 id. 620.) The reply was a general denial, unverified. No duress was alleged.
The remark of the court, that “Dalton signed the contract under duress,” followed by the instruction that, if McCormick compelled Dalton by duress to accept the written contract, he was entitled to recover, was misleading, and, under the facts
Whether the alleged verbal contract was merged into a subsequent written contract, was a question for the jury to determine, upon proper instructions. Upon the theory of the trial court, the written contract was wholly eliminated from the case, because there could be no merger or any substitution of the written contract for the verbal one, if the written contract was executed under tluress.
The judgment of the district court will be reversed, and the cause remanded for a new trial.