62 Pa. Super. 70 | Pa. Super. Ct. | 1916
Opinion by
In this action of assumpsit in the Municipal Court, the plaintiff, after' offering the notes in suit in evidence, rested his case, and when the defendant had adduced evidence in support of his defense, the plaintiff did not offer any testimony in denial or explanation thereof, so that the undisputed facts are as follows:
Minnie Schwartz, the defendant’s daughter, had been for several years in the employ of the Keystone Trading Company, of which the defendant Avas the treasurer. At a meeting of the officers of the company, when the president, three directors and a member of the bar who was the general counsel of the company were present, the defendant appeared in response to a notice from the president, and was informed by the counsel who was also a director, that the daughter was accused of stealing trading stamp books. After some conference between the parties a demand for $2,500.00 was made to cover the alleged loss, which sum was afterwards reduced to $1,-500.00. The statements by the counsel, in the presence of the other directors and who spoke for them, were — “If you will not produce the $1,500.00 then positively we will take action. I will arrest her and she will be in jail —your daughter positively shall be arrested.”
The defendant testified, they were going to arrest my daughter and put her in jail. I had a week or eight days to talk about it. If she was guilty she would have to go to jail. They said, “If I go away from the office and not make the settlement, my daughter will be arrested and put in jail.” I went around to the attorney’s office and begged him again and again, and he said, “Well, it is no use. I know your people have money and you want so
The defendant was corroborated, as to the statements made 'at the meeting, by the testimony of his counsel, viz: “The understanding was, if he paid $1,500.00, why no action or prosecution would be brought against his daughter, and if he did not pay it, the board of directors intended to prosecute her for stealing these trading stamp books.” I told Schwartz not to pay the money, told him he was a fool if he did. He was very highly excited and nervous, he was crying in my office, in spite of my advice he insisted on making some settlement.” The understanding was, “that if he paid the money there would be no prosecution.” To satisfy Schwartz, a writing was given him reciting that — the Trading Stamp Company had made claim against Jacob Schwartz for the value of stamps alleged to have been taken by his daughter; it had been concluded to adjust the matter in dispute amicably, without resort to courts of law; that Schwartz has agreed to pay to the Trading Stamp Company the sum of $1,500.00 “in consideration of the agreement of the said company not to enter any suit or prosecution at law against the said Minnie Schwartz by reason of the premises” and on payment of said sum Minnie and Jacob Schwartz were to be released, etc., from all manner of actions, claims, etc., “whatsoever in law equity or otherwise.” This was signed by the president, with the corporate seal of the company and witnessed by its attorney, who had effected the settlement.
It is not pretended that Jacob Schwartz owed the Trading Stámp Company anything, or that the amount he agreed to pay was his debt or liability in any sense or, even accurate in amount as to the alleged defalcation, it being only the guess work of the directors; they could not ascertain any definite number of books that had been taken or by whom, nor was their value stated. They suspected Minnie Schwartz of being a thief, and fixed the amount of the reprisal at a sum near as they could determine the ability of Jacob to pay. We are not dealing with the criminal phase of the transaction in compounding an alleged felony, the only question being the sufficiency of the evidence to avail as a defense to the action on the notes, which were signed under the circumstances above given.
Agreements founded on the suppression of criminal prosecutions are void, as they have a manifest tendency to subvert public justice. The testimony adduced on the trial, taken with the so-called release, can have but one meaning, that testified to by the counsel for Schwartz— “if the money was paid by Jacob Schwartz, there would not be any prosecution of Minnie Schwartz,” and if not so paid, then as stated by counsel for the company, “positively we will take action, arrest her and she will be in jail.” This was the only consideration of the notes. As stated by Judge Moschzisker in' Sulzner v. Miller Co., 234 Pa. 162, “The doctrine which is now approved by the judicial mind, both in this country and in England, is, that any contract produced by actual intimidation ought to be void, whether arising from the result of merely
The view taken by the trial judge was erroneous, and the question should have been submitted to the jury under proper instructions, so that that body would estimate the value of the evidence and determine its credibility : Haller v. Haller, 45 Pa. Superior Ct. 409.
The judgment is reversed, with a venire facias de novo.