Pembroke v. Hayes

114 Iowa 576 | Iowa | 1901

Sherwin, J.

1 2 1't was a question of fact to be determined by the jury whether the $1,000 note given the defendant by the plaintiff was to cover the agreed commission to be paid the defendant if he sold the plaintiff’s farm. If that was the only consideration which entered into it, nothing was due the defendant thereon, for it is a conceded fact that he did not make the sale. This issue the jury found in favor of the plaintiff. The further question whether the payment of this note by the plaintiff at the time and under the circumstances claimed by him was under duress, as defined by the trial court, was also determined in favor of the plaintiff. Both of these findings are supported by the evidence to such an extent that we cannot interfere therewith. No claim is made that the payment of the $1,000 note was made under duress of the person. That there may be such duress of property as to avoid a contract or a payment is well settled. Cooley, Torts, 506; 1 Bouvier Law Dictionary, 575. The instruction covering this branch of the case announced the correct rule of law. Joannin v. Ogilvie, 49 Minn. 564 (52 N. W. Rep. 217, 16 L. R. A. 376); Fargusson v. Winslow, 34 Minn, 384 (25 N. W. Rep. 942) ; Brumagin v. Tillinghast, 18 Cal. 265 (79 Am. Dec. 176) ; Radich v. Hutchins, 95 U. S. 210 (24 L. Ed. 409); Lonergan v. Buford, 148 U. S. 581 (13 Sup Ct. Rep. 684, 37 L. Ed. 569); Chandler v. Sanger, 114 Mass. 364, (19 Am. Rep. 367). There was no error in permitting the plaintiff to testify what the consideration for the note was.

Counsel for the plaintiff was somewhat sarcastic in his references to the defendant, in argument, but no error appears for which we should reverse.

3 The motion to strike appellee’s additional abstract because not filed within the 10-day rule is overruled, because it does not appear that the submission of the case has been delayed on account thereof, nor that the defendant has been prejudiced thereby. McDivitt v. Railway Co., 99 Iowa, 141.

The judgment is affirmed.