26 Neb. 295 | Neb. | 1889
This is an action of replevin brought by the defendant in error against the plaintiff in error, to recover the possession of certain law books and book cases. On the trial
Q,. Do you remember about the time Mr. Sanford removed to Saunders county, Mr. Sornborger?
A. Yes, sir.
Q,. You may state to the jury when it was.
A. It was in the fall of 1882, I believe — early in the winter.
Q,. You may state what business transactions you had with him, soon after that, if any.
A. Mr. Sanford and his son made their business headquarters at my office in the winter of 1883; that is, early in the winter or along in the spring of 1883. I don’t remember the time. I think it was in the spring, along perhaps in April or May, we had a settlement of our affairs.
Q. Well, what did you arrive at in that settlement? What difference did you find between you?
A. I can’t recollect the amount, but it occurs to me that it was in the neighborhood of $6,000,
Q. In whose favor was that?
A. In favor of Mr. Sanford.
Q. Well, what was done in reference to that settlement^ if anything?
Q,. What followed then subsequent to that?
A. Prior to that time, some time in 1881, he loaned me the special or peculiar loan upon which he had no written evidence, unless it was my letters — an arrangement by which if I could make any deals on my own account in the way of purchasing personal notes or securities of that kind, I might draw on him for the money necessary until he told me to stop; I believe that was the arrangement, and I had agreed that that paper should, I think, stand as his security; that is, that he — I don’t think as stated by Mr. Gilkeson in the opening that it was agreed that the paper should be taken in his name; at least I never took any in his name in that deal. The amount of money that I got of him for that purpose amounted to somewhere between $3,500 and $4,000; I was to pay him ten per cent, and if I could make any money over and above that, why I did it, and sometimes got discount and discounted paper; and it was understood that that should stand for his security in the matter; that is,'such paper and security as I
Q,. What further conversation .did you have at that time about it, if any ?
A. Well, I was scared about the matter, nervous; did not want to be prosecuted.
Q. What did you tell him then ?
A. Well, I told him that I would take it and consider the matter; that I did not know whether — did not believe that he had a case; did not know, but would let him know later. We had considerable talk about it and he went out.
Q,. Was there anything said in that'conversation in reference to your business there, or the effect of a prosecution of that kind by either party?
A. No, sir; I think before that time he had made a remark in the first talk that he should regret very much to make me any trouble, or injure my business, and I had concluded from that that he was not going to make any ■disturbance about the question one way or the other.
Q. Now did you, before the execution of the mortgage, have any conversation with him in reference to the security?
A. Yes, sir.
Q. When was that?
A. That was the day before the execution of this mortgage.
Q. When was that with reference to this conversation you have just related?
Q. Was there any one present in the office at this conversation which you have detailed ?
A. My brother was there.
Q. He came back the next day, or the next day but one, again, in pursuance of your agreement?
A. Yes, sir; he came back the next day, or the next day but one — I don’t remember; it was the day before the final execution of this mortgage.
Q,. Well, what occurred then?
A. He came into the office and wanted to know what I had made up my mind to do, and I said, Mr. Sanford, I cannot execute a mortgage on my library; and he at once says, Then I propose to prosecute you as far as I can; I propose to have this settled my way, and I can’t take anything else.
Q. Well what further was said at that time?
A. He said, Then I propose to prosecute you at once. My brother was in there then; he had gone out, though, in the meantime, when this conversation had taken place, and we sat and talked, and after that, after he had gone, he told me again that he did not want to make me any trouble; that he regretted to do it; that he knew it would be injurious to my business, and he did not want to do that; but that he proposed to have this matter secured right now; that I had been guilty of certain irregularities with which he charged me, and guilty of this embezzlement, and he finally got my consent that I would execute this mortgage. The mortgage was not then filled out. He Avent away from the office with the agreement that the next morning we should fix it up and make this mortgage.
Q. What was the agreement about making it, preparing it, doing the clerical work ?
A. The question arose then about describing the library,
Q,. Do you know whether or not Judge M. B. Reese was prosecuting attorney in this district at that time ?
A. I suppose that is not the best testimony; I know he had been; I don’t know that he was then, Mr. Simpson,' anyway; I can’t tell as to that anyway.
Q. Was you alarmed at those threats of Mr. Sanford? You may state what effect those threats had upon you, if any, in reference to the execution of this mortgage.
A. Well, I was scared; I had been all the way through, from the time he first — I had been very much excited about the matter from the beginning of his first threat, beeause'I knew that a prosecution, whether it was well or ill founded, would be my practical ruin in this place, especially by him under the circumstances.
Q,. You may state what effect it had upon the execution of this mortgage?
A. That threat was the father of that mortgage; if it had not been for the threat, there would not have been any mortgage.
The defendant in error in his cross-examination evades a direct answer to a number of questions asked, particularly in regard to certain notes, amounting to from $2,000 to $2,500, which notes, it is claimed, belong to the plaintiff in error, but whicli the defendant in error had delivered to the First National Bank at Fremont to secure a loan to himself. In July, 1881, the defendant in error wrote to the plaintiff in error in regard to proposed loans, as follows: “During the spring and summer I have been
Q. Was you not very badly scared at that time?
A. The statute of limitations had run against anything he could possibly do.
Q. For a criminal prosecution ?
A. Yes, sir; I knew he would not be fool enough to commence an action when he knew the statute had run against anything he had.
Q. You felt satisfied that you could not go to the penitentiary ?
A. You bet I did, then; and I wasn’t quite sure of it before.
George I. Wright, an attorney of Wahoo, testifies that on or about the 30th day of June, 1883, and soon after the
This testimony is not denied. There is also a letter in the record, written by the defendant in error to his wife on. the very day on which the mortgage in question was written, in which he says: “ To father and mother I am under lasting obligations for kindness shown by them even in what was to them trying emergencies.” This letter was objected to as “incompetent, immaterial, and irrelevant, shows-on its face to be a communication to the wife of the plaintiff in this case, and is privileged.” The letter was thereupon excluded, to which exception was taken. This is not an action between husband and wife, and the rule is well-settled that where papers or letters are offered in evidence-which are pertinent to the issue, they should be admitted, and the court will not form a collateral issue to determine-whether or not they were lawfully obtained. (Geiger v. State, 6 Neb. 545; Legatt v. Tollervey, 14 East, 302, 306; Commonwealth v. Dana, 2 Metc. [Mass.] 337.)
The person referred to as “ father ” in the above quotation from the letter, was the plaintiff in error.
On the 11th day of November, 1885, the plaintiff in-, error sought to take possession of the property in question for the purpose of foreclosing his mortgage. The testimony tends to show that the defendant in error stated that he was ready to give up possession of the property, and that an
In Hullhorst v. Soharner, 15 Neb. 57, where there was no consideration for the note and mortgage, and the testimony showed that it was obtained by means of threats to send the maker thereof to the penitentiary for an alleged, “indelicate, indecent, and injurious, examination of the daughter” of the mortgagee Avhile treating her for a female difficulty, it was held that there was no consideration for the note and mortgage, and that it was obtained by threats of unlawful imprisonment and degradation. That case, however, seems to have no application to that under consideration.
In Mundy v. Whittemore, 15 Neb. 647, where a husband was charged with embezzlement and his wife gave a mortgage upon her separate property to secure the debt, it was held that the proof failed to show that the instrument was executed under duress.
The fact that a party is indebted to another and liable to a criminal prosecution, will not defeat the validity of an instrument given to secure such debt, unless it has been obtained by violence and undue means. It is those contracts
If this were not so, duress would be a complete defense to every recognizance given by a party to prevent his imprisonment. He could, with truth, say that he was compelled to execute it to avoid imprisonment. Such a plea, however, would be unavailing as a defense, although the instrument had been executed by the party as a matter of necessity in order that he might enjoy his liberty. So in the case at bar: the proof tends to show that the defendant in error had used notes in his business which belonged to the plaintiff in error, and to secure the amount due, he executed the mortgage in question. It was a lawful debt, and, so far as appears, was lawfully secured.
In Neally v. Greenough, supra, it is said: “A legal and proper arrest, upon the demand in question not designed to effect any other purpose than the obtaining of bail in the action, and unaccompanied with any severity or other impropriety of manner, is never to be deemed a duress. (2 Inst. 481; 2 Bac. Abr. 402; 1 Black. Com. 136; Shep. Touch. 61; Richardson v. Duncan, 3 N. H. 508.)”
In Landa v. Obert, 45 Texas, 547, the law is clearly and accurately stated, as follows: “Duress which avoids a contract, is either by unlawful restraint or imprisonment; or, if lawful, it must be accompanied by circumstances of
The case of Keckley v. Union Bank, 79 Va. 459, in some of its features resembled that under consideration, but the acts complained of were held not to constitute duress.
In Colglaizier v. Salem, 61 Ind. 445, the action was brought to recover back money paid to the defendant for license to sell intoxicating liquors, which the plaintiff alleged he had paid to the defendant “ by reason of threats and menaces to prosecute him under said ordinances and in fear of arrest, fine, and imprisonment.” The court held that no recovery could be had.
In Bodine v. Morgan, 37 N. J. Eq. 426, a father and son while in the plaintiff’s employment appropriated to their own use certain store orders and goods. Upon the discovery of the appropriation, the father executed a mortgage upon his lands to secure the payment of the amount so abstracted. He continued in the employment of the plaintiff at intervals for nearly five years, and made no objection to the validity of the mortgage until after an action had been instituted to foreclose it. It was held that the plea of duress was not sustained.
Admitting all that is claimed by the defendant in error, the threatened arrest was to be for a lawful purpose. The alleged threats were not to be made with unnecessary pain, privation, or danger, nor such as to excite fear of grievous injury to his person or property, and were evidently not
The uncontradicted testimony shows that a year and a half after the execution of the mortgage in question, the defendant in error delivered the possession of the property in controversy to the plaintiff in error, and thereby ratified the mortgage.
It is unnecessary to review the instructions. As the testimony fails to make a case of duress, the jury could not under the evidence find that fact to exist. The court therefore should have set the verdict aside. The rule is that where there is testimony tending to prove the existence of certain facts, it must be submitted to the jury. Where, however, the testimony fails to establish the existence of such facts, the jury cannot go beyond the testimony and infer their existence. The judgment of the district court is reversed, and the cause remanded for further proceedings.
Reversed and remanded.