96 Mo. App. 335 | Mo. Ct. App. | 1902
This suit was begun before a justice of the peace, where it was tried, appeal taken to the circuit court of the county, where on trial anew, plaintiff obtained judgment, from which defendant appealed.
The plaintiff went to trial upon the following amended statement, omitting the caption, viz.: ‘ ‘ Comes, now the plaintiff, and for cause of action and amended statement, and says, that Joshua Rock is indebted to-plaintiff in .the sum of $100, money had and received, which is due plaintiff.
“For a second cause of action and account,-the plaintiff states that the defendant is indebted to the-plaintiff in an account stated, or in amount paid over-settlement of a note, in the sum of fifty dollars, amount due of money had and received from plaintiff, which plaintiff was compelled to pay to protect his property.”'
During the progress of the trial, the plaintiff vol
Instruction No. 1, given at the instance of the plaintiff, fairly illustrates the theory upon which the court tried the cause. It is as follows:
“If the jury believe by a preponderance of the evidence that there was a dispute and controversy between the plaintiff and the defendant as to the amount justly due upon the note introduced in evidence, and that the plaintiff and the defendant settled the dispute by agreement, by which the defendant was to deduct fifty dollars from the amount of the face of the note and the plaintiff agreed to pay fifty dollars more than he claimed to be due upon said note, then such agreement is binding upon both parties; and if the jury further find that the defendant by his agent, Bussell, threatened to enforce the payment of said note in full by the seizure and sale of the property of the plaintiff covered by the mortgage that secured said note, and that the plaintiff paid said note in full to save his said property from said seizure and sale, then your verdict must be for plaintiff. ’ ’
The theory of the court was, that the agreement entered into between the parties as to the amount of plaintiff’s indebtedness to defendant was such an adjustment as fixed the rights of the parties, and that notwithstanding plaintiff afterwards paid the whole debt as specified in the noté, he was entitled to recover back from defendant the sum, he paid in excess of the amount agreed to be due, provided it was paid under threat of seizure of his property mentioned in the mortgage. The defendant contends that' the plaintiff was not entitled to recover under the evidence and asked the court to so instruct the jury, but this the court refused to do. The question raised is, did the mere agreement of defendant to take
The remaining question raised by defendant is, was the payment of the $50 a voluntary payment, or was it made under duress? But it seems to us that it can serve no good purpose to go into a discussion of that question in this case, as we have seen already that the payment by plaintiff of said sum was what, in law, he was obligated to pay, under his contract, and the threat to seize and sell his property under the mortgage, unless the note was paid in full, was but an assertion on defendant’s part to do that which the law said he might lawfully do, and can in no sense constitute duress in any form. From what .has been said the plaintiff was not entitled to recover, therefore, the cause is reversed.