143 Ind. 495 | Ind. | 1896
Appellant sued appellee to secure the cancellation of a certain written instrument executed by her, and also to recover certain property and money. The execution of the instrument, and also the property
Counsel for appellant have cited many authorities to sustain the proposition that an action will lie to recover money or property obtained from the complaining party under duress. This principle of law appellee properly concedes.
The principal contentions of counsel for appellant in this appeal are, that the judgment is not sustained by the evidence, and that the court erred in giving to the jury certain instructions. The appellant was the only witness by whom the facts alleged by her were upon the trial sought to be established. The evidence which she gave in her own behalf tended to substantially sustain the following facts:
That prior to June 10, 1894, appellee had commenced an action against" her and her husband, one Edward Stanley, by attachment, in the Benton circuit court, upon certain notes executed by appellant and her husband, and that her property had been seized by the sheriff under the writ of attachment issued in said
The appellee testified in his own behalf, and his evidence and that given by his attorney and the sheriff, we are of the opinion, fully warranted the verdict returned by the jury.
This evidence materially contradicts that given by appellant. From it the following facts substantially appear: That the appellee had sold groceries to appel
John Dunn v. Edward Stanley, Essey Stanley.
Benton Circuit Court.
This cause is hereby dismissed, all costs paid, and all matters and things in controversy between the parties fully settled. The plaintiff’s claim being paid in full; the property seized on the writ to be returned to the
(Signed)
Eraser & Isham,
Attorneys for plaintiff.
Essey Stanley.
Ed. Stanley.
That no threats were made to obtain the settlement or to procure the property or money, and nothing was said about taking her husband to jail unless the settlement was made; that Mrs. Stanley paid the debt, in the manner stated, of her own free will, and fixed her own price upon the mare, which was over and above the actual value of the animal; that the money and mare turned over to appellee in payment of the debt belonged to and was held by appellant in her own right; that the reason that the sheriff went along with the parties was to return the attached property which he had in his custody to Mrs. Stanley in the event the settlement was effected. It further appears from the evidence that the husband of appellant, who seems to be addicted to the-excessive use of intoxicating liquor, had been arrested by the sheriff the day previous to the one on which the settlement was made, upon the charge of committing a misdemeanor in the presence cf that officer, and had been confined over night in jail, but had been released and was not under arrest at the time the settlement was made. It further appears that Mrs. Stanley’s husband had proposed to pay the claim of appellee in money, but this his wife repudiated and declined to be bound by his arrangement, and would not' settle 'the claim until appellee would agree to take the mare at her price, as
This obligation, it appears, she had repeatedly said she would discharge, and this it seems she did, in the exercise of her own volition and upon her own terms. She had been sued upon the notes which she and her husband had executed to appellee, and her property had been attached, and it was her privilege and right, if she so desired, in order to avoid further litigation, to settle and pay the debt with her own means, although she may have been but a surety for her husband upon the notes in controversy. Considering the evidence which the jury seem to have regarded as the most credible, there is an entire absence of fraud, coercion, or duress upon the part of appellee or those against whom the charge is made in the complaint.
The cardinal point or question to be determined from the evidence upon the trial was: Did appellant turn over the property and money and execute the written agreement while under duress or coercion as alleged ? This she was required to establish by a preponderance of the evidence, otherwise she must necessarily fail to recover. Counsel complain of the evidence given by appellant upon her cross-examination to the effect that she had admitted that the claim of appellee was her own, and that she had always intended to pay it. This
The ends of justice seem to have been subserved upon the trial, and the appellant has no just grounds of complaint.
The judgment is therefore affirmed.