Taylor v. Jaques, 106 Mass. 291

106 Mass. 291 | Mass. | 1871

Ames, J.

The answer insists upon two grounds of defence; first, that the note was obtained from the defendant Jaques by duress and threats of unlawful imprisonment; second, that it was given upon an agreement to suppress a criminal prosecution, and is therefore illegal and void.

The case finds that there was an unsettled account between Jaques and the plaintiffs, and that he insisted that, if any balance was due to them, it was much less than they claimed. They on their part not only insisted that he was in debt to them in the Bum of $700, but that he had been guilty of the crime of embezzlement. They had communicated to his father, and also to the defendant Clark, who was the father’s friend and agent in the matter, their determination to commence a criminal prosecution immediately, unless their demand of the payment of that sum should be complied with at once. This being the relation of the parties, they met at the plaintiffs’ counting-room in New York, and there a settlement took place, and the note in suit was given. In order to avail himself of his defence on the ground of duress, it was incumbent on Jaques to prove that he signed the note under a reasonable and well grounded belief, derived from the conduct and declarations of the plaintiffs, that if he did not sign it he would be arrested and prosecuted on a criminal charge. Without such a belief or expectation there was no duress. It was certainly proper, therefore, that he should be allowed to prove what the plaintiffs did and said, at and just before that interview, tending to create or justify such a belief. If, at that interview, Clark, who was there as his friend, and with a view to his relief, received from the plaintiffs any private intimations as to what they intended to do if security should not be given, and in a whisper informed him what that intention was, it is obvious that the effect on his mind would be exactly the same as if the information or threat came to him directly from the plaintiffs themselves. His will might be controlled as effectually by one mode of communication as the other. The ruling of the court therefore, in excluding Clark’s testimony as to what the plaintiffs «aid to him, and what he thereupon communicated to Jaques about their intention to have him arrested if a settlement should £ot be made, was erroneous.

The definition of duress as given by the learned judge in his charge to the jury is substantially correct. He went on however to instruct them in substance that if Jaques admitted that lm owed the plaintiffs the amount of the note, and the parties assumed at the time that such was the fact, that fact “ would repel any inference of duress, although the facts attending the making of the note in other particulars would indicate that the making of the note was under the influence of duress.” We do not concur in that view of the law. If he had embezzled their funds, they had a right to have him prosecuted. If he owed them a debt, they had a right to accept security for it. But they would have no right to make use of criminal process for the collection of a debt. An arrest, even upon a legal warrant and upon a criminal charge, to compel the payment of a mere debt, would be a misuse of legal process, and the threat of such an arrest may constitute unlawful duress. Hackett v. King, 6 Allen, 58. We cannot say, moreover, that the admission, as well as the note itself, was not extorted from him by the influence of duress.

It appears to us also that the position of the case was such that the instruction requested in the defendants’ third prayer, or something substantially like it, was appropriate and ought to have been given. There had been a charge of embezzlement, and a threat of criminal prosecution against Jaques just before the final settlement, and Clark had been sent to New York by the father “ to ascertain what the trouble was.” There was evidence tending to show that the threats were repeated, and it is impossible to say that those threats may not have had some influence on the minds of both defendants at the time when the note was given. It appears to us to have been a mistake on the part of the judge to refuse to give such an instruction, on the ground that there was no evidence of any charge of a felony at the time of the settlement. It is not necessary to show that it was expressly repeated at the moment of settlement. Such a charge had been made a very few days before, and nothing is reported to show that it had been retracted. It is at least possible that the settlement may have been made under the pressure of that charge. It was entirely a question of fact, whether the note was extorted from the defendants by the fear of a prosecution against Jaques, and by “torturing the compassion” of his relatives and friends. If a promise or understanding, that the threatened prosecution should be stopped, entered into, or made any part of the consideration of the note, it would be enough to render it invalid, and of no bindXtg force against either of these defendants. Upon this question the jury have had no opportunity to pass.

As the case is to go back for trial, it becomes necessary to -add that we see no ground for considering Clark as an original joint promisor, or as under any liability other than that of indorser. And as the only question litigated is as to the validity of the note, there seems to be no occasion to go into the inquiry as to the amount of salary that would have been a fair compensation for Jaques’s services to the plaintiffs. Exceptions sustained.