88 Mo. App. 215 | Mo. Ct. App. | 1901
The nature of this action will be best understood by reference to the plaintiff’s petition, the first of' the four counts therein contained being as follows:
Plaintiff states that the defendant, Orear, is, and was at all times hereinafter mentioned, what is commonly known as a.
Plaintiff, for cause of action, states that on or about the eighteenth day of February, 1896, while the defendant Orear was acting as the agent of the defendant Adams, plaintiff applied to the defendant Orear and procured, through him, from the defendant Adams, a loan of five thousand dollars; that £he defendant Orear, as evidence of said loan, prepared and plaintiff jointly with his wife executed and delivered to the defendant Orear, as agent of the defendant Adams, their joint promissqry note or bond for the principal sum of five thousand dollars, payable to the defendant James E. Adams, with five inter-, est-bearing coupon notes, representing the annual interest of said principal loan at the rate of seven and one-half per cent per annum, and to secure the payment thereof, the defendant Orear prepared ready for execution, and the plaintiff executed, acknowledged and delivered to the defendant Orear, agent of the defendant Adams, a trust deed conveying to one Charles B. Linville as trustee, for the use and benefit of the defendant Adams, the legal title of, in and to four hundred and eighty acres of land situate in Sullivan county, Missouri.
Plaintiff further states that at the time he applied for said loan, it was agreed and understood by and between plaintiff and defendants, that plaintiff should have option of paying off and fully discharging said loan at the time of the second annual interest payment, or at any time thereafter; but plaintiff complains and charges the fact to be that the defendants, by covin and deceit, practiced by them in the preparation of the note and bond and trust deed securing same, and without the knowledge and consent of plaintiff, willfully omitted to insert
That plaintiff, believing and relying on the fact that said papers had been prepared as agreed upon by and between plaintiff and defendants, and that the same could be paid off and fully discharged on the eighteenth day of February, 1898, at the solicitation of the defendants, signed and executed the same without said papers having been read to plaintiff, and without knowing the- contents thereof, but was deceived and overreached by the unfair and fraudulent practices and representations of said defendants and would not have executed said papers had he not been deceived by defendants.
Plaintiff further states that after the negotiation of said loan the defendants, in their further purpose and design to cheat, wrong and defraud plaintiff, and for the purpose of preventing plaintiff from paying off said loan as per agreement, on the-day of-, 189 — , the said Adams, well knowing that plaintiff could under said agreement, pay off and fully discharge said loan on the eighteenth day of February, 1898, indorsed in blank and delivered said note or bond, and the interest coupons thereto attached, to one R. W. Gardner.
Wherefore, plaintiff says that by reason of the wrongful acts of the defendants in preparing the note or bond and trust deed so as to fall due on the eighteenth day of February, 1901, instead of the true agreement and contract of plaintiff and defendants to pay said loan on the eighteenth day of February, 1898, the subsequent wrongful acts of defendants in compelling plaintiff to pay a bonus of $400-74 in order to pay off said loan, he has been injured and sustained damages in the sum of $400.74, for which he asks judgment, together with interest at the rate of six per cent from the eighteenth day of February, 1898, and for costs.
In the second count it is alleged that either through mistake or by deceit, Orear had prepared the papers so that the debt would not fall due until five years thereafter; instead of
In the third count, it is further alleged that under plaintiff’s contract with defendants, he was to pay no commission, but that being in straitened financial circumstances the defendants, knowing his condition, compelled him to pay them $127 for commission before they would turn over to him the money, for which $127, so paid under protest, he prayed judgment.
In the fourth count plaintiff alleges the same agreement to give him an option, and the refusal to insert it in the papers, as charged in the first count, and that without any knowledge to the contrary, and believing that the papers had been correctly prepared, he had executed them; that relying on the agreement he sold part of the land for $5,100 on condition that the deed of trust was released; that he informed defendants of his intention to pay off the loan, but they refused to allow him to do so; that the parties then refused tq take the land at that price, and that he was compelled to and did sell it at a much less price; and that by reason thereof he had been injured and sustained damages in the sum of $500, for which he prayed judgment.
The answer admitted the loan but denied every other allegation of the petition. There was a trial before the court sitting as a jury, which resulted in judgment for plaintiff and defendant appealed.
At the inception of the trial the defendants objected to the introduction of any evidence by the plaintiff on the ground that neither one of the counts of the petition stated a cause of
It will not do to say that no cause of action was stated in either count of tbe petition. If tbe plaintiff contracted with tbe defendants for a loan for five years with tbe privilege of paying off tbe same after tbe expiration of two years, and if tbe defendants in writing tbe deed of trust and notes omitted therefrom tbe stipulation in respect to this privilege, and after doing so falsely represented to tbe plaintiff that such deed of trust and notes were so written as to correctly embody tbe entire contract between them touching tbe loan and its payment, and that plaintiff relied on such representations and therefore did not read said deed of trust and note and was thereby induced to sign such instruments, then this was a fraud perpetrated upon him.
If after tbe making of said note by tbe plaintiff, the defendant, with tbe intention of defrauding tbe plaintiff and preventing him from paying off said note at the expiration of two years, if be elected so to do, indorsed and delivered it to one
Tbe facts which we have assumed are substantially pleaded in the petition. They conclusively show that tbe amount demanded by tbe defendants was not justly due, for, by tbe terms of tbe contract for tbe loan, tbe plaintiff reserved tbe privilege of paying tbe note given therefor at any time after two years. Tbe only question is whether the payment' of tbe bonus demanded was compulsory within tbe meaning of tbe law. In Fulham v. Down, 6 East. 26, it was held that an action for money hád and received would lie if where an illegal demand had been paid under an urgent necessity. And it was further declared in that case that “where a voluntary payment was made of an illegal demand, the party knowing tbe demand to be illegal, without an immediate and urgent necessity (* * * unless to redeem, or preserve bis person or goods) is not tbe subject of an action for money bad and received.” This rule was quoted with approval in Fout v. Giraldin, 64 Mo. App. loc. cit.
Duress may be shown with respect to real property as well as personal so as to render payment on account of it involuntary and permit it to be recovered back. Joannin v. Ogilvie, 49 Minn. 564; Pemberton v. Williams, 87 Ill. 15; White v. Hazelman, 34 Pa. St. 142; Fraser v. Pendebury, 31 L. J. P. 1. So it has been held that the payment under protest of a mechanic’s lien filed upon an unfounded cause in order to clear the title of record so that the owner might comsummate a loan upon the property Which he had negotiated in order to raise money to pay an overdue mortgage and other oppressing debts, when he had no available means of raising money, may be recovered back. Joannin v. Ogilvie, supra. And even where, though there be a legal remedy, a person’s situation or the situation of his property is such that the legal remedy would be adequate to protect him from irreparable prejudice, where circumstances and the necessity to protect himself or his property otherwise than by resort to the legal
Roth the above eases are illustrations where the danger of irreparable or serious prejudice was considered so great as to practically leave the party no choice but to comply with the illegal demand, and hence to render the payment involuntary. And in Joannin v. Ogilvie, supra, it was expressly stated that the modern authorities generally hold that in cases where there is such pressure or constraint as compels a man to go against his will and virtually takes away his free agency, and destroys the power of refusing to comply with the unlawful demand of another, will constitute duress irrespective of the manifestation or apprehension of physical force. And to the same effect is State v. Nelson, 41 Minn. 25, and Fargusson v. Winslow, 34 Minn. 384. And so it was held in Westlake v. St. Louis, 77 Mo. 47, that the payment of an illegal water license or charge under threat that if not paid the plaintiff’s water would be shut off, which would result in a suspension of the operations of his foundry, was deemed a kind of moral duress, making payment practically compulsory. See Niedermeyer v. University, 61 Mo. App. 654. In a case like this it was not necessary for the defendants to be responsible for the plaintiffs financial condition as in Hackly v. Hadley, 45 Mich. 570.
The petition, when tested by the rules announced by the authorities to which we have referred, will, we think, be found to sufficiently state a cause of action. And, whether such petition states a cause of action or defectively states one, the result would be the same, for, in either case, according to the rule stated at the outset, it would not be subject to the objection defendants lodged against it. It can not be and is not
The defendants further contend that since the plaintiff was sui juris he can not, in the absence of fraud, be permitted to avoid a written contract by showing that he did not read it or hear it read. The rule both at law and in equity is that one of sound mind must exercise ordinary prudence in conducting negotiations and in executing instruments. And while it is true that where one signs an instrument he must read it, if he can read, or have it read if he can not, yet this rule does not operate where a trick or artifice is resorted to for the purpose of preventing him from reading or having it read to him. And where one of the contracting parties can read and does not read a contract before signing it, but relies on the other party for a knowledge of its contents upon the reading of the other party, he can have relief. It is certainly not just that one who has perpetrated a fraud should be permitted to say to the party defrauded, when he demands relief, that he ought not to have believed or trusted him. Where one sues another for a positive willful wrong or fraud, negligence by which the party injured exposed himself to the wrong or fraud will not bar relief. If the rule were otherwise the unwary and confiding, who need the protection of the law the most, would be left a prey to the fraudulent and artful practices of evildoers. Nicol v. Young, 68 Mo. App. 448; Savings Institution v. Burdick, 87 N. Y. 40. Accordingly, we think both the allegations of the petition and the evidence were quite sufficient in this respect. The finding, too, of the court in respect to the fraud was fully justified by such evidence.
The court stated its conclusions of facts found separately from its conclusions of law. There were no declarations of law askéd on the issues in the case. The general finding for the plaintiff was sufficient (Ins. Co. v. Trible & Pratt, decided at present term) to authorize the entry of a judgment which
•According to the cases just cited, a general judgment in such case will, on a proper motion for that purpose, be arrested. But in the present case the record does not show that the defendants filed any motion in arrest of the judgment, but it does show that they filed a motion for a new trial. An imperfect verdict or finding, or a neglect to find on all the issues, can be taken advantage of only by motion in arrest. Commission Co. v. Railway, 80 Mo. App. 164; Erdbruegger v. Meier, 14 Mo. App. 258; Finney v. State, 9 Mo. 642.
It has been nearly twenty years since the majority opinion in 14 Mo. App., supra, was written, yet we have not found that it has been criticised or overthrown by any .subsequent case, and, therefore, we feel constrained to follow the rule it declares. We may say, however, in view of the reasoning of the dissenting opinion in the case by Judge ThompsoN, if the question were res nova we should long hesitate before yielding our assent to the correctness of the majority rule.
The objection made by the defendant to the verdict was not taken by a motion in arrest and can not, therefore, be noticed by us.
Our conclusion is that on the pleadings and evidence the judgment is clearly for the right party and should not be disturbed ; it is accordingly affirmed.