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note to the bank for the amount of her husband's notes, and the cashior of the bank delivers the husband's notes and the collaterals to a friend of the wife, who iminediately hands them to her, with the request for her to deliver them to her husband, which she does, she may avoid her note, in an action upon it by the bank, upon the ground of duress, without restoring her husband's notes or the collaterals to the bank, as she has received no benefit.

Action by the bank to recover the amount due upon a promissory note given to it, and signed by Mollie Kusworm. The defendant pleaded that the note was obtained from her without any valuable consideration therefor, through the fraud of the plaintiff's agent; that it was given to compound a felony; and that it was given under duress of threats to prosecute the defendant's husband (then very sick, and who died soon thereafter) for the crime of forgery, and in consideration of the suppression of documentary proof of his guilt. The defendant admitted the making of the note and the amount, but, not having made full restitution to the plaintiff, which the court below held that she had to do before availing herself of the ground of duress, a verdict for plaintiff was directed for the principal sum and interest, amounting to $5,157.25. Defendant appealed from the judgment entered in accordance with the verdict.

Bashford, O'Connor, Polleys & Aylward, and Moran, Kraus & Mayer, for the appellant.

Charles Noble Gregory, L. P. Conover, and S. S. Gregory, for the respondent.

193 CASSODAY, J. The execution of the note in suit having been admitted, the plaintiff offered no evidence. On the part of the defendant the evidence, in effect, tends to prove: That on, and for some time prior to, November 1, 1892, the plaintiff held two promissory notes which it bad received 194 from the defendant's husband, Moses Kusworm, each of which was signed "M. Kusworm," one being for $4,100, and the other being for $800, making an aggregate indebtedness of $4,900 for money loaned by the plaintiff to him, and that the same were secured by four, five, or six other notes, purporting to be executed by other parties, aggregating in amount $7,000 or $8,000, as collateral security for the payment of such indebtedness of $4,900; that in the forenoon of November 1, 1892, one Gebhart, agent for the plaintiff, having both of said notes, and also said notes so held as

AL ST. REP., VOL. XLIII. - 56

collateral, in his possession, called on the defendant and requested to see her husband; that she told him her husband was very sick; that he said it made no matter, that he must see him, that her husband had borrowed $4,900 from the plaintiff bank, and that he had come there to either get the money or security; that she then obtained permission from the nurse for Gebhart to see Mr. Kusworm; that Gebhart then had an interview with Mr. Kusworm in his room alone, neither she nor the nurse being present; that finally Mr. Kusworm called the defendant, and she went into bis room; that Mr. Kusworm then told her to put on her coat and hat, and go with Mr. Gebhart to Mr. Stone's house, and secure Gebhart for $4,900 on the mortgage of $12,000, in which the defendant had an equity of $6,000, the other $6,000 of which belonged to Stone, a cousin of Mr. Kusworin; that Gebhart then told her that he had notes with him for $4,900, which her husband had forged; that he would have the Pinkerton detectives take her husband back to Ohio, and put him in the hospital until he was able to go to jail, and would then put him in prison; that she protested on ao count of her husband's dying condition, and that it would rob her home and her two little children of a father; that she almost fainted; that Gebhart then said, “No matter"; that he had come as agent of the bank, and must fulfill bis 195 duty; that he must either take Mr. Kusworm back to Ohio or she must take up these notes which Mr. Kusworm had forged; that thereupon she and Gebhart took a cab and drove to the office of the plaintiff's attorney, and that the attorney then got into the cab and they all drove to the house of Stone; that Stone was not at home, and so shu left a note, requesting him to call at the attorney's office at 3 o'clock that afternoon; that she then returned to her home and found her husband under the effects of a sleeping-powder, but she was cautioned by the nurse not to speak to him for fear that he might die from the effects; that the defendant was in a very delicate condition and weak at the time, having been in the family way for more than three months, but that she managed to get back to the attorney's office at the time appointed; that she found Gebhart and his attorney there, but Stone did not arrive until some minutes afterward; that Gebhart at once repeated his threats; that when Stone came she introduced Gebhart to him as the man who claimed that her husband had forged

notes to the amount of $4,900, and that he had come there to secure the debt Mr. Kusworm was liable for, or take him back to Ohio; that she said that, in order to prevent her husband from being taken back to Obio and prosecuted, she was willing to turn over her equity in the mortgage mentioned to secure the plaintiff. Stone stepped out and got tho mortgage, and returned with it in a few minutes, and thereupon Gebhart and his attorney took the matter under advisement, with an agreement that she and Stone, respectively, would meet them at the same office the next morning at 11 o'clock; that she was compelled to wait in the rain for a long time for the cable-cars; that she got home about 8 o'clock in the evening; that she found her children waiting, and her husband scarcely able to open his eyes; that she retired without eating any thing, and spent a sleepless night; that, upon returning to the 196 attorney's office the next morning, she found Gebhart and Stone there; that Gebhart refused to accept the security she had offered, for the reason that Stone's part of the mortgage was prior to hers; that Gebhart finally offered to accept the security if Stone would agree in writing to prorate with the plaintiff in the mortgage; that Stone at first refused; that Gebhart then repeated his threats, and the defendant cried and begged of Stone to consent and thus save her husband, and that he would loss nothing by it; and thereupon Stone consented and signed the agreement, and the defendant signed the note in suit; that Gebhart then handed an envelope to Stone, supposed to contain the note of $800 and the note of $4,100, each signed “M. Kusworm," and also the notes to the aggregate amount of seven or eight thousand dollars held by the plaintiff as collateral thereto, and that Stone thereupon, and in the presence of Gebhart, handed the envelope with the notes therein to the defendant with direction to give them to her husband; that the defend. ant took the envelope with the notes therein from Stone, and delivered them to her husband as so directed; that she did not examine the notes in the office, and never saw them thereafter, and had no knowledge as to where they were; that she had no conversation with Stone, and did not see him on either of the days mentioned except in the presence of Gebhart and his attorney; that Stone did not see Mr. Kusworm on either of those days, and had not seen him for several weeks before, and did not see him for several weeks afterward; that the only connection Stone had with the matter

was by reason of his owning a part of the mortgage as men. tioned; that the defendant did not know what her husband had done with the notes; that he died December 5, 1892, and she was the executrix of his will; that she had looked orer her husband's papers, but had never found the notes.

197 The defendant positively swears that she never signed the $800 note nor the $4,100 note, and that she never authorized her husband to sign either of those notes or any notes; but, on her cross-examination, a power of attorney was presented, bearing date September 18, 1891, and which she admits to have been signed by her, authorizing her husband to sign and indorse notes; and it is contended on the part of the plaintiff that Mr. Kusworm signed the $800 dollar note and the $4,100 note, respectively, “M. Kusworm,” meaning thereby the defendant, Mollie Kusworm, instead of Moses Kusworm. Whatever may be the fact in that regard, yet the evidence in the record is very strongly against any such contentions. There is no evidence that either of those notes was signed by an agent instead of the principal. There is no evidence that Gebhart at any time during any of the several interviews mentioned claimed or pretended that the defendant was the maker of either of those notes, nor that the defendant was, at any time before the making of the note in suit, in any way indebted to the plaintiff, nor that he was there seeking security for any indebtedness of the defendant. Since the verdict was directed for the plaintiff we njust, for the purposes of this appeal, assume that the $800 note and the $4,100 note were each signed "M. Kusworm” by Moses Kusworm, as and for his own signature, and not as and for the signature of his wife.

There is no evidence that Mr. Kusworm actually forged any note, but simply that Gebhart charged him with having forged the notes, as mentioned. It is true that the defendant testified to the effect that Gebhart claimed that he had forged motes in the amount of $4,900; but, from the whole evidence, it is very apparent that the real charge made by Gebhart was to the effect that Mr. Kusworm had forged sundry names to the four, five, or six notes, aggregating $7,000 or $8,000, which the plaintiff held as collateral security for his indebtedness to the plaintiff 198 bank, as mentioned. Upon such evidence the trial court directed a verdict in favor of the plaintiff and against the defendant. The correctness of such ruling is the only question here for review.

Manifestly the defendant cannot avoid paying the noto upon the mere ground that it was given to compound a felony: Catlin v. Henton, 9 Wis. 476; Schultz v. Catlin, 78 Wis. 611. The only defense available, if any, would seem to be that the defendant was prevailed upon to give the note in suit by duress. As a general rule the defense of duress is not available in an action upon a note given to prevent the criminal prosecution of another person. To this rule there are certain well-established exceptions. Among other exceptions, a wife may avoid her contract, otherwise valid, by reason of a threatened criminal prosecution of her husband, and conversely; and so a father may avoid his contract by reason of a threatened criminal prosecution of his son, and conversely. Thus, in Bayley v. Williams, 4 Giff. 688, affirmed, Williams v. Bayley, L. R. 1 H. L. 200, a son forged his father's name, as indorser, upon certain promissory notes, and obtained money thereon from his bankers. The fact of the forgeries having been discovered, which the son did not deny, the bankers, without any direct threat of any prosecution, insisted upon a settlement, to which the father was to be a party. The father consented, and agreed in writing to make an equitable mortgage of his property to secure his son's indebtedness; and it was held that the father was not a free and voluntary agent in the making of such agreement, and hence that the same was invalid. The threatening language to the father in that case was: “If the bills are yours we are all right; if they are not we have only one course to pursue;, we cannot be parties to compounding a felony. It is a serious matter. It is a case of transportation for life.” This is exceedingly mild when compared with the language ad. dressed 199 to Mrs. Kusworm, and yet, in the opinion of Lord Westbury in that case, it is said: “I regard this as a transaction which must necessarily, for purposes of public utility, be stamped with invalidity, because it is one which undoubtedly, in the first place, is a departure from what ought to be the principles of fair dealing between man and man; and it is also one which, if such transactions existed to any considerable extent, would be found productive of great injury and mischief to the community.” The same principle has frequently been applied in avoiding contracts made to prevent the criminal prosecution of a parent or child, a husband or a wife, not only in England, but in this country: Whitmore v. Farley, 43 L. T., N. S., 192, allirmed 45 L. T., N. S., 99; Seear

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