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v. Cohen, 45 L. T., N. S., 589; McClatchie v. Haslam, 63 L. T. N. S., 376; Harris v. Carmody, 131 Mass. 51; 41 Am. Rep. 188; Foley v. Greene, 14 R. I. 618; 51 Am. Rep. 419; Coffman v. Lookout Bank, 5 Lea, 232; 40 Am. Rep. 31; First Nat. Bank v. Bryan, 62 Iowa, 42; Southern Exp. Co. v. Duffey, 48 Ga. 358; National Bank v. Kirk, 90 Pa. St. 49; Jordan v. Elliott, 12 Week. Not. Cas. 56; Sharon v. Gager, 46 Conn. 189; McMahon v. Smith, 47 Conn. 221; 36 Am. Rep. 67; Central Bank v. Copeland, 18 Md. 305; 81 Am. Dec. 597; Tapley v. Tapley, 10 Minn. 448; 88 Am. Dec. 76; Meech v. Lee, 82 Mich. 274; Eadio v. Slimmon, 26 N. Y. 9; 82 Am. Dec. 395; Osborn v. Robbins, 36 N. Y. 365; Adams v. Irving Nat. Bank, 110 N. Y. 606; 15 Am. St. Rep. 447; Schultz v. Culbertson, 46 Wis. 313; 49 Wis. 122; Schultz v. Catlin, 78 Wis. 611. Upon these adjudications and the evidence before us it is very clear that the note upon which this action is brought was obtained from defend. ant by duress, and is for that reason void.
It is contended, however, that duress is a species of fraud, and that the defendant cannot rescind the contract for duress without first restoring to the plaintiff the benefits secured by making the contract. It is undoubtedly true that, if a party invokes the aid of equity to set aside a contract by virtue of which he has received a benefit, he will 200 be required to restore such benefit as a condition of obtaining such relief. This is upon the familiar principle of estoppel in pais. Thus, where a party affirms & contract in part, he is thereby estopped from disaffirming it as to the residue. “It is a doctrine," said Nelson, J., “when properly understood and applied, that concludes the truth in order to prevent fraud and falsehood, and imposes silence on a party only when in conscience and honesty he should not be allowed to speak": Van Rensselaer v. Kearney, 11 How. 326. “In short, and in popular language,” said Wilde, B., “a man is not permitted to charge the consequences of his own fault on others, and complain of that which he has himself brought about": Swan v. North British Australasian Co., 7 Hurl. &. N. 633. “The doctrine of estoppel in pais always presupposes error on one side and fault or fraud upon the other, and some defect of which it would be inequitable for the party against whom the doctrine is asserted to take advantage”: Morgan V. Railroad Co., 96 U. S. 716.
The question recurs whether, upon the principles stated, the defendant has done any thing to estop her from defend
ing against the note in suit. She is not here invoking the aid of a court of equity. She is simply resisting the enforcement of an executory contract on the ground that her signature to the same was procured by duress. As indicated, her defense, as appears from the record, is complete, unless her conduct has been such as to render it inequitable for her to make it. It certainly cannot be said as a matter of law, upon the record before us, that the defendant received any pecuniary benefit or consideration for signing the note in suit, or that she was in any way liable upon or on account of any of the notes surrendered by the plaintiff at the time she signed that note. If the evidence before us is true, then she signed that note for the sole purpose of saving her sick husband from arrest, prosecution, 201 and imprisonment. The envelope containing the notes of $800, and $4,100, each signed “M. Kusworm," and the collaterals thereto, was not delivered by Gebhart to the defendant, but to Stone. Stone thereupon, in the presence of Gebhart, handed the same to the defendant, with the direction that she deliver the same to her husband. In pursuance of such direction she did deliver the same to her husband. If the evidence in the record is true, then that is all she ever saw of, or had to do with, that envelope or any of the notes thus contained therein. There is no evidence in the record that the defendant exacted, as a condition of her signing the note in suit, that Gebhart should surrender to her any of the notes so contained in that envelope, or that there was any agreement or understanding to that effect. Stone was a cousin of Mr. Kusworm, and apparently his friend; but there is no evidence that he was his agent, or had any authority to act for him, much less that he acted as the agent of the defendant. What he did in the matter was purely voluntary on his part, and as the result of his owning a mortgage with the defendant, as mentioned. Upon the evi. dence before us the legal effect of the transaction seems to be no different than it would have been had Mr. Kusworm been present, and Gebhart had delivered the envelope with the notes therein directly to him. Suppose such had been the facts, and Mr. Kusworm had immediately, in the presence of Gebhart, thrown the notes contained in the envelope into the fire and burned them up, would the defendant thereby have been estopped from making the defense of duress? In some of the cases cited the wife signed the con
tract by the duress of her husband; nevertheless, it was held that lier defense of duress was available.
There can be no such thing as estoppel in pais, except by reason of something said or done by the person estopped; certainly not by the independent act of another person, even though such other be her husband. The mere fact that the defendant delivered the package to her husband, as directed in the presence of, and acquiesced in by, the plaintiff's agent, does not make it inequitable for her to resist the enforcement of an executory contract which she signed only by reason of the plaintiff's duress. It is a well-recognized principle of law that, where a loss must be borne by one of two innocent persons, it shall be borne by him who occasioned it: Karow v. Continental Ins. Co., 57 Wis. 61; 46 Am. Rep. 17, and cases there cited. If the two parties were equally innocent, yet if the notes contained in the envelope were destroyed by Mr. Kusworm without the privity of bis wife, then it was in consequence of Stone's direction, with Gebhart's consent, that they should be delivered to him, and not that the defendant was the mere instrument of making such delivery. But the parties were not equally innocent. On the contrary, as appears from the evidence, the defendant was the victim of very cruel duress on the part of the plaintiff.
There seems to be a dearth of authorities upon the precise question here presented. In some of the numerous cases cited, and especially those in equity, restoration was made or tendered or made a condition of the judgment, while in others the question is not mentioned. In Jordon v. Eliott, 12 Week. Not. Cas. 56, the victim of the duress was induced to sign a receipt acknowledging the surrender of her son's note, and a policy of insurance on his life held by Jordan as collateral thereto, which be assigned to the defendant. Jordan burned the note in the presence of the defendant, but left the policy and the assignment thereof at her house. Of course, there could be no restoration of the note, and it does not appear that the policy was restored; but the supreme court of Pennsylvania affirmed the judgment in favor of the mother. There are numerous cases where duress or fraud has been made available as a 203 defense on the ground of recovering back money paid or setting aside contracts executed, without restoration: Foss v. Hilireth, 10 Allen, 76; Manning v. Albee, 11 Allen, 520; Kent v. Bornstein, 12 Allen, 342; Chandler v. Simmons, 97 Mass. 508; 93 An. Dec. 117;
Brewster v. Burnett, 125 Mass. 68; 28 Am. Rep. 203; Morse v. Woodworth, 155 Mass. 233; Higham v. Harris, 108 Ind. 246; Baldwin v. Hutchison, 8 Ind. App. 454; Dimmitt v. Robbins, 74 Tex. 441; Brown v. Peck, 2 Wis. 261. In some of these cases there was a failure to return a lease of a claim, or a discharge of a former suit; in some, a failure to return a note and worthless securities; in some, a failure to return counterfeit bills; in some, a failure to restore money paid to a minor and by him wasted; in some, a failure to restore money or property paid or delivered to some person other than the victim of the duress or fraud. The rule seems to be stated fairly well by the late Mr. Justice Mitchell, of Indiana, in one of the cases cited, as follows: “If the results of a contract or settlement by which a party is sought to be estopped, or which is set up to prevent the assertion of a right, are such as to be of no benefit to one, or no detriment to the other, contracting party, that is, if nothing of value was parted with on the one hand or received on the other, the contract may be disaffirmed without a formal restoration, on the principle that the law does not require an idle ceremony”: Higham v. Harris, 108 Ind. 246, 254. Here the defendant received for herself no pecuniary benefit or thing of value. Should it be made to appear upon a trial that the defendant, as executrix of her husband's estate, actually received the notes contained in the package, or otherwise became a party to the destruction or conversion of them, a different question would be presented.
By the Court. The judgment of the circuit court is reversed, and the cause is remanded for a new tri
From this opinion Justices Winslow and Pinney dissented in an opinion written by the former, in which he said: “That an executory contract may be avoided or rescinded which has been made under the influence of such duress as the evidence here tends to prove is quite well established, and I shall spend no time on that question. The avoidance or rescission in such a case stands on the same ground as avoidance or rescission of a contract induced by fraud. Duress is, in fact, a species of fraud: Cooley on Torts, 2d ed., 592; Reynolis v. Copeland, 71 Ind. 422; 6 Wait's Actions and Defenses, sec. 12, p. 663. Logically and necessarily the same conditions will be imposed in a case of duress as in a case of the more common kinds of fraud. One of these conditions universally insisted upon is that the defrauded party must return, or offer to return, the consideration, if any has been received, or its equivalent, in case return of the specific consideration be impossible. Citation of authorities on this proposition seems unneces-mary, and I content myself with one case in this court, where the rule is
well stated, with authorities: Van Troll v. Wiese, 36 Wis. 439-448. I know of no exception to this rule, at least as applicatile to persons of full age and mental competency. It is true that, where a consideration has been received which is worthless or represents nothing of value, its return will not be required, because such return would be a mere idle ceremony. This is not an exception in fact to the rule, but rather a demonstration of the existence of the rule itself, because in such cases failure to return the con. sideration is always excused by the courts on the very ground that there is practically nothing to be returner, thus emphasizing the general rule. With deference, 1 say that most of the cases relied upon in the majority opinion as justifying the decision in this case are cases where the return of the consideration was excused because it was absolutely worthless.
“In Foss v. Hildreth, 10 Allen, 76, the party who was seeking to avoid a contract induced by fraud and duress did not return a discharge of a ground. less action pending against him, and the court says that such return was not necessary, because the discharge is not property of any value to the defendant, nor is it of any use to the plaintiff.' It appeared in that case, also, that the plaintiff made the voidable contract while intoxicated, and the court remarks that, where a person non compos makes a deed and receives a rala. able consideration for it, he may avoid it without first returning the consid. eration. Manning v. Albee, 11 Allen, 520, was an action of replevin for a quantity of clothing which Manning had been induced to trade to one French, in exchange for French's promissory note, with certain bonds as collateral, The bonds were represented as very valuable, but were in fact worthless. Albee afterward took possession of the clothing, claiming to have bought it of French, and French disappeared. Manning then ascertained that the bonds were worthless, and brought replevin for the goods against Albee, French not being found. The objection was made that the action could not be maintained without surrender of the note and bonds, but the court holds that to be unnecessary, because it appeared that French could not be found, 80 that the tender to him was impossible, and the defendant was in no erent entitled to them. In Kent v. Bornstein, 12 Allen, 342, the return of a coun. terfeit bill was held unnecessary because it was entirely worthless. In Chandler v. Simmons, 97 Mass. 508, 93 Am. Dec. 117, it was held unnecessary for a ininor, in avoiding his deed made during infancy, to return such part of the consideration as he has wasted or spent during minority, but the decision is placed upon the express ground that the consideration bad been spent during minority, and the principle is recognized that, if he retained the consideration after becoming of age, he would affirm the contract. In Brewster v. Burnett, 125 Mass. 68, 28 Am. Rep. 203, the return of counter. feit bonds was not required, because they were entirely worthless. In Morse v. Woodworth, 155 Mass. 233, the plaintiff was not required to return a release given by defendant, because it was not property, and after rescission it became of no effect. In Higham v. Harris, 108 Ind. 246, it was held that, “if nothing of value was parted with on the one hand or received on the other the contract may be disaffirmed without a formal restoration, on the principle that the law does not require an idle ceremony.' In Baldwin v. Hutchison, 8 Ind. App. 454, the return of an agreement not to prosecute the plaintiff was held unnecessary, because it was 'wholly valueless.' The case of Dimmitt v. Robbins, 74 Tex. 441, was a case where Diinmitt was attacked by armed robbers, who demanded a ransom. Robbins, who was present, pretended to give the robbers $2,500 in an envelope for Dimmitt's release, and afterward sued Diminitt for the $2,500, as for mouey loaned. A judge