93 Cal. 452, 14572, Morrill v. Nightingale

Docket Nº:14572
Citation:93 Cal. 452, 28 P. 1068
Opinion Judge:GAROUTTE, Judge
Party Name:L. J. P. MORRILL et al., Appellants, v. NEWELL NIGHTINGALE et al., Respondents
Attorney:Waldo M. York, for Appellants. George J. Denis, and J. H. Call, for Respondents. Edward S. Bragg, also for Respondents.
Judge Panel:JUDGES: In Bank. Garoutte, J. Sharpstein, J., McFarland, J., Harrison, J., De Haven, J., and Paterson, J., concurred.
Case Date:February 20, 1892
Court:Supreme Court of California
 
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Page 452

93 Cal. 452

28 P. 1068

L. J. P. MORRILL et al., Appellants,

v.

NEWELL NIGHTINGALE et al., Respondents

No. 14572

Supreme Court of California

February 20, 1892

Page 453

Rehearing Denied.

Appeal from a judgment of the Superior Court of Los Angeles County, and from an order denying a new trial.

COUNSEL

Waldo M. York, for Appellants.

The acts alleged were not only not duress or menace within the definition of those terms in our Civil Code, but have generally been treated by courts as neither duress nor menace. (Kohler v. Wells, Fargo & Co ., 26 Cal. 606; Burkle v. Levy , 70 Cal. 250; King v. Williams, 65 Iowa 167; Harmon v. Harmon , 61 Me. 227; 14 Am. Rep. 556; Compton v. Bank of Bunker Hill , 96 Ill. 301; 36 Am. Rep. 147; Prichard v. Sharp , 51 Mich. 432; Higgins v. Brown , 78 Me. 473; Hilborn v. Bucknam , 78 Me. 482; 57 Am. Rep. 816.)

George J. Denis, and J. H. Call, for Respondents.

The charge of embezzlement was a crime which would invalidate the entire transaction. (Pen. Code, secs. 518- 522; Gorham v. Keyes , 137 Mass. 583; Adams v. Bank etc ., 116 N.Y. 606.) The court will leave the parties where they placed themselves. (Mitchell v. Cline , 84 Cal. 409.) The threatened arrest was fraudulent, as well as unlawful, and therefore the answer comes within the statutory provisions of sections 1565- 1570 of the Civil Code, relating to the validity of contracts. (Adams v. Bank etc ., 116 N.Y. 606; Taylor v. Jaques , 106 Mass. 291; Harris v. Carmody , 131 Mass. 51; 41 Am. Rep. 188; Central Bank v. Copeland , 18 Md. 305; 81 Am. Dec. 597; Bane v. Detrick , 52 Ill. 19; 1 Wharton on Contracts, sec. 151, 151 a, and notes; 1 Addison on Contracts, sec. 314; Miller v. Bryden , 34 Mo.App. 602.) Equity will not enforce a contract not signed by the free and voluntary act of the party, whatever rule may prevail in law. This is an ancient ground of equity which cannot be impaired. (1 Story's Eq. Jur., sec. 239; Gorham v. Keyes , 137 Mass. 583; Rau v. Von Zedlitz , 132 Mass. 164.) A contract signed under such circumstances as in the case at bar is invalid, and will not be enforced in any court of law or equity, and money paid thereunder can be recovered back. (See authorities supra, including Adams v. Bank etc ., 116 N.Y. 606; Taylor v. Jaques , 106 Mass. 291; 1 Wharton on Contracts, sec. 149, 151, 151 a; Gorham v. Keyes , 137 Mass. 583; Harris v. Carmody , 131 Mass. 51; 41 Am. Rep. 188; Central Bank v. Copeland , 18 Md. 305; 81 Am. Dec. 597; Bane v. Detrick , 52 Ill. 19; Foshay v. Ferguson, 5 Hill, 158; Story on Contracts, sec. 398; Miller v. Bryden , 34 Mo.App. 602; Civ. Code, secs. 1565- 1570, 1657, 1668; Pen. Code, secs. 518- 522; 1 Story's Eq. Jur., secs. 239, 254; 2 Pomeroy's Eq. Jur., secs. 942, 943; Lomerson v. Johnston , 44 N. J. Eq. 93; Rau v. Von Zedlitz , 132 Mass. 164.)

Edward S. Bragg, also for Respondents.

JUDGES: In Bank. Garoutte, J. Sharpstein, J., McFarland, J., Harrison, J., De Haven, J., and Paterson, J., concurred.

OPINION

GAROUTTE, Judge

Page 454

This is an action in equity to foreclose a contract and recover judgment upon four promissory notes [28 P. 1069] amounting in the aggregate to forty-three thousand dollars. The...

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