Barger v. Farnham
| Decision Date | 08 May 1902 |
| Citation | 90 N.W. 281,130 Mich. 487 |
| Court | Michigan Supreme Court |
| Parties | BARGER v. FARNHAM et al. |
Error to circuit court, Kent county; Willis B. Perkins, Judge.
Action by Robert W. D. Barger against Frank H. Farnham, Zellner Dowling, George P. Dowling, and William C. Dowling. Verdict directed for plaintiff, and defendants bring error. Reversed as to defendant Zellner Dowling, and affirmed as to the other defendants.
R. J. Cleland (Don E. Minor, of counsel), for appellants.
Boltwood & Boltwood, for appellee.
The defendants have appealed from an adverse judgment rendered in an action upon a promissory note. They defended upon the ground that the note was obtained by duress and without consideration and that it was executed by two of them upon the first day of the week, and not upon the day that it purports to have been executed. The learned circuit judge was of the opinion that the case involved no controlling disputed question of fact but turned upon a question of law, and therefore directed a verdict for the plaintiff. The plaintiff said that he became the owner of the note on Tuesday, June 13, 1899, in ignorance of any claim that it was executed by any of the makers or indorsers upon Sunday, or that it was executed through duress or undue influence. It was given in settlement of a claim made by the plaintiff against defendant Farnham; the Dowlings being sureties, and their names being written upon the back of the note before it was delivered to the plaintiff. The defenses set up in the plea were (1) want of consideration (2) that the note was given under duress and fraud, and only after repeated threats of arrest and imprisonment of said defendants Frank H. Farnham and Zellner Dowling in an action brought against them by the commonwealth of Pennsylvania on the criminal charge of conspiracy; (3) that George and William Dowling executed the note on June 11 1899,--the first day of the week,--and not on the day that the note purports to have been executed.
The plaintiff had made a contract in writing with Frank Farnham by which he was made an agent, to sell certain notions which Farnham professed to be dealing in, and paid Farnham a large sum of money on said contract. The arrangement did not prove satisfactory to the plaintiff, who claimed that Farnham had overreached him; and when, subsequently, he heard that Farnham had been arrested in Philadelphia, he went there, and saw him in jail, and urged a settlement. Farnham testified that plaintiff called upon him at the prison, and wanted him to settle the matter, and threatened to see the district attorney, and inform him of all that he knew about Farnham, in case he did not, with a view to putting said district attorney in possession of information which would aid in his prosecution of Farnham and Zellner Dowing, who was charged as a codefendant. This talk was two weeks before the execution of the note, and plaintiff left, with Farnham's refusal to settle the claim, although plaintiff threatened to go before a grand jury in West Virginia, and get an indictment against Farnham, and have him extradicted, and promised not to appear before the district attorney, and would see that no letters or papers were furnished him, if Farnham would sign the notes. The record does not clearly show the charge upon which Farnham was imprisoned, but enough appears to indicate that he and Zellner Dowling were arrested upon a charge of conspiracy. Dowling was released on bail, and both were interested in preventing the plaintiff from aiding the authorities in their prosecution. We agree with the circuit judge that the evidence clearly showed a liability to the plaintiff upon the contract; for it expressly gave him a right to reimbursement if he should so elect, and it is clear that he did so elect. It is said that this election was premature, and it may be that he could not have enforced the contract right until after the expiration of 90 days after the date of the contract; but, however that may be, the settlement of and surrender of his claim was ample consideration for the note. It cannot be said, therefore, that there was no consideration for the note; and it is evident that the note was not secured from Farnham and Dowling, or, in fact, any of the defendants, through duress. See Beath v. Chapoton, 115 Mich. 507, 73 N.W. 806, 69 Am. St. Rep. 589.
An argument is made in the brief that the note was...
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