Batavian Bank v. North

• Decision Date: 19 June 1902
• Citation: 90 N.W. 1016,114 Wis. 637
• Parties: BATAVIAN BANK v. NORTH.
• Court: Wisconsin Supreme Court

114 Wis. 637

90 N.W. 1016

BATAVIAN BANK

v.NORTH.

Supreme Court of Wisconsin.

June 19, 1902.

Syllabus by the Judge.

1. Opinion evidence as to an ultimate fact, based on a correct theory of the underlying facts, met by like evidence upon a wrong theory of such minor facts, does not create a conflict for solution by a jury.

2. Duress of a person is that condition of such person's mind, caused by wrongful conduct on the part of another, rendering the former incompetent to contract by the exercise of his own free will.

3. Any amount of persuasion to influence one to exercise his own will to some particular end does not constitute duress.

4. If a person gives his check to another on condition that it shall not be presented to the drawee bank for payment till funds are produced in such bank by the payment of a check given to it by such person upon another bank, he impliedly agrees that the latter check shall be paid within a reasonable time, and if, by his connivance or consent, or otherwise, it is not so paid, such other may present his check for payment notwithstanding, and upon its dishonor sue to recover thereon.

Appeal from circuit court, La Crosse county; J. J. Fruit, Judge.

Action by the Batavian Bank against Anita E. North. Judgment for plaintiff. Defendant appeals. Affirmed.

Action on a $5,600 check drawn on the Continental National Bank of Chicago, Ill., April 14, and dated April 26, 1900, payable to Ray S. Reid or order, and, as alleged, delivered to him for value at the date thereof and thereafter indorsed by him for value to plaintiff and dishonored, payment being refused at the drawee bank because there were no funds there to meet the same.

The complaint stated the facts indicated and all others requisite to a cause of action in plaintiff's favor to recover on the check the amount thereof with interest and costs. Defendant answered, admitting the genuineness of the paper, that the same was not drawn against funds in the drawee bank, that none were deposited there to meet the same, and that nothing had ever been paid thereon. The answer put in issue the allegation of the complaint as to ownership of the check by plaintiff, and pleaded, in addition, two defenses, viz., that payment of the check was expressly made conditional on precedent payment of a check for $10,000, drawn by defendant on the Bank of Hudson, Wis., and deposited in the Continental National Bank for collection; and that it was fraudulently obtained from defendant. The following, in effect, are the facts alleged as to fraud: Defendant's father died about 1890, leaving an estate valued at $200,000, consisting mostly of notes secured by farm mortgages, to defendant, H. L. North, her brother, and her mother, in equal proportions. Such proceedings were duly had in respect to the settlement of such estate that about 1893 the residue, after paying all claims other than those of legatees and devisees, was assigned by the probate court of St. Croix county, Wis., undivided, to the three persons named. Mr. North immediately thereafter took charge of the entire property and managed the same till a division thereof was made as hereinafter set forth. Defendant was about 20 years of age when her father died. She was then wholly unacquainted with business matters and so continued down to and inclusive of the time of the giving of the check in suit. She permitted her brother, without objection till 1895, to handle the common property as he saw fit, paying no attention to the business whatever, he paying her from time to time, for her personal expenses, such sums as she required. In 1895 she expressed a wish to have the property divided and her share set off to her so that she could handle it herself if she desired. She was advised to such course by Mr. Reid, who was then a practicing lawyer at Hudson, the home of the North family, and who was the county judge of St. Croix county when the estate was probated. Mr. North prevailed on defendant to abandon the idea of having the property divided and to permit him to continue to handle the estate as he had been doing since it was assigned. Thereafter he continued to manage the property till disturbed in that regard as hereinafter stated, paying the expenses of all the parties interested out of the common fund. In the spring of 1899, while defendant was staying with her cousin, Mrs. Salmon, in the city of Chicago, Mr. North stopped payment upon her checks--which were drawn upon the Bank of Hudson, of which he was president and through which the money belonging to the estate was handled--upon the ground that she was spending money imprudently, notifying her to that effect. She thereupon communicated with Mr. Reid, who was then practicing his profession in the city of La Crosse, sending to him Mr. North's letter and requesting an interview. In response to such request Mr. Reid called on her at Mrs. Salmon's, where a consultation was had, the latter taking an active part in advising defendant as to obtaining control of her property. Mr. Reid stated that a large amount of labor would be required to accomplish her desire, and that the cost thereof would be 5 per cent. upon the value of her property and $500 for expenses; that 5 per cent. and expenses was the usual charge for settling an estate and securing a division thereof among heirs. Such statement was untrue. Subsequently defendant met Mr. Reid in St. Paul, by his procurement, when, relying entirely upon the representations theretofore made as herein indicated, she authorized him to proceed to secure the possession of her property for her on the terms stated by him at Mrs. Salmon's. Shortly thereafter she repented and notified Mr. Reid not to proceed, whereupon he notified her that whether he did so or not he should insist upon the benefit of his contract. That influenced defendant to reluctantly allow him to go on as agreed. He thereafter fully performed his part of the contract, with the friendly co-operation of Mr. North, though the latter did not approve of his sister's course. After the work was done, defendant gave Mr. Reid a certificate of deposit for $5,350, issued by the Bank of Hudson, and a check for $950 as compensation for his services. The check was paid. Before the certificate of deposit was presented for payment Mr. North discovered the particulars of his sister's settlement with Mr. Reid and advised her to take advice as to the reasonableness of his charges. She did so, and becoming satisfied that she had been deceived, that the amount of labor done by Mr. Reid was much less than he had represented, and that she had been charged a very exorbitant amount for his services, requested him to return the certificate of deposit and to make a bill to her for such reasonable charges as would fairly compensate him. He complied so far as to return the certificate of deposit, but he neglected or refused to render a bill for his services. Thereafter, in April, 1900, he met defendant at Mrs. Salmon's in Chicago, he going there for the purpose of obtaining a settlement of his claim. He had previously, in conversation with defendant's mother, said that unless his bill was settled he would bring a suit and make public the conduct of Mr. North as to his sister's property, which statement was communicated to defendant. At Mrs. Salmon's he stated to her that unless his claim was settled he would bring a suit which would disgrace Mr. North. Mrs. Salmon reported that to defendant. Both statements were made for the purpose of having them communicated to defendant and of coercing her into settling Mr. Reid's claim against her will. The result of the conference at Mrs. Salmon's was that defendant, while in such a condition of fear lest her brother and family be disgraced in the manner threatened by Mr. Reid that she was unable to exercise her free will, and believing the only way to prevent harm to her brother was to submit to Mr. Reid's demands, gave him the check in suit, it being then agreed, as before stated, that the check should not be presented to the drawee bank for payment till her check for $10,000, deposited in such bank for collection, should be paid.

On the trial the...