Beal & Doyle Dry Goods Co. v. Barton

• Decision Date: 22 October 1906
• Citation: 97 S.W. 58,80 Ark. 326
• Parties: BEAL & DOYLE DRY GOODS COMPANY v. BARTON
• Court: Arkansas Supreme Court

97 S.W. 58

80 Ark. 326

BEAL & DOYLE DRY GOODS COMPANY v. BARTON

Supreme Court of Arkansas

October 22, 1906

Appeal from Pike Circuit Court; James S. Steel, Judge; affirmed.

STATEMENT BY THE COURT.

W. P Barton, of Antoine, was the father of three sons, Clib Barton, W. P. Barton, Jr., and Ross Barton, who were doing business at Antoine under the firm name of Barton Brothers. A petition in involuntary bankruptcy was filed against Barton Brothers, growing out of the robbery of their safe of the sum of $ 7,000 or $ 8,000. It became rumored in the community where they lived that these men had robbed themselves, and it was a matter under investigation by their creditors and common talk in the vicinity. W. P. Barton, the father executed severally an obligation to Beal & Doyle Dry Goods Company and the Nevada County Bank, who were the principal creditors, as follows:

"Antoine Arkansas, Dec. 5, 1902.

"On or before December 1, 1903, for value received, and for the purpose of helping my sons out of their financial trouble, I promise to pay to the Nevada County Bank, of Prescott Arkansas, all such sums and balances they may be due said bank after their estate as partners is wound up in bankruptcy; that is, whatever pro rata the bank receives lacks of paying it in full, I hereby promise to pay for the consideration above named.

"W P. BARTON."

W. P. Barton died, and the appellee qualified as executrix. These were suits to enforce the difference between the amount received from the bankruptcy and the amount of the debts due to these respective creditors. They were consolidated and tried as one suit.

There was testimony tending to prove that W. P. Barton employed C. C. Hamby and another lawyer to look after the interests of his sons in regard to the prospective criminal prosecution, and there was testimony tending to prove that the said Hamby was also employed, and received compensation therefor, by appellants to induce W. P. Barton to execute an agreement similar to the one in suit.

There was testimony to prove that Hamby represented to Mr. Barton that highly incriminating testimony had been secured against his sons, that appellants were the principal creditors, and if he executed an obligation to them they would not prosecute his sons, and efforts to connect them with the robbery of their safe would cease.

The following instructions were given, among others, by the court:

"2. Any agreement that tends to stop or prevent a criminal prosecution, and thereby to interfere with the course of justice, is void; whether within the terms of the statute or not is against public policy and is void. And in this case, if the jury find from the evidence that the obligations sued on were signed under the agreement that the plaintiffs would not prosecute the maker's sons for the violation of the criminal statutes, State or Federal, then and in that event their verdict should be for the defendant.

"3. You are instructed that, although you may believe from the evidence that the Barton Brothers were not guilty of any offense for which they could be punished criminally, either under the Federal or State statutes, and that the Nevada County Bank and Beal & Doyle Dry Goods Company did not intend to prosecute them criminally; yet, if you find that C. C. Hamby, acting either as attorney or agent of the Nevada County Bank and Beal & Doyle Dry Goods Company, represented to W. P. Barton, Sr., that if he signed the obligations sued on his sons, the Barton Brothers, would not be prosecuted criminally, but if he did not sign the said obligations they would be criminally prosecuted, and you believe this was the consideration moving W. P. Barton, Sr., in the execution of said instruments, then in that event the said obligations are void, and your verdict should be for the defendant.

"4. If the jury find from the evidence that C. C. Hamby was the attorney or agent for the plaintiffs in these cases, then and in that event the plaintiffs will be bound by all the statements made by said Hamby at the time that said W. P. Barton, Sr., signed said obligations."

There was a judgment in favor of the defendant executrix, and the creditors bring the case here.

Judgment affirmed.

McRae & Tompkins, J. M. Moore, W. B. Smith and J. M. Moore, Jr., for appellant.

1. It was error to permit the defendant to amend her answer and to allow her to open and close the argument. 58 Ark. 556.

2. If the note sued on was executed under an agreement that Beal & Doyle Dry Goods Company would purchase the stock at public sale, and resell the goods to W. P. Barton upon such terms as would enable him to make a profit thereon, this was a valid consideration, and it was error to refuse an instruction to that effect.

3. The court erred in modifying the fifth instruction asked by plaintiffs and in giving it as modified.

4. The court erred in giving the seventh and eighth instructions asked by plaintiffs.

Hardage & Wilson and John H. Crawford, for appellee.

1. The party having the burden of proof under the state of the case at the time argument is to begin is entitled to open and close the argument. 32 Ark. 470; 57 Ark. 137; Kirby's Digest, § 6196, subdivs. 3 and 6.

2. On the question of want of consideration, see 7 Fed. Cas. 680; 83 Ala. 132; 9 N.W. 569; 20 A. 1016; 18 Am. Dec. 79, 86, and note; 12 Ia. 512; 4 Md. 476; 6o Md. 436; 20 Mass. 207; 36 Mass. 429; 20 Am. Rep. 399, and note. A promissory note given to procure the dismissal of a criminal prosecution is contrary to public policy and void. 51 Ark. 519; 67 Ark. 480; 10 Am. Rep. 631; 22 Am. Rep. 117; 24 Am. Rep. 463; 29 Am. Dec. 612, and note; 31 Ib. 599; 22 Ib. 478; 6 Ib. 566; 32 Ib. 448; 34 Ib. 712; 45 N.W. 912; 4 Ohio 400; 13 S.W. 537; 35 Ark. 279; 76 Am. Rep. 243; 22 S.E. 748; 48 Ga. 358; 51 Ill. 234; 17 111. App. 434. A note executed by a father, induced thereto by threats of prosecution and imprisonment of his sons, is voidable because of duress in procuring its execution. 14 R. I. 618; 41 Am. Rep. 188, and note; 40 Ib. 31; 26 L.R.A. 48, and note; 13 N.E. 741; 41 N.W. 730; 30 Hun (N. Y.), 237; 45 L.R.A. 407.

OPINION

HILL, C. J., (after stating the facts.)

The first question discussed is the alleged error of the court in permitting an amendment of the pleadings after the evidence was in, so as to give the appellee the opening and closing argument before the jury. The appellee had denied in her answer that the estate of Barton Brothers in bankruptcy was wound up. The other defenses were of no consideration, duress and compounding of a felony, matters which would cast the burden of proof upon the defendant. The only issue that cast the burden of proof upon the plaintiffs was the denial that the bankruptcy proceeding was terminated, so as to bring to maturity the obligation.

At the close of the testimony, after the appellants (plaintiffs) had made the proof to sustain their allegation to that effect the appellee asked the court for leave to amend her pleadings by striking out the denial of that fact, in order to give them the opening and conclusion. The court permitted this, and that action is assigned as error. In Excelsior Manufacturing Co. v. Owens, 58 Ark. 556, 25 S.W. 868, almost exactly the same situation was presented. In that case the court refused to allow the amendment and refused to give the opening and conclusion to the party seeking to amend his pleadings at that time, saying that the proof had already been made and the concession amounted to nothing. The amendment of pleadings was a matter within the sound judicial discretion of the court, and the court's action will not be reversed unless there is an arbitrary abuse of such discretion. Section 6190 of Kirby's Digest fixes that the opening and conclusion of the argument shall be given to the party upon whom the burden of proof rests under the pleadings; hence the opening and conclusion is a matter to be determined by the pleadings in the case. In the Owens case this court affirmed the judgment, thereby declining to reverse the circuit judge for his refusal to permit an amendment to the pleadings which shifted the burden of proof; and in this case the court must also decline to reverse for permitting the amendment, because it was a matter within the discretion of the court, and it is not apparent that there was any abuse of that...