Bond v. Kidd

• Decision Date: 16 May 1907
• Docket Number: (No. 84.)
• Citation: 57 S.E. 944,1 Ga.App. 798
• Court: Georgia Court of Appeals
• Parties: BOND et al. v. KIDD.

57 S.E. 944

1 Ga.App. 798

BOND et al.

v.KIDD.

(No. 84.)

Court of Appeals of Georgia.

May 16, 1907

1. Contracts—Validity—Duress.

When duress is relied upon to defeat a contract, the facts set out in the plea must be sufficient to show duress in law.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 11, Contracts, § 1692.]

2. Bills and Notes — Validity — Plea of Duress.

A plea alleging that the notes sued on were given by the defendant to the plaintiff through fear of the threatened prosecution and imprisonment of the former by the latter on some "pretended charge, or some pretended crime which the defendant had not committed, " did not set forth facts which in law amounted to duress.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 7, Bills and Notes, §§ 242-246.]

3. Same.

A threat of arrest, imprisonment, and prosecution does not constitute duress, unless the person so threatened is charged with havingcommitted an act or acts constituting a crime or misdemeanor.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 7, Bills and Notes. § 246.]

(Syllabus by the Court.)

Error from City Court of Elberton; Proffitt, Judge.

Action by one Kidd against one Bond and others. Judgment for plaintiff, and defendants bring error. Affirmed.

J. F. L. Bond and J. N. Worley, for plaintiffs in error.

A. G. & Julian McCurry, for defendant in error.

HILL, C. J. Kidd brought suit on three promissory notes in the city court of Elberton against Bond as maker and Bond and Sartain as sureties. All of the defendants pleaded that the notes were without consideration and were made by the principal defendant and delivered to the plaintiff under duress. The plaintiff demurred to the pleas (1) because the facts set up as constituting duress were not sufficient to show duress in law; and (2) because the notes were signed by the sureties with full knowledge of the facts relating to the alleged duress, and they were therefore legally bound. The court sustained the demurrer, and. on the introduction of the notes, directed a verdict for the plaintiff.

The question presented for our decision is: Do the facts set out in the plea constitute duress in law? Soon after the notes sued on were given the maker filed an equitable petition in the superior court, alleging that the notes were obtained by Kidd under threats of criminal prosecution and duress, and prayed that he be enjoined from transferring the notes and that they be declared void and delivered up and canceled. The case came to the Supreme Court on a judgment sustaining a demurrer to the petition on the ground that the facts stated in the petition did not in law constitute duress, and that court affirmed the judgment. Bond v. Kidd, 122 Ga. 812, 50 S. E. 934. The pleas interposed to prevent the collection of the notes were evidently framed for the purpose of avoiding this decision of the Supreme Court, and the facts claimed to be sufficient to show duress are somewhat elaborated; but we do not think they are materially strengthened. Indeed, the facts relied upon in the original plea of the principal defendant are substantially the same as in the equitable petition. An amendment to this plea, which was allowed, sets up the facts most strongly relied upon to constitute the defense of duress. These facts are substantially as follows: At the time defendant signed the notes sued on the plaintiff claimed that the defendant had driven a horse, which the plaintiff had hired to him to make a trip into Madison county, six miles further than he had agreed, and that in doing so he had committed a misdemeanor punishable by law; and the plaintiff told the defendant that he had thought of sending the sheriff after him and having him arrested and placed in jail, but had concluded to come himself first and see if they could not fall upon some plan of settlement, and, in the event of failing to get a settlement for the horse and buggy, then he would have the defendant arrested for a misdemeanor and placed in jail. Defendant was ignorant of the law, and was 15 miles from a lawyer to whom he could apply for legal advice, and, fearing that the threat of the plaintiff would be immediately carried out, and that he would be imprisoned under some pretended charge, or for some pretended crime, he gave the notes sued on. Defendant had committed no crime, and the plaintiff knew that fact, but made the threats for the purpose of scaring the defendant into giving said notes. The threats did frighten him, and in order to get rid of immediate arrest and imprisonment he gave the notes. These threats so frightened and confused the defendant that he was not himself, and could not exercise his good judgment and determine for himself whether he owed or did not owe the plaintiff for the horse and buggy, or whether he could do any other thing than sign the notes, and in this frame of mind he did sign them; and the notes are not his contracts, but are the contracts of the plaintiff, signed by the defendant under the fear of immediate arrest, prosecution, and imprisonment, for a pretended crime he had not committed. In the original plea it was stated that the notes were given in payment for a horse and buggy which the defendant had hired from the plaintiff; that, while in the possession of the defendant, the horse became frightened at a dog, and, notwithstanding defendant's strenuous efforts to hold him, ran away, and the horse was drowned; and that the buggy was carried down the river, but was afterwards recovered and delivered to the plaintiff, for which he gave the defendant a credit of $15. Do these facts constitute duress in law? For, when duress is relied...