Bradsher v. Morton

• Decision Date: 10 December 1958
• Docket Number: No. 385,385
• Citation: 249 N.C. 236,106 S.E.2d 217
• Court: North Carolina Supreme Court
• Parties: Lee BRADSHER v. Eula MORTON, Widow, James H. Morton, Arthur C. Smith and Beatrice Morton, Administrator and Administratrix of the Estate of James Morton, Deceased.

Page 217

106 S.E.2d 217

249 N.C. 236

Lee BRADSHER v. Eula MORTON, Widow, James H. Morton, Arthur C. Smith and Beatrice Morton, Administrator and Administratrix

of the Estate of James Morton, Deceased.

No. 385

Supreme Court of North Carolina.

Dec. 10, 1958

Charles B. Wood, R. P. Burns, R. B. Dawes, Roxboro, for plaintiff, appellee.

M. Hugh Thompson, Durham, Donald J. Dorey, Roxboro, William A. Marsh, Jr., Durham, for defendants, appellants.

HIGGINS, Justice.

This appeal comes to us from a judgment of the superior court which, after review, modified and affirmed findings of fact and conclusions of law made by the referee. Based on the findings, the trial judge ordered the defendants to pay to the plaintiff the sum of $20,000 and the court costs.

The referee held hearings over a period of several days. His findings of fact are in great detail. Upon exceptions filed thereto the trial judge carefully reviewed them and the evidence upon which they were based. He modified some in minor detail and made the additional findings referred to in the statement of facts. 'When exceptions are taken to a referee's findings of fact and law, it is the duty of the judge to consider the evidence and give his own opinion and conclusion, both upon the facts and upon the law.' Anderson v. McRae, 211 N.C. 197, 189 S.E. 639, 640.

In passing on the judgment from which this appeal was taken it becomes the duty of this Court to determine two things: (1) Are the facts found supported by competent evidence? (2) Are the facts found to have been thus supported sufficient to support the judgment?

The first essential inquiry relates to the question whether at the time he paid $20,000 to the defendant the plaintiff was actually indebted to the defendants' intestate. A number of separate findings of the referee, when combined, answer this question. The evidence in support of the referee's findings that nothing was due comes from different sources. Walter Bradsher, who had charge of his father's safe, testified that at the time of James Morton's death he had $11,600 in the safe. He further testified that during the many years he had charge of the safe he kept a book account of all amounts paid to James Morton during his lifetime, and that he had thus paid the sum of $38,418. (The defendants objected to this evidence.) The plaintiff introduced before the referee two disinterested witnesses who testified that shortly before Morton's death he made the statement he had about $11,000 in the plaintiff's safe. The plaintiff also introduced evidence that Morton took receipts for all deposits and from time to time when he made withdrawals he removed a receipt representing the amount of the withdrawal from the other receipts and 'stuck' it on a filing wire he kept for that purpose. All receipts showed total deposits of $50,048.85. The receipts with wire perforations amounted to $38,688.85. Thus the unperforated receipts kept for the purpose of showing what was still in the safe amounted to $11,360--slightly less than the amount shown by Walter Bradsher's books and slightly less than the amount turned over to the defendants after the death of their intestate.

Another circumstance tending to show that nothing was due the estate was the failure (as appears from the clerk's records) on the part of the defendants to include the payment in the list of assets belonging to the estate. The evidence is ample to support the findings that the plaintiff, at the time he made the payment which he seeks to have returned to him, was not indebted to the Morton estate.

In order to permit recovery, the plaintiff is required to show that the payment was involuntary. On this question the referee heard much evidence as to the effect the defendants' demands for money had upon the illiterate and worried old man, especially the defendants' claim that they had receipts which showed deposits of more than $50,000. With respect to the contested payment, the plaintiff testified: 'Yes, I did that because I wanted to relieve this burden. It was not the money burden because I knowed I didn't owe it. The burden was the family and the union that we might have between each other. I was not feared of the people as far as that part goes, but I didn't know what might arise. You take this like I was, then some folks kill folks for a quarter. * * * After he died, I wasn't thinking about nobody going to kill me, and I didn't think I was going to kill nobody, but I had them eight or nine boys and she had two or three. * * * but what I was studying about was hereinafter. I didn't want to die and leave fighting and me and Jim brothers, * * * It said (the letter from the defendants) we want $18,000, and if you don't pay it * * * we will take further steps * * * That frightened me because I knowed they had my papers.'

Members of the plaintiff's family testified he was so worried over the defendants' demands that he was unable to eat. He stated unless he got the trouble settled he would go crazy. The evidence before the referee and the court was sufficient to support the finding the payment here involved was not voluntary, but was made under duress.

In determining whether one acts under duress, 'The mental condition of the person acted on must always be taken into consideration. The law does not leave the old, the weak, the ignorant, and the timid at the mercy of those who would operate on their fears to secure the payment of an unlawful demand.' Am.Jur., 40, Sections 161, 162, pp. 825, 82...