Cribbs v. Sowle
| Decision Date | 28 July 1891 |
| Citation | 87 Mich. 340,49 N.W. 587 |
| Court | Michigan Supreme Court |
| Parties | CRIBBS v. SOWLE. |
Error to circuit court, Cass county; THOMAS O'HARA, Judge.
Action in assumpsit by Jacob Cribbs against Joseph M Sowle. Judgment for defendant. Plaintiff brings error. Reversed.
A N. Potter, (Spafford Tyron, of counsel,) for appellant.
Theo. G. Beaver, for appellee.
This is an action of assumpsit upon the common counts commenced in justice court. On appeal to the circuit court for the county of Berrien, the circuit judge directed a verdict for the defendant. The case made by the plaintiff was substantially as follows: He is a farmer about 72 years of age, and has lived in Bainbridge, in Berrien county, upon his present farm, for nearly 40 years. There is an orchard on his premises, and he makes and sells cider. He had cider in the cellar in the spring of 1889. The defendant had a mill not far from plaintiff's, and teamsters in his employ drawing logs to the mill. Plaintiff had a sick horse in July, 1889 and called some of these teamsters in to help him about his horse, as they were passing by his place. After they had assisted him to "swing up" his horse he drew some cider, which he claims had acid in it to keep it from fermenting, and treated them with it. Plaintiff was something of a horse-doctor, and a few days thereafter one Penrod, who was working for defendant with his own team, brought one of his horses to plaintiff to treat for sickness. The horse was brought to his place about 4 o'clock in the morning, and died in about seven hours. On the second day thereafter the defendant came into plaintiff's yard, and we give the conversation between them in the language of the plaintiff "I was preparing to go to the hay-field. I had cut down quite a lot of clover. I was fixing my hay-rack. Says he, 'Is this Mr. Cribbs?' I told him that was my name. He says, I told him that was a mistake. I never sold any of his men any cider in the world,-not a drop. Says he, 'You have, and I can prove it by six different witnesses that work for me,-men that work for me.' Says I, 'Who are they?' Says he, Says he, 'There are three at the mill, and there is three others that will swear they got cider.' I says, 'That is a mistake.' He says, I say, He says, Says I, 'I don't understand the law.' He spoke in the first place, and says, 'You know as much about law as I do.' I says, 'I never had a case in my life, never had a lawsuit; I don't know anything about it.' 'Well, says he. Says he, 'That will be the least I can take, and the best I can do with you, and give you no time.' 'I told him I had no money by me. Question. You said something about his having you at Grand Rapids. What did he say about that? Answer. He would have me arrested and take me to Grand Rapids, in the U.S. court, and it would imprison me so long a time, and $500 fine. Q. Did he state how long a time? A. Imprisonment? Q. Yes. A. I don't know as he came out on the time or years. I don't recollect that he did. He might have said a number of years. 'There will be no chance for you at all; it will be a sure thing.' Said he could prove it by three men down there. Wanted I should go down with him. I say, 'I have no time; my hay is in such a state I want to put my hands to work.' Says I, 'I cannot go.' 'Well,' says he, 'you better go.' 'Better go down,' says he, 'it will save a good deal of expense to you, probably.' So I went down.'' Plaintiff admitted to Sowle that he gave the men some cider to drink, but protested that he did not sell it to them. Sowle told him that was enough to condemn him, as it was a sale. Plaintiff said he "could not see it in that light." Sowle replied, "I understand the law as well as most lawyers." Plaintiff and Sowle went down to the mill, and Sowle called up some of his men, and asked them, "Did you ever buy any cider of Mr. Cribbs?" and each one answered in the affirmative. Considerable more conversation between plaintiff and defendant took place between this time and the payment of the money; Cribbs trying to plead off or reduce the amount, and Sowle insisting on the sum of $150 in money, or he would criminally prosecute the plaintiff for selling cider without a license. Finally Cribbs went down to Benton Harbor to get the money. While there he called upon Mr. Weimer, a druggist, and who had been a sheriff or deputy-sheriff of the county, and asked his advice. Weimer said to him that he "guessed he had got in a boat." Plaintiff then went and got the money, and paid defendant $150. This is the money he is seeking to recover in this suit.
It was also shown by the testimony of Mr. Penrod, a witness for the plaintiff, that after his horse died the defendant came to Penrod, and asked him what he was going to do. Penrod replied that he hardly knew what to do. Then Sowle said, "There is just one way that you can get a horse." On being asked how that was, he said that, if Penrod would swear that he bought cider of Cribbs, he (Sowle) could go and scare $150 out of him. Penrod replied that he could not do that, as he never bought any cider of plaintiff. Sowle said the other boys had, and they would swear to it. Penrod also testified that he was present when Sowle called the men up in the presence of the plaintiff, and asked them if they had purchased cider of Cribbs, and heard them answer, "Yes." Plaintiff was also corroborated, as to his conversation in his own yard with Sowle, by Mr. Parker, his hired man, who heard most, if not all, of the talk there. The defendant admitted getting $150 of Cribbs, and that he obtained it by reason of making the charge to him that he had been selling cider to the men, but denied that he had threatened any criminal prosecution. There was no proof in the case that plaintiff's letting the men have cider had anything to do whatever with the killing of the horse belonging to Penrod. The money, under all the testimony, was received by Sowle without any consideration for its payment, except the settlement of a threatened criminal prosecution. But the circuit judge was of the opinion that the plaintiff had "failed to show anything like duress;" and said to the jury that, under his own testimony, there is nothing that can be called such fear as the law will recognize; The judge in his remarks to the jury, a portion only of which has been given above, laid stress upon the fact that plaintiff was remarkably strong and robust for one of his years, and had transacted more business than the average man in his walk of life. And also upon the further fact that plaintiff deliberated before the payment of the money, and counseled with a friend, "and paid the money with a full knowledge of the facts."
The plain case is this: On Sowle's own showing, he has $150 of plaintiff's money without any consideration, and without the shadow of an...
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