Fairbanks v. Snow

• Decision Date: 20 October 1887
• Citation: 13 N.E. 596,145 Mass. 153
• Parties: FAIRBANKS v. SNOW.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

145 Mass. 153

13 N.E. 596

FAIRBANKS v. SNOW.

Supreme Judicial Court of Massachusetts, Worcester.

October 20, 1887

COUNSEL

W.S.B. Hopkins and Stillman Haynes, for plaintiff.

OPINION

The ruling of the court as to the admission of the conversations between husband and wife was fully as favorable to the defendant as she could ask. Mere abusive language and threats are all that have ever been held admissible from the privacy of marital conversations. In this case she was allowed to testify "to all things said to her by her husband in the nature of threats, or which she considered threats." French v. French, 14 Gray, 186; Dexter v. Booth 2 Allen, 559; Bliss v. Franklin, 13 Allen, 244; Drew v. Tarbell, 117 Mass. 90; Raynes v Bennett, 114 Mass. 424. The long established practice of this court in divorce causes, never questioned or made expressly the subject of exception, is referred to as a conclusive precedent. To the exclusion of the whole conversation, it is to be observed that it was not the defendant that excepted. The conversations, so far as admitted, were admitted against the plaintiff's objection. Nor was there any exception taken by the defendant to the examination which the court permitted the defendant to be subjected to, as to the earlier notes, of which the note in suit was a renewal. It was competent also to show what the court finds, i.e., that she gave the note in suit, partly to relieve her daughter-in-law from liability on the next preceding one. The request of the defendant that the court rule that it was immaterial whether the plaintiff knew of the alleged duress when he took the note was rightly refused. In the case of notes, the defense of duress is like other defenses of fraud, and cannot be set up against an innocent holder. Clark v. Pease, 41 N.H. 414; Woodhull v Holmes, 10 Johns. 231; Powers v. Ball, 27 Vt. 662; Duncan v. Scott, 1 Camp. 100. Actual notice, or that which is inferred from the dishonor of paper, opens the defense as against an otherwise innocent purchaser for value. Osborn v. Robbins, 36 N.Y. 365; Vinton v. King, 4 Allen, 562. In case of a mortgage, it has been held that the duress must have been at the instigation of the grantee. Bazemore v. Freeman, 58 Ga. 276; Green v. Scranage, 19 Iowa, 461; Talley v. Robinson's Assignee, 22 Grat. 888.

Norcross, Hartwell & Baker, for defendant.

It may be doubtful whether a threat of suicide on the part of the husband would constitute duress. See Remington v. Wright, 43 N.J.Law, 451; Rogers v. Adams, 66 Ala. 600. Threats made by a husband to his wife in a private interview are admissible in evidence. French v. French, 14 Gray, 186. When the language of a husband or wife in a private interview is such in itself as to constitute cruelty or duress, it is not inadmissible on the ground that it was part of a private conversation. The defendant's request for a ruling that if she signed the note under duress it was immaterial whether the plaintiff knew it was so signed, should have been given. A contract, to be binding, must be the result of the free assent of the parties. This is held to be the rule of law in Loomis v. Ruek, 56 N.Y. 462; Fowler v. Butterly, 78 N.Y. 68; Barry v. Equitable Life Assur. Soc., 59 N.Y. 587. That there were other considerations than such duress which in part influenced defendant to sign the note is immaterial. Taylor v. Jaques, 106 Mass. 291; Osborn v. Robbins, 36 N.Y. 371; Hackett v. King, 6 Allen, 58; Phelps v. Zuschlag, 34 Tex. 371. The duress need not occur at the time of signing note, if plaintiff was still under restraint. Taylor v. Jaques, supra; Morse v. Royal, 12 Ves. 355, 373. The subsequent actions of the defendant, relative to arrangements for paying the note, are not a ratification or confirmation of the note, as it does not appear that what she did was with such intent, or with a knowledge of the invalidity of the note. Rau v. Von Zedlitz, 132 Mass. 164; Montgomery v. Pickering, 116 Mass. 227; Kempson v. Ashbee, 10 Ch.App. 15; Morse v. Royal, supra.

HOLMES, J.

This is an action upon a promissory note made by the defendant and her husband to the order of the plaintiff. The defendant alleges that her signature was obtained by duress and threats on the part of her husband. The judge below found for the plaintiff, it would rather seem on the ground that, whether there was duress or not, the defendant had ratified the note, which there seems to have been evidence tending to show that she did. See Morse v. Wheeler, 4 Allen, 570; Rau v. Von Zedlitz, 132 Mass. 164. But, as this may not be quite clear, we proceed to consider the only exception taken by the defendant,--the judge's refusal to rule that, if the defendant signed the note under duress, it was immaterial whether the plaintiff knew when he received the note that it was so signed. The exception is to this refusal. No doubt, if the defendant's hand had been forcibly taken and compelled to hold the pen and write her name, the signature would not have been her act, and if the signature had not been her act, for whatever reason, no contract would have been made, whether the plaintiff knew the facts or not. There still is sometimes shown an inclination to put all cases of duress upon this ground. Barry v. Assurance Soc., 59 N.Y. 587, 591. But duress, like fraud, only becomes material, as such, on the footing that a contract or conveyance has been made which the party wishes to avoid. It is well settled that when, as usual, the so-called "duress" consists only of threats, and does not go to the height of such bodily compulsion as turns the ostensible party into a mere machine, the contract is only voidable. Foss v. Hildreth, 10 Allen, 26, 80; Vinton v. King, 4 Allen, 561, 565; Lewis v. Bannister, 16 Gray, 500; Fisher v. Shattuck, 17 Pick. 252; Worcester v. Eaton, 13 Mass. 371, 375; Duncan v. Scott, 1 Camp. 100; Whelpdale's Case, 3 Coke, 241; 1 Bl.Comm. 130; Clark v. Pease, 41 N.H. 414. This rule necessarily excludes from the common law the often recurring notion, just referred to, and much debated by the civilians, that an act done under compulsion is not an act, in a legal sense. Tamen Coactus Volui, D 4, 2, 25, § 5. See 1 Windscheid, Pandextien, § 80.

Again, the ground upon which a contract is voidable for duress is the same as in the case of fraud, and is that, whether it springs from a fear or a belief, the party has been subjected to an improper motive for action. See Rodliff v. Dallinger, 141 Mass. 1, 4 N.E. 805; Stiff v. Keith, 143 Mass. 224, 9 N.E. 577. But, if duress and fraud are so far alike, there seems to be no sufficient reason why the limits of their operation should be different. A party to a contract has no concern with the motives of the other party for making it, if he neither knows them nor is responsible for their existence. It is plain that the unknown fraud of a stranger would not prevent the plaintiff from holding the defendant. Master v. Miller, 4 Term.R. 320, 338; Masters v. Ibberson, 8 C.B. 100; Sturge v. Starr, 2 Mylne & K. 195; Pulsford v. Richards, 17 Beav. 87, 95.

The authorities with regard to duress, however, are not quite so clear. It is said in Thoroughgood's Case, 5 Coke, 241 that, "if a stranger menace A. to make a deed to B., A. shall avoid the deed which he made by such threats, as well as if B. himself had threatened him, as it is adjudged, 45, E 3, 6a." Shep.Touch. 61, is to like effect. See, also, Fowler v. Butterly, 78 N.Y. 68. But in 43 Year Book, E. 3, 6 pl. 15, which we suppose to be the case referred to, it was alleged that the imprisonment was by the procurement of the plaintiff; and we know of no distinct adjudication of binding authority that threats by a stranger, made without knowledge or privity of the party, are good ground for avoiding a contract induced by them. In Keilway, 154a, pl. 3, "the defendant in debt pleaded that he made the obligation to the plaintiff by duress of imprisonment (on the part) of a stranger,...