Fassett v. Boswell

• Decision Date: 18 July 1911
• Citation: 59 Or. 288,117 P. 302
• Parties: FASSETT v. BOSWELL.
• Court: Oregon Supreme Court

117 P. 302

59 Or. 288

FASSETT v. BOSWELL.

Supreme Court of Oregon

July 18, 1911

Appeal from Circuit Court, Douglas County; J.W. Hamilton, Judge.

Action by Emma E. Fassett against Mrs. E.E. Boswell. From a judgment for defendant, plaintiff appeals. Affirmed.

This is an action on a promissory note for $200; the note being in the usual form. As a defense to the action, defendant denies the execution of the note, and any indebtedness to plaintiff and alleges that, by means of threats of injury to defendant's business and to her person, she was coerced into signing the note, and that the note was without any consideration, and was void. The circumstances surrounding the execution of the note were that defendant was the proprietor of Boswell's Springs, a pleasure resort, and plaintiff's husband went there shortly before the execution of the note to take a bath. While at the springs he was badly beaten and bruised by defendant's cook, a Frenchman. As to who was to blame or how the trouble took place between Fassett and the cook does not appear. About 12 days thereafter plaintiff went to defendant's place and secured the note, as she says, for compensation for the loss of support of her husband and the expense of the trip there. Defendant contends that she signed the note under threats made by plaintiff that she would ruin her business, and that she would make it look like a barroom brawl; and said that if such a thing got out it would ruin her business. Defendant also contends that it was blackmail, and that she signed the note under coercion, without any consideration. The case was tried by the jury, and a verdict rendered for defendant, and from a judgment thereon plaintiff appeals.

C.S Jackson (Henry F. Joslin, on the brief), for appellant.

O.P Coshow (Coshow & Rice, on the brief), for respondent.

EAKIN C.J. (after stating the facts as above).

The plaintiff moved for a new trial on the grounds (1) that the evidence was insufficient to justify the verdict, and (2) of newly discovered evidence. A motion to set aside a verdict for insufficiency of evidence to sustain it is addressed to the sound discretion of the trial court, and cannot be assigned as error on appeal. State v. Foot You, 24 Or. 60, 70, 32 P. 1031, 33 P. 537; McCormick Machine Co. v. Hovey, 36 Or. 259, 59 P. 189; Houser v. West, 39 Or. 292, 395, 65 P. 82; Crossen v. Oliver, 41 Or. 506, 69 P. 308. And as there was no motion for a directed verdict, the case is not before us on the insufficiency of evidence.

The motion for a new trial on the ground of newly discovered evidence is insufficient to present that question, as it does not comply with the statute. Such a motion must be based upon an affidavit setting forth the facts upon which it is based. L.O.L. §§ 174,

177; State v. Hill, 39 Or. 90,...