Feller v. Green

• Decision Date: 29 October 1872
• Citation: 26 Mich. 70
• Court: Michigan Supreme Court
• Parties: John Feller v. Alexander R. Green

26 Mich. 70

John Feller v. Alexander R. Green

Supreme Court of Michigan

October 29, 1872

Heard October 23, 1872

Error to Macomb circuit.

Judgment affirmed, with costs.

Hubbard & Crocker and E. W. Meddaugh, for plaintiff in error.

R. P & J. B. Eldredge, for defendant in error.

OPINION

Cooley J.:

Feller was sued on a note which he had signed as surety for one Smith. The defense was, that the note was procured from Smith by means of duress. The circuit judge tried the case without a jury, and we have his finding of facts, and also, several special findings of law. None of the special findings are excepted to, and the only point we can consider on the record is, whether the facts found support the judgment.

The judge finds a valuable consideration for the note, so that the plaintiff was entitled to judgment, unless the alleged duress appeared. Upon that subject he found that Smith was arrested upon an unfounded charge of bigamy, on the complaint of a person acting as agent for the plaintiff and other creditors; that the agent, after the arrest, proposed to drop the charge and settle with Smith for a certain sum of money; that the officer suffered Smith to go off with the agent, at the request of the former, some twenty miles, the officer not accompanying them; that while thus away from the officer, Smith took legal counsel, and was advised that he was not liable on the criminal charge, because, as matter of fact, he had been married but once; that Smith nevertheless made a settlement with the agent, giving the note in suit in security for a portion of what he was to pay; that Feller signed the note at Smith's request; that while the negotiation and settlement were going on, the sheriff had not exercised any control over Smith, and had nothing to do with him; but after they were concluded, the Sheriff told him, "You are clear now;" that "there was no settlement, or attempted settlement of a felony," and that, "while the arrest was treated as continuing, the settlement was of matters entirely independent of the matters charged in the warrant of arrest, and Smith knew he could not be legally held under, or for the charge made."

Unless this finding is a finding of duress, it is obvious that the plaintiff was entitled to judgment. It certainly is not in express terms such a finding, nor is it in legal effect equivalent, unless the facts set forth are such that a conclusion of duress must...