Fred Rueping Leather Co. v. Watke

• Decision Date: 08 May 1908
• Citation: 116 N.W. 174,135 Wis. 616
• Parties: FRED RUEPING LEATHER CO. v. WATKE.
• Court: Wisconsin Supreme Court

135 Wis. 616

116 N.W. 174

FRED RUEPING LEATHER CO.

v.WATKE.

Supreme Court of Wisconsin.

May 8, 1908.

Appeal from Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.

Action by the Fred Rueping Leather Company against Albert F. Watke. Judgment for plaintiff, and defendant appeals. Affirmed.

This action was commenced by the plaintiff against the defendant, to recover upon 9 promissory notes of $100 each, executed by the defendant, 10 notes having been originally executed, and one paid, before the commencement of this action. The answer sets up as defensive matter want of consideration, and further alleges that the notes were void, because defendant was threatened with criminal prosecution for having received stolen property unless he would pay a large amount of money, and that he, through fear of said threats, and in consideration of not being prosecuted, executed said notes. The answer also contains a counterclaim, asking for cancellation of the notes and recovery of the amount paid on one of the notes before action brought. The plaintiff replied, denying the allegations of the counterclaim. On the trial the court directed a verdict for the plaintiff, and defendant appealed from the judgment entered upon the verdict.Morse & Williams, for appellant.

Maurice McKenna (Doyle & Hardgrove, of counsel), for respondent.

KERWIN, J. (after stating the facts as above).

The contention on the part of the appellant is that there was sufficient evidence to go to the jury on the issues raised, therefore the court erred in directing a verdict for plaintiff. It appears from the established facts that, several months before the execution of the notes, certain hides were stolen from plaintiff, and that some were sold by the thief to the business partner of defendant, and paid for by defendant; that thereafter the thief was prosecuted and convicted of the offense, and plaintiff demanded payment of defendant for the property received by his firm; that negotiations were had with reference to a settlement, covering a long period of time, and it finally resulted in the execution by defendant and delivery to plaintiff of the 10 notes in question of $100 each, and that some time after the first note became due, and before the commencement of this action, it was paid by defendant. The principal contention of defendant is that the notes were executed under duress. After a careful examination of the testimony, we find nothing in it sufficient to support a verdict in favor of defendant upon that proposition. On the contrary, the evidence establishes beyond question that the defendant executed the notes freely and voluntarily, after he had taken ample time to consider the matter and advise with his counsel, and concluded to give the notes in settlement of the amount which was finally agreed upon as the consideration for the hides which came into the possession of his business partner. It appears that the amount of the stolen property, which came into the possession of defendant's firm, could not be definitely ascertained, plaintiff claiming $2,500 as its value, and finally agreeing to accept $1,000, in payment of which sum the 10 notes were given. At the time the notes were executed and delivered no restraint whatever was exercised over the defendant; but, on the contrary,...