A.H. Averill Machinery Co. v. Taylor

• Decision Date: 04 March 1924
• Docket Number: 5407.
• Parties: A. H. AVERILL MACHINERY CO. v. TAYLOR ET AL.
• Court: Montana Supreme Court

223 P. 918

70 Mont. 70

A. H. AVERILL MACHINERY CO. v. TAYLOR ET AL.

No. 5407.

Supreme Court of Montana

March 4, 1924

Appeal from District Court, Judith Basin County; John C. Huntoon Judge.

Action by the A. H. Averill Machinery Company, against Susan C Taylor, Asa D. Taylor, and others. Judgment for named defendants and plaintiff appeals. Affirmed.

McKenzie & McKenzie, of Great Falls, for appellant.

Charles W. Campbell and Davis & Kelly, all of Big Timber, for respondents.

HOLLOWAY J.

This action was instituted to enforce payment of a balance due upon a debt represented by four promissory notes, executed by Asa D. Taylor and Susan C. Taylor, and to foreclose a real estate mortgage executed by Susan C. Taylor, and purporting to have been given as security for the debt. Several other persons were joined as defendants, but they defaulted, and Asa D. Taylor and Susan C. Taylor will be designated as defendants. They answered separately, but the answers are substantially the same. Each admits the execution and delivery of the notes and mortgage, and pleads certain affirmative defenses numbered 2, 3, and 4. Issues were joined by reply, and upon a trial of the cause these defendants prevailed, and plaintiff has appealed from the judgment.

1. It is contended that no one of the so-called defenses in either answer states facts sufficient to constitute a defense or to warrant affirmative relief. The fourth defense attempted to be pleaded in each answer is incomplete and insufficient. In each instance the pleader sought to incorporate in that defense material allegations of the second defense by reference merely, and this may not be done. Murray v City of Butte, 35 Mont. 161, 88 P. 789; Power & Bro., Ltd., v. Turner, 37 Mont. 521, 97 P. 950. The rules of pleading applicable to an affirmative defense are the same as those which govern a complaint; every cause of action and every separate defense must be complete in itself (Bliss on Code Pleading, § 339; Pomeroy's Code Remedies [4th Ed.] § 410), except as to allegations introductory or by way of inducement, which having once been made, may be adopted thereafter by reference (Power & Bro., Ltd., v. Turner, above).

The third defense in each answer need not be considered since in our judgment there is not any substantial evidence tending to sustain it.

In his second defense, Asa D. Taylor alleges that in 1911 he was indebted to the plaintiff upon certain promissory notes secured by a chattel mortgage, which mortgage was on file in the office of the county clerk and recorder of Gallatin county, the county in which the chattels were situated at the time the mortgage was given; that during the winter of 1911-12 he removed the mortgaged chattels to Park county without the written consent of plaintiff, mortgagee, but without any intention to deprive the mortgagee of its claim thereto or interest therein; that about April 24, 1912, W. H. Lanway, the agent of plaintiff, represented to him that by so removing the property he had committed a crime punishable by imprisonment in the state penitentiary, and that, unless he executed and delivered to plaintiff the new notes now sued upon, and induced his mother, Susan C. Taylor, to secure the payment of the notes by the mortgage in question, plaintiff would prosecute him, cause him to be arrested, and sent to the penitentiary; that he was ignorant of his rights and unfamiliar with business transactions; that he was not given any opportunity to seek or obtain counsel or advice, and that by reason of the representations so made, and acting under the influence of fear produced by the threats and not otherwise, he executed the notes in question.

In her second defense, Susan C. Taylor sets forth the same introductory matter, and alleges that Lanway represented to her that her son had committed a crime punishable by imprisonment in the state penitentiary by removing the property to Park county, and stated to her that unless she signed the notes and executed and delivered the mortgage upon her separate property to secure the payment of her son's indebtedness, plaintiff would prosecute him, cause his arrest, and send him to the penitentiary, that there was not any other consideration for the notes or mortgage, and that they were executed and delivered solely by reason of the fear produced by such threats.

In support of the contention that the threats thus detailed do not constitute menace, counsel for plaintiff cite Bullard v. Smith, 28 Mont. 387, 72 P. 761, and insist that this court stands committed to the doctrine:

"(a) It is not menace for one who believes that he has been wronged to threaten the wrongdoer with civil suit and if the wrong includes a violation of the criminal law to threaten him with criminal prosecution, unless the wrongdoer settles.

(b) Threats of criminal prosecution, when no warrant has been issued or proceedings commenced, do not constitute menace."

The decision in Bullard v. Smith is correct beyond question. Under any view of the law the defendant in that case failed to make out the defense pleaded. This court did not announce either of the principles stated above, but it cited Higgins v. Brown, 78 Me. 473, 5 A. 269, and Hilborn v. Bucknam, 78 Me. 482, 7 A. 272, 57 Am. Rep. 816, which apparently approve those principles. The references were unfortunate, since neither of the principles is supported by the weight of modern authority or by the better reasoned cases.

In every inquiry of this character the court is called upon to determine whether the contract in question is the product of the free will and consent of the parties to it. Our Code declares that the consent of a party to a contract must be free (section 7473, Rev. Codes 1921), and an apparent consent is not free when obtained through duress or menace (section 7475). Menace or duress per minas consists of a threat of "unlawful confinement of the person of the party, or of the husband or wife of such party, or of an ancestor, descendant, or adopted child of such party, husband, or wife" or a threat of "confinement of such person, lawful in form, but fraudulently * * * made unjustly harassing or oppressive," or of a threat "of injury to the character of any such person." Sections 7477, 7478.

If the threats of prosecution actually excited in the mind of each of these defendants a fear of imminent arrest and punishment of Asa D. Taylor, and impelled by that fear alone the notes and mortgage were executed, it was wholly immaterial whether he was guilty or innocent, for there is absent the indispensable element--consent freely given. Morrill v. Nightingale, 93 Cal. 452, 28 P. 1068, 27 Am. St. Rep. 207; Adams v. Bank, 116 N.Y. 606, 23 N.E. 7, 6 L. R. A. 491, 15 Am. St. Rep. 447; Thompson v. Niggley, 53 Kan. 664, 35 P. 290, 26 L. R. A. 803. If he were in fact guilty of a crime, or if plaintiff had reasonable ground for believing him guilty, it might have prosecuted him with propriety, and, since he was indebted to plaintiff it might have insisted upon further security with equal propriety; but it did not have any right to make use of criminal process to collect or secure its debt, and a threat to do so constitutes menace. Taylor v. Jaques, 106 Mass. 291.

In Clifford v. Great Falls Gas Co., 67 Mont. ____, 216 P. 1114, this court quoted with approval from Heaton v. Norton County Bank, 5 Kan. App. 498, 47 P. 576, the following:

"While it has been held that threats of imprisonment, to constitute duress, must be unlawful imprisonment, we think the question is, whether the threat is of imprisonment which will be unlawful in reference to the conduct of the threatener, who is seeking to obtain a contract by his threat. Imprisonment that is suffered through the execution of a threat which was made for the purpose of forcing a guilty person to enter into a contract may be lawful as against the authorities and the public, but unlawful as against the threatener, when considered with reference to his effort to use, for his private benefit, processes provided for the protection of the public and the punishment of crimes. One who has overcome the mind and will of another for his own advantage, under such circumstances, is guilty of a perversion and abuse of the laws which were made for another purpose, and he is in no position to claim the advantage of a formal contract obtained in that way."

To the same effect are Morse v. Woodworth, 155 Mass. 233, 27 N.E. 1010, 29 N.E. 525; Hargreaves v. Korcek, 44 Neb. 660, 62 N.W. 1086; Gorringe v. Reed, 23 Utah, 120, 63 P. 902, 90 Am.St.Rep. 692; Fountain v. Bigham, 235 Pa. 35, 84 A. 131, Ann.Cas. 1913D, 1185; 9 R.C.L. 720.

If the allegations of these defenses are true, Asa D. Taylor was not guilty of any crime. To constitute the act of removing mortgaged chattels from the county, where they were at the time the mortgage was given, a crime, it was necessary under the statute, then in force that the removal be made with the intent of depriving the mortgagee of his claim thereto or interest therein. Chapter 7, Laws 1909. That statute, with further amendments, is now found in section 11416, Revised Codes 1921. Under practically all of the modern authorities a threat to prosecute one for a crime of which he is not guilty constitutes menace. The decided cases will be found cited in the note to 17 A.L.R. 336.

Again it is insisted that neither of these defenses is sufficient because the defendants were guilty of laches. But neither defense was attacked by special demurrer, and the defense of laches was not pleaded in the reply. In Bushnell v Loomis, 234 Mo. 371, 137 S.W. 257, 36 L.R.A. (N.S.) 1029, cited by counsel for plaintiff, the defense of estoppel therein relied upon was pleaded specially. If a party, who relies upon...