Holmes v. Hill

• Decision Date: 31 October 1853
• Citation: Holmes v. Hill, 19 Mo. 159 (Mo. 1853)
• Parties: HOLMES, Plaintiff in Error, v. HILL, Defendant in Error.
• Court: Missouri Supreme Court

19 Mo. 159

HOLMES, Plaintiff in Error,

v.HILL, Defendant in Error.

Supreme Court of Missouri.

October Term, 1853.

1. A contract will not be avoided by duress of imprisonment under legal process, unless there has been an improper use made of the process, either in wilfully employing it to imprison the defendant upon a demand that was groundless, or knowingly exaggerated, or unless there has been a subsequent abuse of the process, and an advantage gained thereby.

Error to St. Louis Court of Common Pleas.

N. Holmes, for plaintiff in error.

1. The first, second, third, fifth and sixth instructions asked by the plaintiff should have been given. 2 Greenl. Ev. § 302. 5 Dane's Abr. 373, (ch. 158. § 7 to 13. § 22.) 2. Bac. Abr. 171, tit. Duress, A, and note. Com. Dig. tit. Pleader, 2 W. 19. Chitty on Con. 206-7 and notes. 1 Saund. Plead. and Ev. 44. Watkins v. Baird, 6 Mass. 711. Waterman v. Barrett, 4 Harr. 311. Where the suit is upon regular legal process, founded upon real demands, though for a larger amount than the plaintiff may finally succeed in recovering, and though the defendant may have off-sets, so as to reduce the amount claimed lower than the plaintiff had admitted, and the parties compromise and settle while the defendant is under arrest, and notes are given, such notes cannot be avoided on the ground of duress of imprisonment, notwithstanding the defendant would not have given them if he had not been under arrest. Stouffer v. Latshaw, 2 Watts, 165-170. 2. The fourth instruction asked for by the plaintiff should have been given. Story's Prom. Notes, § 186. Russell v. Cook, 3 Hill, 504. Shepard v. Watrous, 3 Caines, 166. Crowell v. Gleason, 1 Fairf. 325-333. Meek v. Atkinson, 1 Barr, 84. These suits cannot be said to have been for ““improper purposes,” as in Richardson v. Duncan, 3 N. H. 511, where a criminal prosecution was used to extort money. 3. The instructions given for the defendant were erroneous.

Geyer & Dayton, for defendant in error.

The note sued upon was given solely for the purpose of obtaining a discharge from an unlawful imprisonment, and not on account of any indebtedness in fact, or acknowledged by defendant; and although the process under which he was imprisoned may have been issued according to the forms of law, such imprisonment was none the less a duress, if the jury found that there was no just cause of action, or that the cause of action, if any, was falsely magnified in amount, in order to prevent the defendant from procuring bail.

An arrest for improper purposes, without just cause, or an arrest for just cause and under lawful authority, for an improper purpose, is duress, and even when money is paid in order to obtain a discharge, it may be recovered back. Richardson v. Duncan, 3 N. H. Rep. 308. Severance v. Kimball, 8 ib. 386; Alexander v. Pierce, 10 ib. 497; Noshay v. Ferguson, 5 Hill, 159; 13 Maine, 146; Bullers's N. P. 172. If the process is sued out for an improper purpose, as by exaggerating the amount, so as to require bail that cannot be given, and thereby coerce the party to terms, it is duress.

GAMBLE, Judge, delivered the opinion of the court.

Holmes brought his action of assumpsit against Hill on a promissory note made by Hill, payable to Edward Bloomer and by him endorsed to Holmes. Hill pleaded that the note had been obtained from him by Bloomer, the payee, by duress of imprisonment, and that Holmes, the endorsee, had notice of the fact. Although other special pleas were filed, upon which issues were formed, the defense relied upon was the duress.

In the evidence, it appeared that Hill, for several years prior to the making of the note, had contracts in relation to lumber with Robert and Edward Bloomer, and with a firm of J. Chamberlain & Co., of which the Bloomers were members; that these contracts were for large amounts, and that the parties had difficulties in relation to the contracts which resulted in law suits against each other; that in a suit in Wisconsin territory, the Bloomers had at one time recovered a verdict for $4841.20 against Hill, and on a new trial, had obtained a verdict and judgment for $6231.14. which had been reversed on appeal. Hill, who resides in St. Louis, being at Galena, in Illinois, in October, 1844, where the Bloomers resided, was sued there in two actions--one in the name of Edward Bloomer and the assignee in bankruptcy of Robert Bloomer, and the other in the name of the partners of the firm of J. Chamberlain & Co. In the first, the amount of indebtedness sworn to was $4422, and in the second, $14,000, and bail was required in double these amounts. Hill being a stranger and unable to procure bail, was committed to jail. While in prison, he consulted counsel and was very desirous to procure bail that he might return home. He claimed that the parties who had sued him would be found indebted to him, upon a fair settlement of all their transactions, in the sum of $22,000. His counsel, believing that, if he was not indebted to the plaintiffs in the actions, any engagements he might enter into, in order to discharge himself from imprisonment, would not be obligatory upon him, gave him that advice, and, with his consent, entered into negotiations with Edward Bloomer to settle the matters in dispute and obtain his discharge.

After different propositions were made, it was agreed that Hill should execute his several promissory notes, amounting to $4470, payable at different times, to Edward Bloomer, and that the parties should execute mutual releases of all demands. The papers were so executed, and Hill was discharged from prison. The present plaintiff, Holmes, was the attorney acting for the plaintiffs in those actions, and himself received from Hill, in prison, the notes, when executed.

On the trial of this cause, evidence was given for the purpose of showing that Hill, at the time he gave the notes, was not indebted to the parties who had imprisoned him; and on the other side, evidence was given for the purpose of showing that he was largely indebted to them.

The plaintiff asked the court to give the following instructions:

1. Under the pleas of duress in the case, unless the jury believe from the evidence that the legal process under which the defendant was imprisoned, when he made this note, was sued out by the payee and others, the plaintiffs in those suits, without any foundation for the suits, falsely, maliciously, and without probable cause for an action against the defendant, they will find these issues of duress for the plaintiff.

2. If the jury believe from the evidence, that the payee of this note and others, the plaintiffs in the suits in which the defendant was held to bail, at the time when they commenced those suits, had unsettled demands of a lawful character against the defendant therein, to a considerable amount, such demands would constitute a good foundation for those suits, and afford probable cause of action against defendant, notwithstanding the said defendant had also cross-demands by way of set-off against those plaintiffs to a large amount, which he might have established against them upon the trial of the cases.

3. If the jury believe from the evidence, that the payee and others, the plaintiffs in the suits under which the defendant was held to bail, had probable cause of action for those suits, and that they were brought for the recovery of existing lawful demands against the defendant, and that the imprisonment of the defendant, when he gave this note, was under legal process in those suits, and that no other force or constraint was imposed upon him than such imprisonment as aforesaid, they will find these issues of duress for the plaintiff, notwithstanding they may also believe that the defendant would not have given the note sued on, if he had not been in prison under that process.

4. If the jury believe from the evidence that, at the time this note was given, there were mutual uusettled demands existing between the defendant and Edward Bloomer, the payee, (and others connected with him as partners,) and that a balance was claimed against said defendant, to the amount at least of the notes given, and that this note was given on a compromise in settlement of these demands, the consideration was valid and sufficient, however doubtful that claim of the other parties, and without regard to its validity.

5. The jury are instructed that, if they believe from the evidence, that the imprisonment of the defendant was upon probable cause of action and without malice, but in good faith for the recovery of demands which the plaintiffs in those suits believed to be lawfully due them, such imprisonment is not duress and no defense to this action, notwithstanding the jury may also believe that the defendant would not have given the notes if he had not been held to bail, and notwithstanding the defendant's sole motive in giving them was to get out of jail.

6. The jury are instructed that, if the plaintiffs in those suits had lawful demands against David B. Hill, for about the sums claimed and sworn to, they had a right to sue him for these demands, and to hold him to bail, no matter whether their feelings and motives in doing so, were friendly or hostile towards the defendant, and that such imprisonment cannot, in law, be considered duress, whether the defendant had off-sets or not.

7. If the jury believe from the evidence, that the defendant retained possession of the mills in Wisconsin, after the contract for lumber had been filled, and that he refused to deliver up the mills and the personal property received with them, according to the terms of the contract, he is accountable to the Bloomers for the value of such personal property, and for the value of the lumber made after that time, as valued at the mills, deducting from the value of the lumber only a reasonable rate for expense of cutting the same, (considering the mills, timber, machinery, teams, tools, &c., furnished as proved in this case; and the Bloomers are not...