Jones v. Morrison

• Decision Date: 18 November 1922
• Docket Number: Civil 2001
• Citation: 210 P. 472,24 Ariz. 367
• Parties: C. B. JONES, Appellant, v. R. MORRISON, Appellee
• Court: Arizona Supreme Court

210 P. 472

24 Ariz. 367

C. B. JONES, Appellant, v. R. MORRISON, Appellee

Civil No. 2001

Supreme Court of Arizona

November 18, 1922

APPEAL from a judgment of the Superior Court of the County of Maricopa. Joseph S. Jenckes, Judge. Affirmed.

Mr. E Wilder and Mr. Carl Davis, for Appellant.

Messrs Dougherty & Dougherty, for Appellee.

OPINION

FLANIGAN, J.

This action was brought by appellee to recover upon appellant's promissory note. Appellant answered admitting the execution of the note and its nonpayment, but for a special defense alleged that the note is "extortionate, unconscionable, usurious and void and was exacted of defendant as a penalty," by reason of the following circumstances: That before the execution of the note plaintiff had made an agreement in writing with L. W. Williams and I. G. Masters by which he agreed to sell and convey to the said Williams and Masters certain real estate for the purchase price of $13,200, payable in installments; that pursuant to the terms of the contract plaintiff placed his deed and abstract of title to the property in escrow to be delivered upon payment of a certain balance of the purchase price; that thereafter defendant succeeded by assignment to the interest of Williams and Masters in the contract; that on the twentieth day of November, 1918, the principal sum of $7,000 was due under the terms of the contract, and it was agreed between plaintiff and defendant that an extension of ninety days should be given for the payment of said sum; that on the twenty-third day of February, 1919 (three days after said period of ninety days had expired), plaintiff, with the unlawful intent and purpose of placing the defendant under duress and coercing him into the payment of additional money on account of the contract, by deceitful practices obtained the possession of the papers from the escrow holder and immediately thereafter called on defendant and represented to him that he would not deliver the title to said premises unless and until defendant made and delivered to plaintiff defendant's promissory note in the sum of $2,000; that, acting under the threats of plaintiff and being placed in duress thereby defendant paid to plaintiff the remaining sum due on the contract of purchase, to wit, $7,000 and interest, and in addition made and delivered to plaintiff said promissory note, being the instrument sued upon, and that the note was exacted from defendant in excess of all moneys due on account of said contract of sale. To this answer plaintiff replied by plea of res adjudicata that the defendant in a former action had sought the cancellation of the note, and had therein alleged as grounds for the relief prayed a lack of consideration for the note and fraud and duress in procuring the same, all in manner and substance as now set forth in the defense interposed by defendant to the present action, and attached to such reply as exhibits a copy of the pleadings and judgment in the former action.

Upon these pleadings the cause was tried before the court with a jury. Without objection by defendant, plaintiff offered in evidence in his case in chief the note and the record in the former cause, which included the complaint, answer, reply, transcript of reporter's notes, and the judgment rendered upon an instructed verdict that plaintiff take nothing by his action; the judgment reciting, inter alia:

"The plaintiff having rested his case, motion was thereupon made by attorneys for defendant for an instructed verdict in favor of the defendant, and it appearing to the court from the evidence introduced that the plaintiff is not entitled to recover judgment in this action, and that the defendant is entitled to a verdict upon the facts and the law in the premises, the jury was instructed by the court to return a verdict in this cause in favor of the defendant."

After the introduction of these documents plaintiff moved that the jury be instructed to return a verdict in his favor. During the course of the argument upon this motion the judge said:

"I would like to ask this -- of course there would not be any dispute if the issues in this case were adjudicated by this other suit; why, of course, that is res adjudicata as to this suit."

To which counsel for appellant replied:

"We most earnestly contend there are variances in the issues and there are other reasons why the decision in the other case is not controlling in this."

Further on the judge, addressing himself to counsel for appellant, remarked:

"Well, I would not want to get wrong on that particular proposition. You don't rely upon anything else, as I take it, from the pleadings and from your argument here, but this question that this was an usurious transaction; that is, in addition to the things which were litigated in the previous case."

To which counsel for appellant replied.

"I think perhaps that covers in a large measure the additional issues."

While the language of the record is not altogether clear on the subject, it sufficiently appears that the judge thereafter expressed his opinion that by reason of the former judgment the issue as to the usurious nature of the transaction was not open to defendant in the case at bar. Thereupon the plaintiff's motion for an instructed verdict was granted, and judgment was entered upon such verdict in favor of the plaintiff for the sum sued for.

The point most strongly argued for the reversal of the judgment is that the appellant was never given an opportunity to introduce evidence to refute the showing made by plaintiff. Appellant did not question at the trial, nor does he question here, either the rendition of the former judgment or that the record of the proceedings in that case is not correctly shown by the documents in evidence. It is clear from the course of the argument and the remarks of court and counsel that the judge assumed that appellant was relying wholly upon the defenses which might appear upon a comparison of the record in the former case with the answer of the defendant in this, and that appellant considered that a decision of the motion on the evidence adduced was a decision of the case. The specific inquiry of the judge based upon that assumption required a forthright statement by appellant of his position and if he did not choose to abide by the decision to be made on such evidence alone, but wished...