Kiler v. Wohletz

• Citation: 101 P. 474,79 Kan. 716
• Decision Date: 10 April 1909
• Docket Number: 15,558
• Parties: W. B. KILER v. FRANK WOHLETZ
• Court: Kansas Supreme Court

101 P. 474

79 Kan. 716

W. B. KILER v. FRANK WOHLETZ

No. 15,558

Supreme Court of Kansas

April 10, 1909

Decided January, 1909.

Error from Atchison district court; BENJAMIN F. HUDSON, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. CONTRACTS--Compromise and Settlement. Where two parties in settlement of a controversy, wherein one contends that he owes the other a small sum while the other contends that there is due to him a much larger amount, compromise and fairly agree upon the amount due, and the debtor then executes a promissory note therefor, the promise will be binding upon the parties and the note valid.

2. CONTRACTS--Same. Where there has been a valid agreement to compromise it is not admissible to go back of the settlement to determine who was in the right in the original contention.

3. CONTRACTS--Fraud--Duress. The fact that the creditor insisted that the larger amount was due and that he threatened to enforce his claim by a civil action constitutes neither fraud nor legal duress.

Jackson & Jackson, for plaintiff in error.

George G. Orr, and James W. Orr, for defendant in error.

OPINION

JOHNSTON, C. J.:

This is an action of replevin, brought by the maker of a promissory note to recover possession of the same from one claiming to hold it as a bona fide purchaser. The note was given by Frank Wohletz to J. H. McCann as a result of a lightning-rod transaction, in which it is alleged that McCann agreed to equip plaintiff's house and barn with lightning-rods if plaintiff would pay for the joint and brace and seventy-five cents per foot for two feet of the rod and thereafter represent to other farmers that the rods cost him seventy-five cents per foot. After placing the rods a dispute arose as to the price to be paid, McCann claiming that it was $ 240 and Wohletz offering to pay $ 1.50. The result of the dispute was that McCann drew up a promissory note for $ 150, which Wohletz finally signed, claiming that he thought he had to sign it or be sued. The note was subsequently indorsed by McCann and given to F. E. Crane, who transferred it without his indorsement to the defendant, Kiler, as security for an alleged indebtedness already existing. The jury returned a verdict in favor of the plaintiff, finding that Crane had full knowledge of the circumstances attending the giving of the note and did not in fact purchase it, and that, at the time the note was deposited as collateral security by Crane, Kiler knew or had reason to believe that the note was fraudulent; also, that there was no valid indebtedness existing between Crane and Kiler prior to the date of the note in question, and that the defendant when he took the note knew or had reason to believe that there would be opposition to its payment. Upon these findings the trial court gave judgment for the plaintiff, awarding him possession of the note, of which judgment Kiler complains, alleging as error the giving of certain instructions and the refusal to give others.

Whether there was fraud in the inception or giving of the note was an important question in the case. Wohletz contended that under the contract with McCann he was to pay only $ 1.50, while McCann claimed that he was to pay $ 240. Wohletz insisted that he was to pay for only two feet of the rod at a certain rate per foot, while McCann insisted that he was to pay that rate for the entire length of the rods. Finally a compromise was effected by which it was agreed that the price of the rods should be $ 150, and Wohletz gave his note for that amount. At the close of the testimony Kiler asked the court to give the following instruction:

"Even though the jury may believe from the evidence that in the making of such settlement said McCann stated and represented that he had attorneys employed by the year, or made other representations as to his right to recover the amount claimed by him for the material furnished and work and labor of putting such rods upon said house or barn, or made other representations as to his right to recover the amount he claimed, and that with full knowledge of the claims relied upon by said Wohletz, he, Wohletz, nevertheless made such settlement and agreement, he would be bound thereby and can not recover in this action. The representations so claimed to have been made would not make void the said settlement or the note given in pursuance thereof."

This was refused but the court did instruct the jury that if there was a real dispute between the parties as to the terms of the contract and as to the amount to be paid for the rods, each understanding the claims of the other, and if a settlement was made by which the note in question was given, Wohletz was bound by the settlement; but the court added, "provided you find that said Wohletz was not induced to make such settlement and to sign the said note by fraud or deception on the part of McCann." The rule given...