King v. Lewis

• Citation: 4 S.E.2d 464,188 Ga. 594
• Decision Date: 13 September 1939
• Docket Number: 12759.
• Parties: KING et al. v. LEWIS.
• Court: Georgia Supreme Court

4 S.E.2d 464

188 Ga. 594

KING et al. v. LEWIS.

No. 12759.

Supreme Court of Georgia

September 13, 1939

Syllabus by the Court.

1. Threats of bodily harm, sufficient to overcome the mind and will of a person of ordinary firmness, and made for the purpose of coercing and which do actually coerce another into executing a promissory note, constitute duress and render such transaction voidable. The petition in the present case seeking cancellation of certain promissory notes executed by the plaintiff, and an injunction against their transfer stated a cause of action under the above principle. The general demurrer was properly overruled.

2. The evidence, however, did not support the verdict.

G. Y. Harrell, of Lumpkin, and E. R. King, of Fort Gaines, for plaintiffs in error.

No appearance for defendant in error.

REID Chief Justice.

Merritt Lewis, a negro farmer, while appearing before a Quitman County grand jury, made statements that J. C. Gay, sheriff of the county, had been stealing money, and that for forty dollars he had released a defendant in a pending criminal prosecution. It is not clear from the record just how he came to make these statements; that is, whether they were made in response to questions on some issues as to which he had been called to testify, or whether they were gratuitously made by him on questions not under inquiry by the grand jury. Others claimed to have heard Lewis make similar accusations outside the jury-room and in the presence of other people. Therefore, for the purpose of questions here to be considered, it need not be determined whether the statements referred to as made before the grand jury were privileged. The sheriff, upon learning about the claimed statements, expressed his displeasure quite vigorously, although there is very little in the record as to the exact character of statements made by him. Word soon reached Merritt Lewis that trouble of some sort was brewing. Rumors came to him that the 'high sheriff' might give him trouble for such statements. His brother Jim went to Merritt's cotton field where he was picking cotton, and, according to Merritt's testimony, stated that 'Mr. Gay told me that if you don't come to town and see him, trouble will be bad on you.' Later, Lucius (who denominates himself as 'a leader of my people'), another brother, and Merritt went into town to see the sheriff (at the instance of these two brothers), and there it seems Lucius was the spokesman to adjust Merritt's differences with the sheriff; and the following represents Lucius's version of what took place with the sheriff: 'I talked to him about it, and he said to me these words, 'Lucius Merritt he went into the grand-jury room and slandered me, and if he had been a younger man than he was that Thursday evening I would have had him in hell this morning,' and that is what he said to me, and I said to him, 'Please, sir, don't hurt my brother, because he would not want to harm you in any way, if he did it he didn't mean to do it,' and I talked to him that way, and tried to make some kind of apologement to him, and he said carry him down to Fort Gaines, and I have put it in the Honorable King's hands, that is Mr. E. R. King, and he said whatever he says or does about it is all right with me.' Lucius then explained that upon leaving the sheriff he came upon Mr. W. G. Gay, a brother of the sheriff, who promised 'to do all I can for Merritt.' They then made arrangements for Lucius, W. G. Gay, and Merritt to go to Fort Gaines on the following day and see Mr. E. R. King, the attorney to whom Sheriff Gay had referred him. They went to Mr. King's office on the following morning, and there seems little dispute in the record as to what took place there. The version which Lucius gives of what transpired does not differ materially from the others who testified about it; and although presented in different language, his version is substantially as follows: Upon arriving at the office of Mr. King, the sheriff's brother and Mr. King conferred in his private office. After this conference Merritt and Lucius were admitted, and Mr. King stated to Merritt that it was a good thing he had come down, that he was 'just fixing to come up and attach everything you got for $3000 slander,' but stated that he would compromise the claim. There was some discussion, Merritt protested he had no money, and that there was a debt on his farm. His brother Lucius insisted that he try to settle. Mr. King finally agreed to settle for $500, to be represented by two notes each for $250, one payable the following fall and the other a year later. The notes were then signed by Merritt Lewis, payable to J. C. Gay. Mr. King then gave Merritt some advice about thereafter 'keeping his tongue.' Lucius advised Merritt to sign the notes, saying it is best, 'even if it takes your overalls off your back.' The version given by Merritt accords in substantial parts with what is stated above as coming from Lucius, Merritt testifying that he signed the notes because his brother Lucius advised him to do so.

Thereafter Merritt procured the services of an attorney who brought in his behalf a petition in equity against E. R. King and J. C. Gay, in which he charged that there had been a conspiracy between the two defendants to extort money from him upon threats of a criminal prosecution and physical violence; and that though he had not been guilty of circulating any false or untrue reports concerning the defendant, he was forced, not of his own free will, to execute said notes. The petition sought a cancellation of the notes, injunction against their transfer lest they might be acquired by an innocent purchaser, and recovery of reasonable attorney's fees. It was alleged that the notes were without consideration, and were obtained under duress consisting of the threats above mentioned. By amendment it was alleged that the notes were executed because of the threat to take all of Lewis's property by virtue of a civil action. This allegation referred to King's alleged statement that he would attach Lewis's property on account of the sheriff's claim of slander. Gay and King answered, denying any conspiracy or duress, and alleging that the plaintiff executed the notes voluntarily in settlement of the sheriff's claim of slander. They demurred on the ground that the petition set out no cause of action. The demurrer was overruled. Subsequently the answer was amended by asking for judgment against the plaintiff on the notes. An interlocutory injunction was granted, and upon a trial of the case the jury found in favor of the plaintiff on all of the issues except attorney's fees. On denial of a new trial the defendants excepted, assigning error also on the overruling of their demurrer.

1. Duress is considered as a species of fraud in which compulsion in some form takes the place of deception in accomplishing an injury, and, like fraud, constitutes a meritorious ground to set aside a contract executed as a result thereof. 'The free assent of the parties being essential to a valid contract, duress, either of imprisonment or by threats, or other acts, by which the free will of the party is restrained and his consent induced, will render the contract voidable at the instance of the injured party. Legal imprisonment, if not used for illegal purposes is not duress.' Code, § 20-503. 'Duress consists in any illegal imprisonment, or legal imprisonment used for an illegal purpose, or threats of bodily or other harm, or other means amounting to coercion or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will.' Section 96-209. 'This definition is sufficiently comprehensive to include any conduct which overpowers the will and coerces or restrains the performance of an act which otherwise would not have been performed.' Dorsey v. Bryans, 143 Ga. 186, 84 S.E. 467, 468 AnnCas.1917A, 172. Accordingly, it has been held...