Kingsbury v. Sargent

• Decision Date: 18 March 1891
• Parties: KINGSBURY v. SARGENT et al.
• Court: Maine Supreme Court

22 A. 105

83 Me. 230

KINGSBURY

v. SARGENT et al.

Supreme Judicial Court of Maine.

March 18, 1891.

(Official.)

Report from supreme judicial court, Penobscot county.

G. W. Howe, for plaintiff.

Peregrine White, for defendants.

EMERY, J. On report. The action is assumpsit by an officer against receiptors upon their written receipt for property attached by him on a writ against John D. Sargent, one of the receiptors, and husband of Mary Sargent, the other receiptor. The receipt was in the usual form, upon a printed blank, with this concluding printed clause: "And we further agree that this receipt shall be conclusive evidence against us as to our receipt of said property, its value before mentioned, and our liability, under all circumstances, to said officer for the full sum above mentioned." Judgment was obtained in the suit against Joshua, and execution issued thereon, upon which execution the officer seasonably made demand on the receiptors for the attached property. Delivery was refused. In this action upon the receipt, the defendants, under proper pleadings, rest their defense solely upon their contention that the receipt was obtained from them by duress or fraud on the part of the officer.

The defendants' evidence, giving it all reasonable effect, amounts to this: The plaintiff, a deputy-sheriff, having a writ against Joshua, and having orders to attach thereon the cattle on his farm, waited upon him at his farm for that purpose. Joshua told the officer that the cattle belonged to his wife, who was sick in her chamber from recent child-birth, (the child being two days old,) and asked the officer to go with him to the wife's room, that she might formally forbid the attachment. The officer went with the husband to the wife's room, and there she forbade the attachment, claiming the cattle as her own. The officer replied that he must nevertheless attach the cattle according to his instructions, he having a good bond. He then left the house, and with his assistant began gathering the cattle together to take away. In so doing this, there was much shouting at and whipping of the cattle to keep them in place. This disturbed and excited the wife, and her nurse told the husband he must get rid of those men somehow or other. Mr. Sargent spoke to the officer, who advised him to have the cattle receipted for, and the ownership determined. A neighbor, Mr. Frees, was called in, but he declined to sign the receipt. Then all three went into the house, to the wife's room. The officer there said that, if they wanted to keep the cattle from being driven away, they must sign a receipt for them. The wife at first refused to sign any receipt, declaring she would not give up her claim. The officer said she would not be signing away her claim to the cattle, but only becoming security for them until the ownership could be determined. She then appealed to her husband and her neighbor, Mr. Frees, both of whom advised her to sign it. She thereupon took the paper from the officer, and signed it with her husband. She did not read the paper, nor hear it read, and did not know the contents of it. The husband heard it read over after the signing, but did not notice the clause above quoted.

The officer's version is entirely opposed to that of the defendants, but we have no occasion to consider it.

1. As to duress. A comparison of this case with Harmon v. Harmon, 61 Me. 227; Higgins v. Brown, 78 Me. 473, 5 Atl. Rep. 269; and Hilborn v. Bucknam, 78 Me. 482. 7 Atl. Rep. 272,—must make it evident that here was no legal duress, such as would avoid the receipt. The officer used no unlawful threats, exercised no unlawful force. The peculiar circumstances of the wife's illness and weakness made the occasion painful, and the emergency perhaps severe; but the officer was within the line of his duty. Hedid not seek the wife, and, indeed, she did not sign at his request, but only after seeking the advice of her husband...