L.A. Randolph Co. v. Lewis

• Decision Date: 26 September 1928
• Docket Number: 168.
• Citation: 144 S.E. 545,196 N.C. 51
• Parties: L. A. RANDOLPH CO. v. LEWIS.
• Court: North Carolina Supreme Court

144 S.E. 545

196 N.C. 51

L. A. RANDOLPH CO. v. LEWIS.

No. 168.

Supreme Court of North Carolina

September 26, 1928

Appeal from Superior Court, Pitt County; Grady, Judge.

Action by the L. A. Randolph Company against Lossie R. Lewis. Judgment for plaintiff, and defendant appeals. No error.

Generally contract made under duress is not void but voidable.

The plaintiff brought suit to recover an amount alleged to be due on four notes signed by W. E. Lewis and his wife, Lossie R Lewis. W. E. Lewis is dead and his surviving wife is the only defendant. All the notes were dated April 16, 1925. The face of three of them was $139.68 each, and of the fourth, $97.03 representing a total alleged indebtedness of $516.07. There was evidence tending to show that the notes were given for the purchase of an automobile. The defendant denied that she was indebted to the plaintiff and alleged that her signature to the notes was procured by her husband by intimidation and coercion and that the notes were without consideration.

The issues were answered as follows:

(1) Did the defendant, Lossie R. Lewis, execute the notes sued on? Answer: Yes; by consent.

(2) If so, were said notes without consideration, as alleged by the defendant? Answer: No.

(3) Was the execution of said notes on the part of the defendant procured by duress or through fear of her husband as alleged by defendant? Answer: Yes.

(4) What amount, if anything, is the plaintiff entitled to recover of the defendant? Answer: $516.06, with interest from April 16, 1925.

Judgment for plaintiff, and appeal by defendant on errors assigned.

Julius Brown, of Greenville, for appellant.

F. M. Wooten, of Greenville, for appellee.

ADAMS J.

The first issue was answered by consent; but in reference to the second the defendant excepted to his honor's instruction that she had admitted that the notes represent the purchase price of an automobile sold by the plaintiff to her and her husband. There are at least two reasons why these exceptions (first and second) cannot be sustained:

(1) Certain expressions in her testimony are susceptible of the interpretation given them in the charge, and if she wished to contest the question whether she and her husband had bought the car she should have called the matter to the attention of the court before the issues were finally submitted to the jury. State v. Johnson, 193 N.C. 701, 138 S.E. 19. In Hardy v. Mitchell, 161 N.C. 351, 77 S.E. 225, it was said:

"It is true, we find no such admission in the record, but it may have been made orally during the trial and not appear of record, but the instruction was a statement of a fact made to the jury by the court. It was not a conclusion of law. If it was an inadvertence upon the part of the judge, it was the duty of counsel for defendant at the conclusion of the charge, or at some appropriate moment before the case was finally given to the jury, to call the judge's attention to it, so that the misunderstanding could be cleared up and the error corrected at the time. Counsel will not be permitted to sit still and acquiesce in a statement by the court that a fact is admitted when it is not. Counsel should give the court opportunity to correct the error, if in fact one was made."

(2) The notes were not "without consideration," if it be granted that the car was sold to the husband of the defendant, and, as she testified, "was used by Mr. Lewis and his family."

The next exception involves the legal effect of the jury's answer to the third issue, i. e., that the defendant's signature to the notes was procured by duress-by the compulsion or constraint of her husband. In reference to this matter, the defendant testified:

"His (her husband's) treatment of me prior to my signing the notes was very cruel. He hit and beat me a time or two over these notes. I refused to sign them, and they stayed at my house about three weeks before I would sign them, and finally through fear and under a pistol I signed them."

The theory of the defendant is that the notes are absolutely void.

As a general rule a contract made under duress is not void but voidable, a rule which unquestionably applies to executory contracts under seal; for the defense of non est factum is entirely distinct from a defense which admits the execution of the instrument and sets up matter in avoidance of the contract. Worcester v. Eaton, 13 Mass. 371, 7 Am. Dec. 155. It is true that duress may affect the execution as well as the inducement to the execution of the contract; but in the execution it is rare. Page on Contracts, §§ 503, 504; Williston on Contracts, § 1623. In section...