Matthews v. McNeill

• Decision Date: 06 May 1916
• Docket Number: 19,881
• Citation: 98 Kan. 5,157 P. 387
• Parties: JOHN W. MATTHEWS, Appellant, v. C. A. MCNEILL et al., Partners, etc., Appellees
• Court: Kansas Supreme Court

157 P. 387

98 Kan. 5

JOHN W. MATTHEWS, Appellant, v. C. A. MCNEILL et al., Partners, etc., Appellees

No. 19,881

Supreme Court of Kansas

May 6, 1916

Decided, January, 1916.

Appeal from Labette district court; ELMER C. CLARK, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PROMISSORY NOTE--Defense--Fraud--Contravention of Public Policy--Facts for the Jury. The invalidity of a note and mortgage, attacked as fraudulent and void because given in pursuance of a contract contravening public policy, held not to be established as a matter of law by the undisputed facts or the findings of the jury.

2. PRIVILEGED COMMUNICATIONS--Who May Claim Privilege. No one but the client, or one in privity with him, can found an appeal upon the admission of evidence in violation of the privilege with respect to confidential communications to an attorney.

3. TRIAL--Evidence--Instructions. An instruction limiting the effect of evidence held not to have been prejudicial to a party who objected to its admission for any purpose.

4. COMPROMISE AND SETTLEMENT--Action to Set Aside--Evidence. In an action to set aside a compromise of a disputed claim as fraudulent and unconscionable, the defendant may show statements made to him by other persons, if they tend to show his own good faith.

5. SAME. Various items of evidence held to have been properly admitted.

6. ACTION--Relief on Ground of Fraud--Evidence--Instructions. In an action for relief on the ground of fraud, an instruction that the plaintiff must satisfy the minds of the jury by the fair weight or preponderance of the evidence does not impose too severe a requirement upon him.

7. TRIAL--Instructions. Various instructions held not to be erroneous as introducing extraneous issues.

8. TRIAL--Special Questions. Various special questions submitted by the court to the jury held not to show a trial on a wrong theory.

9. PROMISSORY NOTE--Verdict--Judgment. A judgment on a note and mortgage may be rendered on a verdict in favor of the holder which does not state the amount due, where the only question in dispute was their validity.

E. M. Tracewell, W. J. Moore, both of Columbus, F. M. Brady, of Oswego, and Edward E. Sapp, of Galena, for the appellant.

J. W. Iden, E. L. Burton, and George F. Burton, all of Parsons, for the appellees.

OPINION

MASON, J.:

On January 3, 1913, a complaint drawn by lawyers employed by relatives of the complaining witness was filed with a justice of the peace of Cherokee county, charging John W. Matthews with carnally knowing Edith White, a girl sixteen years of age. A warrant was issued but never served. The same lawyers about the same time began two actions against Matthews, one in behalf of the girl and one in behalf of her father, in each asking $ 15,000 damages for her seduction. Attachments were issued and levied upon property appraised at $ 9823. Early in the preceding month the defendant had executed and recorded a deed and bill of sale undertaking to transfer to his brother all his property, and had then left the state. On January 18, 1913, he came to Joplin, Mo., and employed a lawyer to represent him in the criminal case, which had, however, already been dismissed, and in the two civil cases. A meeting with the lawyers for the plaintiffs in the civil actions was arranged at Joplin, at which an agreement was reached for a compromise and settlement of the cases by the payment of $ 8861.30. A note for this amount, payable to the lawyers who had brought the actions, and secured by a real-estate mortgage, was executed by Matthews, and the cases were dismissed. Later Matthews brought the present action, seeking to set aside the note and mortgage. A jury trial resulted in a verdict for the defendant, on which a judgment was rendered for the amount of the note and for the foreclosure of the mortgage, from which the plaintiff appeals. It developed at the trial that on February 17, 1913, Matthews had been arrested upon a new complaint, charging him with rape, that a trial had been had, resulting in a disagreement of the jury, and that the case had then been dismissed.

(1) The grounds upon which the plaintiff asked to have the note and mortgage canceled were: (1) that his signature was obtained by means of various false statements knowingly made, chiefly that the girl had become pregnant and had a miscarriage, and that her father would not consent to a settlement for less than the amount named; (2) that it was also obtained by duress, under a threat of criminal prosecution; (3) that the settlement made was unconscionable; and (4) that it was against public policy. It is contended that the undisputed or established facts compel the conclusion that the note and mortgage were void because given in pursuance of a contract condemned by public policy, but we do not find that to be the case. The amount for which the note was given was fixed by the defendants by adding to the sum for which they would otherwise have been willing to settle, various items of expense which they claimed to have incurred in connection with the litigation. In this was included three dollars which one of them had paid as the fees of the justice of the peace and constable in the first criminal case. The inclusion of this amount in that for which the settlement was made did not characterize the transaction as one intended to dispose of the criminal charge. The jury found that the complaint in the second criminal prosecution was filed to force the payment of the note and mortgage, but this was after their execution, and did not affect their validity. There was a direct conflict in the oral testimony as to whether threats of prosecuting Matthews criminally were made to induce the settlement, and as to whether an express or implied promise of immunity from such prosecution was a part of its consideration. The verdict and findings of the jury, approved by the trial court, must be regarded as having determined against the plaintiff these and all other disputed matters of fact, and it remains only to consider the specific rulings of the trial court the correctness of which is challenged.

(2) The defendants were allowed to testify to the story told them by Edith White covering her relations with Matthews. An objection is made on the ground that the rule regarding privileged communication from client to attorney was thereby violated. The...