Mccormick Harvesting-Machine Co. v. Hamilton

• Decision Date: 19 February 1889
• Parties: MCCORMICK HARVESTING-MACHINE CO. v. HAMILTON ET AL.
• Court: Wisconsin Supreme Court

73 Wis. 486

41 N.W. 727

MCCORMICK HARVESTING-MACHINE CO.

v.HAMILTON ET AL.

Supreme Court of Wisconsin.

Feb. 19, 1889.

Appeal from circuit court, Richland county.

Action by the McCormick Harvesting-Machine Company against M. J. Hamilton, Peter Hamilton, Bridget Hamilton, and Annie Dosch. Judgment for plaintiff. Defendants M. J. and Bridget Hamilton appeal.L. H. Bancroft and H. W. Chynoweth, for appellants.

Eastland & Son, for respondent.

ORTON, J.

This appeal is from the judgment of foreclosure of the following mortgage by Peter Hamilton, and Bridget, his wife, to the respondent company, on the S. 1/2 of the N. W. 1/4 of section 13, and the S. E. 1/4 of the N. E. 1/4 of section 14, township 10 N., range 1 W., to secure the payment of three notes given by M. J. and the said Peter and Bridget Hamilton, for $600, payable June 1, 1887; $600, payable June 1, 1888; and for $600, payable January 1, 1889,--dated November 20, 1885. The defendant Bridget Hamilton answered the complaint in the action, by setting up substantially that the last above described 40 acres was the homestead of herself and husband, Peter Hamilton; and that she was induced and unduly influenced to sign said mortgage, so far as said homestead was concerned, by duress and threats of imprisonment of her son, the said M. J. Hamilton, for the crime of embezzlement; and that said mortgage in respect to said homestead is therefore void. The circuit court found against her on that issue, and rendered judgment of foreclosure as to all the land described in said mortgage. An appeal was taken to this court from said judgment by both M. J. and Bridget Hamilton, but the case of Bridget Hamilton alone has been brought to the attention of the court.

The ground relied upon is that the judgment is against the law and evidence. By force of what we deem is a very strong preponderance of the evidence against it, we are compelled to differ with the learned circuit court in its finding on this issue. The general facts, and the testimony on the issue of duress, are as follows: Some time in the year of 1881, M. J. Hamilton, the son of the said Peter and Bridget Hamilton, became the agent of the respondent company, at Richland Center, in this state, to sell its machinery. Until May, 1885, an annual settlement had been made with him, and his accounts adjusted. Before that time the said M. J. had been subject to occasional and temporary insanity, and about that time he had given evidence of a return of that malady, and was wild and reckless in his sales and business, and the company had been notified by his family that they must send an agent to look after their business in his hands. Accordingly William Varco, the general agent of the company, came there, and examined his affairs, and induced his brother, John, to be associated with him in business by their advertisement, but left M. J. ostensibly to continue in it. The agent Varco at the same time induced the father of M. J., the said Peter Hamilton, to become his security for the business left in his hands. About the 18th day of November thereafter, his brother, John, notified the company that M. J. had again become insane, and had been taken to the insane hospital. The said Varco again came to look over his business, and adjust his accounts. He found that M. J. owed the company about $1,200, and had in his hands about $600 worth of the company's property, consisting of various articles, and notes received for machinery. He turned over this property to M. J., and charged him with a deficiency to the company of $1,800, for which he demanded mortgage security of the father and mother, Peter and Bridget Hamilton, upon their whole farm, including their homestead. He charged M. J., who had then returned, with being guilty of embezzlement. When asked by M. J. if he thought he could find him guilty of embezzlement in consequence of his having fallen short in his accounts he cited the case of a man who was found guilty of embezzlement under similar circumstances, and said if the mortgage was not given he would “crack his whip.” The agent and witness Varco gave this version of that threat: “Finally I said, ‘I am getting tired of this. If I cannot settle this, I will crack my whip.’ ” This threat evidently excited M. J. very much, and put him in great fear.

Varco had several interviews with Bridget Hamilton, and tried to induce her to sign the mortgage for the homestead, and she as persistently refused, but offered to sign the mortgage for the balance of the farm, and Varco refused to take such a mortgage. She testified as follows: “He wanted me to sign a mortgage on my homestead, or he would send my son to the state-prison one year or ten. He said, if I did not give a mortgage, he would have to go to state-prison one year or ten. He said, ‘Don't you think more of your son than the McCormick Company does.’ I said, ‘I ought to.’ He replied, ‘Would you rather sign a mortgage on your homestead than to have your son go to state-prison for a year or ten? * * * The McCormick Company knows the law and they will use it.’ He said, if I did not sign the mortgage he would commence proceedings at once, and send my son to the state-prison. ‘Would you not rather sign the mortgage than to have your son go to state prison?’ When Mr. Varco first suggested taking the mortgage, I offered to sign a mortgage for all the land but the homestead forty, including twenty acres of wheat, and some grass and corn; but he insisted he wanted all the farm, or send the boy to prison.” On cross-examination she repeated that he said: “Your son must go to state-prison unless you sign the mortgage. Don't you think more of your son than the McCormick Company?” She testified further: “I put my name on the mortgage entirely against my will, and I told them so then. I never would have signed for any other purpose but to keep my boy from state-prison, and I believed, did I not sign it, they would send him to state-prison. I did not do it willingly. I was forced to do it.”

James Hamilton, brother to M. J., testified as follows: “They were talking there all the evening. He [Varco] wanted her [his mother] to sign the mortgage. She told him she would not. He wanted to know of her if she did not think more of her son than the McCormick Company did. Then he told her he wanted to know why it was she would not sign the mortgage, and she told him that she did not think she had any reason to; that her son had not done anything, and that she did not owe anybody; and it seemed to me like he got mad, and he jumped up and said he ‘would crack his whip,’ and started out of the office. I asked him, provided my mother did not sign that mortgage, what they wanted to do with my brother. He said they had one fellow in for three years on just such a case as that, and this was a good chance for another; but it was not him who would execute it; that it would be the company.” This explains what Varco meant when he threatened that he would turn it over to the company. James told his mother this conversation, and he said to his mother: “For God's sake, if it is a case of embezzlement, and they can imprison him, don't have him imprisoned for this place.”

William Varco, the agent, testified as follows: Supposing a certain state of facts, he said: “And that, in my opinion, it would constitute embezzlement. Mrs. Hamilton asked me what would be the penalty if he was guilty of embezzlement. I told her that I did not know; that I understood it to be a penitentiary offense, but, as to the penalty, that would be with the court and jury.” This language clearly means, that it would be with the court and jury to fix the penalty in the case of her son. He testified further: “She said, ‘Would you send Mike to the penitentiary?’ I said, ‘No.’ I asked this mortgage in a settlement of this business between ourselves, to stop litigation of any kind. She said she did not think that, in view of the amount of business he had done for the McCormick Company, that they would send him to the penitentiary. I said, of course I could not tell whether they would be disposed to or not, but if they could, without a superior power to prevent it, would you expect them to think more of your son than you? Finally I said: ‘I am getting tired of this. If you cannot settle this, I will crack my whip.’ I told Mrs. Hamilton I thought it would be better to settle up and avoid litigation. I supposed that, as a matter of course, if they did not settle up, they would commence some suit.” When asked: “Did not you tell him [M. J.] that you thought he was liable for embezzlement?” he replied: “I told him I thought he was.” He further testified “that he was not positive that Mrs. Hamilton did not say that it was entirely against her will and against every vein in her body that she signed the mortgage.” When asked: “You say that you never stated to Mrs. Hamilton that it would go pretty hard with the boy if he did not sign the mortgage?” he replied: “I won't say any such thing. I rather think it would have gone hard with the boy. He would have had a lawsuit on his hands.” When Mrs. Hamilton still insisted, as he testified, that, if he was even guilty of embezzlement, he had done so much for the company that they would not prosecute him, he again said: “Do you think they would think more of your boy than you do?” This testimony of Varco,...