McCormick Harvesting Machine Company v. Miller

• Decision Date: 21 April 1898
• Docket Number: 7994
• Parties: MCCORMICK HARVESTING MACHINE COMPANY v. HENRY MILLER ET AL
• Court: Nebraska Supreme Court

74 N.W. 1061

54 Neb. 644

MCCORMICK HARVESTING MACHINE COMPANY v. HENRY MILLER ET AL

No. 7994

Supreme Court of Nebraska

April 21, 1898

ERROR from the district court of York county. Tried below before WHEELER, J. Affirmed.

AFFIRMED.

George B. France, for plaintiff in error.

F. C Power, contra.

OPINION

NORVAL, J.

This was an action by the McCormick Harvesting Machine Company upon a written contract executed by the defendants and one George Miller, whereby they promised to pay plaintiff on March 1, 1888, the sum of $ 802.95, with interest thereon at the rate of eight per cent per annum from December 27, 1884. The execution of the contract is admitted, and the answer sets up that the same was obtained by duress, and that the consideration was the compounding of a felony. These averments were put on the issue by the reply. The trial resulted in a verdict for the defendants, and to reverse the judgment entered thereon is the purpose of this proceeding.

C. D Miller, of Westside, Iowa, is a brother of the defendant Henry Miller, and Belle Miller is the wife of the latter. C. D. Miller, while acting as agent for plaintiff, collected for it the sum of $ 802.95, which he converted and embezzled to his own use, and has never made restitution thereof to plaintiff. One A. W. Wass was employed by the company to call upon C. D. Miller at his home in Westside and settle said defalcation. Wass did as directed, and demanded security for the money. To this Miller replied that he had some brothers living in Nebraska who might come to his relief. It was suggested that the brothers be seen, and thereupon both started for Nebraska. While waiting for a train in Omaha, Wass had the contract in question drawn up, and he and C. D. Miller went to the defendants' home in York county, where the agreement was executed by them. It recites, substantially, that C. D. Miller, of Westside, Iowa, during the year 1884, while acting as agent of the McCormick Harvesting Machine Company, collected for it various sums of money aggregating $ 802.95, which he has retained; and the contract stipulates, inter alia, that in consideration that said company "shall release the said C. D. Miller from any further claim or demand, civilly or otherwise, on account of the money collected as aforesaid * * * we, the undersigned, promise and agree to pay to said McCormick Harvesting Machine Company the sum of $ 802.95 on the 1st day of March, 1888, with interest at the rate of eight per cent per annum. * * * And it is further agreed on the part of the said Henry Miller and Belle Miller, his wife, and George Miller that the foregoing indebtedness shall be a lien upon any and all real estate and personal property owned by us, whether exempt or not."

There was testimony introduced by the defendants tending to prove that at and prior to the execution of the contract, and as an inducement to the defendants to sign the same, Wass, as agent of plaintiff, threatened to have C. D Miller prosecuted and sent to the penitentiary, for the entire amount of the money belonging to plaintiff which he had collected and converted, unless security should be given for the amount converted, but that, if the defendant would sign the contract sued on, it would prevent any criminal prosecution from being brought against said C. D. Miller. Relying upon these statements and promises the contract was signed. Wass, on the other hand, testified positively no...