McCormick v. Dalton

• Decision Date: 10 March 1894
• Citation: 53 Kan. 146,35 P. 1113
• Parties: McCORMICK v. DALTON.
• Court: Kansas Supreme Court

35 P. 1113

53 Kan. 146

McCORMICK v. DALTON.

Supreme Court of Kansas

March 10, 1894

Syllabus

What will constitute duress must depend upon the circumstances of each particular case. But where D. claims he had a parol contract with M. for the grading of a mile of the roadbed of a railway, at a stated price per cubic yard, and that M desiring to abrogate the verbal contract, demanded of him the signing of a written contract for one-half mile, only, of the heaviest work of the grading, at the same price per cubic yard, and, upon his refusing so to do because the written contract did not correspond with the verbal agreement, M said to the men working for him, “I will stand good for no more work you do for D., and D. can stop at once,” and D., on account of his financial condition, was unable to carry on the work unless M. paid the men, and, after studying over the matter a few days, signed the written contract. Held, that the contract cannot be said to have been signed by D. under duress.

Error from district court, Phillips county; Louis K. Pratt, Judge.

Action by James H. Dalton against Ed. McCormick for a breach of contract. There was judgment for plaintiff, and defendant brings error. Reversed.

The other facts fully appear in the following statement by HORTON, C. J.:

This action was commenced by James H. Dalton against Ed. McCormick, on the 22d day of November, 1887, for the recovery of $1,008.11 damages, which Dalton claimed to have sustained by reason of McCormick’s refusal to allow him to perform and complete certain railroad grading according to the terms of an alleged verbal contract. The plaintiff below alleged, among other things, in his petition, “that on or about the 18th day of July, 1887, he entered into a verbal contract with McCormick to do the grading of one mile of the roadbed of the Chicago, Kansas & Nebraska Railway, in Phillips county, in this state, at and for the price of 13 cents per cubic yard.” The answer of McCormick denied generally the allegations of the petition, and alleged that the contract, and the only contract ever entered into between the parties, was a written contract for the grading of one-half a mile of roadbed being a part of the roadbed mentioned in the petition, located between the west end of station 3,335 and the east end of station 3,367, and that all the conversation had between the parties about any contract for grading was finally reduced to writing and then signed by both parties. The trial of the case commenced on September 9, 1889. The jury returned a verdict for Dalton, assessing the amount of his recovery against McCormick at $609.50. The court rendered judgment upon the verdict of the jury. McCormick excepted, and brings the case here.

G. A. Spaulding, for plaintiff in error.

N. B. McCormick and Frank McKay, for defendant in error.

OPINION

HORTON, C. J., (after stating the facts)

Dalton, the plaintiff below, claimed damages for a breach of a verbal contract with McCormick, the defendant below, to grade a mile of the roadbed of a railway. The principal defense was that, after some preliminary conversation between the parties concerning grading, a written contract was finally consummated between them for the grading of one-half a mile only. Upon the trial the court instructed the jury that, if they believed the written contract was the only one entered into between the parties, Dalton had no case whatever. Dalton testified upon the trial, among other things, that after the verbal contract had been made, and on or about the 14th of August, 1887, a written contract was presented to him by McCormick, which he refused to sign, giving as his reason that the...