Mississippi Valley Trust Co. v. Begley

• Decision Date: 25 August 1925
• Docket Number: No. 25990.,25990.
• Parties: MISSISSIPPI VALLEY TRUST CO. v. BEGLEY et al.
• Court: Missouri Supreme Court

275 S.W. 540

MISSISSIPPI VALLEY TRUST CO. v. BEGLEY et al.

No. 25990.

Supreme Court of Missouri, in Banc.

August 25, 1925.

Appeal from Circuit Court, Butler County; Almon Ing, Judge.

Suit by the Mississippi Valley Trust Company against George Begley and Effie M. Ruth. Judgment for defendants, and plaintiff appeals. Affirmed.

See, also, 252 S. W. 84.

T. M. Pierce, of St. Louis, Henson & Woody, of Poplar Bluff, and Samuel H. Liberman, of St. Louis, for appellant.

Sam M. Phillips and Abington & Abington, all of Poplar Bluff, for respondents.

GRAVES, C. J.

Plaintiff sued the defendants as indorsers on a $70,000 note dated November 1, 1919, which note was payable to plaintiff. The makers of the note were George Begley, Jr., and his wife, Edith Ruth Begley. At the time of the execution of the note sued upon herein, the plaintiff held four notes, aggregating $70,000, which purported to be signed by George Begley, Jr., and his wife Edith Ruth Begley, as makers, and by George Begley and Effie M. Ruth, as indorsers. It is not disputed that all the names to these four notes were forgeries, except the name of George Begley, Jr. The first to become due of these four notes was one for $10,000, which by its terms would have been due on November 2, 1919, or one day after the giving of the notes involved herein. The petition is not out of the ordinary for a case of this character, and therefore no further note need be taken of it. There had been some credits given on the note and such were mentioned in the petition, and the prayer asked only for the balance ($62,509.50) and for interest. These credits are not charged or shown to have been the result of payments made by either defendant herein.

The first part of the answer goes into details as to each of the forged notes, and avers them to have been forgeries committed by George Begley, Jr., and that the plaintiff had knowledge of this fact prior to the execution of the note in suit, and that such act of George Begley was a felony, and so known to be by plaintiff, and its agents, attorneys, and representatives, at the time, and before the execution of the note in suit. All this might be denominated as matters of inducement preceding the real defense pleaded by the defendants in their answer. This defense was twofold: (1) An illegal consideration, i. e., a promise to forego the prosecution of George Begley, Jr.; and (2) a plea of duress. The reply met the answer upon all new matter therein. Upon a trial had, there was a verdict for the defendants, and the plaintiff has appealed. In the brief there are only 38 assignments of error. The "points and authorities" in the brief cut the number of fighting questions down to seven. These go to as many different questions. This is a short and general outline. The evidential facts are left to opinion, under the several contentions made in the brief.

I. The first vital question is whether or not the threatened action to bring a civil suit by attachment (where the said suit would at least be partly based upon the commission of a felony) will suffice to sustain a plea of duress. There is ample evidence upon which the jury could find that the representatives of the plaintiff (three in number, including a vice president and two lawyers) did threaten said action by attachment, and had actually prepared petition, affidavit, and bond for that purpose. It should be said at this point that the competency of the evidence on this threatened action in question is vigorously assailed, and this we leave for further discussion. The proposition we have in view for this paragraph of the opinion is whether or not a threatened civil action in attachment will suffice to sustain a plea of duress, under the circumstances of this case. To state it differently, whether or not a civil action under any circumstances will suffice to sustain a plea of duress, where, as here, there is evidence from which it might be found that the signatures of defendants were superinduced by such threatened civil action in attachment. Upon the question we now have before us, this court has but recently spoken. Mississippi Valley Trust Co. v. Begley, 298 Mo. 684, 252 S. W. 76.

This is the identical cause of action involved here. It had been brought in St. Louis, and plaintiff had judgment on the pleadings, which were practically the same as in the case at bar. The claim was that the answer did not contain a good plea of duress, and this view was entertained upon the circuit. It suffices to say that the majority of this court took the opposite view, and held that the answer contained a good plea of duress. The case is so fresh that we all recall it. Judge J. T. Blair concurred in result, as I happen to know, because he thought the answer sufficiently pleaded a threat to prosecute a criminal action, as well as a civil action by attachment. The writer dissented, because, as he viewed the answer, it did not sufficiently charge a threat that plaintiff would prosecute criminally. So, in this case, we must take the law, as we find it. The majority of the court has ruled that the threat to institute a civil suit in attachment (in which suit the felonious acts of the son of the one defendant, and the son-in-law of the other, would be exposed) was sufficient as a plea of duress, in obviation of a contract made under such duress. That case is of such recent date that it would be useless to press again the individual views of the writer. Bowing to the majority rule, we must rule (under the case supra) that the threatened civil suit by attachment (which would expose the criminal acts of George Begley, Jr.) was a sufficient basis for the plea of duress in this case, and it only remains to see if the plea is sustained by facts. But the determination of the question supra is peculiarly important, because the defendants submitted their defense upon but two theories only: (1) That the note was signed by reason of an agreement not to prosecute George Begley, Jr., for forgery, he being the son of defendant George Begley, and the son-in-law of the defendant Ruth, and was thereby without lawful consideration, and against public policy, as well as violative of law; and (2) that there was duress, under the facts, in threatening to institute the civil suit by attachment, by which the felonious acts of George Begley, Jr., would be known to the world, and especially to the officers of the law, whose duty it was to prosecute. The alleged threat to prosecute George Begley, Jr., was not submitted in the instructions for plaintiff, and that matter as a distinct basis for duress was abandoned. However, evidence of such threat, if there was such, would be competent to show the state of mind of the defendants at the time they signed the note.

II. Another vital question in the case is whether or not the threats to bring the attachment suit, and thus expose the forgeries of George Begley, Jr. (if such threats were made), had to be made directly to the defendants, or whether or not it sufficed if such threats were brought to the knowledge of the defendants prior to the signing of the note. Upon this matter the two defendants stand in a little different attitude. The defendant George Begley, Sr., testified that the three representatives of the plaintiff called upon him in person, and one short quotation from his testimony will suffice. Begley, Sr., as a witness, among other things, said:

"Q. You may tell the jury, Mr. Begley, what was said between you and these gentlemen at that time—just from the time they called—what took place. A. Well, they pulled out four notes, handed them to me, and asked me if that was my signature. I looked at the notes, and I said, `No; that's not my signature,' and then they said, `Your son has forged your name.' I was so dumbfounded and shocked for quite a while I was speechless and couldn't hardly catch myself, and one of them—I don't know which one now, one of the two that were strangers —said, `We are down here for the purpose of getting these notes fixed up, and we have got the papers prepared and expect to have them fixed up, and if not we will have to file an attachment suit and bring criminal prosecution,' or something along in that effect. It's been so long ago, I don't just remember the exact words. When they started to go out, I followed along behind, and, when they got close to the front end of the store, Mr. Green turned around and asked me if I was going to be in town all day. I told him so far as I knew I was, and they went on out then, and that was the last I saw of them until in the afternoon."

If this was believed by the jury, as it evidently was, it disposes of this defendant, so far as threats were concerned. As a fact, the representatives of the plaintiff had left St. Louis fully armed and prepared to bring an attachment suit. All arrangements for a bond had been made in St. Louis before they started for Poplar Bluff, where George Begley, Jr., and the defendants Begley, Sr., and Mrs. Ruth resided. As a fact, whether before or afterwards, they did dictate a petition, and an affidavit in attachment, as well as an attachment bond. But we have here the direct threat to Begley, Sr., to bring an attachment suit, which would expose the felonies, and, in addition, a threat to prosecute criminally. We pass now to the situation of Mrs. Ruth, and this requires a further detail of the evidence, which applies to her, and also to defendant Begley, Sr., in a way.

III. The first thing the representatives of the plaintiff did was to call upon W. H. Meredith, whom they knew to be the attorney for Mrs. Ruth in all matters in which she was interested. It is admitted by these representatives that they called upon Meredith for that reason, but, as they said, to see what Meredith would say as to Mrs. Ruth's signature to the note. Mr. Meredith told them that it was not the signature of Mrs. Ruth, and got for them different signatures of that lady, until they were satisfied...