Mississippi Valley Trust Company v. Begley

• Decision Date: 22 May 1923
• Citation: 252 S.W. 76,298 Mo. 684
• Parties: MISSISSIPPI VALLEY TRUST COMPANY v. EDITH RUTH BEGLEY, EFFIE M. RUTH and GEORGE BEGLEY, Appellants
• Court: Missouri Supreme Court

252 S.W. 76

298 Mo. 684

MISSISSIPPI VALLEY TRUST COMPANY v. EDITH RUTH BEGLEY, EFFIE M. RUTH and GEORGE BEGLEY, Appellants

Supreme Court of Missouri

May 22, 1923

Appeal from St. Louis City Circuit Court. -- Hon. Victor H Falkenhainer, Judge.

Reversed and remanded.

Sam M Phillips and Abington & Abington for appellants.

(1) Defendant's answer stated a complete defense to the note sued on in plaintiff's petition, in so far as these defendants are concerned, in that it pleaded that the note was executed by these defendants in consideration of an implied agreement by plaintiff, that George Begley, Jr. their son, would not be prosecuted for the crime of forgery, then threatened by the plaintiff. In other words, the note was given to stifle a criminal prosecution, and to compound a felony. The consideration of the note is illegal, and against public policy, and the note is therefore void. Sumner v. Summers, 54 Mo. 343; Sprague v. Rooney, 104 Mo. 358; Cheltneham Fire Brick Co. v. Cook, 44 Mo. 36; Baker v. Farris, 61 Mo. 389; McCoy v. Green, 83 Mo. 632; Janis v. Roentgen, 52 Mo.App. 117; Melone v. Fidelity Co., 71 Mo.App. 8; Met. Land Co. v. Manning, 98 Mo.App. 267; Rice Brothers v. Bank, 98 Mo.App. 699; Turley v. Edwards, 18 Mo.App. 684; Bell v. Campbell, 123 Mo. 1; Wolfolk v. Duncan, 80 Mo.App. 427; Sprig v. Rooney, 104 Mo. 358. If the consideration in a note was in part to secure the debt, and in part to stop the prosecution, the whole consideration is defeated and the note is illegal and void. Malone v. Fidelity & Cas. Co., 71 Mo.App. 8; Woolfolk v. Duncan, 80 Mo.App. 427; Sawyer v. Sanderson, 113 Mo.App. 245; Tandy v. Co., 113 Mo.App. 418; Dick v. Seal, 45 Mo.App. 477; Sumner v. Summers, 54 Mo.App. 340. An agreement based on the suppression of a criminal prosecution is void. Murphy v. Bottomer, 40 Mo. 67; Baker v. Farris, 61 Mo. 389; McCoy v. Green, 83 Mo. 626; Janis v. Roentgen, 52 Mo.App. 114; Met. Land Co. v. Manning, 98 Mo.App. 248; 9 Cyc. 505, 510; 13 C. J. 453; Sec. 3142, R. S. 1919. (2) The answer also stated a good defense against the note sued on in plaintiff's petition, in that it alleged that the note was executed by defendants under duress. In order to constitute duress, under the modern doctrine, it is no longer necessary to threaten death, imprisonment or great bodily harm, but all that is necessary is to exert such pressure, or to threaten such a condition of affairs, as to deprive the other party to the transaction of his free will. Brown v. Worthington, 162 Mo.App. 508; 13 C. J. 402, 403; Simmons v. St. Louis, 192 S.W. 394; Am. Mfg. Co. v. St. Louis, 197 S.W. 399; Niedermeyer v. Curators, 62 Mo.App. 654; Brewing Co. v. St. Louis, 187 Mo. 377; State ex rel. v. Reynolds, 194 S.W. 878; Link v. Real Estate Co., 182 Mo.App. 536; Brown v. Worthington, 162 Mo.App. 516; Willford v. Eason, 110 Ark. 303; Maxwell v. Griswold, 10 How. 256; Swift v. United States, 111 U.S. 228, 4 S.Ct. 247; Roberts v. Frank Bros., 132 U.S. 17, 10 S.Ct. 5; Gaar, Scott & Co. v. Shannon, 223 U.S. 468, 56 L.Ed. 512; Merkee v. City of Rochester, 13 Hun, 157; United States v. Rothstein, 109 C. C. A. 521, 187 F. 268. (3) In addition to threatening to prosecute George Begley, Jr., for forgery, plaintiff's representatives threatened the defendants herein if they would not endorse the note sued on herein, at the end of one hour, plaintiff "would institute in the Circuit Court of Butler County, an action based upon the forgery of, and upon the forged notes aforesaid." What kind of an action could be brought upon the forgery of this paper? The answer, of course is an attachment suit, and this was the kind that plaintiff's representatives threatened to bring, and in fact, the kind they had prepared to bring at the time the threat was made. Sec. 1725, R. S. 1919; Alexander v. Wade, 107 Mo.App. 321. The threatened lawsuit, which plaintiff intended to institute against George Begley, Jr., by attachment, was not civil in character, but upon the contrary, it was criminal in character, because it charged him with the commission of a felony, and it devolved upon the plaintiff to prove in order to win the lawsuit, that he was guilty of a felony. Stone Milling Co. v. McWilliams, 121 Mo.App. 319; Home Lumber Co. v. Hartman, 45 Mo.App. 647.

Jourdan, Rassieur & Pierce and Samuel H. Liberman for respondent.

(1) It is no denial of the execution of the instrument in suit where the answer denies each and every allegation in the petition "except such as are specifically admitted." Dezell v. Fidelity & Cas. Co., 176 Mo. 253; Ritchey v. Home Ins. Co., 98 Mo.App. 115; Brickell v. Williams, 180 Mo.App. 572. (2) Where an answer admits the execution of an instrument for the payment of money and states no defense, the plaintiff is entitled to judgment. North v. Nelson, 21 Mo. 360; 31 Cyc. 608. (3) A threat to file a lawsuit, civil in character, will not support a plea of duress. Wood v. Tel. Co., 223 Mo. 537; Claflin v. McDonough, 33 Mo. 416; Buchanan v. Sahlein, 9 Mo.App. 552; Lilienthal v. Brewing Co., 102 N.Y.S. 1052; Murray Fixture Co. v. Sullivan, 115 P. 259. (4) Where specific facts are pleaded in a cause of action or defense, the party so pleading the specific facts is bound by the conclusions to be drawn from such facts. 21 R. C. L. p. 450, sec. 14; Stonemets v. Head, 248 Mo. 254; Hunter v. Sloan, 195 Mo.App. 73; McManamee v. Mo. Pac. Ry. Co., 135 Mo. 447; Zasemowich v. American Mfg. Co., 213 S.W. 802; Tuepker v. Sovereign Camp, 226 S.W. 1007. (5) The facts alleged in the answer do not show more than a threat to file a lawsuit, civil in character. They do not support a conclusion of illegal consideration, for the reason that the answer does not allege that plaintiff had actual knowledge of any crime, that plaintiff agreed to conceal any evidence of such crime, that plaintiff would not institute a criminal proceeding and that such acts constituted the sole consideration for the giving of the note. Cheltenham Fire Brick Co. v. Cook, 44 Mo. 29; International Harvester Co. v. Spires, 223 S.W. 799. (6) A plea of duress cannot be predicated upon a threat to file a lawsuit civil in character. Wood v. Tel. Co., 223 Mo. 537; Dausch v. Crane, 109 Mo. 323; Claflin v. McDonough, 33 Mo. 412; 13 C. J. sec. 314, p. 399; Morse v. Woodsworth, 115 Mass. 233; Atkinson v. Allen, 71 F. 58. (a) The answer avers that plaintiff threatened to bring a suit based on the forged notes and on the forgery thereof. This action plaintiff was entitled to bring. The threat to do that which a party has a legal right to do cannot constitute duress. Holmes v. Hill, 19 Mo. 159; Miller v. Davis, Estate, 52 Colo. 485; Goos v. Goos, 57 Neb. 294; Kansas City Railroad Co. v. Graham, 145 S.W. 632; United States Banking Co. v. Veale, 84 Kan. 385; Creveling v. Saladino, 89 N.Y.S. 834; Lillienthal v. Brew. Co., 102 N.Y.S. 1051; Chambers v. Irish, 132 Iowa 319; Hart v. Strong, 183 Ill. 349; 13 C. J. p. 399. (b) To hold that a threat to do that which a party has a legal right to do may constitute duress would be subversive of sound public policy. 15 C. J. secs. 304, 342; 7 R. C. L. sec. 29; Reed v. Ownby, 44 Mo. 206; Dunklin County v. Chouteau, 120 Mo. 378; St. Louis Ry. Co. v. Southern Ry. Co., 138 Mo. 591; Wilson v. Beckwith, 140 Mo. 359; Laclede Land & Imp. Co. v. Schneider, 177 S.W. 388; Daniels v. State, 18 Del. 586, 54 L. R. A. 286.

SMALL, C. Ragland, C., concurs; Brown, C., not sitting. Woodson, C. J., and David E. Blair, Ragland, Walker and White, JJ., concur; James T. Blair, J., concurs in the result; Graves, J., dissents.

OPINION

In Banc

SMALL C.

Suit on a promissory note, filed March 24, 1920. There was judgment for the plaintiff on the pleadings on October 11, 1920, for $ 69,761.25, the amount of said note (less a voluntary credit of $ 2,278.20), against defendants Effie M. Ruth and George Begley. The suit was also instituted against Edith Ruth Begley, but no judgment was rendered against her, because she was not served with process and did not appear in the case. The record shows that Edith Ruth Begley was the wife of George Begley, Jr., and defendant Effie M. Ruth was her mother, and defendant George Begley was the father of said George Begley, Jr.

The note sued on was executed by George Begley, Jr., and Edith Ruth Begley as makers, and was indorsed by defendants George Begley and Effie M. Ruth. It was dated St. Louis, Mo., November 1, 1919. It was for $ 70,000, payable to the order of plaintiff, Mississippi Valley Trust Company, ninety days after date, with interest from date at six per cent per annum. Demand for payment, protest and notice of dishonor were therein waived by all parties.

Defendants Effie M. Ruth and George Begley filed joint and separate answer, which, besides a general denial, set up that said George Begley, Jr., forged the name of his wife, Edith Ruth Begley, as maker, and the names of the defendants, Effie M. Ruth, his mother-in-law, and George Begley, his father, as indorsers, at Butler County, Missouri, to certain promissory notes payable to the Mississippi Valley Trust Company, as follows: One note, dated May 2, 1919, for $ 10,000, due six months after date; one note dated August 18, 1919, for $ 20,000, due four months after date; one note dated September 24, 1919, for $ 30,000 due ninety days after date; one note dated October 14, 1919, for $ 10,000, due ninety days after date.

The answer alleges that "said purported indorsements of Effie M. Ruth and George Begley and the signature of Edith Ruth Begley, were forgeries as aforesaid, and were committed and done by the said George Begley, Jr., without the knowledge, consent or approval of defendant Edith Ruth Begley, George Begley or Effie M. Ruth." The answer further states that after forging said names upon said...