Morse v. Woodworth

• Decision Date: 07 January 1892
• Parties: MORSE v. WOODWORTH.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

155 Mass. 233

29 N.E. 525

MORSE v. WOODWORTH.

Supreme Judicial Court of Massachusetts, Middlesex.

January 7, 1892

Plaintiff had been defendant's book-keeper. Defendant's testimony tended to show that he had suspected plaintiff was taking money belonging to defendant. A plan was devised by which it was ascertained that during a period of about 11 days more money was paid to plaintiff as such book-keeper than he entered on his cash-book; that, on examination of the books kept by plaintiff, it was discovered that plaintiff, if so disposed, could have taken large amounts of money from defendant without being discovered, and defendant believed that plaintiff had taken from him a large sum of money, and charged plaintiff with having taken the money, and called his attention to what appeared to be irregularities on his books, and to the fact that more money had been paid into his hands during certain days than he had entered on his cash-book. This plaintiff failed to explain. It appeared that, after conferences consuming parts of two days, a settlement was made between plaintiff and defendant, whereby plaintiff consented to pay and did pay, to defendant the sum of $5,500. In making this settlement, plaintiff surrendered to defendant the notes in suit, amounting at that time to $6,088, and received a check for the sum of $588, being the difference between the sum agreed on to be paid and the amount of said notes. Defendant also introduced evidence tending to show that, after the settlement had been made, the notes delivered to him, and the check received by plaintiff, releases were for the first time spoken of, and that by plaintiff. It appeared that then plaintiff and defendant executed and delivered to each other mutual releases under seal. Plaintiff, before he commenced his action, tendered said check of $588 to defendant, and demanded the return to him of said notes. Defendant refused to receive said check or to return said notes. The release given by defendant to plaintiff was retained by plaintiff and not returned or tendered to defendant before the commencement of this action, but was tendered at the trial. Plaintiff offered in evidence three slips of paper or memoranda, claiming that the same represented amounts of cash sales, for the purpose of showing the manner in which defendant's business was conducted. There were no dates on said memoranda showing when these entries were made. Plaintiff testified that the greater portion of the entries or figures on these slips were made by him on and subsequent to the day when the first accusation was made. To the introduction of the slips in evidence defendant objected, and against his objection the court admitted the slips or memoranda as evidence, and defendant excepted thereto. Plaintiff claimed that the release executed and delivered by him to defendant was done by him under duress practiced on him by defendant or his agents, and he introduced evidence tending to show that he was threatened by defendant or his agents with prosecution and arrest on a criminal charge for wrongfully taking defendant's money, unless he made a settlement with defendant for the money so alleged to have been taken by him. Plaintiff testified that he thought defendant believed that he had wrongfully taken some of defendant's money. Defendant denied any duress, and introduced evidence tending to show that no threats of a prosecution or arrest of plaintiff on any criminal charge whatever were made by him or his agents, and that the settlement and the delivery of the notes and the execution and delivery of the release by plaintiff were his free and voluntary acts, and it was admitted that no criminal or civil proceedings had been commenced against plaintiff. The court instructed the jury that duress which will avoid a contract is of two kinds,--duress by actual imprisonment and duress by threats. Duress by the imposition of physical force imprisonment, etc., is not claimed here. The duress which is claimed here is by threats. "There is in this case no claim of threats involving fear for the life or limb or bodily injury. The claim is for threats involving fear of imprisonment. In such a case I instruct you that, in order to avoid a contract, the threats must be such as, in the mind of a man of ordinary firmness, would induce a reasonable fear of imprisonment, to the extent sufficient to overcome his mind and will, and that the mind and will of plaintiff must have been overcome by these threats, and that he yielded to them, and that his acts were not his voluntary acts. If the circumstances are such that it might be reasonably supposed that a man of ordinary firmness would yield to coercion and to influences brought to bear upon him, such as are testified to in a case, and you are satisfied that the party in a case did so yield, then there is duress. Now, in testing this question, you may well ask yourselves what a man of ordinary firmness would do under the circumstances disclosed in this case. Even if you should find that there were threats in this case, yet if, in your opinion, they were not such as would induce, in the mind of a man of ordinary firmness, a reasonable fear of imprisonment, then they do not amount to duress, and are to be disregarded by you." At plaintiff's request, the court instructed the jury that the threats necessary to constitute duress may be derived from the conduct and declaration of defendant or his agents with his knowledge and assent; that it is not necessary, to constitute duress, that the threats must be uttered by the man himself in words; they may be derived from the conduct and declarations of defendant or his agents, with his knowledge and assent; that it was not necessary that threats should be made or repeated at the moment the release was given, if they were made on the day when the release was executed, at any time before the execution; and that if the conduct and declarations of defendant or his agents, with his knowledge and assent, were such as to induce a well-grounded belief on the part of plaintiff that he would be arrested and prosecuted on a criminal charge if he did not execute the release, and such as to overcome his mind and will, and were sufficient to overcome the mind and will of an ordinary person, the release is void; that if the threats of prosecution or arrest of plaintiff were made by defendant or his agents with his knowledge or assent, unless plaintiff made a settlement with defendant, and if the execution of the release was a part of the scheme of settlement, and if plaintiff was induced to execute such release because of such threats, then the release was void: provided, always, that the threats were such as did actually overcome the mind and will of plaintiff, and did subject his will to the power of defendant, or of those acting with him, so that it was not a voluntary act, but his mind and will were subjected to their power; and that the threats were sufficient to overcome the mind and will of an ordinary person. To these instructions defendant excepted. Defendant, among other things, requested the court to instruct the jury that if the jury should find that, at the conclusion of the settlement between the parties, and as part thereof, they executed and delivered the mutual release in evidence, and that plaintiff commenced this action to recover the amount due on the notes which were surrendered by him to defendant in performance and as part of such settlement and before such releases were executed, without first returning or tendering to defendant the release given by him to plaintiff, then their verdict should be for defendant. If the jury should find that defendant believed plaintiff had wrongfully taken money belonging to defendant, and appropriated the same to his own use, and that no civil or criminal proceedings had been commenced against plaintiff on account thereof, then mere threats of prosecution or arrest by defendant would not constitute duress. That mere threats of criminal prosecution or arrest, when no warrant has been issued or proceedings commenced, do not constitute duress. These requests of the defendant the court refused to give, but in place of the last two requests gave the following: "I am asked to give you instructions with reference to the effect of 'mere' threats of prosecution or arrest. I think I have already done so. The instructions which should be given you with reference to threats of prosecution or arrest would turn upon the meaning and significance to be attached to the word 'mere.' I think, in defining to you in what duress consists, and in saying to you that duress by threats must consist of such threats as would overcome the mind of a man of ordinary firmness, and did overcome the mind and will of the plaintiff in this case, I have defined, as exactly as I can, the character and extent of the threats necessary to constitute duress."

COUNSEL

G.F Richardson, G.R. Richardson, and D.M. Richardson, for plaintiff....