Nebraska Mutual Bond Association v. Klee

• Court: Nebraska Supreme Court
• Writing for the Court: KIRKPATRICK, C.
• Citation: Nebraska Mutual Bond Association v. Klee, 70 Neb. 383, 97 N. W. 476 (Neb. 1903)
• Decision Date: 18 November 1903
• Docket Number: 13,171
• Parties: NEBRASKA MUTUAL BOND ASSOCIATION v. FRED KLEE

97 N.W. 476

70 Neb. 383

NEBRASKA MUTUAL BOND ASSOCIATION v. FRED KLEE

No. 13,171

Supreme Court of Nebraska

November 18, 1903

ERROR to the district court for Douglas county: PAUL JESSEN, JUDGE. Affirmed.

AFFIRMED.

Alexander A. Altschuler and John F. Moriarity, for plaintiff in error.

Albert S. Ritchie, contra.

KIRKPATRICK C. DUFFIE, C., concurs.

OPINION

KIRKPATRICK, C.

This action was instituted in the district court for Douglas county by the Nebraska Mutual Bond Association, plaintiff against Fred Klee, defendant, declaring upon three promissory notes aggregating $ 88. In his answer, the defendant pleaded that the notes were wholly void, and that their execution had been obtained by duress, in that the plaintiff, through its agents and others, threatened the defendant that, if he did not sign the notes and settle with the plaintiff, on an alleged charge that the defendant's son-in-law, one Charles W. Norton, had embezzled moneys from the Singer Sewing Machine Company, the plaintiff would prosecute and imprison Norton, and send him to the penitentiary; the answer alleging that said threats were made for the purpose of overcoming the will of the defendant, and that they did overcome his will, causing him to sign the notes; that he would not have signed them but for the threats mentioned. The answer alleged that Klee was a German by birth, and a working man, employed in the Union Pacific shops; that he was not well versed in the English language, and that, at the time of the signing of the notes sued upon, he was wholly unaccustomed to the transaction of such business; and that his mind was so weak as to be easily overcome by threats, such as those alleged, which were well calculated to overcome the will of a man of ordinary strength and experience. A second paragraph in the answer alleged substantially the same facts; that Norton, defendant's son-in-law, was charged with the embezzlement of a sum of money from the Singer Sewing Machine Company, and that plaintiff threatened to prosecute him unless defendant signed the notes and that defendant was induced by this threat to sign the notes.

In reply, plaintiff alleged that prior to the signing of said notes, Norton had applied to it for a fidelity bond, in favor of the Singer company, of $ 500; that, before giving this bond, plaintiff required an indemnity bond to secure it against loss by reason of signing the fidelity bond; that plaintiff then requested Klee, the defendant, to sign the indemnity bond, which he did, in the sum of $ 500, the bond being set out in the reply. The reply further alleged that Norton defaulted, and became indebted to the Singer company in about the sum of $ 115; that by agreement between Klee and the Singer company, this shortage was settled for the sum of $ 88, and that Klee instructed the plaintiff to pay this sum to the company, and gave the notes described in the petition in settlement of the amount so paid by plaintiff to the company.

There was a trial to the court and a jury, a verdict for defendant Klee, and judgment thereon. A motion for a new trial was overruled, and plaintiff presents the cause here by petition in error.

The record discloses that, some time prior to December 28, 1900, Charles W. Norton, who was a son-in-law of defendant Klee, sought employment with the Singer Sewing Machine Company at Omaha, but found that a condition of employment was a fidelity bond acceptable to the company. He made application to plaintiff company for a bond, but was told by it that it could not bond him unless he could indemnify them against loss. It appears that, as a result of his negotiations with plaintiff, the indemnity bond set out in plaintiff's reply was executed, signed by Norton and defendant Klee. In December, 1900, it appears that Norton was discovered to be short in his accounts with the Singer Sewing Machine Company in the sum of $ 88, and that company accordingly made a demand upon plaintiff, by virtue of its bond to the company. This sum was, thereupon, paid to the Singer Sewing Machine Company.

There seemed to have been some slight difference of opinion, between the agents and managers of plaintiff, as to whether plaintiff should rely upon the bond given by Klee for indemnity, or secure notes signed by Klee covering the amount of the loss sustained by plaintiff by reason of Norton's defalcation. It was, however, decided to arrange with Klee to give the notes. A meeting was accordingly arranged for at the office of plaintiff's president. As to what took place at this meeting, there is a conflict in the testimony. The testimony on behalf of plaintiff is that Klee was willing to sign the notes, being doubtful only as to his ability to pay unless given plenty of time. That testimony also represents him as indignant with Norton because of the latter's conduct, and as signifying his willingness to assist plaintiff's officers in apprehending Norton and prosecuting him.

Klee's version is substantially at variance with that of the plaintiff's. From the reporter's transcript of his testimony, it is almost painfully apparent that his knowledge of English was exceedingly limited, but it is sufficiently clear that he came to the office of the plaintiff in response to a request either by postal card or letter, and that he intended to bring with him a confidential friend, more familiar with...