Omansky v. Shain
| Decision Date | 27 January 1943 |
| Parties | MORRIS OMANSKY v. MARK SHAIN. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
January 5, 1943.
Present: FIELD, C.
J., DONAHUE LUMMUS, DOLAN, & COX, JJ.
Duress. Evidence Relevancy, Of state of mind, Conversation between husband and wife, Entry in regular course of business.
Witness Credibility.
Evidence warranting a finding that a note was obtained by threats that were in fact sufficient to overcome the maker's will in the condition in which he then was would warrant a finding that it was procured by duress whether or not the threats would have been sufficient to overcome the will of a person of ordinary courage and firmness.
A finding that a promissory note was obtained by duress was warranted by evidence that it was given as a result of threats made by the payee to the maker at a time when the maker was confined in a house of correction and was ill, helpless, confused, and afraid of the payee.
On the issue whether a promissory note was procured by duress practised on the maker by the payee, evidence was admissible to show a reason for the payee's insistence upon the giving of the note, to show the real motives actuating the payee, and to show the state of mind of the maker and his susceptibility to duress, and the reasons therefor.
As affecting credibility, evidence was admissible to show the closeness of a friendship between the plaintiff, a witness for himself and the defendant's wife, also a witness for the plaintiff; and to show that the husband of another witness for the plaintiff had quarrelled with the defendant.
No error was shown in the admission of a conversation between a husband and his wife in the absence of anything to show that they were alone at the time of the conversation.
At a time when no record of visits to a house of correction was required by law, a record of such a visit would be admissible only as an entry in the regular course of business under G. L. (Ter. Ed.) c. 233, Section
78.
No error was shown by the exclusion of evidence of a purported entry in the regular course of business under G. L. (Ter. Ed.) c. 233, Section 78, where the exclusion was made without any specific finding as to the circumstances of the entry.
CONTRACT. Writ in the Municipal Court of the City of Boston dated November 10, 1936.
Upon removal to the Superior Court, the action was tried before Sheehan, J. There was a verdict for the defendant. The plaintiff alleged exceptions.
Joseph P. Sullivan, for the plaintiff, submitted a brief.
F. W. Mansfield, for the defendant.
This is an action by the payee against the maker of a promissory note for $500, dated December 1, 1930, and payable in six months. The wives of the plaintiff and the defendant were sisters. At the time when the note was given the defendant was living apart from his wife, and was confined in the Norfolk County house of correction at Dedham under a sentence of six months imposed on September 22, 1930.
There was evidence of the following facts. In October or November, 1930, the plaintiff talked with the defendant twice at the house of correction. The plaintiff wished the defendant to pay $500 for a fur coat that the defendant's wife had bought. The plaintiff told the defendant that if he did not pay the money he would be in jail for the rest of his life. The plaintiff shouted that the defendant must do what he was told to do, that "they" had power and influence, and that the defendant should ask no questions but should give "them" the money; that another brother-in-law was an editor of a magazine, and that one word from him would cause the newspapers to print anything he wished. The defendant pleaded with the plaintiff not to bother him any more, but the plaintiff said, At the time the defendant was mentally ill, helpless and confused, and vomiting frequently, and he was afraid that the plaintiff would make good his threats. Accordingly he gave the note to induce the plaintiff to pay for the fur coat.
In our opinion the evidence warranted a finding that the plaintiff obtained the note by threats that were in fact sufficient to overcome the will of the defendant, in the condition in which he was, whether or not they would have been sufficient to overcome the will of a person of ordinary courage and firmness. A verdict for the plaintiff could not properly be directed. Silsbee v. Webber, 171 Mass. 378 . Freeman v. Teeling, 290 Mass. 93 , 94, 95. The plaintiff's exception to the refusal to direct a verdict in his favor must be overruled.
The remaining exceptions relate to evidence. Several letters written by the plaintiff to the defendant's wife some years before the giving of the note were admitted over the plaintiff's exception. They were first seen by the defendant in 1928. They contained extravagant language of...
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