Peaslee v. Ross
| Decision Date | 07 January 1887 |
| Citation | 9 N.E. 657,143 Mass. 275 |
| Parties | PEASLEE v. ROSS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
M.F. Dickinson, Jr., and Hollis R. Bailey, for defendant.
The removal from the jury of the question of duress was an error. In this particular the case is the same as the recent case of Emerson v. Patch, 123 Mass. 541; Same v Same, 129 Mass. 299. The evidence was such that the jury, with proper instructions from the court as to the rules of law applicable to the question, might well have found that the defendant did not himself coerce the plaintiff, and was not responsible for any duress exercised by other persons. If there was no duress, or no duress that Ross was responsible for, then the release made a complete defense. It is not every imprisonment that will constitute duress. In the case of Toles v. Adee, 84 N.Y. 236, it is said: "If a man be lawfully arrested, and either to procure his discharge, or any other fair account, seals a bond or a deed he does this not by duress of imprisonment, and he is not at liberty to avoid it." Felton v Gregory, 130 Mass. 177. Still further, the coercion, to amount to duress, must be sufficient to overcome the mind and will of the person coerced. Foss v. Hildreth, 10 Allen, 76, 80. Guided by these principles of law, the jury could properly have found, on the auditor's report alone that there was no duress sufficient to invalidate the releases; and so it was error for the court to order a verdict for plaintiff. The finding of duress by the auditor is based on a ruling of law, made by him, that the defendant, on pleading the releases as a defense, became bound by the acts of the parties who secured them. This ruling, the defendant submits, was erroneous. The implied authority of an agent does not extend to the doing of unlawful acts. New York Life Ins. Co. v. Fletcher, 117 U.S. 519, 532; S.C. 6 S.Ct. 837.
The defendant was entitled to go to the jury on a question of waiver; and the court, in ordering a verdict, deprived him of this right. The facts show surely that there was evidence of laches for the jury to consider. It is well-settled law that a release, executed by reason of duress, is voidable only, and not void. Foss v. Hildreth, 10 Allen, 80; Tilley v. Damon, 11 Cush. 251. The person coerced must, when free from restraint, repudiate and avoid his acts within a reasonable time. Arnold v. Richmond Iron-works, 1 Gray, 437; Bassett v. Brown, 105 Mass. 557. The rule is the same as in cases where fraud has been practiced upon a person. Harwood v. Railroad Co., 17 Wall. 78, 81; Hume v. Beale's Ex'x, 17 Wall. 336, 348; Dodge v. Essex Ins. Co., 12 Gray, 71. The ruling of law on which the auditor based his finding that there was no laches on the plaintiff's part was erroneous. He should have ruled that the releases, if obtained by duress, were voidable only, and that it was the duty of the plaintiff to avoid them within a reasonable time. See cases supra. If he based his finding on any unexpressed intention of Peaslee, he was clearly in error. West v. Platt, 127 Mass. 367, 372.
The finding of the auditor as to the effect of the plaintiff's insolvency was a mixed one of law and fact. The court had no right to order a verdict, even if the auditor was mistaken as to the proper rule of law applicable to the point. If Peaslee failed to show a title to the claim sued on, he could not recover. The burden of proof on this point is on the plaintiff. It will not be disputed that an action of tort for the conversion of property passes ordinarily to assignees in insolvency. McKee v. Judd, 12 N.Y. 622; Sullivan v. Bridge, 1 Mass. 511; Chase v. Andrews, 6 Cush. 115; Gray v. Bennett, 3 Metc. 525. It is also conceded, as we understand, that, under a general denial, it is open to the defendant to show that the title to the claim sued on has passed to the assignees in insolvency. Berry v. Gillis, 17 N.H. 15; Verry v. Small, 16 Gray, 121, 122; Knapp v. Slocomb, 9 Gray, 73. It is equally well settled that an insolvent cannot sue for his own benefit upon claims that have passed to his assignees. Glenny v. Langdon, 98 U.S. 29; Trimble v. Woodhead, 102 U.S. 647-650; Heath v. Chadwick, 2 Phil. 649; Kaye v. Fosbrooke, 8 Sim. 28; Major v. Aukland, 3 Hare, 77; Spragg v. Binkes, 5 Ves. 583, 587; Hillary v. Morris, 5 Car. & P. 6; Berry v. Gillis, 17 N.H. 16; Drury v. Vannevar, 5 Cush. 442; Stone v. Hubbard, 7 Cush. 595; Smith v. Chandler, 3 Gray, 392, 397; Robinson v. Hall, 11 Gray, 483; Parks v. Tirrell, 3 Allen, 15, 17; Norcross v. Pease, 5 Allen, 331; Hallett v. Fowler, 10 Allen, 36; Gay v. Kingsley, 11 Allen, 345; Jones v. Dexter, 125 Mass. 469; Mayhew v. Pentecost, 129 Mass. 332; Williams v. Fowle, 132 Mass. 386; Pub.St.Mass. c. 157, § 109; Id. c. 157, §§ 57, 58; Towne v. Wason, 128 Mass. 517. See Pub.St.Mass. c. 157, § 26.
The present case is very similar to the case of Clark v. Clark, 17 How. 315, 318. An assignee, like a trustee, continues in office until the trust is fully administered. The auditor's report is defective in that the order of reference was simply to state the accounts between the parties, (Jones v. Stevens, 5 Metc. 373;) in that the plaintiff has not proved what goods were taken from him. For all the reasons above set forth, the verdict for the plaintiff should not have been directed.
J.P. & B.B. Jones, for plaintiff.
The present case not being within the statute of limitations, the claim of laches seems wholly untenable. Worcester v. Eaton, 13 Mass. 371; Montgomery v. Pickering, 116 Mass. 227; Rau v. Van Zedlitz, 132 Mass. 164. Upon the issues of title, conversion, duress, and laches, the defendant was not entitled to go to the jury; for the auditor does not report all the evidence and facts upon these points that appeared at the trial. The declaration and the general denial put in issue only two questions, viz.: Did the defendant convert the goods in question? and, if so, were said goods, at the time of the conversion, the property of the plaintiff? The defendant, to have availed himself of the subsequent insolvency of the plaintiff, should have pleaded it. Cushman v. Davis, 3 Allen, 99.
The plaintiff submits that after an adjudication of insolvency, and after an assignment of the debtor's estate to his assignee, a debtor can maintain a personal action for a cause accruing prior to said adjudication and assignment, if the cause has not been concealed from his assignee, and if the assignee interposes no objection to the suit. The decisions in England were founded on the peculiar language of the act of 6 Geo. IV. c. 16, § 63; but there are no such negative words in our insolvent laws. And the earlier English decisions are in effect overruled by the decision of the court of exchequer, reversing the judgment of the court of queen's bench, in Herbert v. Sayer, 5 Adol. & E. (N.S.) 965, 974. Stone v. Hubbard, 7 Cush. 595, 598; Gay v. Kingsley, 11 Allen, 345, 348; Clark v. Calvert, 3 Moore 96. In the latter case there was a plea of bankruptcy, and of assignment, and of property in the assignees. Held, that the action could be maintained; the court saying: "The assignees have not interfered, and no persons have a right to do so. *** The narrow ground that the bankrupt has a right against everybody but the assignees, which is maintained by the authorities, is sufficient to maintain this action." Mayhew v. Pentecost, 129 Mass. 332; Gay v. Kingsley, 11 Allen, 345. GRAY, C.J., in Mayhew v. Pentecost: "A bankrupt can, after his bankruptcy, maintain, in his own name, a suit for a wrong done, brought before the bankruptcy, unless his assignee should interpose an objection." Sawtelle v. Rollins, 23 Me. 196. Indeed, the cases already cited authorize the position that, if the assignee of an insolvent debtor declines to interfere in a suit brought against a third party to recover assets belonging to the insolvent estate, the defendant cannot avail himself of the rights of the assignee, as a defense to the suit. Hallett v. Fowler, 10 Allen, 36; Powers v. Raymond, 137 Mass. 483. The Massachusetts cases cited by the defendant will resolve themselves into three classes: First. Where the insolvent debtor has brought an action to recover real estate which has vested in his assignee, and has not been reconveyed to him. Second. Where the debtor concealed a cause of action belonging to his estate from the assignee. Gay v. Kingsley, 11 Allen, 345. Third. Where the assignee has interfered, either by bringing suit himself, or in some other way. Smith v. Chandler, 3 Gray, 392.
The suit certainly could be prosecuted in the plaintiff's name with the assent of the assignees. The assignments in pais and in bankruptcy of the plaintiff's cause of...
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