SanFord v. Sornborger

• Decision Date: 04 April 1889
• Citation: 41 N.W. 1102,26 Neb. 295
• Parties: SANFORD v. SORNBORGER.
• Court: Nebraska Supreme Court

26 Neb. 295

41 N.W. 1102

SANFORD

v.SORNBORGER.

Supreme Court of Nebraska.

April 4, 1889.

Syllabus by the Court.

1. It is those contracts only which are made under fear of unlawful imprisonment, and not those made under fear of imprisonment which would be legally justifiable, that can be avoided for duress.¹

2. Duress which will avoid a contract is either by unlawful restraint or imprisonment, or, if lawful, it must be accompanied by circumstances of unnecessary pain, privation, or danger, or when the arrest, though made under legal authority, is for an unlawful purpose.¹

3. A party being charged with embezzlement executed a chattel mortgage to secure the debt, and retained possession of the mortgaged property for about a year and a half, when he delivered the possession thereof to the mortgagee. In an action of replevin thereafter brought by the mortgagor to regain possession of the property, held, on the facts proved, that he had ratified the mortgage.

4. Where papers or letters are offered in evidence on the trial of a case which are pertinent to the issue, they should be admitted; the court will not take notice how they were obtained, nor will it form a collateral issue to determine that question.

Error to district court, Saunders county; MARSHALL, Judge.J. R. & H. Gilkeson, for plaintiff in error.

S. H. Sornborger and G. W. Simpson, for defendant in error.

MAXWELL, J.

This is an action of replevin brought by the defendant in error against the plaintiff in error to recover the possession of certain law-books and book-cases. On the trial of the cause the jury returned a verdict in favor of the defendant in error, and, a motion for a new trial having been overruled, judgment was entered on the verdict. The plaintiff in error claims an interest in the property in question by reason of a chattel mortgage executed thereon on the 24th day of May, 1883, and duly filed in the county clerk's office of Saunders county. The principal defense of the defendant in error is that the mortgage was executed under duress, and is therefore void. The plaintiff in error contends that the proof fails to show duress. At the time this transaction took place the defendant in error was a son-in-law of the plaintiff in error, who then resided in Illinois, and the defendant in error had been loaning money for him for several years.

The direct examination of the defendant in error is as follows: “(25) Do you remember about the time Mr. Sanford removed to Saunders county, Mr. Sornborger? Answer. Yes, sir. (26) You may state to the jury when it was. A. It was in the fall of 1882, I believe,--early in the winter. (27) You may state what business transactions you had with him, soon after that, if any. A. Mr. Sanford and his son made their business headquarters at my office in the winter of 1883; that is, early in the winter, or along in the spring of 1883. I don't remember the time. I think it was in the spring, along, perhaps, in April or May, we had a settlement of our affairs. (28) Well, what did you arrive at in that settlement,--what difference did you find between you? A. I can't recollect the amount, but it occurs to me that it was in the neighborhood of $6,000. (29) In whose favor was that? A. In favor of Mr. Sanford. (30) Well, what was done in reference to that settlement, if anything? A. At that time I had certain real estate, or had previously had certain real estate, in this county, which I had sold. I had bought it as a matter of speculation, and resold it; and, among other things I tendered him, offered him the securities that I had in that, and I had retained titles and conveyed the land to Mr. Sanford as far as that went. In addition to that, myself and brother had been doing horse business, and I had the furnishing of the most of the money in my name. I had considerable paper of that class, and quite an amount, amounting, in all, aggregating $6,000,--in fact, more than that; and I gave all the paper I had, I guess, in world,--pretty near. Then I gave him all the paper I had, or at least all I had in hand, including that I have described, and out of the paper he was to choose that that he wanted; that is, he desired to take the best, and he took it, and selected the desired amount out, and, as I supposed, that was to end the difference. (31) What followed then, subsequent to that? A. Prior to that time, some time in 1881, he had loaned me the special or peculiar loan upon which he had no written evidence, unless it was my letters,--an arrangement by which, if I could make any deals on my own account in the way of purchasing personal notes or securities of that kind, I might draw on him for the money necessary, until he told me to stop. I believe that was the arrangement; and I had agreed that that paper should, I think, stand as his security; that is, that he-- I don't think, stated by Mr. Gilkeson in the opening, that it was agreed that the paper should be taken in his name; at least, I never took any in his name in that deal. The amount of money that I got of him for that purpose amounted to somewhere between $3,500 and $4,000. I was to pay him ten per cent., and, if I could make any money over and above that, why I did it, and sometimes got discount, and discounted paper, and it was understood that that should stand for his security in the matter; that is, such paper and security as I might buy. Now I will go on. That was in 1881, I should judge. Perhaps it was in the latter part of 1880. It was somewhere in the fall of 1880, or in the winter or spring of 1881. I find no data by which I can refresh my memory on the subject. It was after I returned from Denver, and that is all I can tell, and that was in 1880. It had run two or three years, and, of course, I had collected and reinvested and disposed of much of the paper. Much of it was ninety-day paper, and some of it a year; and none of it I bought or took or had to deal with was more than a year; and, of course, I would collect and reinvest, and owed him the principal sum on that account of $3,500 or $4,000,--somewhere between. While we were having our settlement we had some reference to that, and he demanded very unexpectedly of me where those securities were. He had been in Wahoo some four or five months. It had been some time previous to that the arrangement had been made. I told him some of it got in my business,--horse business; got invested that way. In talking about the matter, either at the first time,--I think, perhaps, it was a subsequent time, but before any talk of securing the mortgage in question was made,--he told me, in connection with this, he had been reliably informed that he could hold me for embezzlement; that he had taken counsel of Mr. Reese; that my disposition of that paper was embezzlement. When we had reached an agreement as to the amount of money that was due, Mr. Sanford had, as I stated before, taken what notes I had,--what I had in the safe,--and had taken them out to make inquiry, and choose from them. He came back with them in the office one day, and he then said to me,--he searched out what he would like to take, and let me have the rest,--and now he says, ‘Here is this, and I want some security on it;’ or, ‘How do you propose to secure it?’ and I told him that I thought it was well enough secured. That it was such as I had. He had the best; he had his choice, and he said then that he wanted them guarantied, and the guaranty secured on the library,--by a mortgage on the library. I told him that I could not do that; that the library and few notes I had was about all I had left, and I did not want to part with it all, and objected emphatically. ‘Well,’ he says, ‘you know that you have been guilty of embezzling this other paper, and you have not got it here, and you know I have been advised that I can successfully prosecute it, and I propose to do it, if you don't settle this matter up in my way,’ or words to that effect. (31 a) What further conversation did you have at that time about it, if any? A. Well, I was scared about the matter,--nervous; did not want to be prosecuted. (32) What did you tell him then? A. Well, I told him that I would take it, and consider the matter; that I did not know whether--did not believe that he had a case; did not know, but would let him know later. We had considerable talk about it, and he went out. (33) Was there anything said in that conversation in reference to your business there, or the effect of a prosecution of that kind by either party? A. No, sir; I think before that time he had made a remark in the first talk that he should regret very much to make me any trouble, or injure my business, and I had concluded from that that he was not going to make any disturbance about the question one way or the other. (34) Now, did you before the execution of the mortgage have any conversation with him in reference to the security? A. Yes, sir. (35) When was that? A. That was the day before the execution of this mortgage. (36) When was that with reference to this conversation you have just related? A. It was a day or two days afterwards,--shortly afterwards. He had come back into the office for the purpose of ascertaining what I was going to do. He had taken his notes with him,--those he had selected,--and I took the rest. (37) Was there any one present in the office at this conversation which you have detailed? A. My brother was there. (38) He came back the next day, or the next day but one, again, in pursuance of your agreement? A. Yes, sir; he came back the next day, or the next day but one,--I don't remember; it was the day before the final execution of this mortgage. (39) Well, what occurred then? A. He came into the office, and wanted to know what I had made up my mind to do, and I said, ‘Mr. Sanford, I cannot execute a mortgage on my library,’ and he at once says, ‘Then I propose to prosecute you as far as I can. I propose to have this settled my way, and I can't take anything...