Schultz v. Catlin

• Court: Wisconsin Supreme Court
• Writing for the Court: LYON
• Citation: Schultz v. Catlin, 78 Wis. 611, 47 N.W. 946 (Wis. 1891)
• Decision Date: 03 February 1891
• Parties: SCHULTZ v. CATLIN.

78 Wis. 611

47 N.W. 946

SCHULTZ

v.CATLIN.

Supreme Court of Wisconsin.

Feb. 3, 1891.

Appeal from municipal court of Ripon.

J. Dobbs, Duffy & McCrory, for appellant.

Runals & Dunlap and Colman & Sutherland, for respondent.

LYON, J.

The action was brought in the municipal court of Ripon, upon a joint and several promissory note for $500 and interest, dated July 9, 1883, made by defendant, Phebe E. Catlin, and her brother, to the plaintiff. The brother is not made a party to the action. The defenses to the note alleged in defendant's answer are that it was given (1) without consideration; (2) to compound a felony, which the brother was charged by the plaintiff to have committed; and (3) under duress of threats to prosecute him for the crime. The jury found specially the existence of all these vices in the note. A motion for a new trial was denied, and judgment for costs entered against plaintiff, from which he appeals.

The testimony proves that, immediately before the note in suit was given, the plaintiff accused the brother of defendant of stealing money from him, from time to time, amounting in the aggregate to $1,000. This charge led to negotiations between them, which resulted in the giving of the note in suit. Plaintiff had no other claim against the brother, and none against the defendant. The testimony also tends to show that the plaintiff threatened to procure the arrest and punishment of the brother for the crime so charged upon him unless the note was given, and the same would not have been given but for the terror of both makers caused by such threats. The defendant, in her answer, denied the guilt of her brother; and he also denied it in his testimony as a witness. Because of such denials, on the authority of Catlin v. Henton, 9 Wis. 476, probably the special finding by the jury, that the note was made and executed to compound a felony, cannot be approved. It seems to have been held in that case that such a defense is not available unless the felony is confessed, or a prosecution therefor commenced before the making of the note. The testimony also tends to prove that there was no conversation between plaintiff and defendant in respect to the giving of the note, but plaintiff required of the brother defendant's signature thereto, and such requirement and the alleged threats were communicated to her by her brother before she signed the note, as the plaintiff evidently intended they should be. The testimony is amply sufficient to support the findings that there was no valid consideration for the note, and that the makers gave it because of the plaintiff's threats to institute a criminal prosecution against her brother for the alleged larceny, and to avoid such prosecution. If the consideration of the note was an illegal one, or if there was no consideration therefor, collection thereof cannot be enforced. If the note was given because of the threats of plaintiff to prosecute the brother for the crime charged, and to avoid such prosecution, the defendant is not liable upon it. It is quite immaterial that such threats were not made directly to the defendant. They were made to her brother, with the intention, on the part of plaintiff, that they should be communicated to her, and they were so communicated. In some sense the brother was the agent of plaintiff to make such communication, and it is the same as though they were made to her by the plaintiff in person. Moreover, if the consideration of the note was that plaintiff would not prosecute the brother criminally, it was an illegal consideration, and vitiates the note....