Schultz v. Culbertson
| Decision Date | 30 March 1880 |
| Citation | 4 N.W. 1070,49 Wis. 122 |
| Parties | SCHULTZ v. CULBERTSON |
| Court | Wisconsin Supreme Court |
March 16, 1880, Argued
APPEAL from the Circuit Court for Outagamie County.
Action to recover moneys paid by plaintiff to defendant on a promissory note executed by the former to the latter. The judgment of this court on reversing a former appeal herein is reported in 46 Wis., 313-316. The evidence and the instructions given to the jury, at the second trial, will sufficiently appear from the opinion. There was a verdict and judgment in favor of the plaintiff; and defendant appealed from the judgment.
Judgment affirmed.
Wm Kennedy, for the appellant.
H. C Sloan, for the respondent.
When this case was here on the former appeal (46 Wis. 313), it was held tat the evidence tended to prove that the note given by the plaintiff was obtained under a species of duress, the defendant having extorted it through threats to arrest and prosecute his son for burglary or larceny. Such constraining force or undue advantage, working upon the fears and parental love of a father, might be sufficient to overcome his mind and will, and render the note void. Hence it was said by Mr. Justice LYON, in the opinion, that if the suit had been brought on the note by the defendant, the plaintiff probably could have successfully defended on the ground that it was procured through duress, or by means of threats of arresting his son on a criminal charge.
But the note was paid more than a year after it was given, and it was said that it did not necessarily follow that the duress continued until the note was paid. If it did not, and the plaintiff voluntarily paid the note, he could not recover back the money thus freely paid. As there was no proof whatever in the case that the plaintiff or his son was subjected to any menace or threat after the note was given or which tended to show that the note was paid under duress, the judgment was reversed, and the case sent back for a new trial. The evidence on the second trial, as to the circumstances attending the giving of the note, was substantially the same as at the first, together with some additional testimony which tended to show that the duress or unlawful constraint might have continued to the time the note was paid. On this branch of the case the learned circuit court charged that there could be no recovery unless the evidence satisfied the jury, not only that the plaintiff was induced by threats to make the note, but that, when he paid it, the duress still existed, and he was laboring then under the apprehension that the defendant would arrest...
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