Security Sav. Bank v. Kellems

• Decision Date: 01 July 1925
• Docket Number: No. 3597.,3597.
• Citation: 274 S.W. 112
• Parties: SECURITY SAV. BANK v. KELLEMS.
• Court: Missouri Court of Appeals

274 S.W. 112

SECURITY SAV. BANK v. KELLEMS.

No. 3597.

Springfield Court of Appeals. Missouri.

July 1, 1925.

Appeal from Circuit Court, Scott County; Frank Kelly, Judge.

Action by the Security Savings Bank against Mary Kellems and G. B. Kellems. From a judgment for the first-named defendant, plaintiff appeals. Affirmed.

Ray B. Lucas, of Benton, for appellant. R. F. Baynes, of Parma, for respondent.

BAILEY, J.

This is a suit by attachment on two promissory notes, made by defendant, Mary Kellems, jointly with G. B. Kellems, her husband. There was a plea in abatement filed by defendant, Mary Kellems, and also an answer admitting execution of the notes, but charging fraud and duress in procuring her signature thereon, and praying for their cancellation. To this answer plaintiff filed a demurrer, which was taken under advisement by the court, and the plaintiff thereupon filed a reply in the nature of a general denial of the averments of said answer. Thereafter, on trial before the court, the case having resolved itself into an equitable action, the demurrer was overruled and the issues found in favor of defendant, Mary Kellems; judgment was rendered on the notes against the codefendant, G. B. Kellems. The defendant, Mary Kellems, being discharged, plaintiff has appealed.

Appellant assigns as error the overruling of plaintiff's demurrer to respondent's answer, the refusal to give a peremptory declaration of law, that the testimony was insufficient to support the judgment, and that the court erred in overruling plaintiff's motion for new trial. On the first proposition, plaintiff, by filing reply, either before the court passed on the demurrer or afterwards, waived every objection raised by the demurrer to the answer, except the objection that the answer does not state facts sufficient to constitute a defense. Hanson v. Neal, 215 Mo. 256, 114 S. W. 1073; State ex rel. D. Bright, 224 Mo. 514, 123 S. W. 1057, 135 Am. St. Rep. 552, 20 Ann. Cas. 955; Finney v Randolph, 68 Mo. App. 557.

As plaintiff's demurrer to the answer of defendant, Mary Kellems, sets up no other ground for demurrer except that the answer does not state facts sufficient to constitute a defense, the fact that plaintiff filed a reply was no waiver of the demurrer, and exception to the court's ruling thereon is properly before this court,

The answer, caption omitted, is as follows:

"Comes now the defendant, Mary Kellems, and, for answer to plaintiff's petition filed in this cause, denies generally each and, every allegation in said petition contained, and each count thereof.

"Defendant further answering alleges and charges the facts to be that on the 21st day of October, 1922, she and her husband, G. B. Kellems, were temporarily staying at Cairo, Ill.; that the said G. B. Kellems, her husband, owed the plaintiff, and the First National Bank of Chaffee, Mo., certain notes; that one W. H. Adams was security on the notes due said First National Bank of Chaffee, Mo.; that on the said 21st day of October 1922, the attorney for this plaintiff and said W. H.. Adams came to the defendant in the city of Cairo, Ill., and told her he was there for the express purpose of attaching her home, and that, unless she helped her husband, the said G. B. Kellems, take care of these said notes, he would cause an attachment to be levied on her home in Chaffee, Mo., which would cause her great annoyance, humiliation, trouble, and expense; that she told this said attorney for plaintiff that she would not sign a note for her husband or obligate herself in any way so that a claim could be made against her whereby she would be liable for any of her said husband's obligations; that said attorney kept up his said threats, and this defendant told him she and her husband owned some vacant lots in the city of Chaffee, Mo., that they would be willing to pledge as security for said indebtedness; that said attorney told her this would be agreeable and accepted; that he then prepared a trust dead and these notes sued on and asked her to sign; that on account of the threats above stated she signed the trust deed, but refused to sign the notes, but this said attorney again threatened her with attachment proceedings as above stated, and told her that"the trust deed would not be any good unless she signed the notes, and that she was in no way obligating herself personally by signing them, other than pledging her dower interest in the lots by signing the notes, and that she could not be held for the payment of the notes, as the trust deed took care of that; that she again told him she was not going to obligate herself in any manner whereby she would become liable for her husband's debts, and her home in Chaffee, Mo., probably sold to pay same, as that was all she had, and she wanted to keep it, but this said attorney again advised her that she would not be liable to a greater extent than the interest she had in the lots, covered by the trust deed, and if she would sign the notes all the lawyers in the world could not cause her home to become involved. Defendant says she never has had any business or legal experience, and, knowing this attorney to be a lawyer with much experience, she placed sufficient confidence in him, through the threats aforesaid, and his persistent argument to sign said notes, believing him to be telling her the truth, and that she only signed said notes by reason of his threats, and with the understanding that she was signing them to make the trust deed valid, and that by reason of the statements, representations, threats, and conduct of this said attorney as aforesaid, her signature was caused to be placed on said notes by fraud, and duress.

"Wherefore, having fully answer, defendant prays that the notes described in plaintiff's petition be cancelled and declared null and void as to this defendant by the judgment of this court, and that defendant may go hence without day, together with her costs in this behalf expended."

It will be noted that this answer raises two defenses, that of fraud and duress, so intermingled as to time and place as to be practically the same. Fraud and duress, while often linked together, are essentially different. It would seem that fraud should be predicated upon some misrepresentation of fact upon which the party defrauded relied, and in regard to which he had no knowledge; while in duress, an element of force or threatened force causes the party defrauded to do something, not without knowledge of the illegal element, but fully conscious thereof. 9 R. C. L. 711. We might state here that the attorney alleged to have made the misrepresentations set out in the answer is not the same attorney appearing in this cause for plaintiff.

We shall first consider the alleged duress as a defense. The sole threat set forth in the answer, as constituting duress, consists of a statement, made by plaintiff's attorney to defendant, to the effect that defendant's home would be attached unless she signed the note sued on. In other words, the threat upon which the alleged duress is bottomed is one to cause a civil process to be issued against defendant's property. If we are to follow some of the earlier decisions of our Supreme Court on this proposition, the answer clearly fails to plead such facts as would constitute either a cause of action or a defense in so far as duress is alleged. In the case of Claflin et al. v. McDonough, 33 Mo. 412, 84 Am. Dec. 54, a threat of indictment, not involving arrest or moral turpitude, constituted the alleged duress. The court held this insufficient, stating that "threat of legal process is not duress, for the party may plead and make proof, and show that he is not liable." The authority of this case has been declared to be greatly weakened by more recent decisions of our Supreme Court, as pointed out in Miss. Valley Trust Co. v. Begley, 298 Mo. 684, 252 S. W. loc. cit. 79. The same opinion, however, approves the case of Wood v. Telephone Co., 223 Mo. 537, 123 S. W. 6, as in harmony with the modern doctrine of duress. The Wood Case referred to cites with approval the Claflin Case, supra, on the point that a threatened law suit, civil in character is not sufficient to constitute duress. Wood v. Kansas City Home Telephone Co., 223 Mo. loc. cit. 560, 123 S. W. loc. cit. 13. To the same effect is Schelp v. Nicholls (Mo. App.) 263 S. W. loc. cit. 1921, wherein the St. Louis Court of Appeals holds: "That part of the answer relating to threats to sue defendant and otherwise expose him, together with the allegations following, relied upon by defendant as alleging sufficient facts to show duress, does not constitute a defense to the petition"—citing several cases, among them being Claflin v. McDonough, supra. We find the rule stated in Corpus Juris, vol. 9, at 722, as follows:

"It is the well established general rule that it is not duress to institute or threaten to institute civil suits, or take proceedings in court, or for any person to' declare that he intends to use the courts wherein to insist upon what he believes to be his legal rights."

The modern doctrine is liberal in looking to the effect of the threat in destroying freedom of action, rather than to the threat itself. But we find the authorities generally holding to the view stated in 13 O. J. 399, wherein this language is used:

"A threat to do what one has a legal right to do cannot constitute duress. Such as to foreclose or to exercise the power of sale on a mortgage * * * or a threat of, or the bringing of, a law suit or civil process; or a threat to levy an attachment or to file a mechanic's lien."

Judge Graves, in writing the opinion in the Woods Case, supra, 223 Mo. loc. cit. 558, 123 S. W. loc. cit. 12, approves a definition of duress thus stated:

"Duress, in its more extensive sense, is that degree of constraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or in apprehension to overcome the...