Shufeldt v. Gandy

• Decision Date: 01 January 1889
• Citation: 41 N.W. 553,25 Neb. 602
• Parties: D. A. SHUFELDT ET AL., APPELLEES, v. M. E. GANDY, APPELLANT
• Court: Nebraska Supreme Court

41 N.W. 553

25 Neb. 602

D. A. SHUFELDT ET AL., APPELLEES, v. M. E. GANDY, APPELLANT

Supreme Court of Nebraska

January 1, 1889

APPEAL from the district court of Richardson county. Heard below before APPELGET, J.

REVERSED AND REMANDED.

E. W Thomas, for appellant, cited: Hopkins v. Woodward, 75 Ills., 62. L., L. & G. R. R. Co. v. Douglas Co., 18 Kan. 178. Capuro v. Builders' Ins. Co., 39 Cal. 124. Hill v. Williams, 6 Kan. 17. 2 Whart. Ev Sec. 984. Kennedy v. Goodman, 14 Neb. 585.

Frank Martin, for appellees, cited: Freeman on Judgments, Sec. 486. Barthell v. Roderick, 34 Iowa 518.

OPINION

MAXWELL, J.

This is an action to have certain judgments declared satisfied, and to cancel the same and certain mortgages. A decree was rendered in favor of the plaintiffs in the court below, from which the defendant appeals.

The defendant demurred to the petition, and the demurrer being overruled she filed an answer, and evidence was introduced by both parties, which is now before us.

The defendant alleges that the petition fails to state a cause of action, and this is the first question presented. The petition is as follows:

"Said plaintiffs complain of said defendant, and say that on or about the 20th day of July, A.D. 1883, the plaintiff, D. A Shufeldt, purchased of said defendant two horses, and agreed to pay therefor the sum of $ 250, and then and there executed to the defendant his note for said amount, and plaintiff M. J. Bush signed said note as his surety; that these plaintiffs have but limited education and no experience in or knowledge of business matters; that the plaintiff, M. J. Bush, was, at the time of signing said note and the renewals thereof, a married woman, and her husband was in very feeble health, and for that reason she did not want the fact of her signing a note as security for any one else to come to his knowledge, lest it should worry and annoy him, and for the same reason she did not consult any friend or attorney concerning said business, and she informed defendant and plaintiff Shufeldt of said facts, and requested them not to let it be known that she had signed said note as security, and for said reason she did not consult any friend or attorney on said matter. All of which was well known to defendant. Said note was renewed from time to time up to October 11, 1887, and at each renewal defendant added to said note various sums, which she stated to plaintiff was the interest on the original debt; that these plaintiffs are unable to compute interest, which the defendant well knew; and these plaintiffs trusted to defendant to correctly compute and truly state the amount of interest due upon and which should be added to said note upon renewal; that these plaintiffs never received any other consideration from the defendant for said note or the renewal thereof, or the judgments hereafter mentioned, than the $ 250, the agreed value of said horses, and the only consideration for the judgments hereinafter mentioned was said original purchase of said horses.

"That defendant, well knowing all of said facts, on the 11th day of October, 1887, wrongfully and fraudulently contriving and intending to cheat and swindle plaintiffs, threatened to begin proceedings to collect the amount then claimed to be due, unless plaintiffs would give defendant a new note or notes; that defendant claimed there was then due on said original indebtedness and interest the sum of about $ 800 that these plaintiffs protested that it was impossible there could be any such sum due, and refused to sign any other note for any such amount; that defendant assured plaintiffs the amount was correct, and that she was there in a hurry, but that if plaintiffs would sign notes for said amount, and it should be subsequently ascertained to be too much, the same could be corrected; that by reason of such assurance, and to avoid said claims being sued, which defendant threatened to do, and also threatened to make large expense and trouble for plaintiffs in such suit if they did not sign said notes, and because plaintiffs believed that the correct amount could be ascertained...