Sieber v. Weiden

• Decision Date: 07 July 1885
• Parties: FRANK SIEBER, PLAINTIFF IN ERROR, v. WENZEL WEIDEN, DEFENDANT IN ERROR
• Court: Nebraska Supreme Court

24 N.W. 215

17 Neb. 582

FRANK SIEBER, PLAINTIFF IN ERROR, v. WENZEL WEIDEN, DEFENDANT IN ERROR

Supreme Court of Nebraska

July 7, 1885

ERROR to the district court for Fillmore county. Tried below before MORRIS, J.

AFFIRMED.

Samuel J. Tuttle, C. H. Bane, and L. W. Billingsley, for plaintiff in error.

John P Maule, for defendant in error.

OPINION

REESE, J.

The plaintiff in error instituted this action in the court below for the purpose of recovering back the sum of $ 500 alleged to have been obtained from him fraudulently, and by duress by defendant in error. The trial in the district court resulted in a verdict and judgment in favor of the defendant in the action. Plaintiff prosecutes error in this court. The answer of defendant contains a general denial, and a further defense that the money was paid by plaintiff in error for and on account of damages sustained by defendant for the seduction of and criminal conversation with the wife of defendant. The reply alleges that the damages claimed for the alleged criminal conversation had been fully paid prior to the payment of the $ 500, which plaintiff claimed was paid by duress. The errors assigned by plaintiff will be noticed in their order.

First. The first testimony introduced by the plaintiff in error was a detail at considerable length of a series of conversations between himself and defendant which he claimed resulted in a settlement between them and the payment of $ 200 to defendant's wife. After this testimony was given, defendant moved to strike it out for the reason that it was not responsive to the pleadings in the case, and was irrelevant and immaterial. This motion was sustained, and the ruling of the court is assigned as error. It seems pretty clear to us that this action of the court was correct. The facts testified to by the plaintiff were the same as those set up in his reply. It would have been soon enough for him to have testified to the settlement and payment upon proof of the facts alleged in the defendant's answer, as the facts pleaded by the reply could have no other effect than that of explaining, rebutting, or avoiding those set up in the answer. The order of proceedings upon trial seems to be well defined by section 283 of the civil code, which is in accord with the view taken by the trial court.

Second. It is next insisted that the court erred in sustaining the objections of the defendant to certain questions propounded to the witnesses of plaintiff upon their examination-in-chief. It is sufficient to say of all the assignments of this character in this record that no statement or offer of any evidence or testimony was tendered to the court. As said in McMillan v. Malloy, 10 Neb. 228, 4 N.W. 1004: "It is not sufficient to be available on error that the court sustains an objection to a question; the party must offer to prove certain facts, and if they are excluded embody the testimony thus offered in the bill of exceptions." See also Stanton County v. Canfield, 10 Neb. 387. Fosbinder v. Svitak, 16 Neb. 499.

Third. Objection is made to the second instruction given to the jury by the court. It is as follows: "The rule in this class of cases is that where a payment of money is made upon an illegal or unjust demand, when the party is advised of all the facts, can only be considered involuntary when it is made to procure the release of the person or property of the party from detention, or when the other party is armed with apparent authority to seize upon either, and the payment is made to prevent it. But where the person making the payment can only be reached by a proceeding at law he is bound to make his defense in the first instance, and he cannot postpone the litigation by paying the demand in silence and afterwards suing to recover it back." This instruction is excepted to and is assigned for error. The criticism upon this instruction is, that in the former part of it the court seems "to eliminate this case from cases where money is obtained by duress, and in so doing misstates the law."

In Mundy v. Whitmore, 15 Neb. 647, Judge MAXWELL, in writing the opinion, says: "The common law divided duress into two classes, viz., duress per minas, and duress of imprisonment. Duress per minas is restricted to fear of loss of life, or mayhem, or loss of limb; in other words, remediless harm to the person. Duress by imprisonment is supported by any evidence that the party was unlawfully restrained of his liberty until he would execute the instrument" or other thing required.

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