Singer Sewing Mach. Co. v. Escoe
| Decision Date | 02 February 1937 |
| Docket Number | Case Number: 25713 |
| Citation | 179 Okla. 100,1937 OK 81,64 P.2d 855 |
| Parties | SINGER SEWING MACHINE CO. v. ESCOE et al. |
| Court | Oklahoma Supreme Court |
¶0 1. BILLS AND NOTES - Note Void Where Given to Prevent Prosecution for Crime.
A note given to one having knowledge of the commission of a crime for the purpose and on the understanding and agreement, express or implied, of compounding or concealing such crime or to abstain from any prosecution therefor is based upon an illegal consideration, contrary to law, and is therefore void.
2. APPEAL AND ERROR - Sufficiency of Evidence in Law Action Tried to Court.
In a law action tried to the court, where there is competent evidence tending to support the judgment, such judgment will not be disturbed.
Appeal from District Court, Pottawatomie County; Hal Johnson, Judge.
Action by the Singer Sewing Machine Company against W.M. Escoe and another. Judgment for defendants, and plaintiff appeals. Affirmed.
Everest, McKenzie & Gibbens, for plaintiff in error.
Johnson & Price, for defendants in error.
¶1 This was an action against the defendant I.S. Ritchie to recover on two promissory notes in the total sum of $749.60 with interest and attorney fees. The parties will be referred to as they appeared in the trial court. One note was for the sum of $358.64 and one for $300. Both notes were dated and executed by the defendants on June 5, 1930. A payment was made of $28.63 as interest on the first note and a credit of $28.64 on the second note.
¶2 The defendant Ritchie answered and alleged that the two notes executed were obtained through fraud in that the agent of the plaintiff, Escoe, at the time of the execution was not indebted in any manner to the plaintiff. At the outset it may be stated that this allegation is not sustained in any respect.
¶3 The second allegation in the answer was that at the time of execution the said Escoe was threatened with prosecution, and that the notes were given in consideration and with the agreement that the said Escoe would not be prosecuted, and that therefore the consideration for the same is illegal and void. It is to this point that we address ourselves in this opinion.
¶4 The cause was tried to the court without a jury after the issues were properly made. Judgment was for the defendant, and after a motion for new trial was overruled, plaintiff appealed and assigns three errors in the action of the trial court in rendering judgment for the defendant. The first specification of error is that there was neither duress nor failure of consideration to Mr. Ritchie in the execution of the two notes under the facts. That this case does not come within the terms of our statute on duress is plain. Section 9414, O. S. 1931, defines duress and by a simple reading thereof it may be ascertained that the facts in this case do not support duress. The defendant I.S. Ritchie was an uncle of the agent Escoe. In fact, we find by reference to the answer of the defendant that he relied upon illegal consideration. The defendant stated upon the witness stand that the agent of the Singer Sewing Machine Company came to him together with Escoe and represented that Escoe had run behind with the Singer Sewing Machine Company, and that they were liable to send him to the penitentiary if he didn't get it fixed up, and that at that time the agent represented to the defendant that Escoe was a very good salesman and one of the best they had, and that Escoe would soon earn enough to pay the notes back and that this would enable Escoe to go on with his work; that this was the inducement defendant had to sign the papers. Whereupon, defendant was asked what consideration there was for the execution of the notes, to which objection was duly made, and then the defendant stated in substance that the company by its agent represented that Escoe was running behind $500 or $600 and the surety company would prosecute unless it was straightened up, but if it was straightened up Escoe would keep his job, and under these circumstances to permit Escoe to keep his job and to release him, defendant signed the notes.
¶5 Escoe had been employed as a traveling salesman and had become some $900 in arrears with the plaintiff company. J.D. Beggs, agent for plaintiff, went to the defendant in the presence of Escoe. The plaintiff by the witness Beggs controverted the testimony of the defendant and denied that he had any conversation with the defendant with relation to the agreement, either to conceal the defalcation or fail to report the same or to refrain from prosecution thereon.
¶6 Our court has passed directly upon an agreement made to conceal or refrain from prosecution of criminal offenses. First National Bank v. Russell, 128 Okla. 222, 262 P. 205; First National Bank v. Allen, 88 Okla. 162, 212 P. 597; Stanard v. Sampson, 23 Okla. 13, 99 P. 796; Calloway v. Western States Lbr. Co., 32 Okla. 680, 123 P. 151.
¶7 In Stanard v. Sampson, supra, the court in the syllabus said:
"If the consideration of a note is partly illegal, the whole note is void; and, where the note is given in settlement of pre-existing debts, in addition to certain sums of money advanced to one of the makers at the time of signing same, and also for the agreed purpose of discontinuing a pending prosecution against one of the makers thereof for a crime, such note, being entire and indivisible, is void, and there can be no recovery thereon."
¶8 In Fidelity & Deposit Co. v. Grand Nat. Bank of St. Louis, 69 Fed. (2d) 177, it is stated:
"An agreement to stifle a prosecution, suppress evidence, compound an offense, or conceal a crime which has been committed is void because it is contrary to public policy."
¶9 That statement was made with reference to the statute of Missouri, and the language therein contained is almost identical with the language of section 1954, supra. In that opinion the court said:
"The lower court based its decision largely upon this statute, which we think is not broader than the common-law principles applicable."
¶10 In Re Lawrence, 166 Fed. 239, it is said:
¶11 In Rutherford v. Elliott, 23 Fed. (2d) 250, it is stated:
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Lachman v. Sperry-Sun Well Surveying Company
...a free well. The circumstance here is entirely different, and the reason for the doctrine does not exist. In Singer Sewing Machine Co. v. Escoe, 179 Okl. 100, 64 P.2d 855 (1937), the defendant was accused by Singer of embezzlement. Defendant's uncle agreed to make up the loss and gave a pro......