Sulzner v. Cappeau-Lemley & Miller Co.

• Decision Date: 02 January 1912
• Docket Number: 145
• Citation: 234 Pa. 162,83 A. 103
• Parties: Sulzner v. Cappeau-Lemley & Miller Company, Appellant
• Court: Pennsylvania Supreme Court

83 A. 103

234 Pa. 162

Sulzner v. Cappeau-Lemley & Miller Company, Appellant

No. 145

Supreme Court of Pennsylvania

January 2, 1912

Argued October 20, 1911

Appeal, No. 145, Oct. T., 1911, by defendant, from judgment of C.P. No. 4, Allegheny Co., Fourth T., 1907, No. 220, on verdict for plaintiff in case of Joseph F. Sulzner v Cappeau-Lemley & Miller Company. Reversed.

Replevin to recover certificate of stock. Before SWEARINGEN, P.J.

The opinion of the Supreme Court states the case.

The court charged in part as follows:

[The plaintiff alleges -- and he must prove his allegations to you by the weight of the evidence -- that he was induced to execute these papers by what is known as duress. He alleges that the defendants, or their attorney, threatened him that his son would be sent to the penitentiary; that he was not in good health, and that he became bewildered and did not really know what he was doing when he signed these papers. Now, as I said to you before, the burden is upon him to establish that proposition, and if he has established that he was practically compelled to sign these papers by threats to send his son to the penitentiary, and that threat was such as would have operated upon the mind of an ordinary person so far as for the time being to unsettle him, then you can find that the contract, which these papers indicate, was not the contract of Joseph F. Sulzner, made freely and voluntarily. If that be true your verdict ought to be for the plaintiff. So that is the crucial question for you to determine.]

[If you find, on the other hand, that he did not enter into this contract voluntarily, but that he acted under duress, a threat to prosecute his son and cause his imprisonment, and that that was done in order to force it out of the hands of the plaintiff, then your verdict should be for the plaintiff.]

Verdict for plaintiff. Defendant appealed.

Errors assigned among others were (1, 2) portions of charge as above.

The last two assignments of error, which complain of the refusal to enter judgment non obstante veredicto, are overruled; the first two, which go to the charge, are sustained; the judgment is reversed with a venire facias de novo.

Charles A. O'Brien, for appellant, cited upon the subject of duress: Union Nat. Bank v. Dersham, 15 W.N.C. 541; Higgins v. Brown, 78 Me. 473 (5 A. Repr. 269); Wilkerson v. Hood, 65 Mo.App. 491; Russell v McCarty, 45 Ga. 197; Hilborn v. Bucknam, 78 Me. 482 (7 A. Repr. 272); Sutliff v. Johnson, 17 Neb. 575 (24 N.W. 217).

Harvey A. Miller, with him U. G. Vogan, for appellee, cited: Union Nat. Bank v. Dersham, 15 W.N.C. 541; Jordan v. Elliott, 12 W.N.C. 56.

Before FELL, C.J., BROWN, MESTREZAT, POTTER, ELKIN, STEWART and MOSCHZISKER, JJ.

OPINION

MR. JUSTICE MOSCHZISKER:

The plaintiff deposited a certificate for 2,500 shares of the stock of a mining company with the defendants for the purpose of sale. A few days later a meeting took place at the office of the defendants in relation to this sale, and certain other persons appeared and claimed to be purchasers of portions of the stock through a son of the plaintiff and another man who they asserted acted as his agents. The plaintiff recognized these claims, accepted in cash what the alleged purchasers declared to be the unpaid balance due, signed a receipt for the purchase money, and executed appropriate papers to carry out a proper division and transfer of the stock. Subsequently he instituted this action of replevin to recover the certificate for the stock in question.

At the trial of the cause the plaintiff did not deny the identity of the papers executed by him but asserted that they were obtained by duress. This issue was submitted to the jury, and they found a verdict in favor of the plaintiff for the value of the stock; judgment was entered thereon and the defendant has appealed. The appellant states the questions involved to be: 1. Was the charge of the court correct and adequate on the question of duress? 2. Was the plaintiff entitled to recover on the whole evidence in the case? We shall consider the latter question before passing upon the former.

There is no sufficient testimony to show that the plaintiff was either old or infirm at the time of the transaction complained of. The only evidence bearing upon that point was a statement by him that a few months previous thereto he had been in Texas for his health, "about my nervous system." The alleged coercion was thus described by the plaintiff: "Mr. Taylor says, 'Mr. Sulzner, are you aware that your son has sold 1,000 shares to Mr. Volquarts of this stock?' I says, 'No, sir, I don't know anything about it.' He says, 'He has;' and he says also, 'Mr. Kirker sold 1,000 shares to Mr Cappeau-Lemley. George sold his at nineteen cents, and Cappeau-Lemley for twenty-six cents.' I said, 'I won't stand for anything like that because,' I said, 'they had no business.' I said, 'Why didn't you tell me all this before you got my stock here, because this wasn't the deal we were to get now. You were to give me my money for it.' And then Mr. Taylor says, 'Mr. Volquarts, tender $125 to Mr. Sulzner, the balance of $190 which George gave a check for $65.00 on account.' 'Well, now,' I said, 'this is a snap judgment you are taking on me.' I says, 'I don't know anything about this.' He says, 'Well, here is the money.' And he says then, 'Mr. Lemley, you tender $260,' and he says, 'I don't think I have that much in the office. I will go in and see.' And he went in the office and brought out $260 and then laid that down to me. And Mr. Taylor says, 'Now, Mr. Sulzner, we have tendered you this money for 2,000 shares,' and he says, 'Take that,' and he had a paper in his hand, and he says, 'We will put your son in the pen.' He says, 'It is either take that or take the consequences.' Then, I broke down and started to cry. I got so bewildered. . . . After that they had me so confused I didn't know what I was doing. I wanted to go home and I picked up the money and I says to George, I says, 'George, you are getting me into all kinds of trouble. You had no business doing this' and I took the money up and went home." The plaintiff further said that he took the money and signed the papers "To save my son from being arrested." The son...