Taylor v. Fleckenstein

• Decision Date: 21 February 1887
• Citation: 30 F. 99
• Parties: TAYLOR v. FLECKENSTEIN and another.
• Court: U.S. District Court — District of Oregon

30 F. 99

TAYLOR v. FLECKENSTEIN and another.

United States Circuit Court, D. Oregon.

February 21, 1887

(Syllabus by the Court.)

B being under arrest in a civil action, the defendants, at his request, and without any demand from or communication with the officer having him in custody, executed a writing under seal for his discharge, in which they undertook, among other things, that, in case a judgment passed against B., and he failed to satisfy the same, they would; in consideration of which the plaintiff directed him to be discharged, which was done. Afterwards judgment was given against B.,which he failed to pay, being insolvent; whereupon the plaintiff brought this action on the undertaking for the amount of the judgment, and the jury, under the instruction of the court that, if the agreement to pay the judgment was knowingly and voluntarily entered into by the defendants, it was valid and binding, having found a verdict for the plaintiff, the defendants moved for a new trial for error in the instruction. Held, that the contract, not being prohibited by statute nor contrary to public policy, was valid. (a) The discharge of B. from arrest, without the delay allowed by statute for the justification of bail for his appearance, was a sufficient consideration therefor; and (b) the writing containing the agreement, being under seal, imported a sufficient consideration for the same until the contrary was shown.

It is no defense to an action on a writing that the defendant was misled or misinformed as to the contents and effect of the same, unless it also appears that, by reason of some disability, he was incapable of reading and comprehending the writing for himself, or that he was imposed on by some fraudulent device, as the substitution of one writing for another.

Frederick V. Holman, for plaintiff.

Rufus Mallory, for defendants.

DEADY J.

This action is brought on a writing executed by the defendants under seal, on September 2, 1883, for the discharge of Joseph Bachman from arrest in a civil action, brought by the plaintiff herein against said Bachman, in this court, to recover the sum of $1,000, with interest and costs, whereby they undertook and 'obligated' themselves, not only that said Bachman would render himself amenable to the process of the court during the pendency of the action, and to such other process as might be issued to enforce any judgment given therein, but also that said Bachman would pay any such judgment, 'in default of which we (the defendants) will pay to said plaintiff the sum of $1,050 with interest on $1,000 thereof from September 28, 1883, at 10 per centum per annum, and the costs and disbursements of this action.'

It is alleged in the complaint that, upon the execution of this instrument, Bachman was discharged from arrest, and that on November 19, 1883, judgment was duly given in said action against said Bachman for the sum of $1,098.38; that on November 28th an execution issued thereon, which was returned nulla bona, and that said Bachman is and has been ever since the date of said judgment insolvent; and that the defendants, though often requested, have not paid said judgment according to the tenor and effect of their undertaking, and to do so still refuse.

In their answer the defendants admit the execution of the instrument for the purpose of procuring the discharge of said Bachman from arrest, but deny that they executed the same to secure the payment of the plaintiff's demand in the action; and aver that the plaintiff caused said instrument to be prepared, and 'exacted' of the defendants the execution of the same, contrary to law, as a condition for said discharge; that the defendants executed the same without reading or hearing it read, and without any other knowledge of its contents than was derived from the representations of the plaintiff's attorney in whose office the instrument was executed; that said attorney falsely represented to the defendants that said instrument contained no condition or stipulation other than those required by section 109 of the Code of Civil Procedure to procure the discharge of a party from arrest in a civil action, and that, relying on such representations, they executed the same; and that said instrument was 'extorted' from the defendants by the plaintiff, and the marshal in whose custody said Bachman then was, contrary to said section 109.

The new matter in the answer is controverted by the replication. It is also alleged therein that the instrument, and every part thereof, was truly read to the defendants by the plaintiff's attorney before the execution of the same, and that they thereupon voluntarily executed the same, with full knowledge of its contents and effect.

On December 23, 1886, the cause was tried with a jury, who gave a verdict for the plaintiff in the sum of $1,309.64, on which judgment was given accordingly.

On the trial, the defendants contended that the instrument was void for the following reasons, and prayed instructions to the jury to that effect: (1) The undertaking of the defendants to pay any judgment that might be given against Bachman, in case of his failure to do so, is contrary to law and public policy, and therefore void. (2) The instrument was extorted from the defendants by the marshal colore officii, and is therefore void. They also asked the court to instruct the jury that, if they believed from the evidence that the defendants were induced to sign the writing in question by the false representations of the plaintiff's attorney as to its contents and effect, their verdict should be for the defendants. The court instructed the jury, in effect, that, if the defendants knowingly and voluntarily executed the instrument, they were bound by the undertaking therein to pay the judgment against Bachman, and their verdict in such case must be for the plaintiff; but otherwise not. The defendants now move for a new trial on the ground of an error in the instruction to the jury.

On the argument counsel attempts, notwithstanding the verdict, to maintain that the undertaking of the defendants was, in contemplation of law, extorted or exacted from them by the marshal colore officii. The verdict of the jury establishes the fact, for all it is worth, that the defendants executed the instrument voluntarily, and there is even no evidence to the contrary. The marshal does not appear to have had communication with the defendants, and had nothing to do with the transaction, except to take Bachman to the office of the plaintiff's attorneys, who had been and were his friends, and to accept the undertaking, and discharge the prisoner on the direction of said attorneys. The defendants, one of whom is the brother-in-law of Bachman, came to the office of these attorneys, so far as appears, at Bachman's request, to be sureties for his discharge from arrest, and the business was transacted in a room in which the marshal was not present. It also establishes the fact that the defendants executed the instrument knowingly; that is, with knowledge of its contents, and the liability they thereby assumed. On this question the evidence was conflicting, but, in my judgment, the verdict was according to the weight of it. It consisted of the testimony of the defendants and the deposition of Bachman, now resident in New York, to the effect that the attorney for the plaintiff told them, before signing the instrument, that it was merely an undertaking for latter's appearance. The attorney, Mr. Henry Ach, testified directly to the contrary, and positively affirmed that he read the whole instrument to the defendants, and, particularly, the clause concerning the payment of the judgment; which he said he had inserted in the instrument by direction of the senior partner of the firm, Mr. Marcus W. Fechheimer, because, as the latter then said, Bachman had been to see him, and promised to give him security for the debt as well as his appearance. Mr. George H. Thurston, the notary public before whom the defendants qualified as bail, was present when the instrument was signed. He also testified that it was read to the defendants; that his attention was attracted to the clause concerning the payment of the judgment as something unusual, on which account he asked them, before administering the oath to them, 'If they understood the bond,' to which they answered in the affirmative. On this evidence the question was submitted to the jury, and they found that the defendants executed the instrument knowingly. The point was not then made that this defense, if true, was immaterial.

In Hazard v. Griswold, 21 F. 178, (a very similar case,) the defendant, in an action on a bond given for the release of a person arrested on a ne exeat, in which he was surety set up that he executed the bond on the misrepresentation of the plaintiff and others, his agents and attorneys, as to its contents and effect, without averring...