The Wilson Sewing Machine Company v. Curry

• Decision Date: 22 November 1890
• Docket Number: 14,411
• Citation: 25 N.E. 896,126 Ind. 161
• Parties: The Wilson Sewing Machine Company et al. v. Curry et al
• Court: Indiana Supreme Court

25 N.E. 896

126 Ind. 161

The Wilson Sewing Machine Company et al. v. Curry et al

No. 14,411

Supreme Court of Indiana

November 22, 1890

From the Vigo Superior Court.

Judgment reversed, with costs.

L. D Thomas, S. C. Stimson and R. B. Stimson, for appellants.

G. W Faris and S. R. Hamill, for appellees.

Berkshire C. J. Coffey, J., did not sit in this case.

OPINION

Berkshire, C. J.

This was an action by the appellees against the appellants to annul a judgment which the machine company had obtained against the appellees and assigned to the appellant Wilson. Originally the complaint was in two paragraphs, to both of which the court sustained demurrers, and thereafter the second paragraph was amended. To the amended second paragraph the appellants filed a demurrer, which demurrer was overruled and an exception reserved. The cause was afterwards put at issue and tried, and a finding made by the court for the appellees.

The appellants filed their motion for a new trial and the court overruling the same, they reserved an exception and a judgment followed for the appellees.

The appellants assign several errors, but two of which we need consider. These bring in question the ruling of the court overruling the demurrer to the complaint, and its ruling overruling the motion for a new trial.

The theory of the complaint is duress and fraud.

The appellees as sureties, and Samuel R. Sargent and William P. Bennett as principals, joined in the execution of a bond to the appellant machine company; the penalty named in the bond being $ 1,000. This bond was executed November 2d, 1881.

On the 17th day of February, 1881, the same named principals, together with Solomon Tucker, Silas Foulke and others as sureties, executed a bond to the said company, the penalty therein named being $ 3,000. Afterwards and on the 24th day of March, 1883, the conditions of said bonds having been broken, at the instance of the agent of the appellant machine company, Sargent, Bennett, Tucker, Foulke and the appellees came together at the office of such agent, in the city of Terre Haute, and executed a power of attorney authorizing one of the attorneys at law named therein to go into said superior court and confess a judgment against them according to the terms and conditions of said bonds, in the sum of $ 3,025. And as an impeachment of the validity of said power of attorney it is alleged "That on said day at said office, and in the night time, said Allen, agent as aforesaid, threatened these plaintiffs in various ways, and then and there said unto them that unless they executed a power of attorney authorizing some attorney to confess a judgment against them that he and said defendant, Wilson Sewing Machine Company, would pursue said bonds to judgment and would recover three hundred dollars attorney's fees against them, and would pursue them to insolvency, but if they would so execute a power of attorney said plaintiff would see that judgment would be taken against them in accordance with the terms and conditions of said bonds." It is then alleged that the appellees were inexperienced in business affairs and relied upon the representations and statements made to them.

It is so clear that the averments (all of which we have given tending in that direction) do not make a case of duress that we do not feel justified in stopping to consider the question as to what is, and what is not, duress sufficient to annul a transaction tainted therewith.

The agent simply threatened to enforce the legal rights of the principal against the appellees if they did not accede to his proposition; to do what his obligation to his principal required him to do.

The attorneys named in the cognovit, either of whom was authorized to confess judgment, are Leslie D. Thomas and William Eggleston.

It is alleged in the complaint that Leslie D. Thomas executed the power and confessed the judgment, and that at the time the power of attorney was executed and the judgment confessed he was the attorney of the Wilson Sewing Machine Company.

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