Thorn v. Pinkham

• Decision Date: 11 December 1891
• Citation: 24 A. 718,84 Me. 101
• Parties: THORN v. PINKHAM et al.
• Court: Maine Supreme Court

24 A. 718

84 Me. 101

THORN

v. PINKHAM et al.

Supreme Judicial Court of Maine.

Dec. 11, 1891.

(Official.)

Exceptions from superior court, Kennebec county.

Action by Fred S. Thorn against L. M. Pinkham and another, on a note. Verdict for defendants. Plaintiff excepts. Exceptions sustained.

Heath & Thell and Farr & Lynch, for plaintiff. L. T. Carleton and F. E. Bean, for defendants.

HASKELL, J. Assumpsit on a promissory note for $370, payable in 12 months, given by one prank L. Pinkham for moneys of the plaintiff that he had embezzled, and signed by the defendants, his father and a relative, as sureties. The verdict was for defendants, and the case comes up on motion and exceptions.

1. It is contended that the note was obtained by duress, and that the consideration was illegal. Suppose the embezzler had been plainly told that, unless he paid or secured the amount that he had stolen, he would be prosecuted for the theft, and thereupon gave the note. That would not have been duress. "It is not duress for one who believes that he has been wronged to threaten the wrongdoer with a civil suit; and. If the wrong includes a violation of the criminal law, it is not duress to threaten him with a criminal prosecution." Hilborn v. Bucknam, 78 Me. 485, 7 Atl. Rep. 272. Money stolen may be recovered in assumpsit. Howe v. Clancey, 53 Me. 130. A fortiori is money embezzled a good consideration for a promise to refund it.

2. It is claimed that the sureties were discharged by the giving of time to the principal debtor. It appears that when the note was given it was agreed that he might continue in the plaintiff's service, "so long as he did well," and pay from his wages $24 a month on the note. After three payments, amounting to $56, he was discovered short in his accounts and discharged. The agreement to accept monthly payments of $24 each, if unconditional, would have extended payment of the balance due on the note at maturity over a period of more than three months. If these payments had been regularly made until the note fell due February 18-21, 1890, there would have remained $82, exclusive of interest, unpaid, to be met in four monthly payments.

The pertinent inquiry is, did the agreement, assuming that it was made upon sufficient consideration, operate as an extension of time for the payment of the note? The agreement arose from the mutual promises of the parties relating to the continued employment of a servant. The master promised wages to be applied in part to an existing indebtedness of the servant, "so long as he did well." The agreement contained a stipulation for continued service like a condition precedent to the validity of a contract; and, when the condition failed, the agreement failed with it; so that, as the agreement was not absolute, no agreement for extending the time of payment on the note existed when the day of payment came. Had the condition been kept, the result might be otherwise; for, when the note fell due, had the time of payment been extended for a single day, the surety ship would have no longer remained "sure," and the sureties need not "smart for R." Berry v. Pullen, 69 Me. 101; Gifford v. Allen, 3 Metc. (Mass.) 255.

3. It is argued that the sureties are...