Frick & Co. v. Moore , 82 Ga. 159 ( 1888 )

Simmons, Justice.

It appears from the record m this ease, that Mrs. Moore filed her bill against Erick & Co. and others in the court below, for injunction, relief, etc. She alleged in her bill that, in the year 1885, she executed and delivered to Erick & Co. twelve promissory notes, each for $100 and interest, except one which is for $126.09. She alleged that these notes were procured from her by duress, and for the purpose of suppressing a criminal prosecution ; that Erick & Co. had charged her son with larceny after trust of a. certain steam engine, and had threatened a criminal prosecution against him and by reason of their threats to prosecute him, had thereby obtained the notes from her. She asked that Erick & Co.-be enjoined from disposing of the notes, and that they be surrendered and cancelled.

Erick & Co., in their answer, denied all the material allegations in the bill. They denied that the notes were given to them by Mrs. Moore to suppress a criminal prosecution against her son, but alleged that they were given for an account held by them against the son of Mrs. Moore, and for four promissory notes of $154 each, which her son owed to them, and which notes and account they had transferred to Mrs. Moore in the settlement, and that this transfer was the real consideration for the notes given to them by her.

On the trial of the case, the judge in the court below submitted certain questions of fact to the jury. These questions were answered by the jury in favor of the complainant; whereupon the judge entered up a decree in her favor, decreeing that Erick & Co. should surrender the notes to be cancelled, and that certain duplicate notes which had been signed by the son during the trial, the originals being lost or mislaid as alleged in the amendment to the bill, which original notes had been given by her son to Erick & Co. for a debt due them other than the debt for the engine, should be received by Erick & Co. in lieu of the original not.es which were alleged in an amendment to her bill to have been lost or mislaid and which were not produced on the trial. The defendants below moved for a new trial on several grounds. The motion for a new trial was overruled by the court, and the defendants excepted. The questions submitted by the court to the jury were ,as follows:

(1) What was the motive that induced Mrs. Moore to give her notes to Frick & Co. ? Answer: To prevent criminal prosecution of her son.

(2) Was she induced to do so by the threats of Frick & Co. to prosecute her son, H. P. Moore, to prevent the said prosecution? Answer: Yes.

(3) Has H. P. Moore accounted to Frick & Co. for engine claimed to have been lost? Answer : No.

(4) Were the notes given by Mrs. Moore in part to : settle a criminal prosecution, and in part to settle a ■ debt due by her son to Frick & Co. ? Answer: No.

(5) Or were the notes given solely to settle or suppress a criminal prosecution ? Answer: Yes.

(6) Or were the notes given solely to settle a debt • due by her son to Frick & Co. ? Answer: No.

1. Among the grounds taken in the motion for a new trial was the ground that the “ verdict is contrary to the evidence.” We think the court should have granted a new trial upon this ground. The jury found, in answer to the 4th and 5th questions propounded to them, that the notes given by Mrs. Moore were not given in part to settle a ciúminal prosecu-tion, and in part to settle a debt due by her son to Frick & Co., but were given solely to settle or suppress a criminal prosecution. We have read the whole < of the evidence sent up in this record, and we think it clearly demonstrates that the notes were not given by Mrs. Moore solely to suppress a criminal prosecution. Her counsel, the Messrs. Miller, both testified that the agreement was not only to settle the criminal prosecution, but the consideration of the notes was partly to suppress the criminal prosecution, and partly for the account which Frick & Co. held against her son for the engine for which he failed to account and the notes which they held against him for the sale of another engine, and by the terms of the agreement they were to be transferred by Frick & Co. to her; and her receipt for the account and notes to Frick & Co. is set out in the record. This testimony was corroborated by Mrs. Moore and her son, both of them testifying to the same thing. How the jury could have answered these questions in the way they did, with tliis evidence before them, we are unable to see. The defendants, in their testimony, deny that the notes were given by Mrs. Moore to suppress a criminal prosecution, and say that they were given in settlement of their account against the son, and of his notes which he owed them. The weight of the testimony seems s to us to be that the notes were given by Mrs. Moore for both purposes; .and if the jury had .found in accordance with this view of the testimony, the rights of Mrs. Moore in equity would have been quite different. Frick & Co. had-sued her on two or three of these notes in a court of law, and if she had remained in a Court of law and set up the same defence which she sets up in her bill, although it might have turned out that the notes were given not only to suppress a criminal prosecution, but partly to take up the notes and account of her son, she could have successfully defeated a recovery therein. If the evidence showed that the consideration was part legal and part illegal, in all of the notes, the legal consideration could not have been separated from the illegal, and Frick & Co. could not have recovered on the notes in a court of law. Code, §2745. But she seems not to have been satisfied with her rights in a court of law, and resorted to a court of equity. In that court the rule is different. If she seeks equity, she must do equity. It appears from the evidence in this case that in the settlement, she received from Erick & Co. an account against her son for an engine, and received also four notes given by the son for another engine. We think that in equity, had the verdict been correct, before she would be entitled to this decree, she must have tendered to Erick & Co. the account and notes against her son which she had received from them. She must have placed them in the same position they were in before the settlement was made, before she could ask a court of equity to compel them to surrender to her her notes; or if she had lost or mislaid the notes turned over to her by Erick & Co. on her son, she should have shown to the court by proof that Erick & Co. were not damaged by her failure to tender the same to them before the filing of her bill. If her son was insolvent at the time she gave her notes and received his notes- from Erick & Co., and still re-remained insolvent at the time of filing her bill, then if she failed to tender or surrender the notes and account against her son to Erick & Co., it would seem that they would not be damaged by her failure to do so. If, on the other hand, he was not insolvent at the time of filing her bill, and she failed to tender or surrender the notes and account against him, then it would seem that they would be damaged by her failure, and she would not have been entitled to relief in a court of equity without rex>airing such damage. It is true that in the progress of the trial, she amended her bill and set out that the notes received from Erick & Co. on her son had been lost or mislaid, and in said amendment tendered four duplicate notes, which she alleged had been signed by her son in lieu of the lost originals, and it seems that the son was present and assenting thereto. The amendment appears to have been, sworn to by her counsel, but there is no proof in the record, from any witness that we have been able to find, that éaid notes were lost or mislaid, or that they had never been paid, nor was there any allegation in her amendment or any proof offered by her as to the account, which had been transferred to her by Erick & Go. This amendment, therefore, was nothing but pleading; and the court could not enter up a decree on the amendment without proof and the finding of the jury thereon, if the fact was contested. The account, as before remarked, was not alluded to in her amendment nor in her proof, nor was it mentioned in the decree.

2. "W"e think also that the form of the first question submitted to the jury should be changed, if questions of fact should again be submitted to the jury on the next trial. Instead of inquiring from them what was the motive that induced Mrs. Moore to give the notes to Erick & Co., we think the question should be asked the jury whether there was any agreement or contract between Mrs. Moore and Erick & Go. to suppress a criminal prosecution. In cases like this, where the compounding of a felony is the issue, in our opinion it does not matter what the motive is which induces, one party to give notes; the main question is, was there an agreement not to prosecute or an agreement to suppress a criminal prosecution? If there was, the motives of the parties would have nothing to do with it. It is forbidden by law, whatever the motives may be. It is the agreement to suppress the prosecution which makes it illegal, and not the motive of the person giving the notes. If, however, the complainant should rely upon the fact of duress also, then it would be proper to submit the question as to the motive that induced Mrs. Moore to give her notes, in connection with the threat to prosecute. In tzying tlie question as to whether she gave them under duress, her motives for giving them would be a proper inquiry.

We think we have sufficiently indicated our view of the law of the case to guide the chancellor upon the next trial. Taking this view of the ease, it is unnecessary for us to pass upon other questions made izz the motiozz for a new trial.

Judgment reversed.