Sulzner v. Cappeau-Lemley & Miller Co. , 234 Pa. 162 ( 1912 )

Opinion by

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 described the incident practically as his father, adding, “Mr. Taylor was walking around there flashing the paper, going to send me to prison, send me to the penitentiary .... and father got all bewildered and broke down, did not know what to do, and he said, ‘You’ve got me into this, and I have got to pay or you will go to prison.’ I said, ‘There is nothing to it at all.’”

Under both the civil and common law, threats, in order to constitute duress, had to be of “such a character as to induce a well-grounded fear in the mind of a firm and courageous man,” but, “the doctrine which is now approved by the judicial mind, both of this country and of England, is, that any contract produced by actual intimidation ought to be held void, whether arising from a result of merely personal infirmity, or from circumstances which might produce a like effect upon persons of ordinary firmness:” Jordan v. Elliot, 12 W. N. C. 56, 59. A person is supposed to possess ordinary firmness unless it is shown that by reason of age or other sufficient cause he is weak or infirm: Union National Bank v. Dersham, 15 W. N. C. 541. “The constraint that takes away free agency and destroys the power of withholding assent to a contract must be one that is imminent and without immediate means of protection, and such as would operate upon the mind of a person of reasonable firmness:” Motz v. Mitchell, 91 Pa. 114, 117. Ordinarily, when no proceedings have been commenced, threats of arrest, prosecution, or imprisonment do not constitute legal duress to avoid a contract; the threats must be made under such circumstances that they excite the fear of imminent and immediate imprisonment: Moyer v. Dodson, 212 Pa. 344; Harmon v. Harmon, 61 Me. 227; Higgins v. Brown, 78 Me. 473; Hilborn v. Bucknam, 7 Atl. Repr. (Me.) 272; Sieber v. Weiden, 24 N. W. Repr. (Neb.) 215; Wilkerson v. Hood, 65 Mo. App. 491; Russell v. McCarty, 45 Ga. 197.

The decision in Jordan v. Elliot, 12 W. N. C. 56, cited by the appellant, does not control the present case. There the plaintiff, who was an infirm widow, seventy-seven years of age, knew of the defendant, as a man of violent disposition; his threat was to put her son in jail before night, and at the time of the execution of the papers she was laboring under great agitation. This court in its opinion states: “The circumstances which surrounded the old lady, and which induced, or which compelled her, to execute the paper in controversy, were of an extraordinary rough, impudent, and fraudulent character:” and, further, that she had a “conviction that she was dealing with a dangerous man whose will it would not be safe to resist.” Although the English case of Williams v. Bayley (L. R. 1 H. L. 200) is referred to, the law of that case was not adopted as necessary to the decision of Jordan v. Elliot. After citing it, we expressly stated, “How aptly these authorities bear on the case in hand I need not say, for anyone who reads the evidence, will at once see that Mrs. Elliot was thoroughly overcome by fear, produced by the conduct of the plaintiff, that in the execution of the note in suit, she was anything but a free and voluntary agent.”

The plaintiff had been president of the mining company whose stock was in controversy, and so far as the evidence shows he was a man of ordinary firmness; he himself was not threatened with arrest at any time, and upon the occasion when he signed the contract which he is endeavoring to avoid, both the plaintiff and his son were at liberty to come and go as they chose and had ample time to consult an attorney had they so desired. The evidence as presented was not sufficient to sustain a finding that the plaintiff’s signature had been obtained by duress, and had the defendant requested binding instructions he would have been entitled thereto,' but the record shows no such request or no question of law reserved. Under these circumstances the defendant was not within the Act of April 22, 1905, P. L. 286, and had no right to judgment non obstante veredicto upon the whole record; and since there is no assignment of error complaining of the judgment for the plaintiff we will not enter a final judgment the other way. However, the charge of the trial judge was inadequate, in that it did not sufficiently define the applicable rules of- law as we have stated them.

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.