Houston Ice & Brewing Co. v. Harlan

The appellee Mrs. Harlan filed this suit in the court below against the appellants to set aside an instrument in the form of a general warranty deed, executed by her and her husband to Houston Ice Brewing Company, of date 12th day of September, 1914. Her husband was not joined in the petition, she alleging that he refused to join. However, he was made a party plaintiff by the defendants. The plaintiff alleged in her petition and in her supplemental petition that the instrument was a mortgage given by her and her husband to secure an indebtedness due by her husband to the Houston Ice Brewing Company in the sum of about $2,000, and, if she was mistaken in this allegation, then she further alleged that she executed the instrument under duress, the Houston Ice Brewing Company threatening to put her husband in the penitentiary for embezzling funds unless she joined him in the execution of this instrument The defendants answered denying the allegations of the plaintiff, pleading specially that the instrument was a general warranty deed given by the plaintiff and her husband in payment of $2,578.65 on his shortage with them, leaving a balance due of $96.42, and, if the instrument was executed under duress, further pleading estoppel against plaintiff, alleging that she had rented the property from them at $20 per month for two months. The case was submitted to the jury on special issues, and in answering the same the jury found that the instrument was a mortgage, and they further found that it was executed by Mrs. Harlan under duress. On these findings the court entered judgment for plaintiff for the title and possession of the land, canceling the deed of date the 12th day of September, 1914. By proper assignments appellants complain because the court did not instruct a verdict for them on the issue of mortgage, and they also complain of the submission of this issue to the jury, and of the finding of the jury on this issue. Reviewing the facts in this case, we find that Mrs. Harlan testified that her husband, P. E. Harlan, told her that he was short with the Houston Ice Brewing Company, and that they had required him to settle with them, and had threatened to turn him *Page 780 over to the bonding company unless he did so; that he had no property to use in this settlement except their home, and that it was necessary for them to deed this home to the Houston Ice Brewing Company, as security for this shortage; that if they did this the company would give them a chance to redeem it, and unless they did so he would be turned over to the bonding company and be prosecuted, and would have to go to the penitentiary; that he had just had a talk with Mr. Autry at the Crosby Hotel, and Mr. Autry had told him that he could not hold the matter open any longer; that she thought about the matter several days, and she and her husband had the instrument prepared, and they signed and acknowledged it; that she and her husband went over to Houston to see Mr. Autry, and took the instrument with them; that she wanted to be convinced that her husband was short with the company before she delivered the instrument; that she told Mr. Autry all that her husband had told her, and asked him if her husband was really short; that Mr. Autry told her that he was; that she further asked him if he would be turned over to the bonding company and prosecuted and put in the penitentiary if she did not sign the instrument, and that she did not remember what answer Mr. Autry made her; that thereupon she and her husband delivered the instrument to Mr. Autry; that Mr. Autry agreed with her that the property could be redeemed, and, if he could sell the property for more than her husband's shortage, he would pay the balance to them, and that he was holding the instrument as security for Mr. Harlan's indebtedness. She further testified that either on that trip, or on a subsequent trip, she rented the property from Mr. Autry and paid two months' rent; that she had claimed the property as her home all the time, and had been living on the property since the execution of the deed, and that the defendants had never been in possession of any part of it; that she wrote the following letter: "Mr. R. L. Autry, Sr., Houston Ice Brewing Co.: "As I promised to send $20 for rent, cottage 1408 Liberty avenue, Beaumont, will find inclosed amount of same, but you did not state what month to begin with. Will ask you to mail the return receipt to me 1408 Liberty avenue and oblige." That she also wrote this letter: "January 2, 1915. "Mr. R. L. Autry, Sr.: "Inclosed find $20 for rent December, 1914, on cottage 1408 Liberty avenue, Beaumont, Texas. I did not get it off yesterday on account of the post office being closed here. I trust that it is not troubling any one, and will try and not let it be repeated. There was a party said that they would like to get the property on Liberty. I did not mention this place until I notified you, and don't know if this place was for sale. Again I apologize for not getting this a day sooner than a day late." The following letter was introduced by defendant: "Houston, Texas, Dec. 5, 1917. "Mr. P. E. Harlan, Beaumont, Texas, "Dear Sir: We inclose a statement of your account. You will observe that the balance, after crediting you with the amount which we agreed to allow you for the deed, is $2,675.07, and, after allowing credit for the deed of $2,578.65, the amount agreed upon, there is a balance of $96.42, which is due. "Mrs. Harlan sent us about the first of the month a postoffice money order for $20.00, which covered the rent of the property described in the deed, 1408 Liberty avenue, Beaumont, for the month of November, and we wrote her December 3d, in acknowledging receipt of the rent, that the rent for December could be paid on the first of January. We are to-day paying the remaining unpaid notes of the series of 61 notes given by you to John R. Callahan in part payment of the property, and we wish to have a statement from you and Mrs. Harlan confirming the terms on which we are renting the property. "These are that you will rent the property from month to month at $20.00 a month, the renting to be terminable by either us or yourselves at the end of any month, and you to surrender possession of the property at that time. The next installment of rent, which is for the month of December, as stated, will be due on the first of January, 1915. "We send you a carbon copy of this letter, and request that you sign and acknowledge the indorsement which is written on it, and have Mrs. Harlan do the same, and then return it to us. "Yours very truly." "We, P. E. Harlan and Mrs. Clara J. Harlan, hereby acknowledge that the amount credited above, $2,578.65, is the true and correct amount which the Houston Ice Brewing Company agreed to allow P. E. Harlan on his indebtedness to that company for the deed dated September 12, 1914, to the property which was formerly our home, being 1408 Liberty avenue, Beaumont, and we acknowledge that the balance owing by Mr. Harlan to the Houston Ice Brewing Company, after allowing this credit of $2,578.65, is $96.42, and that this latter amount is justly due. We also acknowledge that the rent has been paid for the month of November only, and we agree to pay the Houston Ice Brewing Association $20.00 per month rent for said property as long as we occupy the same, the rent to be paid on or before the first day of each month for the month preceding, and agree to vacate the same at the end of any month when notified or requested by the Houston Ice Brewing Association so to do. P. E. Harlan, "Mrs. Clara J. Harlan." This indorsement was duly acknowledged by plaintiff and her husband in the form and manner required by law to bind a married *Page 781 woman in the conveyance of her homestead. P. E. Harlan, the husband of plaintiff below, testified on direct examination that the instrument was executed as security for his shortage with the Houston Ice Brewing Company, but on cross-examination he testified: "When I used the word "security' I meant it was to wipe out and extinguish the debt and to get rid of it. It was to get rid of the debt. When I took the deed over to Mr. Autry I supposed that would settle the whole thing and settle the account." When Mr. Autry testified that it was a bona fide sale; that Mr. Harlan was short in his account, and he took this property in settlement of $2,578.65 of the debt, leaving a balance of $96.42; that the instrument was in no way intended as a security for the shortage or for any part of it; that Mrs. Harlan never saw him but once, and that she did not say to him, nor did he say to her, that the property was taken as security for the debt. From her manner of testifying, we further find that Mrs. Harlan was a very intelligent woman, and, so far as shown by the record, she was in good health during the time covered by this transaction. While Mrs. Harlan testified that she executed this instrument as a mortgage to secure the shortage of her husband, not only her testimony as a whole, but all the testimony in this record, convinces us that all the parties, at the time of the execution of this instrument, intended the same as an absolute conveyance. To show that a deed, absolute on its face, is intended as a mortgage, the testimony must be clear and satisfactory. In support of this proposition, we cite Mitchell v. Morgan, 165 S.W. 883; Frazer v. Seureau,128 S.W. 649; Goodbar Co. v. Bloom, 43 Tex. Civ. App. 434,96 S.W. 657; Rotan Grocery Co. v. Turner et ux., 46 Tex. Civ. App. 534,102 S.W. 932; Stringfellow v. Braselton, 54 Tex. Civ. App. 1, 117 S.W. 204; Smith et ux. v. Eastham, 56 S.W. 218; Wedgeworth v. Pope, 196 S.W. 621. This legal proposition has been before our courts so often that it will serve no good purpose to review these authorities. Having carefully reviewed all the testimony in this record, we find that the verdict of the jury holding that this instrument is a mortgage cannot be sustained under the settled authorities of this state. Issue No. 1, submitted to the jury, is as follows: "Do you find from a preponderance of the evidence that the grantors, P. E. Harlan and wife, Clara Harlan, and the grantee Houston Ice Brewing Company, through its agent R. L. Autry, at the time of the execution and delivery of said deed, intended the same as a mortgage, or do you find that they intended the same as a deed?" To this question the jury answered, "Mortgage." Issue No. 2 is as follows: "Do you find from a preponderance of the evidence that, in order to induce the plaintiff Mrs. Harlan to sign said deed, her husband, P. E. Harlan, prior to her signing the same, represented to her that unless she did sign said deed that criminal prosecution would be instituted against him, and that he represented to her that the said R. L. Autry had claimed that he, P. E. Harlan, was short in his accounts with the Brewing Company, and, further, that he represented to her that it was necessary for her to join in said deed as the only means of preventing such prosecution?" To this question the jury answered, "Yes." Issue No. 3 is as follows: "If you shall answer `No' to issue No. 2, then you need not answer any following issue, but if you answer `Yes' thereto, then you are asked: "Did the said Mrs. Harlan, at the time she executed said deed, believe said statements or representations made by her husband as inquired about in issue No. 2?" To this question the jury answered, "Yes." Issue No. 4 is as follows: "Do you find from a preponderance of the evidence that such statements or representations made to Mrs. Harlan by her husband (if they were so made) so operated upon her mind or her fears or her emotions as to overcome her free mind and will in the execution of said deed?" To this question the jury answered, "Yes." Issue No. 5 is as follows: "Do you find from a preponderance of the evidence (if you have found that such statements were made to the said Mrs. Harlan) that she, Mrs. Harlan, would not have executed said deed if such representations had not been made?" To this question the jury answered, "Yes." Issue No. 6 is as follows: "Do you find from a preponderance of the evidence that R. L. Autry, at any time prior to the actual delivery of said deed to him, knew of the substance of the representations or statements made by P. E. Harlan to his wife, as inquired about in issue No. 2, if you find they were so made?" To this question the jury answered, "Yes." There is also complaint of the refusal of the court to give their peremptory instruction on the issue of duress, and they excepted to the submission of questions 2, 3, 4, 5, and 6, and to the answers of the jury thereto. The testimony of Mrs. Harlan goes fully into the details of how and when and where this deed was executed, she testifying that she executed this instrument to secure this shortage of her husband, and that she would not have executed it to pay this shortage except for the fact that she wanted to save her husband from prosecution and disgrace; that she received nothing for it, and no *Page 782 benefits from the same, except an understanding between her and the defendants that if she would execute it her husband would not be turned over to the bonding company, and would not be prosecuted, and that his embezzlement would not be exposed. P. E. Harlan testified: "Mr. Autry came over and told me something had to be done, and that was the only thing I had to offer. My account was overdrawn, and he said something had to be done, and the only thing I had to offer him was this property; so I told him I was willing myself to deed it over to him. We were down at the hotel together, and I told him everything I had was the property, and then I got in a buggy and we took a look at it. After Mr. Autry's visit, I told my wife about it. Mr. Autry gave me to understand that something had to be done immediately, and I told him it was all right. We were down at the hotel together, and I told him the only thing I had was the property, and then he got in a buggy, and we took a look at it. After Mr. Autry's visit I told my wife about it. It was that afternoon. I told her Mr. Autry had been over, and he said something had to be done, and that I didn't see any other way but that that property, we would have to give him the place. She didn't seem to be very well satisfied about it, and I said that was the only thing, and she said anything to help out she would be willing to do. I told her what Mr. Autry told me that is that I had to do something right away, and she said it was about the best we could do. Mr. Autry came over, and he told me something had to be done immediately." On the 19th of February, Mr. Autry wrote the following letter to Mrs. Harlan: "Houston Ice Brewing Ass'n, Successors to Houston Ice Brewing Co. "Houston, Texas, February 19, 1915. "Mrs. P. E. Harlan, 1408 Liberty Ave., Beaumont, Texas: "Dear Madam: I have your letter dated February 10th. Our actions in dealing with Mr. Harlan speaks for itself better than words and promises. "We admonished him often that he was not treating our company right, and not handling our business satisfactorily, and though he disregarded all warnings and all the advice given him, we continued to keep him in his position, paying him a stiff salary for many months. He is a man of wide experience, and if he now complains about have been given too much money to spend, and thereby being tempted to do wrong, he is playing a baby act that nobody can look upon with approval. "When we agreed to take your former home property it was done to save him from disgrace because of his misappropriation of funds. We were very willing that he should sell the property elsewhere, and turn the proceeds over to us, and only took the property when he stated he had exhausted his efforts to sell it. Not only were we always willing to save him from loss, to to-day, if we could do him any substantial good, both Mr. Hamilton and I would be willing to do it, and the only question with us is whether he can utilize, and is willing to utilize, anything we may do for him. You know it is impossible to help a man against his will; in fact, he has to do most of the helping himself, and all we can do is to lend our support. "For you personally I am very sorry, and you have my full sympathy. "I am always glad to be of service, and remain "Very respectfully, R. L. Autry." Appellants concede, in their fifth assignment of error, that the moving cause for the execution of this instrument by Mrs. Harlan was — "she did it for the purpose of saving her husband, P. E. Harlan, from disgrace, measuring as against the latter the loss of her home and the giving it up for the purpose of saving the good name of herself and husband, and that she stated after days of deliberation that she had decided it was best, all things considered, to execute said deed, and thereby save her husband from disgrace." We have carefully examined the statement of facts, and we find that the submission of issues 2, 3, 4, 5, and 6 was not error on the part of the court, but that the testimony called for the submission of the same; hence we adopt questions 2, 3, 4, 5, and 6, and the answers of the jury thereto, as our findings of fact on the issue of duress. As to what constitutes "duress" in this state has been before our courts several times. Diller v. Johnson, 37 Tex. 47; Landa v. Obert,45 Tex. 547; Obert v. Landa, 59 Tex. 475; Landa v. Obert, 78 Tex. 33,14 S.W. 297; Phelps Johnson v. Zuschlag, 34 Tex. 380; McGowan v. Bush, 17 Tex. 199; Medearis v. Granberry, 38 Tex. Civ. App. 187,84 S.W. 1070; Gray v. Freeman, 37 Tex. Civ. App. 556, 84 S.W. 1106; Perkins v. Adams, 17 Tex. Civ. App. 331, 43 S.W. 531; Shriver v. McCann, 155 S.W. 320; Burnett v. Continental State Bank, 191 S.W. 172. In Landa v. Obert, 45 Tex. 547, supra, Judge Moore, speaking for the court, said: "Now, it is well settled that the fear of imprisonment which constitutes duress is fear of illegal imprisonment or imprisonment under such circumstances as, if carried into effect, would amount to duress by force. Hence the mere fear of imprisonment from a lawful prosecution cannot possibly be regarded as duress." This case was reversed, and on the second trial the trial court sustained a general demurrer to the allegation of duress. On appeal a second time (59 Tex. 475), the action of the trial court in sustaining a demurrer was held error, and the case was reversed. Briefly stated, the facts in the Landa Case are as follows: Obert was working for Landa running a gin, which position he had held for many years. Landa accused Obert of misappropriating funds and of stealing from him. He employed his lawyers to go and see Obert and get a settlement from him. His attorneys went to Obert and told him that he was *Page 783 short; that Landa had caught him in his shortage; that this shortage amounted to many thousands of dollars; and gave him a short while to settle, something like an hour, threatening to have him arrested and prosecuted for embezzlement if he did not settle. To save himself from this prosecution, Obert canceled notes that he held against Landa, paid him quite a large amount in gold, and promised to pay an additional amount. When the settlement was finally closed between Obert and Landa, Landa gave Obert a statement, promising to pay the money back if he should be convinced that Obert had not stolen from him as manager of his gin. Obert was afterwards indicted and prosecuted for this embezzlement, and was found not guilty. He then brought suit against Landa for a rescission of the contract and a recovery of the money that he had paid to Landa. On the first appeal the case was reversed. On the second appeal a general demurrer was sustained to the allegations of duress, the Supreme Court saying: "In such cases the question becomes one of consent, and it is whether the party made the agreement freely and advisedly, or was his consent obtained by the means just mentioned. In what has been said we have had reference to the case and the parties solely as they are presented in the pleadings of the plaintiff, and not as they may appear on the trial. As the judgment must be reversed, we may remark that on the former appeal the eminent judge who delivered the opinion appears to have adopted from the books, and to have applied to this case expressions which are properly applicable to a different class of cases. The language is as follows: `There can be no pretense that the alleged threats import a purpose to make any unusual, harsh, offensive, or illegal use of the process, either civil or criminal, with which it is insisted appellant was threatened.' "These expressions, as has already been shown, have their appropriate application to cases of imprisonment for debt, and others of a like character, if such there be, though they have been sometimes (and, as I think, inadvertently) applied to cases of a different character." In Medearis v. Granberry, supra, Granberry instituted suit to recover nine acres of land against George Medearis and wife. The defendants answered, pleading that the deed was executed by them under duress, alleging that the same had been given in consideration that Granberry should not swear out a complaint and have their son, Stephen Medearis, arrested and tried for disposing of mortgaged property in Travis county, and that said consideration and no other prompted the execution of said instrument; that Granberry brought their son, Stephen Medearis, to their house, told them that Stephen had fraudulently disposed of property on which he had a mortgage, and that he was going to have Stephen arrested and sent to the penitentiary unless defendants made arrangements with them then and there to pay said Granberry, and that under such threats from Granberry they executed the instrument to the land in question. In disposing of this case the court said: "The court instructed the jury that among other defenses pleaded by Medearis and wife was that the instrument under which the plaintiff claimed title was executed for an illegal consideration, but that there was no sufficient evidence to justify a finding for Medearis and wife on that issue, and to find in favor of the plaintiff thereon. The court also refused a special instruction relating to the subject of duress, and to the effect that if the deed from Medearis and wife to the plaintiff Granberry was procured by a threat to the effect that, if they did not execute the deed he would prosecute their son for the violation of a penal law, to find for them as against the plaintiff. The refused instruction, while not as full and accurate as it might have been, was substantially a correct statement of the law in general terms, and, in the absence of any instruction on that subject, it was error for the court to refuse to give it. The general rule is that, in order to avoid a contract on the ground of duress, the threat must be against the party seeking to avoid the contract. However, there are exceptions to that rule, and one of the exceptions arises out of the relation of parent and child. Either may avoid a contract made to relieve the other from duress. 10 Am. Eng. Ency. Law (2d Ed.) 330, and cases there cited. The plea interposed by Medearis and wife, quoted above, while not using the term `duress,' and while very general in that respect, was sufficient, in the absence of a special exception, to present that issue, and each of the plaintiffs gave testimony tending to support the theory of duress." In Gray v. Freeman, supra, the facts show that Sam Freeman, Sr., executed a deed of trust to A. A. Gray under the following conditions: Sam Freeman, Jr., had represented to Gray that he was the owner of a certain piece of land, and, by giving a deed of trust to Gray, had borrowed some money from him. On finding that the land belonged to Sam Freeman, Sr., Gray went to the old man, and told him that his son had committed a penitentiary offense, and, by promising his son immunity from imprisonment if the debt was secured, so worked on the feelings of the weak old man that he executed the note and mortgage on the land. The Court of Civil Appeals held that these facts constituted duress and sustained the judgment of the trial court in canceling the mortgage so executed. In reviewing many authorities on duress, Judge Fly in his opinion quotes with approval as follows: "In a note to the case, herein cited, of Bank v. Kusworm [88 Wis. 188,59 N.W. 564, 26 L.R.A. 48, 43 Am.St.Rep. 880], the following apt language is taken from an English decision, which, we think, expresses the law of this case: `If a father is appealed to, to take upon himself a civil liability, with the knowledge that unless he does so his son will be exposed to a criminal prosecution, with a moral certainty of *Page 784 conviction, even though that is not put forward by any one as a motive for arrangement, he is not a free and voluntary agent, and the agreement he makes under such circumstances is not enforceable in equity.'" In Thompson v. Hicks, 100 S.W. 357, Chief Justice Fisher says: "This is a suit by Thompson against Hicks to recover on a promissory note executed by the latter to the former, and to foreclose a lien upon a certificate of corporate stock given as collateral to secure the note. The defendant pleaded duress in the execution of the note, in that the plaintiff, in order to procure its execution and the transfer of collateral, threatened to prosecute him for making a false affidavit in a proceeding in bankruptcy. The court below instructed a verdict in favor of the plaintiff, unless the plaintiff's case was defeated by the defense of duress. Verdict and judgment below were in defendant's favor. * * * In the twelfth assignment, and in others, the charge of the court in defining `duress' is criticized as being incorrect. The charge upon this question is substantially in accord with the rule announced in Gray v. Freeman [37 Tex. Civ. App. 556] 84 S.W. 1105, where many of the authorities upon this subject are collected." In Shriver v. McCann, 155 S.W. 320, Justice Hendricks cites Gray v. Freeman, saying: "If appellee intended to avoid the new contract, on account of its execution having been procured under duress of imprisonment, measured by the law for the consideration of that issue, his pleading is irresponsive to that question, and neither was such an issue submitted to the jury. Appellee alleged a threat of criminal prosecution, but the character of the offense was not even mentioned, nor sufficient circumstances negativing the idea of a freedom of contract. Judge Neill, quoting from the Supreme Court in the case of Perkins v. Adams, 17 Tex. Civ. App. 335,43 S.W. 531, used this language as an expression of the rule: `But it has been held by the Supreme Court, in cases where the threats of prosecution and imprisonment were made against the party sought to be held by the contract, that the rule to be deduced from the great weight of authority is that mere threats of criminal prosecution are not sufficient to avoid a contract, but there must be a reasonable ground for creating an apprehension in the mind of a man of ordinary courage and firmness that the threats will be carried into execution, and it must also appear that the threats operated directly upon the mind of the party so as to overcome his will. Obert v. Landa, 59 Tex. 475.' We note that Judge Henry, in the same case, Obert v. Landa, quoted by Judge Neill, again decided on another appeal, 78 Tex. 33, 14 S.W. 302, seems to have modified the rule in so far as it erects a standard of resistance to be that of a man of ordinary courage and firmness; and the Court of Civil Appeals in the case of Gray v. Freeman, 37 Tex. Civ. App. 561, 84 S.W. 1107, speaking through Justice Fly, distinctly modified that part of the rule by deciding that the resisting power of the individual `under all the circumstances of the situation, and not any arbitrary standard, is to be considered in determining whether there was duress.'" In Burnett v. Continental State Bank, 191 S.W. 174, Judge Hodges says: "To constitute the duress here relied on the agents of the appellee must have made the threats of a criminal prosecution to which Burnett testified." The following additional authorities are cited by appellee in her brief, which we believe sustain the charge of the court and verdict of the jury: Merchant v. Cook, 21 D.C. 145; Leflore v. Allen, 80 Miss. 298,31 So. 815; Morse v. Woodworth, 155 Mass. 233, 27 N.E. 1010, 29 N.E. 525; Hargreaves v. Korcek, 44 Neb. 660, 62 N.W. 1086; Bane v. Detrick,52 Ill. 27; Bayley v. Williams, 4 Griff. 638; Harris v. Carmody,131 Mass. 51, 41 Am.Rep. 188; Bank v. Kusworm, 88 Wis. 188, 59 N.W. 564,26 L.R.A. 48, 43 Am.St.Rep. 880; Heaton v. Norton Co. Bank,5 Kan. App. 408, 47 P. 576; Schultz v. Catlin, 78 Wis. 611, 47 N.W. 946; Schultz v. Culbertson, 46 Wis. 313, 1 N.W. 19; Adams v. Irving Nat. Bank, 116 N.Y. 606, 23 N.E. 7, 6 L.R.A. 491, 15 Am.St.Rep. 447. By the eighth assignment, appellants complain of the action of the court in refusing to give their special charge, as follows: "You are instructed that the undisputed evidence in this case shows that, after the execution and delivery of the deed in question, Clara J. Harlan ratified her former act in making the conveyance, and for that reason you must return a verdict in favor of the defendants on the issue of the deed having been executed under duress." Defendants requested the submission of special issue No. 1, as follows: "After the execution and delivery of the deed in question to the Houston Ice Brewing Company did Mrs. Harlan thereafter deliberately enter into a rental contract with that company by the terms of which she was to have the right to remain in said house on the payment of a rental of $20 per month?" — to which the jury answered, "No"; and also special issue No. la, as follows: "Did she thereafter deliberately sign an instrument, and acknowledge it before H. P. Barry on December 11, 1914?" — to which the jury answered, "No." The defendants were not entitled to an instructed verdict on this issue. Viewing all of the facts in this record, it was clearly a matter for the jury. This was recognized by the defendants in asking the court to submit issues Nos. 1 and la, which issues were answered by the jury against them. By the eleventh assignment of error appellants question the answer of the jury to these issues. We think the testimony amply sufficient to sustain these findings. Hence we adopt as a further finding of this court issues Nos. 1 and la, and the answers of the jury thereto. *Page 785 By their assignments 12 to 24, inclusive, appellants complain of the argument of the Honorable George C. O'Brien, of counsel for appellees. We have carefully examined this argument, and find many things in it which have been condemned by the courts of this state. Having found that the testimony sustains the verdict of the jury on the issue of duress, we will further add that these findings are sustained by a very great preponderance of the testimony — a preponderance so great that in our judgment this argument, though subject to criticism, could not have affected the verdict of the jury. We have carefully examined all other assignments made by the appellants and overrule them. Finding no reversible error in this record, this cause is affirmed. HIGHTOWER, C.J., having been of counsel in this case, did not sit in the disposition of same.