Morrow v. Barnes

Epperson, C. Defendant appeals from a judgment obtained against him upon a promissory note. The defense was duress. The court gave to the jury an instruction, the objectionable part of which is as follows: “In order to find that the note sued on in this action was procured by duress, the defendant must satisfy you by proof and a preponderance of the evidence that at a short time previous to the execution and delivery of the note the plaintiffs * * * had threatened the defendant, T. F. Barnes, with arrest and prosecution for an alleged crime, * * * and that defendant had no adequate and ready redress for such threatened acts, and that the threats so made must have been of such a character as to naturally overcome the mind [689] and will of a person of ordinary firmness and deprive Mm for the time being of the* power and will to resist the demand by the person maldng such threats.” Late decisions of this court have followed a more liberal definition of the word “duress,” and hold that this defense is sufficient if it is shown that by reason of threats or other unlawful means the defendant was deprived of his will and understanding, and that the contract sued upon wag not his free and voluntary act. Nebraska Mutual Bond Ass’n v. Klee, 70 Neb. 383; Iowa Savings Bank v. Frink, 1 Neb. (Unof.) 14. The appellant thinks it apparent that the trial court had read and followed some ancient and abandoned textbook. We find, however, that the trial court followed a suggestion of modern origin. The record discloses that the defendant, through his attorney then employed, requested an instruction containing the identical matters complained of in the instruction assailed. It is in part as follows: “If you believe from the evidence * * * that the defendant had no ready and adequate (redress), and that the plaintiffs threatened him with unlawful imprisonment and with unlawful criminal prosecutions, * * * and * * * by such threats excited and created a fear of grievous and irredeemable injury to his property, or of unlawful imprisonment, * * * and you further find that such threats so made by the plaintiffs, or either of them, are sufficient under the circumstances to overcome the will of a person of ordinary courage, and sufficient to induce such a person to execute and deliver the note sued on under such circumstances as proved, then your verdict should be for the defendant.” This instruction also was given by the court. If the one complained of by- the defendant is erroneous, it necessarily follows that the one requested by defendant also is erroneous. A party cannot complain of an error which he invokes. Following this rule, we find the action of the court does not call for a reversal. The instruction given [690] on defendant’s request is somewhat broader than tbe other, in that it submitted to the jury the question as to whether or not the alleged threats created in the defendant a fear of unlaAvful imprisonment. The two instructions must be read together. No inconsistency is apparent. They fairly presented the theory of the defendant^ and he cannot now complain. Defendant suggests that the evidence is not sufficient to support the verdict. It would not be profitable to review the evidence at length in this opinion. We have .read the record, and are comdnced that the case was fairly tried upon the defendant’s theory, and that the evidence sustains the verdict. We recommend that the judgment of the district court be affirmed. Duffie and Good, CO., concur. By the Court: For the reasons given in the foregoing opinion, the judgment of the district court is Affirmed.