Cochrane v. Nelson

POLLEY, J. This action was brought for the return and cancellation of two certain promissory notes, for $4,500 each, and for the cancellation of a real estate mortgage given to secure said notes, and also for judgment for the value, of certain Liberty bonds and war saving stamps alleged to have been converted by defendants. Judgment was for defendants, and plaintiff appeals. •' Appellant is the owner of a farm three miles northwest of the town of Leola, in McPherson count}'-. During the summer of 1920 the defendants, Peter Nelson and Della Nelson, his wife, resided upon and worked this farm. Appellant lived in Leola, but made frequent visits to the farm, especially during the months of July and August. On the morning of September 3d' appellant was found by Peter Nelson, his son, Sigard Nelson, and another party, in a compromising position with the defendant Della Nelson in her bedroom- in the dwelling house on said farm. Peter Nelson immediately went to Leola and consulted the defendant A. L. Bartlett, with a view of .having Bartlett commence an action against appellant for damages for the alienation of his (Nelson’s) wjife’s affections. Bartlett was state’s attorney of McPherson county, and told Nelson that he could not bring a civil action for the offense charged against the appellant. Thereupon, at Nelson’s request, Bartlett telephoned to defendant Van Slyke, in Aberdeen, to come to Leola at once, but without stating the nature of the business in hand. Van Slyke was unable to go to Leola that day, but went early the following morning, arriving there at 8 o’clock. He saw Peter Nelson, and after a few minutes’ consultation prepared a summons and complaint in an action against appellant, demanding $25,000 damages from -him. The summons and complaint were put into the hands of the sheriff for — 613 — service, and served on the appellant at his residence in Leola at about 9 o’clock that morning. Just what took place between the sheriff and the appellant at that time is in dispute. Appellant testified that the sheriff directed him to go at once and see Van -Slyke, while the sheriff testified that appellant admitted his guilt and asked the sheriff’s advice as to whether he (appellant)' had better go and make a full confession. It is a fact, however, that appellant did go back up town with, or immediately after, the sheriff, where they met Van Slyke, to whom the sheriff introduced the appellant. The matter of a settlement of the suit was discussed. They went to the courthouse and into an office that was occupied jointly by the state’s attorney, Bartlett, and the sheriff, where, after considerable discussion, the suit was settled and dismissed for the sum of $io,ooo, which was paid to Van Slyke by the delivery to Van Slyke of $300 in Liberty bonds, $700 in war saving stamps, and two promissory notes in the sum of $4,500 each, together with a mortgage on appellant’s farm to secure the payment of the said notes. At the time of the above transaction appellant was a man 73 years old. He had lived on the said farm and in the town on Leola many years. He bore a good reputation in the community. He was an active church member, and enjoyed ,the respect and confidence of his neighbors and acquaintances generally. He was greatly humiliated and depressed by the events leading up to the commencement of the suit, and the fear that a criminal prosecution might follow, and the disgrace and notoriety to follow i( the circumstances become public. It is a universal rule of law that “free consent is the essence of all contracts.” The question then becomes: Was the appellant coerced into the making of the settlement through fear of a criminal prosecution, and was such fear inspired by the Nelsons ? It cannot be doubted from his own testimony that he had, at least, been guilty of a grave indiscretion. -There is no evidence, however, which would warrant a finding that he had alienated the affections of Della Nelson, and under all the circumstances disclosed by the evidence there may be grave doubt whether he had been guilty of criminal conversation . with her. — 614 — He claims, and the evidence shows, that his presence at the home of Peter Nelson and his presence in the bedroom of Della Nelson were brought about by the concerted action of Peter Nelson, Della Nelson, and her stepson, Sigard Nelson, and a finding by a jury to that effect would be strongly supported by the evidence. Sigard Nelson admits that he went to town and asked the witness Mat Sherman, a former deputy sheriff and a sort of a detective, to go with him. to his mother’s home and be a witness to whatever might happen. Sigard appears to have been the moving spirit in the whole enterprise. In furtherance of an apparently concerted purpose, he asked and caused his father to come over to his home that morning, and the same morning Peter Nelson told his wife to go to town and bring Cochrane out to the farm. Sigard got Mat Sherman to come with him from town, and they arrived at the house just in time to meet his father back of the barn. He left Sherman there with his father, to await the arrival of Cochrane and Della Nelson. Sigard himself then went to the house and up to his mother’s bedroom,' and hid himself in-a closet just at the head of her bed, and from where he could see what was going on in the room. When these arrangements were: all complete, Mrs. Nelson arrived on the scene with -Cochrane. 'She proceeded to the house. Cochrane put the horse in the barn.; then he went- to the house. Immediately thereafter Peter Nelson and Mat Sherman came from back of the barn to the house. They removed their shoes, and went stealthily into the house and upstairs. They pushed- the door to Mrs. Nelson’s "bedroom open far enough to see what was going on inside, and then, according to Mrs. Nelson’s testimony, the act of intercourse was completed on the bed while these three witnesses watched the proceeding. They then burst into the room and said: “We have caught you.” After that things proceeded very rapidly. Within 24 hours Peter Nelson had procured a lawyer from Aberdeen and had made a settlement for $10,000. We assume that neither Van Slyke nor Bartlett were parties to any of the transactions that took place prior to the time that Van Slyke appeared as attorney for Peter Nelson in the pro,-ceeding leading up to the settlement. We assume that neither Bartlett nor Van Slyke said- or did anything not- strictly within their professional or official duties. It is conceded, however, — 615 — that Bartlett did state in the presence of Cochrane that, if the Nelsons filed-a complaint, he would prosecute Cochrane. It would have been his official duty to do so, and it need not be assumed that he made such statement with any intent to force Cochrane to settle. But that statement became a part of the situaion confronting Cochrane, with three witnesses ready to swear that they had seen him commit a penitentiary offense. It was thus made clear to Cochrane that it was left to the Nelsons to decide whether prosecution would be started against him, and the plain implication to him that they would start such proceedings unless settlement was made immediately. The question involved in this case is not whether appellant was guilty or innocent, but whether such a degree of pressure was employed as to overcome his free will and coerce him into the making of a contract that he would not otherwise have made. 'Coercion may be accomplished by a set of circumstances brought about by designing persons as effectually and as wrongfully as it may be accomplished by direct threats and menace. The weight of authority is to the effect that threats, actual or implied, of prosecution of one in fact guilty of a crime, will constitute such coercion as will avoid a contract induced by such coercion, 9 R. C. L. 709; Richardson v. Duncan, 3 N. H. 508; Morrill v. Nightingale, 93 Cal. 452, 28 Pac. 1068, 27 Am. St. Rep. 207; Bane v. Detrick, 52 Ill. 19; Underwood v. Robinson, 106 Mass. 296; Woodham v. Allen, 130 Cal. 194, 62 Pac. 398. Before closing this case, we feel it our duty to call counsel’s attention to the great and unnecessary length of the printed record. In making up the record on appeals to this court, it is the duty of counsel to condense the record as much as practicable, and bring up such evidence only as is necessary to a proper presentation of the matters that are to be reviewed. In- this case appellant’s record, including his brief, covers more than 600 printed pages. The most immaterial, even trivial, matters .are included. We are compelled to go carefully through it all for fear that something of value might be overlooked. This forces upon the court the burden of much unnecessary labor and the waste of much valuable time. It would be a great help to the court if counsel would observe the rule more carefully, and pre — 616 — serve in the record only such matters as are necessary in the consideration of the questions presented for review. Rodgers v. Penobscot Min. Co., 26 S. D. 52, 127 N. W. 471. The findings of fact made by. the trial court are subject to the same criticism- as the briefs of counsel. The material ultimate facts found by the court would not cover more than one page of the printed record; yet what purport to be findings of fact cover some 20 printed pages. They are a mere resume of defendants’ testimony and statements of evidentiary facts. This is wholly unnecessary and out of place, and serves no purpose other than to increase the labor of this court in determining the conclusion really arrived at by the trial court. Upon the subject of preparing briefs in this court we respectfully commend a careful reading by every member of the bar who practices in this court of the remarks of Mr. Justice Clarke of the Supreme Court of the United States in the American Bar Association Journal for May, 1922, wherein that learned jurist, among other things says: “Open every argument with a short, clear, and candid statement of the essential facts of the case, and of the result in the court below, but without comment of any character. Follow this with a brief statement of the principles of law upon which reliance is placed for reversal or affirmance, but without argument of them, and conclude with a statement of the' result which it is thought should follow. Such epitomized statement will, of course, be followed by a detailed statement of argument and citation of authorities, but ’without such an introduction’ it is often quite impossible even for the most attentive judge to appreciate the incidence atad value of either discussion or authority. Incidentally, I may say that such a statement would have saved many a lawyer from those questions from the bench which have sometimes proved so disconcerting to counsel and often disastrous to an otherwise sufficient argument. If I were to return to the bar tomorrow, it would be with my estimate of the importance of carefully preparing the introductory statement of each case greatly magnified by my service on the Supreme Court of the United States. Its importance cannot possibly be overestimated. * * * A brief is authoritatively defined in the rules of the Supreme Court of the United States to' be a concise abstract or statement — 617 — of a case, presenting the questions involved and the manner in which they are raised, together with a specification of the errors relied upon and a brief argument, with a clear statement of the points of law or facts to be discussed, and a reference to the authorities relied upon in support of each point. * * * There ■can be no doubt whatever that many a meritorious case has been lost in an over-expanded statement of the evidence, or in the wilderness of inappropriate citation and quotation in which it has been submerged beyond the hope of resurrection in a treatise styled ‘brief.’ ” The judgment and order appealed from are reversed.