Baldwin Co. v. Savage

Opinion by Mr. Chief Justice Moore. The defendant J. F. Savage testified: That Mr. Berger, the plaintiff’s general agent, telephoned from Salem, Oregon, to the farm where the witness lived, informing him that his son had appropriated money not his own, thereby rendering himself liable to prosecution. That the following morning the witness went to Salem, where Berger told him his son would be prosecuted by the plaintiff if he did not get security or repay the money which he owed it. That prior thereto the witness had no knowledge of his son’s failure to keep his contract with the plaintiff, and the information shocked him so that he could scarcely talk, and was thereby induced to execute the first promissory notes. That several weeks thereafter Mr. Jorgenson tele-' phoned the witness from Salem, saying the plaintiff could not accept the notes that had been delivered to it, and that security therefor must be given. That the next day the witness went to the city and met this representative of the company, who also informed him that his son had misappropriated the plaintiff’s money, thereby rendering himself liable to a criminal action, and he would be prosecuted therefor unless a mortgage were executed. That after spending the day at Salem he had to return to his home to milk the cows, whereupon Jorgenson said to the witness: — 385 — “Father, come on and go; we will care for the boy [meaning L. F. Savage] until you can get hack tomorrow morning.” That on the succeeding day the witness again returned to the city, where the mortgage was prepared and Jorgenson returned with him to his home; that after arriving at such place Jorgenson was called to the phone, and, turning to the witness, said: “What do you know about that? There’s another piano that we just now heard from. Mr. Berger has just now found out $600 for another piano.” That the real estate mortgage was executed the next morning, and the chattel mortgage given three days théreafter, and that these securities were given to save his son from being sent to the penitentiary. The defendant Mrs. Margaret Savage testified that Mr. Jorgenson visited their farm home, bringing the mortgage with him; that she knew all about the execution of that instrument which was given to save her son; that, referring to this security, she said to Mr. Jorgenson, “I hate awfully bad to do this, but I would have to do it.” F. L. Pound, a notary public, who took and certified to the acknowledgement of the realty mortgage, testified that in the presence of Mr. Jorgenson Mr. Savage said, ££ I didn’t think I would ever he called upon to sign any such paper”; that Mrs. Savage said to the witness she hated to sign the mortgage; didn’t feel like signing it. In answer to the question, “Did she say anything about that it was for her son, or anything?” ' Mr. Pound replied: “Yes, it was to save their son; they both said that; it was to save their son, that they did it.” O. A. Berger, appearing for the plaintiff, was asked by its counsel: — 386 — “At that time', you. heard the testimony of Mr. Savage here, as to certain threats that were made against him if this wasn’t fixed up and these notes signed—that the company would prosecute Frank [L. F. Savage]; now what is the fact about that?” The witness answered: “Why, I don’t recall making any threats whatsoever, Mr. Winslow, to Mr. J. F. Savage, or anyone. “Q. Well, did you make those threats to anyone? “A. No, sir. “Q. Now, when you say you don’t recall that, what do you mean? “A. Well, in fact, I will say that I didn’t make any threats. I said to Mr. J. F. [Savage] that Frank violated the terms of his contract.” E. J. Jorgenson, in answer to the inquiry of the plaintiff’s counsel, “Was there any intimation or insinuation that if the deal [the execution of the realty mortgage] was not fixed up criminal proceedings would be had?” said, “Not in the least.” 1, 2. It will thus be seen there is a decided conflict in the testimony on the question of threats respecting the prosecution of L. F. Savage upon a criminal charge. The trial court saw the witnesses and was thereby afforded an opportunity to note their appearance, manner of testifying and bearing while under examination, which personal observation is vastly superior to that enjoyed by this court from a mere examination of a typewritten copy of the questions asked, and the answers given. The conclusion thus reached by that court, though not controlling on appeal, is entitled to great respect, and particularly so when it is remembered how Mr. Berger at first hesitated when asked about any threats that had been made. We conclude, therefore, that such threats were made, and that the parents of L. F. Savage, fearing the consequences of his misappropriation of the plaintiff’s money which — 387 — was intrusted to him, were ready to do anything in their power to prevent their son from being convicted upon a criminal charge, and in consequence thereof suffering imprisonment in the state penitentiary. 3. The question to be considered is whether or not the threats of the plaintiff’s agents which were made to J. F. Savage and his wife to have their son prosecuted in a criminal action upon a charge of embezzlement unless the sums of money which were conceded to have been misappropriated by him were either paid or secured so worked upon and affected the minds of his parents as to destroy free agency and to compel them, without their own volition, to execute the notes and mortgage described in the complaint. “Duress is that degree of constraint or danger, either actually inflicted or threatened and impending, which is sufficient in severity or in apprehension to overcome the mind of a person of ordinary firmness. It consists.not merely in the act of imprisonment or other hardship to which the party was subjected, but in the state of mind produced by those circumstances, and in which the act sought to be avoided was done”: 9 Cyc. 443. See, also, Parmentier v. Pater, 13 Or. 121 (9 Pac. 59); Ross v. Ross, 21 Or. 9 (26 Pac. 1007); Schoellhamer v. Rometsch, 26 Or. 394 (38 Pac. 344); Rostein v. Park, 38 Or. 1 (62 Pac. 529); Kester v. Kester, 38 Or. 10 (62 Pac. 635); McNair v. Benson, 63 Or. 66 (126 Pac. 20); Guinn v. Sumpter Valley Ry. Co., 63 Or. 368 (127 Pac. 987); Hunt v. Hunt, 67 Or. 178 (132 Pac. 958, 134 Pac. 1180); Horn v. Davis, 70 Or. 498 (142 Pac. 544). 4. A text-writer in discussing this subject observes: “Duress of the person may be accomplished by unlawful imprisonment or violence. This unlawful imprisonment- or violence may be directed directly against the other party to the contract, or the husband or wife, — 388 — parent or child or other near relative of such party”: Elliott, Cont., § 140. Parental love will usually prompt a father or mother to make great sacrifices for a son or daughter, particularly so when such child is threatened with impending danger. In order to avoid the shame and disgrace which the trial of an offspring, charged with the commission of a crime, will necessarily entail, his father and mother will ordinarily impoverish themselves to avoid an indictment or a conviction. Threats, when based upon admitted facts which would render a parent subject to a criminal prosecution and judgment therein, will not usually affect him so much as when a similar charge is preferred against his son or daughter. "When, however, such threats are made to a parent against his offspring the menaces will-generally produce such apprehensions of evil as to overthrow reason and judgment and to induce the making of a contract whereby the father or mother is ready to make any surrender of right or property to avert the calamity and protect the child. The court in Meech v. Lee, 82 Mich. 288 (46 N. W. 398), discussing this subject say: “No more powerful and constraining force can he brought to bear upon a man to overcome his will, and extort from him an obligation, than threats of great injury to his child. Both upon reason and upon the weight of the authorities we are of opinion that a parent may void his obligation by duress to his child.” To the same effect, see, also, Foley v. Greene, 14 R. I. 618 (51 Am. Rep. 419). Transactions consummated under the supposed circumstances, affecting such rights, are voidable by reason of the duress which impelled their execution. It is believed the weight of the testimony conclusively shows that the execution of the notes and mortgage — 389 — was actuated by the threats of the plaintiff’s agents, thereby rendering such apparent evidence of indebtedness and the security given for the payment thereof voidable. The remaining question is whether or not J. F. Savage and his wife are estopped by their conduct from interposing the defense relied upon in this suit. It will be remembered that L. F. Savage, by way of partial indemnity, gave to his father a promissory note for $1,000, and undertook to secure the payment thereof by a chattel mortgage. The testimony shows that no payment had been made on this obligation, and that this note and mortgage were executed at the suggestion of the plaintiff’s agents. Such being the case, it will be assumed, without deciding the question, that their principal was not prejudiced thereby and in no manner changed its attitude toward the answering defendants in consequence thereof, though the company might possibly have had the mortgage of L. F. Savage executed to it. But, however this may be, the conduct relied upon was that of the plaintiff, and no estoppel can arise by reason thereof as against the defendants. 5. It is maintained that the trial of this suit was postponed in consideration of the promise of J. F. Savage to pay the amount of the notes. To substantiate this contention reliance is had upon that defendant’s testimony, an examination of which induces the belief that it is not sufficient for that purpose. It is insisted by plaintiff’s counsel that J. F. Savage •paid off the chattel mortgage note before it matured, and at a time when he knew, as he now asserts, that the execution of this evidence of indebtedness was induced by threats, and, this being so, he ratified both mortgage contracts, and by reason thereof is estopped — 390 — to allege or prove any facts to the contrary. A similar contention was made in the case of Bentley v. Robson, 117 Mich. 691, 697 (76 N. W. 146, 149), where it is said: “The record shows the learned circuit judge was justified by the record in most of his findings of fact. It is impossible to read the record' without coming to the conclusion that Mrs. Bentley understood when she gave the mortgage that her husband was in the custody of the officers, and that to save him from being conveyed to jail it was necessary for him to give the mortgage which she executed. It was this motive which actuated her to make it. There is nothing in the record to indicate it would have been made had she not believed it would have this effect. The ease comes clearly within the principles established by the following decisions (citing cases). The court was right in holding. the mortgage was tainted with duress. It is now said, even conceding the mortgage was obtained by duress, it was ratified after the duress had passed by making payments upon it, and by attempting to have it discounted. The conclusion we reach from the record is that the wife and family did all that was done in the expectation and belief that it was necessary to be done to save Mr. Bentley from being imprisoned as the result of his criminal act. What was done after the mortgage was given was in the same line as the giving of the mortgage, prompted by the same motive, expecting to bring about the same result.” 6. The punishment of an agent convicted of embezzlement is the same as that upon a conviction for larceny: Section 1955, L. O. L. A criminal action for any felony, other than murder or manslaughter, must be commenced within three years after its commission: Id., § 1377. When the plaintiff’s money was converted by L. F. Savage to his own use does not appear, nor is it manifest when the duress was removed. If it be — 391 — assumed, however, that the statute of limitations had run against the crime when the chattel mortgage note was discharged, and that such liquidation was not induced by fear that the threat to prosecute L. F. Savage could be executed, the settlement of that obligation was no payment of any part of the realty mortgage, and, this being so, no estoppel can arise from such conduct in respect to a different voidable contract. 7. It will be remembered that an appeal was taken from that part of the decree which denied a recovery of the money expended in liquidating the chattel mortgage note. As that payment was voluntarily made, it cannot be recovered: Holmes v. Riggs, 52 Or. 334 (97 Pac. 551). The decree should be affirmed, and it is so ordered. Affirmed. Mr. Justice Bean, Mr. Justice Benson and Mr. Justice Harris concur.