Koehler v. Wilson

Day, J. -I. The court instructed the jury as follows: “ 7. If the payee of the note surrendered it to the maker voluntarily, in liquidation of a just debt then due from him i. niSTKuc-practice. ^ to the? the note was fully canceled by the surrender; but if the note was obtained from Koehler wrongfully and unlawfully by threats and duress, it was not cancelled by the surrender, and the plaintiff’ can maintain an action for the amount due thereon, if she is the owner thereof.” The defendants excepted to the giving of [186] this instruction. As we understand this instruction, it does not incorrectly state the law. It is urged, however, that the court should have defined the meaning of duress. We think, however, that defendants should have requested more specific instructions in this particular, if they desired them. Ault v. Sloan, 4 Iowa, 598; Miller v. Bryan, 3 Ib., 58; Dixon v. Stewart, 34 Ib., 125. II. From the petition it will be seen that plaintiff bases her right to recover upon the ground that the money loaned was her separate property, and that the note evidencing the amount was obtained from her husband, by the defendants, through duress. ■ She makes no claim to the ownership of the note, other than the fact that it was given to her husband for the loan of money which was her separate property, and known to be such by the defendants. At the trial plaintiff offered in evidence an assignment from her husband to herself of the note in controversy, in connection with other claims, dated at Brazil, Indiana, June 25th, 1873. Defendant objected to this testimony, but the court admitted it, as stated in the abstract, “ for the purpose of giving the 2. evidence: tinent: error without pie-judice. plaintiff the same right that her husband would have had, should it appear that the note was his.” . m, , . . ,. , . ibis was error. Ihe plaintiff did not sue as the assignee of her husband. A party cannot recover upon grounds altogether distinct from, and at variance with, the claim made in the petition. Evidence should correspond with the allegations, and be confined to the point in issue. But, whilst this was error, we are inclined, from an examination of the whole record, to regard it as error without prejudice. We find in the abstract no conflict in the testimony, that the note was in fact the property of the wife, and that that was known to defendants. Hence, notwithstanding the admission of this evidence, for the purpose assigned, the jury must have found for plaintiff on that issue, independently of this evidence. III. Appellant claims that the privilege of avoiding a contract 3. husband duress: wiieu pleaded. or act on account of duress is personal, and that none can take advantage of it but the party himself. Several authorities are cited. The one [187] most nearly in point is Huscombe v. Standing, 3 Clark, 186. In that case it was determined that if a bond be obtained from A. and B. by duress against A., B. cannot plead the duress against A. in discharge of the bond. . The distinction between that case and this is apparent at a glance. If B. executed the bond voluntarily, he was not affected by the duress against A. In this case, if the plaintiff’s husband had. her note, and it was obtained from him by duress, she, and she only, is pecuniarily affected by it. We have no doubt of her right to plead the duress under the circumstances shown. IY. In rebuttal plaintiff was' permitted, against defendant’s objections, to introduce a letter written by one of the defendants, in the firm name, addressed to whom it may concern, stating that Charles 0. Koehler had been in their employ, that his term had expired, that he was desirous and capable of earning a larger salary, and recommending him as temperate, energetic, industrious, and attentive to business. This letter was written after the time it is claimed the threats were made to accuse him of the crime of larceny. As a circumstance tending to show that the charge was groundless, the letter was competent. Y. It is not our custom to review in the opinion the evidence. We neyer disturb a verdict as opposed to evidence, unless clearly unsustained by it. After a careful examination of the evidence in this case, we are satisfied that it is not one which will justify our interference on that ground. AFFIRMED.