Vyne v. Glenn

Marston, J. The errors assigned and argued in this «ase were: First, that the conclusion of law of the referees in setting aside the settlement had between the parties is mot supported by the finding of facts. In the finding of facts the referees do not say that there was a settlement in fact. They say there was a pretended settlement, and that receipts in full then passed between the parties. They then find facts which in law would be clearly sufficient to justify a court in setting aside whatever was done. Even if all this was struck out it would leave the case, upon the findings, not with a settlement, but a pretended settlement, and a passing of receipts which certainly would not conclude the parties. The [115] defendant informed the plaintiff that he had stopped the payment of certain moneys due the latter from third parties, well knowing plaintiff’s circumstances at the time, and that his failure to get the moneys so due him would result in his financial 'ruin, and thus compel the plaintiff to settle with the defendant in order that the stoppage might be removed. It is idle to say that such a settlement was free and voluntary, and that it should be sustained. To say that the plaintiff had a legal remedy if a wrong had been done him, or that the commencement of garnishee proceedings would not vitiate a settlement thereafter made between the debtor and creditor, may be true generally; but where the wrong done, as in this case, was for the evident purpose of forcing a settlement not in accordance with the legal rights of the parties, and where the delays incident to litigation would but work the ruin which the plaintiff dreaded, — to hold that because he had a legal remedy for the wrong, and did not avail himself thereof, would not meet the difficulties in a case like the present. The choice offered bim was- financial ruin or immediate settlement. If this was not obtaining a settlement under duress, it would be difficult to conceive what would be. Second, was the refusal of the referees to find upon the special questions of fact presented, error? Clearly not, as the case is here presented. Whether the facts if found would or would not have been material, we do not determine. We cannot look into the evidence, as it is not a part of the record, and we do not know, therefore, whether there was any evidence from which the referees could have found as requested. As the case is presented in this court, the only question we can consider is whether the facts found sustain the conclusion of law arrived at by the referees and the judgment of the court, and we are all clearly of opinion that they do. The judgment must therefore be affirmed with costs. The other Justices concurred.