Imágenes de páginas
PDF
EPUB

and sell it, impairs the obligation of the contract. But it has never been held, so far as we are advised, that a statute dealing with property no: subject to sale for enforcement of the contract, can not, in providing for a change of the form of the title by which the debtor holds it, continue the exemption from forced sale of that which represents in the hands of the same owner the property so exempt. That is the case before us.

The water-works were not liable to execution for judgments against the city. The legislature intended to change the form of the city's ownership of that property into that of shares of the capital stock of a company, of which it was at first to be sole owner. These shares represented the water-works of the city. They represented nothing else. The city owned the shares, and the legislature continued this property, in the the hands of the city as shares of stock, the same exemption which belonged to the property represented by these shares. In doing this, no right of the creditors, at the time they made their contract or the passage of the act, was impaired. No property to which they then had a right to look for payment of their debt, or as a means of enforcing their contract, has been withdrawn from the force of its obligation. They are placed by this law in no worse condition than they were before. They were not obstructed or impaired in the exercise of any remedy which they had when the contract was made. Nothing subject to their debt-not by way of lien, for such debts created no lien-but subject to execution after it might be issued, was withdrawn from that subjection. The shares were evidence of title in property which had never been liable to execution, and the statute continued this exemption in the ownership of these shares so long as it remained in the city.

But it is said that a creditor has, by his contract, the same right to enforce its performance out of the property acquired after his debt is created as he had against that which the debtor owned when the contract was made. In a general sense there can be no doubt of the truth of this proposition. But there are two answers to it in the present case. In the first place, the property in question is not other and different property from that held and owned by the city at the time of the contract, and which was then exempt from execution. It has only changed the form and evidence of ownership. The shares represent in the hands of the city the same interest which it had before in the water-works. In the next place, the city was not situated, as regards this property, as a private person would be in the purchase and acquisition of ordinary property. The city could not have sold this property as the law stood. It could not have put it into a joint stock company without the aid of a new law. The legislature, in authorizing the change in the form of the ownership of the water-works, could, since it injured nobody and invaded no one's rights, say, as to the city, whether it be called new property or not,

that such ownership could continue exempt from execution. As the city was using no means in acquiring this stock which could have been appropriated under any circumstances to the payment of the debts of appellees, the legislature impaired no obligation of the city in declaring the stock thus acquired exempt from liability for debts.

We are of opinion, therefore, that the plea of defendants was bad; and the decree of the circuit court is, therefore, reversed, with directions to overrule the plea, and for such further proceedings as are not inconsistent with this opinion.

EVIDENCE- LIMITS OF THE RULE THAT A PARTY MAY NOT IMPEACH HIS OWN WITNESS.

WALLACH v. WYLIE.

Supreme Court of Kansas, June, 1882. Where a party to a suit introduces in evidence the deposition of the other party, the party introducing the deposition is not bound by every statement made in the same, but may rely upon other statements contained in such deposition, and also introduce other evidence for the purpose of proving his case, although these other statements and this other evidence may tend to contradict and impeach some of the statements, made by the said party in his said deposition. The rule that a party shall not impeach his own witness goes only to the extent that a party shall not introduce evidence for the mere purpose of impeaching one of his own witnesses, and it does not go to the extent that he may not introduce evidence to prove the facts of his case, although, incidentally, such ev. idence may impeach or contradict some of the statements made by one of his previous witnesses.

VALENTINE, J., delivered the opinion of the

court:

This is an action of replevin, and the main question involved in the case is, which had the prior right to the possession of the [property in controversy, Moses Wallach or William H. Wylie? The property originally belonged to Nathan Stetter, and Wallach claimed the possession of the same by virtue of a chattel mortgage executed to him by Max. N. Stetter, attorney in fact of Nathan Stetter; while Wylie claimed the property by virtue of several attachments which he, as sheriff of Atchison County, Kansas, had previously levied upon the same. These attachments had all been issued in actions brought by creditors of Nathan Stetter. The case was tried by the court below, without a jury, and the court found in favor of Wylie and against Wallach, and rendered judgment accordingly.

1. The plaintiff in error, Wallach, claims, as a first ground of error, that some of the findings of fact were not sustained by sufficient evidence. In this, we think the plaintiff in error is mistaken. It is true that the direct evidence of Wallach and

of Max N. Stetter was in favor of Wallach; but there were a great number of circumstances connected with transactions involved in the case which were against Wallach's theory of the case; and we think these circumstances were sufficient to overbalance and overturn the direct evidence of both Wallach and Max N. Stetter. We think, however, that it is unnecessary to discuss the evidence, as no useful purpose could be subserved thereby. Involved in this question of the sufficiency of the evidence, however, is a question of law, which we shall discuss as follows: Wylie introduced in evidence the deposition of Wallach, taken on behalf of Wylie; and the plaintiff in error, Wallach, now claims that Wylie was, and is, bound by everything that was testified to in such deposition by Wallach. This certainly is not the law, and such a thing never was the law. It is true that when a party introduces a witness, he can not then impeach the general character or reputation of such witness for truth and veracity; and it is generally true that he can not show that the witness has made statements at other times and at other places contradictory to those which he testifies to. But neither of those cases is this case. Wylie did not attempt to impeach the general character or reputation of Wallach for truth and veracity, nor did he attempt to show that Wallach had made statements at other times and at other places contradicting the statements made by him in his deposition; although Wylie would certainly have had the right in the present case to show such contradictory statements, for the very good reason that Wallach himself was a party to this action. Wylie could have shown such contradictory statements, not for the purpose of impeaching Wallach, but as original evidence-original evidence of Wallach's admissions.

The principal fact in controversy in this case was, whether the chattel mortgage executed to Wallach by Max N. Stetter, as the attorney in fact of Nathan Stetter, was executed for the purpose of hindering, delaying and defrauding the creditors of Nathan Stetter or not, and the deposition of Wallach was introduced by Wylie for the purpose of proving or tending to prove, that it was; and, of course, Wylie believed that it did prove, or tend to prove, that fact. It is true, that all the direct statements made by Wallach upon the subject, were to the effect that the mortgage was executed in good faith, and not for the purpose of hindering, delaying or defrauding the creditors of Nathan Stetter; but the deposition also contained many statements of facts and circumstances which Wylie believed proved, or tended to prove, that the mortgage was not executed in good faith, but was executed for the purpose of defrauding the creditors of Nathan Stetter, and which statements of facts and circumstances Wylie believed were sufficient to overturn and destroy all the direct statements of good faith made by Wallach, and prove the very reverse.

The plaintiff in error, Wallach, seems to claim

that Wylie is bound by the direct statements of Wallach, and that he can not use the facts and circumstances testified to by Wallach to overturn these direct statements. This claim is certainly erroneous. Supposing that these direct statements proved, or tended to prove, one thing; and that the detailed facts proved, or tended to prove, the reverse, and that the detailed facts were sufficient to overbalance and overturn the direct statements; then why should Wylie be bound by the direct statements, in preference to the detailed statements of the facts? Wylie certainly had a right to introduce in evidence the deposition of Wallach as a whole, and to rely upon what it would prove or disprove as a whole, although, taking it as a whole, it would disprove some of the direct statements made by Wallach. A party never was concluded by the statements of any one of his witnesses. He always had the right to introduce other competent testimony to prove his case, although such testimony might contradict the statements of a previous witness, and might incidentally tend to impeach the testimony of such previous witness. 1 Greenl. on Ev., sec. 443 to 444a; Wharton's Evidence in Civil Cases, sec. 549, The rule that a party shall not impeach his own witness, goes only to the extent that a party shall not introduce evidence for the mere purpose of impeaching one of his own witnesses; and it does not go to the extent that he may not introduce evidence to prove his case, although incidentally such evidence may impeach or contradict one of his previous witnesses. Mr. Wharton says, in his work on Evidenee (see section just cited), that "in this country while a party can not ordinarily discredit his own witnesses, his right to contradict such evidence is unquestioned." Many of the detailed facts and statements which Wylie proved by Wallach's deposition, could not have been proved by any other witness; and hence there was a strong and unavoidable necessity for Wylie to make Wallach one of his own witnesses; but, in so doing, he did not place himself in the helpless condition of being ruthlessly and inexorably bound by all the statements made by Wallach in Wallach's own favor He still had the right to introduce other testimony, the testimony of Wallach himself, and of other witnesses, if they could be found, to prove that the facts of the case were not such as Wallach stated them to be in his general statements.

2. The plaintiff in error, Wallach, also claims that the court below erred in admitting certain evidence of Henry Friend and others, tending to show transactions had between Stetter and others after the execution of the chattel mortgage to Wallach, and wholly unconnected with the execution of such chattel mortgage. Now, the law upon this subject is just as it is claimed to be by the plaintiff in error; but such law has no application to this case. The transactions had after the execution of the chattel mortgage were not separate and independent transactions, but were parts and portions along with the execution of said chattel

mortgage of one general scheme, plan and arrangement had between Wallach and Max, N. Stetter, who was Wallach's son-in-law, to dispose of the property of Nathan Stetter, so as to hinder, delay and defraud the creditors of Nathan Stetter. This is the theory upon which Wylie and the attaching creditors introduced the evidence; and we think the evidence in the case sustains such theory, and that the evidence objected to was competent. The chattel mortgage was executed on Saturday, December 20, 1879, in conjunction with ot er transactions had at the same time at Atchison, Kansas, all appearing to be fraudulent; and immediately thereafter, Wallach and Max N. Stetter went to Emporia, Kansas; and on Sunday, December 21, 1879, Max N. Stetter, the attorney in fact of Nathan Stetter, in conjunction with his father-in-law, Wallach, sold and transferred two stocks of goods belonging to Nathan Stetter, one situated at Emporia, Kansas, and the other at Newton, Kansas. In connection with this case, and with reference to the same transactions, see Keith v. Stetter, 25 Kan. 100; Moon v. Helfer, 25 Kan. 139; Simon v. Stetter, 25 Kan. 155. transactions at Emporia were unquestionably fraudulent, and were part and portion of the general plan and arrangement previously entered into between Wallach and Max N. Stetter to hinder, delay and defraud the creditors of Nathan Stetter, of which the execution of the chattel mortgage of the day before was another part and portion of the same general plan and arrangement. The evidence of the transactions at Emporia is the evidence of which the plaintiff in error, Wallach, complains. But we think it was competent as a part of a general whole, of which the execution of the mortgage was another part of the same general whole. The transactions at Emporia were not unconnected with Wallach, or with the execution of his chattel mortgage; but were simply additional transactions in carrying out the same general design and purpose, and Wallach was probably the brains and soul of all of them.

These

3. The chattel mortgage executed by Max N. Stetter to Wallach purported to secure the sum of $7,920 of indebtedness due from Nathan Stetter to Wallach. The court below found that the sum of $3,000 of this amount was bona fide indebtedness, and that the sum of $4,920 thereof was fraudulent, and was merely a pretended indebtedness, without any basis therefor. And then the court held, as a conclusion of law, that as a portion of the indebtedness pretended to be secured by the chattel mortgage, and the larger portion thereof was fraudulent, it rendered the whole mortgage utterly void and of no effect; and of this conclusion of law the plaintiff in error, Wallach, now complains. We think,however, that this conclusion of law is correct. The statutes of this State provide that every transfer of property, made with the intent to hinder, delay or defraud creditors, * * shall be deemed utterly void and of no effect" (Comp. Laws of 1879,

page 464, sec. 2); and this chattel mortgage was unquestionably executed with just such an intent, and for just such a purpose. Mr. Jones, in his work on Chattel Mortgages, sec. 339, says that "an overstatement of the amount secured, made with the fraudulent intent to hinder, delay and defraud the mortgagor's creditors, renders the mortgage void;" and further, he says (sec. 350), that "if a mortgage be void because of an intention participated in by both parties to delay, hinder and defraud the mortgagor's creditors, it is fraudulent in toto, and can not be supported to any extent as against such creditors; it can not be supported to the extent of an actual debt covered by such mortgage." And he also says, in the same section: "A mortgage which contravenes the insolvent laws as to some portion of the debt secured is wholly void." See authorities cited by Mr. Jones; and, also, authorities cited in counsel's brief.

4. The plaintiff in error, Wallach, also claims that the court below erred in this case, in renderdering judgment in favor of Wylie and against Wallach, because the attaching creditors in the other suits took personal judgments in their favor against Nathan Stetter without any order with reference to the attached property. There was no error in this. All the attached property had been previously sold, and the proceeds thereof were then held subject to the further order of the court; and all this had been done by the express order, direction and permission of the court. Hence, there was no necessity at the time the court rendered the several judgments in the attachment cases, to make any further orders for the disposition of the attached property. There was really nothing to dispose of, except the proceeds of the property. When this suit and all the attachment suits are finally determined, the court may make a general order disposing of the proceeds of the attached property as shall be just and proper.

The judgment of the court below will be affirmed.

All the justices concurring.

CONTRACT-DURESS PER MINAS-FRAUD -UNDUE INFLUENCE.

JORDAN V. ELLIOTT.

Supreme Court of Pennsylvania, April 10, 1882. Where a party seeks to be relieved from the obligation of a contract on the ground of duress per minas, regard will be had to age, sex and condition of life, and if the threats employed were such as were calcu lated to deprive one individually of his freedom of will, he will be relieved from liability, even though they were not of such a character as would produce a like effect on a firm and courageous man. In such case, evidence is sometimes admissible to show that the person subjected to duress had heard that the person using the threats was of a violent dis

position, for this may be a circumstance which among other things led to the execution of the contract.

Error to the Common Pleas of Bradford County.

Feigned issue, wherein Thomas R. Jordan and Sarah Jordan, his wife, in right of said wife, were plaintiffs, and Olive Fox Elliott, defendant, to determine whether a certain judgment note given by defendant had been obtained by fraud or by duress per minas.

On the trial, before CUMMIN, P. J., the following facts appeared:

The defendant, Olive Fox Elliott, was a widow of about seventy-seven years. Her son, Edward T. Elliott resided with her. Said EdwardT. Elliott applied from time to time to the plaintiff, Jordan, for loans of money. Jordan advanced the amounts asked for, taking as security a judgment note from Elliott, the amount of which, exclusive of interest, was $7,419.78. He also held in addition to this note, a policy of insurance for $10,000 on Elliott's life, which the latter had assigned to him as collateral security.

Jordan desiring to obtain additional security for the debt, pressed Elliott from time to time therefor, and Elliott finally agreed to give him a new judgment note for the entire amount due, in which defendant was to join as surety. On May 1, 1877, Jordan called at defendant's house in order to see her son about this new note. While he was talking to the son, defendant entered the room. As to what followed, defendant testified substantially as follows:

As she came into the room she saw Jordan pacing up and down, and heard him say, "Perhaps this bitter cup may pass." She asked him to sit down, but he declined, and continued to walk to and fro gesticulating wildly. Elliott asked him repeatedly not to trouble the defendant, but to these requests Jordan paid no attention, and in a very fierce and excited manner continued to talk of the amount due him.

Defendant became very much alarmed at this conduct, and began, together with several other women in the room, to cry. Jordan then proposed to her to give him a judgment note for the whole amount due. This proposition she at first declined, begging Jordan to postpone the matter for a day, as she was not in a fit condition to transact business. Elliott also interposed at this point, entreating Jordan not to trouble defendant. Jordan, however, thrust his clenched fist in Elliott's face, commanding him to be quiet, and turning to the defendant, said: "By the Eternal, if this thing is not settled to-day, I have my lawful remedy, and I will put your son in jail before night." This speech defendant construed to be a threat that Jordan would institute criminal proceedings against her son. And, being thoroughly frightened, she finally agreed to sign whatever Jordan should tender her. He, thereupon, wrote out on the spot the following judgment note:

"$7,419.78.

TOWANDA, PA., May 1, 1877.

After death, for value received, I promise to pay Mrs. Sarah Jordan, or bearer, Seven Thousand Four hundred and Nineteen Dollars and Seventy-Eight Cents, with interest, without stay of execution, and I hereby authorize any prothonatory or attorney of any court of record, to appear and confess judgment for the above sum with costs, and waive the benefit of all laws exempting property from levy and sale on execution, and the right of inquisition on real estate. With interest from 14th of February, 1877, it being understood this note is not to be entered unless others are going to be."

Defendant signed it, but in her agitation, wrote her maiden name instead of her married one, a mistake which she testified she had never before made, and which was, at Jordan's request, immediately rectified. Jordan then withdrew, but the next day called again, and was let in at the door by defendant. Being alarmed at his coming, she asked him to go away. He replied that he only wanted to leave some papers which belonged to her, and, accordingly, produced Elliott's judgment note and the policy of insurance on Elliott's life, which he had assigned to her. He then tentered to her the following receipt which he desired her to sign:

"Received, Towanda, Pa., May 1, 1877, of Thomas R. Jordan, a certain judgment note,.dated 20 month, 14th day, 1877, for $7,419.78, due at fortyfive days to the order of Thomas R. Jordan, and signed E. T. Elliott. Also a certain policy No. 51,958 in the Connecticut Mutual Life Insurance Co., of Hartford, Conn., for $10,000, on the life of E. T. Elliott, which said policy was assigned by E. T. Elliott to Thomas R. Jordan, as a collateral security for a loan of moneys, and by the said Jordan to me the aforesaid securities being this day assigned, sold and surrendered to me for which I have executed and delivered to Mrs. Sarah Jordan my own judgment note dated May 1, 1877, for $7,419.78 with interest from 14th of Feb., 1877, and due after my death. [Which last said note contained a stipulation that it is not to be entered unless others are going to be. Now I hereby waive said stipulation and consent and agree that judgment may be entered on my said note at any time at the option of the holder thereof.]"

Defendant at first declined to sign this paper, but, at length, consented to do so, upon Jordan's assuring her that it was a mere receipt for the papers which he had delivered to her. She did not read the paper, nor was she aware of the contents hereof. As soon as the receipt was signed, Jordan threw the old judgment note of Elliott in the fire, and immediately afterwards quitted the house.

Defendant's account of what transpired upon both of the occasions when Jordan was at her house was corroborated by several witnesses who were present. Jordan, being examined, denied the truth of many of defendant's allegations, and

admitted the truth of others, but stated that he had used no undue influence to induce the defendant to sign the note or the receipt, and that she was perfectly cognizant of the contents of both those papers before she signed them.

The note was entered up with the accompanying receipt on May 2, 1877. On May 7, 1877, on affidavit of defendant, the court granted a rule to show cause why the judgment should not be opened.

Depositions having been taken, this rule was made absolute, and the present feigned issue subsequently awarded.

Upon her examination in chief, on her own behalf, defendant was asked, inter alia, the following question: "Had you at the time of Jordan's visit heard anything about his reputation as a man of violence?" Objected to by plaintiffs. Objection overruled. Question allowed. Exception. Defendant then replied, "I have always heard that he was a violent man, but never saw anything of it personally until that day."

Plaintiffs presented, inter alia, the following points: 1. The signature of the defendant to the note, and stipulation for immediate judgment being admitted, the burden of proof of want of consideration is upon the defendant; and unless she has satisfied the jury of such want of consideration by clear and satisfactory evidence, their verdict on this point should be for the plaintiff. Answer. We affirm the point. The law is correctly stated in it. The burden of proof is upon the defendant, Mrs. Elliott, if she seeks to set aside this judgment note for want of consideration, the burden is upon her to show this want of consideration by clear and satisfactory proof. When a party signs a paper, the presumption is that they understand what they are doing, and the law holds them to it. And if they seek to set it aside, the burden is upon them to show the want of consideration, or for whatever other cause they may seek to set it aside.

3. The claim of duress, or that the note was signed under compulsion, is one easily set up by a person desiring to get rid of an honest transaction, and when it rests upon the unsupported testimony of a defendant, should have little weight with a jury. Answer. This point we affirm as a general proposition, but what weight is to be given to the evidence is for the jury, and it is not for us to say whether it should be little or much. But where a party seeks to set aside a paper for the causes alleged in this point, and there is no other proof in the case than the testimony of the party seeking to set it aside, it would not be sufficient of itself, as we think, to set aside a paper of that kind. The effect of the evidence, and what would satisfy your mind as sufficient, of course is for you and not for us, and you will determine what is sufficient to set aside such a paper. But when we say that the unsupported testimony of the party would not be sufficient to set aside a paper, you are to understand that we do not take that question from you. It is for you to

say what is sufficient to set aside a paper of this kind. We do not determine the question for you. It is not for us to say what would be sufficient to set it aside. There might be circumstances which would justify the setting it aside, and the question of the evidence and of the effect of it is for you and not for us.

The plaintiffs also presented a number of points, to the effect that there was no such evidence of such fraud or duress, per minas, as would suffice to invalidate the judgment. All of these points the court refused.

[ocr errors]

The court charged, inter alia, as follows: "There is no question that the note was signed by Mrs. Elliott on the first day of May; the signature is not denied; but it is alleged that the note was obtained from her by false representations, or by threats, or duress, and that she did not have the control of her will at the time she signed the note; that there was such restraint put upon her by what was said by Mr. Jordan, and what was done there, and the manner in which he did it; that she was put into such a state of terror and fear that she was not competent to act for herself; and that really what she did was the will of the person making the threats, and not her own will. This is really the important part of this issue. It will be for you to consider all that occurred on that day. You will notice who was present, what was said, and how it was said, and what was done, and the circumstances under which these things were done. It will be also your duty to consider the writing that was executed that day, and the signature upon it; the terms of the paper itself, and what effect it was to have upon the person or property of the person signing it, and what effect it was to have on her enjoyment of her property. "It will be also your duty to consider the situation of the parties, and what Mr. Jordan went there for, and how he was prepared in advance for obtaining the signature which he desired.

"It will be your duty to consider the age and sex of the parties to this transaction, and all the circumstances surrounding the procurement of this signature. Now, it was perfectly competent for Mrs. Elliott, if she desired to do so, to have given her note and to have signed this paper waiving the stipulation which was contained in the note, in consideration of the taking up of the notes which her son was liable for to Mr. Jordan. She had a right to do that, and if she did it in the exercise of her own will, she is bound by it, just as any other person would be bound, and the transaction in itself is not unlawful. It is a lawful transaction, and the only questions for you to decide are the questions raised by this issue-whether she was induced to sign this note by false representations, such as we shall hereafter.explain to you in the points submitted, or whether she did it under the pressure of threats and violence which deprived her of the exercise of her own will. If she did it in that way, then it was not her contract, and she would not be bound by it. You will also

[ocr errors]

*

« AnteriorContinuar »