Voorhees v. Nelson

Brooke, C. J.

(after stating the facts). As the sole question upon which the case went to the jury was one of duress, it becomes pertinent to examine with some particularity the testimony of plaintiff bearing upon that question. Referring to the defendant, plaintiff testified:

“He did say that in my office when George Sharrar and Mr. Hooper and I were present. He said to me right there, 'Mr. Voorhees, if you are not guilty, I don’t want a dollar of your money.’-

“Q. You believed Mr. Nelson meant that when he told you that there, did you not?

“A. Believed he meant what?

“Q. Just what he said, that he didn’t want a dollar of your money unless you were guilty?

“A. Yes, sir; I think so.

“Q. You thought so then and you think so, now, don’t you ?

“A. Yes, sir; I do.

“Q. You thought that Clint Nelson was and is sport enough so that he would not want a dollar back unless you were guilty?

“A. I don’t think he would. Mr. Nelson made no threat to me of any kind, character, or nature at any time.

“Q. The strongest or nearest to any threat that he ever made to you was to say to you, if you are not guilty he didn’t want a dollar of your money?

“A. Yes, sir.”

Plaintiff, further testifying as to what defendant Smith .had told him, said :

"Then he said that I would have to fix it up with Mr. Nelson, and if I didn’t that somebody was going to prosecute me. * * * And he told me that I had better see Mr. Nelson and . get the matter fixed up. Why, they said they were going to take me to Council Bluffs, and prosecute me out there. I didn’t know but what they would land me in jail. I could not go there without anybody to go on my bond. I was scared to death. I didn’t know but that they would land me in jail.

“Q. You expected that you might be taken out there at any minute?

“A. Yes, sir. * * * I claim that in my own mind I was perfectly innocent of any charge upon which any prosecution could be grounded. And being entirely conscious of my own innocence, I immediately lost my nerve.”

It is quite clear from the foregoing that defendant Nelson himself made no threats of any kind against the plaintiff. On the contrary he repeatedly told plaintiff that if the plaintiff were innocent, that is, if he had not shared in the money out of which defendant Nelson had been swindled, he should not pay a dollar. Assuming (though it is flatly denied by Smith) that Smith made the threats as testified to by plaintiff and that such threats were made by the authority of defendant, of which there is no proof in the record, do they amount in law to duress? We are of opinion that this question must be answered in the negative. In the early case of Hackley v. Headley, 45 Mich. 569 (8 N. W. 511), Mr. Justice Cooley, speaking for the court, said:

“Duress exists when one by the unlawful act of another is induced to make a contract or perform some act under circumstances which deprive him of the exercise of free will. It is commonly said to be of either the person or the goods of the party. Duress of the person is either by imprisonment, or by threats, or by an exhibition of force which apparently cannot be resisted.”

In the later case of Beath v. Chapoton, 115 Mich. 506 (78 N. W. 806, 69 Am. St. Rep. 589), this court, speaking through Mr. Justice Grant, said:

“Threats of criminal prosecution, unaccompanied by threats of immediate imprisonment, do not constitute duress” — citing Harmon v. Harmon, 61 Me. 227 (14 Am. Rep. 556); Buchanan v. Sahlein, 9 Mo. App. 552; Bodine v. Morgan, 37 N. J. Eq. 426; Dunham v. Griswold, 100 N. Y. 224 (3 N. E. 76); and Preston v. City of Boston, 12 Pick. (Mass.) 7, 14.

See, also, Clement v. Mercantile Co., 172 Mich. 243 (137 N. W. 657), and Dallavo v. Dallavo, ante, 350 (155 N. W. 538).

Defendant Nelson’s eighth request to charge was as follows:

“The Supreme Court of this State in Beath v. Chapoton, 115 Mich. 506, 509 [73 N. W. 806, 69 Am. St. Rep. 589], declares the law to be that ‘threats of criminal prosecution unaccompanied by threats of immediate imprisonment, do not constitute duress/ and in accordance with that holding I charge you that there was no duress in this case and that plaintiff cannot recover against any of the defendants.”

We are of opinion that this request should have been .given. It is worthy of note that plaintiff, upon the payment of the money for which he brought suit, secured from defendant the receipt which is set out in the statement of facts, and that he permitted the matter to stand without disaffirming the contract or making any demand for the return of his money for more than two years. In the meantime the Federal statute of limitations (U. S. Comp. Stat. 1901, § 1044), had run in his favor so that a prosecution against him for complicity in the fraud perpetrated at Council Bluffs was barred. He testified that he held this receipt as a protection against such prosecution. '

Although plaintiff is barred from recovery in this case because the payment of the money was not secured by the exercise of legal duress, we think, a broader ground exists for reaching the same conclusion. The payment of the money was corollary to, if not a distinct part of, the illegal arid fraudulent transaction in which plaintiff frankly admits he participated as a principal. Whether his original purpose was to help swindle his friend, defendant Nelson, or simply to help Nelson and Guernsey to swindle the “millionaires,” or whether he actually participated in a division of defendant Nelson’s money, appears to be of no consequence. Public policy demands that the courts be closed to men such as the plaintiff when they come demanding relief from consequences which result from their own admittedly illegal and fraudulent acts.

The judgment is reversed, and there will be no new-trial.

Moore and Steere, JJ., concurred with Brooke, J.