
    Eliza Caplice v. M. Kelley, et al.
    
    Unconscionable Contract, When not Enforced; Measure of Recovery. Inadequacy of consideration alone is no ground for setting aside or refusing to enforce a contract, but where a party has sold and transferred to another, for a valuable consideration, a policy of insurance of $1,477.73, which the insurance company is willing to pay if the assignor will sign her signature to the release on the policy, and such assignor avails herself of the situation of her assignee, (who cannot, without such signature, recover the money due him on the policy, excepting after long delay and costly litigation,) to exact the hard and unconscionable bargain that she shall have back more than one-fourth of the amount of such policy for the mere inconvenience of her writing her signature, such agreement cannot be enforced by the assignor. Under such circumstances, the assignor can recover at most only what is fairly due her for the-inconvenience or service in writing her signature.
    
      Error from Pottawatomie District Court.
    
    This case was before this court at the January Term, 1880, (23 Kas. 474,) and then remanded for a new trial. June 20, 1881, the plaintiff filed in the district court her amended petition, as follows:
    
      (Court and title omitted.) “1. And now comes Eliza Caplice, the plaintiff herein, and complains of the above-named defendants, M. Kelley and P. H. McHale, and alleges that heretofore, to wit, on the 9th day of May, 1878, the defendant, M. Kelley, made and executed to the plaintiff his certain written instrument of that date, which is in words and figures as follows, to wit:
    
      ‘ Saint Marys, May 9, 1878.
    ‘For and in consideration that Mrs. Eliza Caplice signs and releases all her right, title and interest to and in policy No. 34,169 of Northwestern Mutual Life Insurance Company for $2,000 on the life of Michael Caplice, for the sole use and benefit of Eliza Caplice, his wife, I hereby agree and bind myself unto the said Eliza Caplice to pay unto her the sum of four hundred and seventy-seven and seventy-three one-hundredths dollars, on the payment of said policy unto P. H. McHale or order, for whom I have power of attorney. M. Kelley.
    ‘Signed in presence of J. W. Fitzgerald.’
    “And thereby promised and agreed to pay the said Eliza Caplice the sum of money therein specified, and at the time and in the manner therein indicated.
    
      “2. And the said plaintiff further alleges, that’heretofore, to wit, on the 29th day of May, 1878, the defendant, P. H. McHale, made his certain writing across and on the back of the writing above referred to and executed by M. Kelley, and thereby guaranteed and promised the plaintiff to pay the sum of money therein specified and in the manner and at the time indicated, which said writing is in the words and figures following, to wit:
    ‘May 29th, 1878.— I, the undersigned, hereby guarantee the payment of the within amount, viz., $477.73, not later than ten days after the payment of the within-mentioned policy.. P. H. McHale.’
    “3. And the plaintiff further alleges, that in consideration of the above-written instrument, signed, executed and delivered to her by M. Kelley, one of the defendants herein, and in consideration of the written guaranty of P. H. McHale, written on the back of said written instrument at the time said written instrument was delivered to her, she made and executed, to the defendants the release specified and referred to in the written instrument signed by M. Kelley, and performed and executed on her part all obligations and releases on her part to be executed and performed.
    
      “4. And the plaintiff further alleges, that afterward, to wit, on the. 13th day of June, 1878, the said policy No. 34,169 was paid in full by the Northwestern Mutual Life Insurance Company to the order of the said P. H. McHale, mentioned in the first part of the above-stated paper.
    
      “ 5. And the plaintiff further alleges, that upon the payment of the said policy by the said Northwestern Mutual Life Insurance Company to the order of the said P. H. McHale as aforesaid, and more than ten days thereafter and before the commencement of this action, payment of the said four hundred and seventy-seven and seventy-three one-hundredths dollars was demanded of the said M. Kelley, and by him refused.
    
      “6. And the said plaintiff further alleges, that upon the refusal of. the said M. Kelley to pay the said four hundred and seventy-seven and seventy-three one-hundredths dollars, notice of said non-payment and refusal were immediately given to P. H. McHale, the guarantor, and payment was demanded of him, the said P. H. McHale, and was by him refused.
    “7. Plaintiff further alleges, that said sum of money in said written instrument specified has- not been paid by said defendants, or either of them, and that said defendants, though often requested, have wholly refused and neglected to pay t-he same or any part thereof.
    “8. Plaintiff further alleges that the said written instrument was so as aforesaid signed by said M. Kelley and P. H. McHale, in consideration of work and labor done and performed by said plaintiff, at the special instance and request of said M. Kelley and P. H. McHale, in and about the collection of the money due said M. Kelley and P. H. McHale, on said policy of insurance, for which work and labor said M. Kelley and P. H. McHale promised to pay the said sum of money specified in said paper, of date May 9th, 1878; and said work and labor were of the value of, and worth the sum of $477.73. And said plaintiff and defendants, at the date of making and delivery of said written instrument, agreed that the value of said service and labor, in and about the collection of said money on said policy of insurance, was the said sum of $477.73, and that the signing of the said blank receipt on the back of said policy, by said Eliza Cap-lice, was of that value; and defendants then agreed, without any fraud, extortion or misrepresentation on the part of this plaintiff, that the value of said work, labor and service in signing said receipt, was the said sum of $477.73, and then and there promised to pay the same, and thereupon and therefor made, executed and delivered the said written paper.
    “Wherefore, plaintiff prays judgment for the sum of four hundred and seventy-seven and seventy-three one-hundredths dollars, with interest thereon at seven per cent, per anhum, from the 25th day of June, 1878, until paid, and for costs of suit.”
    The defendants filed the following answer:
    
      [Court and title omitted.) “And now come the said defendants, and for answer to the petition of the said plaintiff, say:
    
      “1. That they deny each and every allegation in said petition contained.
    “2. And defendants, for a further answer to the petition of the said plaintiff, say there was never any consideration for the written instrument in said petition set forth, and that if the same was ever executed by the defendants as the said plaintiff in her petition alleges, the execution was obtained by the fraud and extortion of the said plaintiff, and was executed by defendants without any consideration whatever.”
    To this answer a reply was filed, as follows:
    
      (Court and title omitted.) “Theplaintiff denies each and every allegation made or contained in the second ground of defense in said answer contained; and said plaintiff’ alleges that the execution of the paper as charged in the petition was based upon good and sufficient consideration, and upon the value of services agreed upon and rendered by the parties hereto as in the petition set forth, and without any fraud or extortion. Wherefore, plaintiff prays judgment,” etc.
    Upon these pleadings the action came on for trial on the 20th day of June, 1881, and thereupon, and before trial, the. defendants offered in open court to confess judgment for the sum of one dollar in favor of plaintiff, which offer was then refused by the plaintiff, and a jury being waived, the action was submitted to the court for trial.
    The following testimony was given on the part of the plaintiff. Mrs. Eliza Caplice testified:
    “I am the plaintiff in this ease. M. Kelley, one of the defendants, came to me and said he wanted my signature to the blank receipt on the policy of insurance, and I told him I was under no obligation to sign the same, or help him in any way to get the money on the policy from the insurance company. He said the company would not pay him the money unless he got my signature to the receipt, and he would have to go to the trouble and expense of suing the company unless I signed the receipt. I told him I would not sign the paper unless he paid me for doing so; and he then said that if I would sign the receipt so that he might get the money without the trouble and expense of a law suit, he would pay me when he got the money from the company the sum of $477.73. I accepted his proposal and signed the receipt, and he then executed the paper I have sued on. My services in that respect were worth the sum he then agreed to pay for them. I was guilty of no extortion; I simply refused to do what he said was necessary to enable him to get the money, until we agreed upon the price for my services. I rendered the services upon the agreement, and he then executed the paper sued on; and that was all there was about it.” 8
    Thereupon the plaintiff read in evidence the following agreement:
    “1. That the within instrument, specified and set forth in the petition, was executed and delivered as set forth in the petition.
    “2. That, on the 13th day of June, 1878, the full amount due on the policy, No. 34,169, amounting to $1,477.73, mentioned in the petition, was paid by the insurance company, as alleged in the petition.
    
      (t3. That the amount of money specified in the within instrument was duly demanded more than ten days after the payment of the money by the insurance company, and before the commencement of this action.
    “4. That Eliza Caplice did release all her right, title and interest to and in policy No. 34,169 by executing a written receipt; but defendants do not admit that said Eliza Caplice had any right to or interest in said policy.
    J. S. Merritt,
    
      Attorney for Defendants.”
    
    Thereupon the defendants offered and read in evidence the following photographic copy of the back of an insurance policy, which was indorsed as follows:
    
      “ This paper is conceded to be a true copy of the original, and may be considered and offered in evidence as if it were the original, subject to objections as to competency and relevancy. It is also agreed that the defendants may show, if competent, the nature of policy No. 34,169, by oral evidence.
    Thos. P. Fenlon,
    
      Attorney for Plaintiff.”
    
    [Recsipt in full.]
    Received,-, 18 — , of the Northwestern Mutual Life Insurance Company,-dollars, in ful.1 of all claim on the within policy. P. H. McHale,
    .Her
    Witness: R. R. Bertrand. Eliza x Caplice.
    Michael Caplice;
    
      [Assignment.]
    St. Marys, Kansas, May 11, 1875. — For a valuable consideration, the receipt whereof is hereby acknowledged, I hereby assign and transfer to P. H. McHale all my right, title and interest in and to the within policy No. 34,169, for his sole use and benefit. In ..case of the death of the said assignee before the policy becomes due, then and in that case it shall be payable to the heirs or assigns of P. H. McHale.
    E. Caplice.
    It was in open court by plaintiff then and there admitted that the Eliza (her mark) Caplice to the foregoing receipt, and the signature, E. Caplice, to the foregoing assignment, are the signatures of and were executed by the said plaintiff. To the introduction in evidence of the said receipt and assignment, the said plaintiff by her attorney objected, on the ground of incompetency and irrelevancy, which objection was overruled by the court and the evidence was admitted; to which ruling the plaintiff by her attorney duly excepted.
    Thereupon the defendant, P. H. McHale, testified that—
    “On the 11th day of June, 1875, Michael Caplice, the husband of plaintiff, was owing M. Kelley, defendant, and me, $600. The said .Michael Caplice had in his possession a ten-year endowment policy,issued by the Northwestern Mutual Life Insurance Company, insuring the life of said Michael for the benefit of the said plaintiff. I took an assignment of this policy in payment of this debt, and paid Michael Caplice, in addition to said $600 indebtedness, the sum of $270 in money, at the time the plaintiff and- her husband Michael Caplice executed and delivered to me the following assignment. [Here witness identifies assignments which are found below, marked No. 1 and No. 2, which said assignments are, at the time, over the objection of the plaintiff, introduced in evidence, and read.] Said Michael Caplice also delivered to me the said policy, with an assignment on the back thereof, signed by plaintiff, of which assignment this is a copy. [Here witness identifies photographic copy, before mentioned and introduced in evidence.] I never received any other consideration for the agreement sued on, than the signing, by the plaintiff, of the receipt on back of policy assigned to me. This policy matured May 12,1878. There was due on the policy $1,477.73. I presented the same to the company, and demanded payment. The company refused to pay anything, until plaintiff executed the receipt on back of policy. M. Kelley transacted the business with plaintiff for both of us. I executed agreement May '29th, 1878. Plaintiff signed receipt same day. I executed agreement because company would not pay money on policy without plaintiff’s receipt, and plaintiff would not sign receipt without agreement. The policy was a ten-year endowment policy. When Michael Caplice took out the same, he executed to the company, ten premium notes, of $82.38 each, and agreed to pay quarterly premiums of $28.34 each.”
    • Defendants here offered to prove that defendants had, since the assignment of said policy, paid the company, in quarterly premiums and premium notes, maturing against said policy ■since the transfer thereof, the sum of $650, to which the plaintiff objected, which objection was by the court sustained, and the testimony was excluded, to which ruling the defendants at the time duly excepted.
    
      .(Oross-examination.) “I was at Saint Marys, May 29th, 1878, and signed agreement sued on. I was over 21 years •of age, and knew what I was doing. I signed it that I might obtain money from insurance company, and because I could get the money no other way. I signed it, and got plaintiff’s signature to receipt, and that was the only consideration for instrument sued on.”
    [Assignment No. 1.— Original.]
    ASSIGNMENT OE POLICY.
    St. Marys, Kansas, June ll,.1875.-^Eor a valuable consideration, the receipt whereof is hereby acknowledged, we by this instrument do assign and transfer to P. H. McHale, of Saint Marys, Kansas, all our right, title and interest in and to policy No. 34,169, for his sole use and benefit. In case of the death of said assignee before policy becomes due, then and in that case it shall be payable to the beirs or assigns of P. H. McHále. Michael Caplice. [l. s.]
    Eliza Caplice. [l. s.]
    (Stamps same amount as on original policy.)
    This original assignment must have signatures of both beneficiary and insured. . .
    This original should be attached to the policy.
    
      [Assignment No. 2.]
    ASSIGNMENT'OP POLICY.
    St. Marys, Kansas, June 11,1875. — For a valuable consideration, the receipt whereof is hereby acknowledged, we ' by this instrument do assign and transfer to P. H. McHale, of St. Marys, Kansas, all our right, title and interest in polioy No. 34,169 for his sole use and benefit. In case of the death of said assignee before the policy becomes due, then and in that case it shall be payable to the heirs or assigns of P. H. McHale. Michael Oaplice. .
    Eliza Caplice.
    Plaintiff admitted the signatures to said assignments to be in the handwriting of plaintiff and Michael Caplice, the insured, and to have been by them duly executed.
    The defendant, M. Kelley, testified:
    . “I am a partner of McHale; had an equal interest in policy with McHale. When policy was due, the company required us to get plaintiff’s receipt on back of policy for the money. I went to plaintiff and asked her to sign the receipt. She said she would not unless we paid her $477.73, or executed agreement to pay it; that she could beat us out of all of it, but would not if we would give her the agreement for $477.73. She then and there admitted that she had assigned the policy over to us, and had been fully paid for it. She made no claim to any interest in the policy. The signing of the receipt was the only consideration for the agreement sued on. The receipt was signed May 29,1878. The agreement sued on was signed same day.”
    
      [Cross-examination.) “I signed agreement sued.on; was 21 years old; signed agreement to get plaintiff’s signature to receipt on back of policy.”
    The defendants called S. M. Beal, who testified as follows:
    “My age is 33 years. I am by occupation a banker at Louisville, Kansas. I know the value of the labor of the execution of a signature; the value of the labor in executing the signature of Eliza Caplice to the receipt upon insurance policy issued by the Northwestern Mutual Life Insurance Company, No. 34,169, was not to exceed one cent; one cent was all this labor was worth.”
    The defendants then called I. C. Rodgers, of Wamego, Kansas; J. R. Mulvane, of Topeka, Kansas, and A. S. Thomas, clerk of the circuit court of the United States for the district of Kansas, each of whom testified that he was an expert in writing, and knew the value of the labor of executing the signature of Eliza Caplice to the receipt upon insurance policy issued by the Northwestern Mutual Life Insurance Company, No. 34,169, was not to exceed one cent ; one cent was all this labor was worth. In cross-examination, said witnesses stated that said value so stated is simply upon, and estimated upon, the physical labor and time employed in-making said signature.
    The foregoing is all the evidence offered and received or rejected in the case. Thereupon the court made certain findings of fact and a conclusion of law thereon, as stated in the opinion, infra, and gave judgment accordingly for the plaintiff, who has brought the case here.
    
      Thomas P. Fenlon, for plaintiff in error:
    It is apparent that the decision rendered by the court below is simply and only in obedience to its supposed duty, under the decision in 23 Kas. 474; and therefore such decision does not come to this court as the deliberate judgment of the learned court below, nor bear with it that weight and authority, nor is it entitled to that respect usually accorded to the uninfluenced and unforced judgments of nisi prius courts.
    Upon the facts and findings, we.claim that the case is now relieved from the strictures made thereon by this court in 23-Kas. 477, as follows: “ Instead of acting justly, she attempted to take an unfair advantage. . . . She thought herself in a condition to exact an unconscionable bargain.”
    On a retrial of the case, the fact is found “that the contract was made with full knowledge ■ of all the facts, and without any. fraud or misrepresentation on the part of plaintiff.” In 23 Kas. 477, the supreme court, from the light before it then, found that plaintiff acted “unjustly?’ “unfairly” and “ unconscionably.” Now the trial court returns to this court as a fact found from the evidence, that there was nothing unjust, unfair, or unconscionable on the part of the plaintiff— that the contract was made with full knowledge of all the facts, and without any. fraud or misrepresentation. If this be true, (and as we have said, the decision of this court, from the date of its organization say it must be taken as true because found by the trial court,) we submit that the remarks heretofore made by this court cannot now be made in the face of the record now presented to it.
    The question squarely raised here is, whether, under the facts found, the plaintiff in error is entitled to $477.73 and interest, or to only one cent; and this, of course, is a pure and simple question of law. What then is the law of this case on these facts found? This court has already decided on this branch of the case, that “the plaintiff was under no legal duty to sign the receipts. She had previously done all that the law required of her in the assignment and transfer of the policy. She had actually performed every act- necessary to put the defendants in possession of the policy and every benefit to be derived therefrom.” (23 Kas. 476.)
    There is no adjudicated case in England or America wherein it has been held that a party cannot recover the contract price agreed upon, under facts similar to the facts of this case.
    The parties came together nearly three years after every duty had been performed by the plaintiff — when she owed no service to and was under no obligation whatever to the defendants — and then, “with full knowledge of all the fads, and without any fraud ■ or misrepresentation,” the defendants requested her services to aid them in the collection of the money due them on their policy. She agreed to render the service, and they agreed to pay her the stipulated price. She rendered the service. Is this not a contract to be enforced? In 23 Kas. 477, the court hesitated upon the amount agreed upon, deciding that plaintiff had a right to recover for some amount, thus announcing the doctrine that parties having the right to contract, with full knowledge of all the facts, there being no fraud or misrepresentation, had no right to fix by their own consent and agreement the value of the services contracted for. Certainly I am justified in the assertion that no court in England or America has ever before held this doctrine. Why does “ the mind revolt at the enforcement of such .a promise”? to quote the language of the court. May I not sell my services for what I may think they are worth, in a matter in which I may legally be employed ? and may not another person engage such services, however slight they may be, if such person sees proper, and is not deceived by me? Where does this court get the power to say that the amount agreed upon was too much, and to substitute its judgment for the will, consent and agreement of the contracting parties?
    “ Each party to a contract, being competent to make one, may exercise his own discretion as to the adequacy of the consideration; and if the agreement be made bona fide, it matters not how insignificant the benefit may apparently be tcTthe promisor or how slight the inconvenience or damage appear to be to the promisee, provided it be susceptible of any legal estimation.” (Story on Contracts, pp. 431, 435.) This author adds (pp. 432, 435): “And however inadequate the consideration may be, yet if the circumstances of the case indicate no unfair advantage on the one side, or no great incompetency on the other, the contract will be valid; ” and quotes with approbation the remarks of Chief Justice Parker^ (3 Pick. 207,) that a deliberate promise in writing made freely and without any mistake, one which may lead the party to whom it is made into contracts and expenses, cannot be broken without a violation of moral duty. Story says (Contracts, pp. 483, 489): “Mere inadequacy of consideration, when it is not of so gross a nature as to indicate fraud on one side or utter incompeteney on the other, will not of itself invalidate an agreement either in law or in equity.”
    In this case the findings fail to show incompetency on the part, of the defendants, and do show no fraud on the part of the plaintiff.
    “If the consideration is valuable it need not be adequate; that: is, the court will not inquire into the exact proportion between the value of the consideration and that of the thing to be done for it. The courts, both of law and equity, refuse to disturb contracts on questions of mere adequacy.” (1 Parsons on Contracts, 436.)
    In the well-considered case of Train v. Gold, 5 Pick. 384, Wilde, J., said: “If a contract is deliberately made, without fraud, and with a full knowledge of all the circumstances, the least consideration will be sufficient.” In Blake v. Blake 7 Iowa, 46, 51, it is held that “Each party to a contract may, ordinarily, exercise his own discretion as to the adequacy of the consideration; and if the agreement be made bona fide it matters not how insignificant the benefit may apparently be to the promisor, or how slight the inconvenience or damage appear to be to the promisee, provided it be susceptible of legal estimation.”
    In support of the opinion in 23 Kas. 477, that plaintiff is only entitled to what may be fairly due her for writing ' her signature, and that she cannot recover on the agreement, are cited the cases of Hough v. Hunt, 2 Ohio, 495; Sasportas v. Jennings, 1 Bay, 470; Motz v. Mitchell, Pa. Sup. St.; Chi tty on Contracts, 625.
    I submit, with the profoundest respect, that not one of these authorities touches the merits or facts of the case at bar.
   The opinion of the court was delivered by

Horton, C. J.:

This case was before this court at the January term, 3880. (23 Kas. 474.)

At that time we held that Mrs. Caplice was only entitled to a reasonable compensation for the inconvenience or service in making her signature to the receipt on the back of the insurance policy, and remanded the case. for a new trial. Thereafter the plaintiff in error amended her petition, and declared upon the contract made for services and the agreed price therefor. The trial was had upon such amended petition, to the court without a jury. The following are the findings of fact:

“1. That the contract of employment was made, as alleged in the petition.

“2. That the services were rendered by the plaintiff, as alleged in the petition.

“3. That at the time of the employment, defendants promised to pay for the services, as shown by the written obligation set forth in the petition.

“4. That the money due on the'insurance policy was paid by the insurance company to the defendants, and the sum for the services specified in the written obligation, set forth in the petition, was demanded by the plaintiff from the defendants more than ten days after the payment of the amount due on the policy, and before the commencement of this action.

“ 5. That the contract of. employment, and promise to pay .therefor the amount specified in the. written obligation set forth in the petition, were made by the parties, with full knowledge of all the facts, and without any fraud or misrepresentation-on the part of the plaintiff, but that she demanded from the defendants a promise to pay her $477.73, and refused to sign the receipt to the insurance company until they executed the agreement to pay her that sum, when the value of her work and labor in signing said receipt was only one cent.”

And as a .conclusion of law, the court found that—

“The plaintiff was entitled to recover the sum of one cent and costs up to the time of the offer to confess judgment, and thereupon rendered judgment in favor of plaintiff and against the defendants for the sum of one cent and her costs herein expended up to the 20th day of June, 1881, at the time of said offer to confess judgment was made, taxed at $-, and that said plaintiff pay the costs thereafter incurred by defendants.”

Notwithstanding the very able and. exhaustive argument presented by counsel for plaintiff in error, we think the case occupies very much the same attitude as when presented upon the former hearing; and perceiving no good reason to change our views of the law as heretofore declared, we think the judgment of the court below must be affirmed. We did not hold before, and do not hold now, that mere inadequacy of consideration alone is a sufficient ground for setting aside or refusing to enforce a contract; and we fully agree with counsel, that no case can be found in the authorities where inadequacy of consideration, abstracted from all other considerations, has been deemed sufficient to set aside a contract, or to refuse to enforce it. If our former opinion was liable to this construction, we would be very willing, not only to reconsider, but to reverse that judgment. We stated then, that morally Mrs. Caplice ought to have given her signature without making the extortionate demand she did; that instead of acting justly, she attempted to take advantage, and an unfair one, of the parties who had bought and paid for all her right and interest in the insurance policy. We can do more than reiterate now what we then said, that courts, as a rule, will lay hold of the slightest act of oppression or unfair advantage to set at naught a promise obtained under the circumstances that the agreement sued upon was acquired.

Counsel for plaintiff in error refers to the finding, that such agreement was made by the parties with full knowledge of all the facts, and without any fraud or misrepresentation; and upon this insists that the question of the value of the services of plaintiff was solely a question between the contracting parties. If Mrs. Caplice had not been connected with the sale and transfer of the policy to the makers of the contract sued upon, and the makers thereof had employed her to render services for them in the collection of the claim against the insurance company, and had promised to pay her much or little therefor, we suppose the contract could be enforced, however inadequate the consideration. Under circumstances of that kind, if the demand of Mrs. Caplice for her services had been extravagant, the parties would have had the opportunity to reject her services, and employ some other person who was more reasonable in his or her charges; but in this case, Messrs. Kelley & McHale had no choice other than to make the promise in writing demanded of them by Mrs. C., or fail to obtain the money due them until after long delay and costly litigation. Mrs. Caplice and her husband had sold and transferred the policy to the makers of the contract, and as an inducement to purchase, thé latter parties expected to collect the money due therein at maturity. We may assume, as nothing appears to the contrary, that .in such purchase Mr. and Mrs. Caplice dealt with the buyers upon equal terms; that they received consideration to their full satisfaction for the assignment and delivery of the policy, and, acting in good faith to their assignees, they were interested in having them collect the amount due on the policy from the insurance company. The company was very willing to pay the policy, and thus carry out the agreement of the parties, if Mrs. Caplice, the beneficiary in the policy, would sign the second transfer or receipt. This signature was asked for, we suppose, out of abundant caution on the part of the insurance company to save any further claim by Mrs. Caplice of interest in its proceeds. The refusal of Mrs. Caplice to write her signature blocked the paj'ment of the policy. She did not pretend to have any title or interest in the policy or its proceeds; but when she ascertained the inability of her assignees to collect the money on the policy she had transferred to them, without her release, except by long delay and costly litigation, she conceived the idea of exacting a hard and unconscionable bargain from the very persons whom she ought, in common honesty, to have aided to collect the policy she had transferred. For the mere inconvenience of writing her name, for service worth only one cent, she demanded an agreement in writing for the payment of' nearly $500. As tending to show the conduct of Mrs. Caplice, and the circumstances under which the agreement was signed, we quote from the evidence of Kelley, one of the defendants in error, as follows:

“ I am a partner of McHale; had an equal interest in policy with McHale. When policy was due, the company required us to get plaintiff’s receipt on back of policy for the money. I went to plaintiff and asked her to sign the receipt. She said she would not, unless we paid her $477.73, or executed agreement to pay it; that she eould heat us out of all of it, hut would not, if we would give her the-agreement for $4-77.78. She then and there admitted that she had assigned the policy over to us, and had been fully paid for it. She made no claim to any interest in the policy. The signing of the receipt was the only consideration for the agreement sued on. The receipt was signed May 29, 1878. The agreement sued on was signed same day.”

The statements of Mrs. Caplice to Kelley, and the terms of the agreement, satisfy us that there must have been that pressure upon the signers at its execution, which in our view amounts to oppression and extortion. The agreement was so hard and unconscionable that we do not think it ought to be enforced.

Under the circumstances, Mrs. Caplice ought not to recover, if anything, at most only what was, fairly due her for the inconvenience or service for writing her signature.

The judgment of the district court will be affirmed.

Valentine, J.:

I concur in the decision of this case, not because of any mere inadequacy of the consideration for the defendants’ written promise, but because of a total want of such consideration. The real consideration for the promise was not. the mere signature of the plaintiff, but it was the supposed transfer from the plaintiff to the defendants of the right and power to collect from the insurance company the amount of the insurance policy, of which the plaintiff was the expressed beneficiary. (See written instrument, signed by defendants, as copied in Kelley v. Caplice, 23 Kas. 474.) But the plaintiff had in fact no such right or power to transfer to the defendants or to confer upon them, and nothing passed from her to them. She had, long before that time, transferred all her interest in the insurance policy to the defendants, and had at that time nothing to give them. .Their right and. power at that time' to collect the amount of the insurance policy was ample and complete, without any signature or assignment or release from her. Hence their promise to her was wholly without consideration, or perhaps I might more properly say, wholly without any substantial consideration. It is true, the plaintiff attached her signature to the instrument supposed to transfer or release her interest in the policy to the defendants; but her signature was a mere incident to such supposed transfer or release. It was a mere incident to the supposed consideration for which the defendants made their written promise, and was not the consideration itself. Therefore, the real consideration for the defendants’ promise having failed, no action can be maintained upon the promise; and the most that the plaintiff is entitled to recover, if she is entitled to recover anything, is a fair price for all the inconvenience and trouble that she has been put to in executing her signature to the instrument of supposed transfer or release; and this she may recover, not because of the defendants’ expressed written promise, but independent of such promise, and upon an implied contract or promise. When it is shown that the real consideration for which the defendants made their written promise has failed, she cannot then enforce the whole of such promise simply because of the existence of some incident connected with the consideration which has not failed.

Brewer, J., taking no part in the decision. 
      
      [ * Note. — See this case, with an elaborate note on the subject of unconscionable contracts, in 33 Am. Rep., pp. 182-184. — Reporter.]
     