
    Jacob Obert v. Joseph Landa.
    (Case No. 3722.)
    1. Practice.— The discretion exercised in permitting special exceptions to be filed to a petition, after allowing the defendant to withdraw his announcement of ready for trial, would not afford cause for reversal if the exceptions were well taken.
    2. Fact case.— See statement of case and opinion for facts pleaded, which showed such gross fraud, imposition, undue advantage and oppression as to constitute sufficient grounds for setting aside a settlement coerced by thoir influence.
    Appeal from Guadalupe. Tried below before the Hon. Everett Lewis.
    This suit was filed by appellant against appellee, March 15, 1871. A statement of the earlier proceedings in the case will be found in 45 Tex., 539 (Landa v. Obert).
    When the case went back, the plaintiff, on May 21, 1877, filed an amended petition, in which he. alleged that early in.the year 1870 the defendant, with the fraudulent intent of extorting money from the plaintiff, entered into a conspiracy with two persons named, who by the terms of the conspiracy were to act as “false spies” upon plaintiff; that they were to fabricate false returns of the earnings of defendant’s mill; that as a reward of their iniquity, they were to have the place which plaintiff had long occupied, of miller to the defendant, and that defendant, by means of these convenient tools, being in possession of a large amount of false and fabricated testimony to the alleged guilt of plaintiff, and having the witnesses already trained to prove it, could thus terrify him into submission to defendant’s demands. That these spies, pursuant to this plan, did make out and return to defendant false accounts of the moneys received by plaintiff from the mill. That in September, 1871, defendant with his able counsel came upon plaintiff, and informed him that he (defendant) had now the proof of two witnesses that plaintiff had embezzled a large amount of his money, and had rendered false accounts of his receipts; that although conscious of his innocence, yet, seeing no escape from the meshes in which he was entangled, and overpowered with fear of his impending fate, unable to act with rational deliberation or freedom, he unwillingly surrendered the notes and accounts which he held against the defendant, and paid over to him a large sum of money in gold, the whole amount thus extorted from plaintiff by force, threats and fraud, without any consideration whatever, being §5,341. Plaintiff further charged that when this pretended settlement was made, he (plaintiff) did not suppose that it was intended to be final, but that, as soon as he had established his innocence of the charges against him, it would be set aside. He avers that defendant knew his innocence at the time, and that he had since completely established it upon the trial of the charge against him and by other evidence.
    November 6, 1877, defendant amended by denying all and singular these charges, and by averment that the matters last set up were but a repetition of the original cause of action formerly pleaded, all of which was res adjudicata, having been passed upon on the former trial and by the supreme court on appeal.
    November 7, 1877, plaintiff again amended, charging that, before the pretended settlement was consummated, plaintiff finally consented to make it, if defendant would give him a writing or receipt, which Esquire'Harris had drawn up, to the effect that if defendant found out plaintiff’s innocence of the charges of embezzlement, etc., he would return to plaintiff the notes, accounts and money thus paid over, and that he agreed to do so; but that when he (defendant) got possession of the money, etc., he refused to sign the said paper, but made out and gave to plaintiff another paper, pretending that it was of the same import, as follows:
    “Mr. Jacob Obert and myself have this day had a settlement, which I believe entirely correct; but at the request of Mr. Obert, I here state that if at any time I shall become convinced that I have not settled correctly, I will correct the errors. September 12, 1870.
    (Signed) “ J. Landa. ”
    
      That plaintiff, having surrendered the notes, etc., could obtain from the defendant no other written evidence that said pretended settlement was not intended to be final.
    Defendant’s general demurrer overruled, when the defendant obtained leave to file special exceptions to the petition as amended.
    The exceptions were sustained, and, plaintiff declining to plead over, judgment was rendered for the defendant.
    In 1872 the venue of the cause was changed on application of Landa from Comal county to Gaadulupe county, on the ground 'of combination and prejudice against him.
    The assignments of error were as follows: 1st. In permitting the defendant (under the circumstances) to file his exceptions. 2d. In sustaining the exceptions. 3d. The judgment is contrary to the law.
    A motion to dismiss for want of sufficient appeal bond was filed by John Ireland, one of the appellee’s original counsel, on the ground that Herman Seele, one of the sureties, was a practicing attorney, and that his signature to the bond was without authority of the court, and in violation of a rule of court. The supporting affidavit of Geo. Pfeuffer was filed, to the effect that he knew of but one Herman Seele in the state of Texas; that he was an attorney, and he believed that he was the one whose signature was to the bond. Motion overruled.
    
      Wadder & Upson and Goodrich, for appellant,
    cited Pasch. Dig., vol. 1, arts. 1441, 2421; Sayles’ Tex. Pl., p. 78; Walling v. Williams et al., 4 Tex., 427; Towner v. Sayre, 4 Tex., 29; Crayton v. Munger, 9 Tex., 293; Hays v. Bonner, 14 Tex., 631; Linney v. Maton, 13 Tex., 454-5; Townshend on Slander, sec. 157; Smith v. State, 32 Tex., 594; 27 Tex., 463.
    
      W. M. Rust, for appellee.
   Delany, J. Com. App. —

Great latitude of discretion is necessarily allowed to the district judge in directing the conduct of a cause. If, therefore, he permits one of the parties to withdraw his announcement of readiness for trial and to file additional pleadings, this court will hesitate to revise his action, unless there is a manifest abuse of his discretion: Whitehead v. Foley, 28 Tex., 1. And in this case if the defendant’s exceptions are well taken, we should say that the judgment ought to be affirmed notwithstanding the seeming irregularity. The exceptions, taken as a whole, amount to a general demurrer, and perhaps something more. Their collective meaning is that the original and amended petitions do not set forth a good cause of action. This fact may be brought to the knowledge of the court at any stage of the trial. Even after verdict it may be done by motion in arrest of judgment. But we do not think that the exceptions are well taken.

The first objects to that part of the pleadings which alleges slander as a cause of action. This is a sort of general demurrer to a part of the plaintiff’s case, and it should have been overruled. For if he can establish his allegations under this head, we see no reason why he may not recover.

The second exception is taken to that part of the case which sets up as a cause of action the malicious prosecution, “ because the same as plead does not allege the want of probable cause.” In this the defendant is mistaken. The want of probable cause is fully set forth by the plaintiff.

The third exception objects to that part of the plaintiff’s pleadings which relies upon duress, “ because the plaintiff does not allege ■that violence was offered to his person, or that there was any threat of illegal imprisonment.” “If,” says Blackstone, “a man through fear of death, or" mayhem, is prevailed upon to execute a bond, or do any other legal act, these . . . may afterwards be avoided,

if forced upon him by well grounded apprehension of losing his life or even his limbs, in case of his non-compliance; ” and after stating that this fear must be upon sufficient reason, he quotes a passage from Bracton, which'I will venture to translate as follows: “It must not be" the apprehension of some light and- timid person; but such a fear as might alarm a resolute and determined man, for this fear must comprehend within itself peril of life or the danger of bodily torture.” 1 Com., 130. Thus stood the law of England for many centuries; but in process of time the courts have done - much to mitigate its harshness. Their decisions, however, made as occasion required, have hardly, proceeded upon any definite rule except that of revolt against the barbarism of the law. It is therefore difficult to harmonize them upon any consistent principle.

In the case of duress of goods, some of the courts have resorted to the expedient of holding that when a man’s property is wrongfully detained and he pays money simply to obtain possession, and not by way of adjusting the matter, he may recover it back. In England this is put upon the ground that the money was not paid voluntarily, but under "compulsion, and not on the ground that it was paid under duress, as technically understood.

In such cases the question is whether the payment was voluntary or involuntary. Metcalf on Con., pp. 25, 26.

Parsons, however, in his work on Contracts, makes no distinction between compulsion and duress. He says: “ A contract made by a party under compulsion is void. It is not, however, all compulsion which has this effect; it must amount to duress. . . . Imprisonment is duress; . . . but to have this effect it must either be unlawful in itself, or, if lawful, it must be accompanied with such circumstances of unnecessary pain, privation or danger that the party is induced by them to make the contract.”

To understand what is here said about a lawful imprisonment being accompanied by circumstances of pain, privation, etc., it must be remembered that in England and in most of the American states, until a comparatively recent period, imprisonment for debt was lawful. In actions of debt, assumpsit, etc., upon claims for money, the defendant, instead of being cited to appear and answer, as is the case in this state, was often arrested and might be lodged in jail.

In this state of the law, if a party thus under arrest in an action of debt entered into' any adjustment of the matter with his adversary, he could not afterwards avoid it under the plea of duress, for his imprisonment was lawful.

In such cases the creditor paid the costs of the imprisonment and could control the action of the officer, very much as the plaintiff in execution can now control the action of the sheriff in the levy and sale of property. And he was often tempted, by collusion with sheriffs, jailors and other officers, to add to the hardship of the prisoner’s confinement in order to hasten a settlement of the debt. These are the circumstances of unnecessary pain, privation, etc., which are generally alluded to in the books; and unless we attend to this fact, we may be misled by such general expressions as those quoted above. We have, in this state, nothing like imprisonment for debt or arrest upon civil process. To threaten with such' imprisonment a citizen who had been long in this state and was familiar with its laws upon the subject might be entirely harmless, because it would not probably alarm him; but to induce a foreigner who had just come into the country to believe that such an arrest might be made, and to threaten him with it, in order to extort money from him, might be a very different thing. And to threaten to accuse a citizen of a felony in order to extort money from him is a grave offense against the criminal law. Penal Code, art. 648; Pasch. Dig., art. 2307.

In this case the parties were not dealing at arms-length. The plaintiff is represented as occupying an humble and subordinate position, as having been long in the employ of the defendant, and accustomecl to look up to him as much his superior. He was almost entirely ignorant of the language of the country, knew nothing of its laws, and was morbidly timid about courts and judicial proceedings. The defendant appears to have been a well-informed and determined man, powerful in the neighborhood where they both lived, unscrupulous in forming his plans, and ready and able to carry them out by any means, however questionable.

The defendant, knowing that the plaintiff has money, and being himself largely indebted to him, knowing also his weakness, and how easily he may be terrified by the threat of a. criminal prosecution, deliberately determines to fabricate a story of his guilt, and by playing upon his fears to extort from him his money and those evidences of debt. He arranged his plans skilfully, employing two eminent lawyers, and, assuring them of the plaintiff’s guilt, they all three come upon him when he is entirely alone. They charge him with having embezzled a large amount of his employer’s money. They assure him that the proof of his guilt is clear; that the witnesses, who have been upon his track, are ready to swear to it in open court; that he must settle in half an hour, or he is a doomed man. In vain he protests his innocence and pleads for time to consult counsel. The answer is prompt and. decisive: Settle at once, or take the consequences. As soon as his fears are sufficiently wrought upon, he is told that this settlement shall not be final, but that when he surrenders the money, notes, etc., he shall receive an instrument of writing, to the effect that as soon as his innocence is established, everything shall be restored. And so he yielded to the demand.

How the defendant, by his exceptions, admits that this whole story of guilt was a fabrication; that the plaintiff owed him nothing. Yet he insists that no recovery can be had, because when the plaintiff gave up the money, etc., he was not under duress — there was no threat of any illegal imprisonment. The plaintiff, however, put the case upon the ground of gross fraud, imposition, undue advantage and oppression, which would be fully sufficient to set aside the supposed settlement. 1 Story’s Eq., 523. In such cases the question becomes one of consent, and it is whether the party made the agreement freely and advisedly, or was his consent obtained by the means just mentioned. In what has been said we have had reference to the case and the parties solely as they are presented in the pleadings of the plaintiff, and not as they may appear on the trial. As the judgment must be reversed, we may remark that on the former • appeal the eminent judge who delivered the opinion appears to have adopted from the books and to have applied to this case expressions which are properly applicable to a different class of cases. The language is as follows: “ There can be no pretense that the alleged threats import a purpose to make any unusual, harsh, offensive, or illegal use of the process, either civil or criminal, with which it is insisted appellant was threatened.”

These expressions, as has already been shown, have their appropriate application to cases.of imprisonment for debt, and others of a like character, if such there be, though they have been sometimes (and, as I think, inadvertently) applied to cases of a different character.

Upon this branch of the case the court appears to have followed the case of Harman v. Harman, 61 Me., 227. In that case, however, the parties were on equal terms; they dealt at arms-length; one knew just as much about the gravity of the threat as the other. Besides, the plaintiff admitted that he did not make the settlement from any fear of the threats against himself, though this was the ground of his action; but stated that he had made it for another reason, which the court said might have been a good one, only that he had not set it up in his pleadings.

These are the only points which we think need be considered in the case.

Our opinion is that the judgment should be reversed and the cause-remanded.

Reversed and remanded.

[Opinion approved May 25, 1883.]  