Voiers v. Stout

67 Ky. 572, 4 Bush 572, 1868 Ky. LEXIS 195

• Court: Court of Appeals of Kentucky
• Decided: February 15, 1868
• Status: Published

Opinion

JUDGE ROBERTSON

delivered the opinion op the court:

During the prevalence of the late civil war, a Confederate officer, enjoying for a short time the hospitality of the appellee, at his house in Lewis county, Kentucky, about that time, or shortly afterwards, recruited soldiers for the Southern army, and impressed for its service some horses.

Upon those facts, a band of Federal soldiers arrested the appellee and took him to Catlettsburg, where he was released on condition that-he would execute his notes to the owners of the horses so taken, which he did for no established consideration of value,' for there is no proof of his agency, directly or indirectly, in the capture of any of the horses. One of these notes was made payable to the appellant, Voiers, who assigned it to his co-appellant, for. whom it was collected under military duress.

This action was brought for the restitution of the money so* extorted; and, on a full issue, the jury, under a proper instruction, returned a verdict in the appellee’s favor against the appellants for the amount paid, without interest, and the court rendered judgment accordingly.

-As there was no apparent consideration of value for the note, the circuit court did not err in refusing to instruct the jury that the appellants should be exonerated if the jury should believe that neither of them had any personal agency in extorting the note, or coercing payment of it. The fact alone that there was no binding consideration, deprived the note of all legal obligation; and when payment was coerced, the law implied a promise to make restitution; and the assignor and assignee are jointly liable on that promise, and especially, as the proof shows that each of them was apprised of the want of a valuable or legal consideration.

The verdict was, therefore, right; and, consequently, the judgment is affirmed.