Wolff v. Bluhm

70 N.W. 73, 95 Wis. 257, 1897 Wisc. LEXIS 177

• Court: Wisconsin Supreme Court
• Decided: February 2, 1897
• Status: Published

Opinion

Maeshall, J.

■ The sole question here is, Does the evidence warrant the finding that the note and mortgage were obtained by duress? That Gottfried Bluhm was the father of the child with which the girl, Ida Hell, was pregnant, that he was so charged, and was threatened with criminal prosecution unless he gave such note and rhortgage to provide for the care of the girl and the child, and that he complied with such demand, appears by the findings, and is well supported by the evidence; yet all this does not necessarily constitute duress. The evidence shows that William Hell, the father of the girl, went to Bluhm!s 'house, June IT, 1894-,. and accused the latter of having been intimate with his daughter, and demanded $500 to settle the matter, stating that unless such sum was paid he {Bluhm) would be sent to Waupun; that Bluhm, the same day, talked the matter over with the girl and her father; that she would not say anything about it; that Nell, after seeing Joseph Klahn, proposed to Bluhm that he should pay $300, stating that Klahn would pay $200; that, on the 20th day of June, Bluhm talked the matter over with August Wolff, a member of the board of supervisors of the town, who advised him that he might be sent to Waupun, and that he had better-settle, or go and see a lawyer and be guided by him; that, on the 21st day of June, Bluhm, ■ visited L. A. Bartlett,-a merchant at Cascade, and advised’with him respecting the matter, the result of which was that Bartlett advised a set* tlement, and thereupon the settlement complained of was arranged, under Bartlett’s direction, at whose suggestion Mr. Wolff was made trustee for the benefit of the girl and Hell, who proposed taking care of her and the child. The note and mortgage were executed to consummate such settlement. Bluhm had plenty of time, it will be observed, and the amplest opportunity, to consult with disinterested friends and with a lawyer, if he desired, before coming to a conclusion. It is very clear to our minds that he did not act under duress. His will was not overcome, in a legal sense. He was free to do as he saw fit at all times,— to .come and go as he chose; and after being fully advised, so far as he desired, by his own friends and neighbors, he executed the papers in suit. Duress exists when one, by the unlawful act of another, is induced to make a contract, or to forego some act, under circumstances which deprive him of the exercise of his free will. 6 Am. & Eng. Ency. of Law, 61-69; City Nat. Bank v. Kusworm, 91 Wis. 166, It is not the threat of criminal prosecution in any casé that constitutes duress, but the condition of mind produced thereby. ■The threat must be of such a nature, and made undéí' such circumstances, as to constitute a reasonably adequate cause to control the will of the threatened person, and must have that effect, and the act sought to be avoided must be performed by such person while in such condition. ’ A threatened lawful arrest or prosecution, which does not imply harsh or unusual use of criminal process, and where no warrant has been issued and there is no danger of the threat being immediately carried out, does not constitute duress. Harmon v. Harmon, 61 Me. 227; Higgins v. Brown, 78 Me. 473; Landa v. Obert, 45 Tex. 539.

In view of the foregoing, obviously, there is an entire failure of evidence in this case to support the finding of the trial court that the note and mortgage were obtained by-duress.

By the Court.— The judgment of the circuit court is reversed, and the cause remanded with directions to render judgment in favor of the plaintiff according to the prayer of the complaint.