#### Batavian Bank, Respondent, vs. North, Appellant.

*May 13*

June *19, 1902.*

(1) *Evidence: Opinions: Court and jury.*(2, 3) *Duress.*(4) *Checks: Presentation: Agreement to postpone.*

1. Opinion evidence as to an ultimate fact, based on a correct theory of the underlying facts, met by like evidence upon a wrong theory of such minor facts, does not create a conflict for solution by a jury.

2. Duress of a person is that condition of such person’s mind, caused by wrongful conduct on the part of another, rendering the former incompetent to contract by the exercise of his own free will.

3. Any amount of persuasion to influence one to exercise his own will to some particular end does not constitute duress.

4. If a person gives his check to another on condition that it shall not be presented to the drawee bank for payment till funds are produced in such bank by the payment of a check given to it by such person upon another bank, he impliedly agrees that the latter check shall be paid within a reasonable time, and if, by his connivance or consent, or otherwise, it is not so paid, such other may present his check for payment notwithstanding, and upon its dishonor sue to recover thereon.

[Syllabus by Makshakl, J.]

Appeal from a judgment of tbe circuit court for La Crosse county: J. J. Eeuit, Circuit Judge.

*Affirmed.*

Action on a $5,600 check drawn on tbe Continental National Bank of Chicago, Illinois, April 14, and dated April 26, 1900, payable to Ray S. Reid or order, and, as alleged, delivered to him for value at the date thereof and thereafter indorsed by him for value to plaintiff and dishonored, payment being refused at the drawee bank because there were no funds there to meet the same.

The complaint stated the facts indicated and all others requisite to a cause of action in plaintiff’s favor to recover on the cheek the amount thereof with interest and costs. Defendant answered, admitting the genuineness of the paper, *638that the same was not drawn, against funds in the drawee bank, that none were deposited there to meet the same, and that nothing had ever been paid thereon. The answer put in issue the allegation of the complaint as to ownership of the check by plaintiff, and pleaded, in addition, two defenses, viz., that payment of the check was expressly made conditional on precedent payment of a check for $10,000, drawn by defendant on the Bank of Hudson, Wisconsin, and deposited in the Continental National Bank for collection; and that it was fraudulently obtained from defendant. The following, in effect, are the facts alleged as to fraud:

Defendant’s father died about 1890, leaving an estate valued at $200,000, consisting mostly of notes secured by farm mortgages, to defendant, IT. L. North, her brother, and her mother, in equal proportions. Such proceedings were duly had in respect to the settlement of such estate that about 1893 the residue, after paying all claims other than those of legatees and devisees, was assigned by the probate court of St. Croix county, Wisconsin, undivided, to the three persons named. Mr. North immediately thereafter took charge of the entire property and managed tire same till a division thereof was made as hereinafter set forth. Defendant was about twenty years of age when her father died. She was then wholly unacquainted with business matters and so continued down to and inclusive of the time of the giving of the check in suit. She permitted her brother, without objection till 1895, to handle the common property as he saw fit, paying no attention to the business whatever, he paying her from time to time, for her personal expenses, such sums as she required. In 1895 she expressed a wish to have the property divided and her share set off to her so that she could handle it herself if she desired. She was advised to such course by Mr. Reid, who was then a practicing lawyer at Hudson, the home of the North family, and who was the county judge of St. Croix county when the estate was probated. Mr. North *639prevailed on defendant to abandon the idea of having the property divided and to permit him to continue to handle the -estate as he had been doing since it was assigned. Thereafter he continued to manage the property till disturbed in that regard as hereinafter stated, paying the expenses of all the parties interested out of the common fund. In the spring of 1899, while defendant was staying with her cousin, Mrs. Salmon, in the city of Chicago, Mr. North stopped payment upon her checks — which were drawn upon the Rank of Hudson, of which he was president and through which the money belonging to the estate was handled — upon the ground that she was ■spending money imprudently, notifying her to that effect. ■She thereupon communicated with Mr. Reid, who was then practicing his profession in the city of La Crosse, sending to him Mr. North’s letter and requesting an interview. In response to such request Mr. Reid called on her at Mrs. Salmon’s, where a consultation was had, the latter taking an active part in advising defendant as to obtaining control of her property. Mr. Reid stated that a large amount of labor would be required to accomplish her desire, and that the cost ■thereof would be five per cent, upon the value of her property and $500 for expenses; that five per cent, and expenses was the usual charge for settling an estate and securing a division 'thereof among heirs. Such statement was untrue. Subsequently defendant met Mr. Reid in St. Paul, by his procurement, when, relying entirely upon the representations theretofore made as herein indicated, she authorized him to pro-need to secure the possession of her property for her on the terms stated by him at Mrs. Salmon’s. _ Shortly thereafter -she repented and notified Mr. Reid not to proceed, whereupon he notified her that whether he did so or not he should insist upon the benefit of his contract. That influenced defendant do reluctantly allow him to go on as agreed. He thereafter fully performed his part of the contract, with the friendly cooperation of Mr. North, though the latter did not approve of *640his sister’s course. After the work was done, defendant gave Mr. Reid a certificate of deposit for $5,350, issued by the Bank of Hudson, and a check for $950 as compensation for his services. The check was paid. Before the certificate of deposit was presented for payment Mr. North discovered the particulars of his sister’s settlement with Mr. Reid and advised her to take advice as to the reasonableness of his charges. She did so, and becoming satisfied that she had been deceived, that the amount of labor done by Mr. Reid was much less than he had represented, and that she had been charged a very exorbitant amount for his services, requested him to return the certificate of deposit and to malee a bill to her for such reasonable charges as would fairly compensate him. He complied so far as to return the certificate of deposit, but he neglected or refused to render a bill for his services. Thereafter, in April, 1900, he met defendant at Mrs. Salmon’s in Chicago, he going there for the purpose of obtaining a settlement of his claim. He had previously, in conversation with defendant’s mother, said that unless his bill' was settled he would bring a suit and malee public the conduct of Mr. North as to his sister’s property, which statement was communicated to defendant. At Mrs. Salmon’s he stated to her that unless his claim was settled he would bring a suit which would disgrace Mr. North. Mrs. Salmon reported that to defendant. Both statements were made for the purpose of having them communicated to defendant and of coercing her into settling Mr. Reid’s claim against her will. The'result of the conference at Mrs. Salmon’s was that defendant, while in such a condition of fear lest her brother and family be disgraced in the manner threatened by Mr. Reid that she was unable to exercise her free will, and believing the only way to prevent harm to her brother was to submit to Mr. Reid’s demands, gave him the check in suit, it being then agreed, as before stated, that the check should not be presented to the drawee bank for payment till her check for $10,000, deposited in such bank for collection, should be paid.

*641On the trial the evidence was undisputed that plaintiff was the owner of the check and.entitled to recover thereon unless defendant was entitled to prevail upon some defense thereto set up in her answer. All evidence of a conditional delivery of the check was excluded upon the ground that it tended to vary the terms of a written instrument. The court decided that the evidence on the charge of fraud was insufficient to warrant a finding in defendant’s favor in respect thereto. Accordingly, on motion of counsel for plaintiff, the court directed a verdict in its favor, ■ upon which judgment was rendered for plaintiff, and defendant appealed.

For the appellant there were "briefs by *W. F. McNally*and *Baker & Haven,*attorneys, and oral argument by *Mr. Mc-Nally*and *Mr. Spencer Haven.*

For the respondent there was a brief by *Bleekman & Bloomingdale,*and oral argument by *Bay S. Beid*and *F. N. Bloomingdale.*

Mabshall, J.

The first proposition presented by counsel for appellant is that there was evidence to carry the case to the jury on the issue of whether the contract, to pay five per cent, of the amount of appellant’s property recovered for her of Mr. North, her brother, and expenses, was void because of misrepresentations made by Mr. Reid in respect to the customary charges for services of the kind he contracted to render, upon the faith of which such contract was made. It is not necessary to decide that proposition, so we will not discuss at length the evidence upon which counsel relies- to maintain it. Mr. Reid’s evidence is very positive and clear that he made no misrepresentations; that he merely assented to suggestions made by Mrs. Salmon, a relative of appellant and her trusted adviser, as to what would be a reasonable compensation for such services as it was understood he would be required to perform. His evidence is corroborated by that of Mrs. Salmon and by some circumstances. There is evidence *642to the contrary, but the preponderance of evidence, we are safe in saying, is decidedly against appellant’s theory. So much does it preponderate that way, that if the case were to turn on a decision of the question involved, we could not easily reach a conclusion that a jury would be warranted in deciding that the charge of fraud is clearly and satisfactorily established.

If the contract as to the amount Mr. Keid was to receive-for his services were successfully impeached for fraud, since he fully performed the same, rendering valuable services to appellant, he was entitled to- a reasonable compensation therefor ; and if the check in suit is not in excess thereof the verdict was properly directed, leaving out of view, for the time being, defenses which will be considered later. As wo consider the evidence bearing on the value of the services, it is substantially all in favor of respondent, to the effect that the charges made were not excessive. True, there was evidence on the part of appellant, putting the value thereof at $600 to $1,000, but it was given on an entirely false theory — the theory that the services consisted merely of dividing between three and four hundred thousand dollars’ worth of property of the character of that in question by separating one third thereof from the residue, the owner of such residue lending friendly assistance, no strictly legal services being required in the matter, and the time spent not exceeding about thirty days. That left entirely out of view the facts, which are undisputed, that the contract was made upon the theory that Mr. North might have to be dealt with as an adversary from beginning to end; that a resort to the courts for' an accounting might be necessary, involving an examination of his administration of the property for many years; that he was known to be hostile to any division of the property; and that the amount of labor that would be required to investigate all his operations and to fully establish the rights of appellant might be incomparably greater than the labor of merely *643■dividing tbe property. Tbe evidence also failed to give significance to tbe fact that Mr. North did not keep any books of account of bis transactions; tbat be bandied tbe undivided property as if it were all bis own; tbat be changed tbe legal title to a large part thereof to bis own name, so that it was impracticable for any one not learned in tbe law, andpossessed of good business ability as well, to trace all that came to bis bands from bis father’s estate in 1893, and tbe income thereof down to the time of the settlement, and determine with any reasonable degree of certainty tbe amount which justly belonged to appellant; tbat tbe situation was such tbat Mr. Reid, notwithstanding be bad much special knowledge of tbe property as it existed in 1893, by reason of bis having been then county judge of St. Croix county, where the estate was probated, was obliged to spend much of bis time for months investigating North’s transactions before being able to reach ■any satisfactory conclusion as to the amount which be should account for to appellant; and that be finally recovered for her .some $37,000 more than appeared on the surface to him to be her share when be commenced bis investigations. In tbat .situation of the case tbe evidence given by appellant’s witnesses as to the value of Reid’s services cannot be regarded otherwise than worthless. Tbe evidence on tbe other band ■seems to have been based, quite fairly, on tbe proofs as to what Reid bad reasonable ground to expect be would have to ■encounter when be took up appellant’s business, tbe labor be .actually performed, and tbe beneficial results to appellant.

Tbe next proposition presented for consideration is that tbe check was obtained by duress, tbe means used to overcome appellant’s will being threats, made by Reid to her mother and to Mrs. Salmon, to sue for a settlement of bis claim and make public in tbe litigation conduct of Mr. North in the property matters which would tend to disgrace him, intending to have _ such threats communicated to appellant, and which were so communicated, and so terrorized her tbat in *644the giving of the check she executed the mil of Mr. Reid, or his and Mrs. Salmon’s, not her oto. We have searched the evidence in vain for some proof of duress that would warrant a finding in appellant’s favor. The situation, by the undisputed evidence, as we view it, when the settlement was made, was that Reid had a claim against appellant which he had a right to insist upon having settled in some way. For about eight months he had been endeavoring to obtain a settlement, lie had good reason to believe that Mr. North was hostile to him for thwarting the plan of keeping appellant’s property in his name and making her such an allowance from time to time as in his judgment was necessary for her expenses, and that he was bent on preventing her from settling the disputed bill. She was twenty-nine years of age. She had become, during the previous year, familiar with the amount and value of her property. It exceeded in value $126,000. Mr. Reid believed that the conduct of Mr. North in handling her property was discreditable to him. She knew that, long before the time the threats are claimed to have been communicated to her. Reid had good reason to believe that a lawsuit between himself and appellant would be exceedingly unpleasant to her because of the publicity it would give to her brother’s conduct. It was proper for him, for a legitimate purpose and under such conditions that it would not unduly influence her, to inform her that his knowledge of her brother’s conduct would necessarily become public if he was forced into a lawsuit. He made no statement about the matter to her, not even when negotiating with her in the presence of Mrs. Salmon. What he said, of which complaint is made, was said to her mother and to her relative, Mrs. Salmon, both of whom, he had good reason to believe, would advise her according to their judgment. He sought no interview with her when she was not where she had the benefit of advice by some one who, he had good reason to believe, was- capable of advising her intelligently, and in whom she in fact had the fullest *645confidence. At tbe time of tbe settlement be met ber at tbe borne of Mrs. Salmon, wbo acted in ber bebalf in all tbat transpired. Appellant admitted tbat sbe made tbe settlement witb deliberation, without much discussion or difficulty, and tbat nothing occurred to excite ber; tbat Mrs. Salmon advised her in tbe matter; that when an agreement was reached Mrs. Salmon suggested a plan for tbe payment of the money, which was accepted; that'Mrs. Salmon then produced some blank checks and that she, appellant, made them out and delivered the one in suit to Mr. Reid, taking a receipt from him evidencing the settlement. True, sbe said that tbe communications made to ber, to the effect that if sbe did not settle the claim a suit would be brought against ber which would result in disgracing ber brother, influenced ber to make the settlement and to give the check; but tbat does not prove nor tend to prove duress, in view of the fact that she considered the question of the settlement witb tbe aid of her friend, Mrs. Salmon, and deliberately came to the conclusion which resulted in the giving of the check.

Any amount of persuasion to influence one to exercise his own mil to some particular end does not constitute duress. There was an honest controversy which called for a settlement in some way. It was perfectly proper for Mr. Reid to exhaust all reasonable efforts to that end by means of friendly negotiations before resorting to a lawsuit. There was no attempt to obtain a settlement without appellant having the advice of a person competent to aid ber in the matter, and nothing was said by Mr. Reid, directly or indirectly, to influence ber to Hie conclusion which she reached, except what be believed and had good reason to believe was true. When the settlement was consummated she executed her own will, not bis. Admit tbat tbe menace of a lawsuit and unpleasant notoriety as to matters concerning her affairs with her brother were producing causes of her conclusion, that does not constitute duress so long as such conclusion was in fact hers. It *646merely allows that she judged, from the whole situation, that she had better settle the controversy. If that could be called duress there would be very little stability to settlements *inier partes.*

Duress of a person is that condition of his mind, caused by wrongful conduct of another, rendering him incompetent to contract by the exercise of his own free will. *Galusha v.*Sherman, 105 Wis. 263, 81 N. W. 495. There was no wrongful conduct of that kind in this case, as we have seen. The claim that there is evidence tending to establish duress is based largely on the theory that Mrs. Salmon acted in the interest of Mr. Reid while she pretended to guard the interests of appellant. We are unable to find any support for that in the record.

The last proposition advanced is that the evidence shows that the check was given, coupled with a verbal condition that it was not to be paid till the one given to the drawee bank, on the Bank of Hudson, was paid, and that, as the latter was not honored, the former never became an enforceable obligation ; and that the trial court erred in excluding the evidence offered to prove such condition. As we view the case, if the evidence had been admitted and the condition and check had been taken together as parts of one entire contract or transaction, the result would have been the same. So it is not necessary to pass upon the question of whether the evidence was improperly excluded. If appellant gave the check in suit on condition that it would not be presented to the drawee bank for payment till the $10,000 check was paid, it was, necessarily, impliedly agreed that the condition precedent should be satisfied within a reasonable time. The evidence shows that, if she did not actively connive at the dishonor of the $10,000 check, that event was in perfect harmony with her wishes, that she made no effort whatever to have it paid. We cannot avoid the conclusion that she was a party to the failure of the condition, if one existed, by either directing the *647Hudson bank not to pay the check, or sanctioning her brother’s conduct in that regard. That obviously precluded her from rightfully insisting upon such failure as a defense. She clearly breached her implied contract in the matter, and cannot invoke her wrongful conduct as a defense. The moment the condition, if there was one, upon which the check in suit was given, failed by her connivance or consent, it became binding upon her, discharged thereof, and upon its dishonor for want of funds in the drawee bank to pay it she became liable thereon.

*By the Court.*— The judgment is affirmed.