Fisher v. Bishop

Wattles had assumed to act as a legal adviser of the plaintiff; he had received from him the same confidence which exists ordinarily between client and counsel, and he therefore should be held to the same accountability for his acts, threats and conduct in respect to the transaction out of which the mortgage and bond arose, that would be required of an attorney. This rule has the sanction of several adjudicated cases. (Freelove v. Cole, 41 Barb., 318; affirmed, 41 N. Y., 619.)

A confidential relation existing between parties requires the greatest care, and transactions between parties where such a relation exists must be scrutinized closely, and condemned unless shown to be fair and above board, and unless the client or injured party had equal knowledge and opportunity to protect himself. (Post v. Mason, and eases cited in the opinion of Hardin, J., 26 Hun. 191 ; S. C., affirmed by Ct. of App., 91 N. Y., 539; see, also, Mason v. Ring, 3 Abb. Ct. App. Dec., 210; Howell v. Ransom, 11 Paige, 538; Evans v. Ellis, 5 Denio, 640; Wright v. Proud, 13 Vesey, 138.) In considering the evidence before the trial court, it must be borne in mind that a mere threat of legal proceedings is not enough to make out a case of duress. (Insurance Co. v. Meeker, 85 N. Y., 615.) Nor that a party intends to insist upon his legal rights. (McPherson v. Cox, 86 N. Y., 473; Haynes v. Rudd, 30 Hun, 239.) The case last cited, however, adds what we deem pertinent and potential in this case. Judge Smith, who spoke for this court, in that case said : “ But we think that when threats of a lawful prosecution are purposely resorted to for the purpose of overcoming the will of the party threatened, by intimidating or terrifying him, they amount to such duress or pressure as will avoid a contract thereby obtained. Eadie v. Slimmon (26 N. Y., 9), as we understand the report of the case, is in point. (See, also, Williams v. Braley, 35 L. J. Ch., 717; ” see also, opinion of Folger, J., in the same case, Haynes v. Rudd, 83 N. Y., 253.)

Though the threats were made during the days prior to the execution of the papers they may be considered, and also the fact that the action to set aside the papers was not brought until some six years after the execution, may be considered by a jury or court in determining whether there was actual duress or not. Neither circumstance standing alone, or both standing revealed as they do by *115the evidence, is sufficient to warrant us in saying as a matter of law that no duress was made out at the trial. We have looked into the •evidence, and considering all of it together, we are of tho opinion that Wattles and Bishop took undue advantage of the plaintiff, and' by means thereof and the duress found, secured to themselves the bond and mortgage. Plaintiff was not liable for the defalcation of his son, and by the 'means not warranted, which we have just stated, was induced to execute the papers. We think the trial judge properly ordered them stricken down. The defendants technically are •entitled to a return of the one dollar which they advanced, and we may modify the judgment to that extent.

But the judgment otherwise should be affirmed, with costs.

Judgment modified so as to provide for the return of one dollar to the appellants, and as modified affirmed, with costs.