BURR V. BURTON. Vox,. 18 BURR
V.
BURTON As AD. The sworn denial in the answer of matters charged in the hill to he withio the pe-sonal knowledge of the defendant, should he overturned by the testimony of . .wo opposing wituesses, or one with s rong corroborating circumst ances. (5 Ark. Rep. 501; 6 Ark. 309.) A c tntract made by a p arty uoder compulsion, amounting to duress, either by actual violence or threat, is void; but duress by threats, to reader a contract void, must ba such as to excite a fear of some grievous wrong, as of death, or great bodily harm, or unlawful imprisonment. So, whete two parties disagreed about the terms of dissolution and settlement of their partnership affairs—quarreled about it—and one of them, through the intervention of certain.friends, executed certain notes to the other for the purchase of his interest, though he may Lae been induc d to execute the *notes for the purpose of closing the matter [*2115 and getting clear of hfs p Inner, yet having voluntarily done so he was under no such compulsion as would constitute duress in a legal sense. Quere: Where upon a disaolution of a partnership, the terms are reduced to writing, and the pur. chasing partner e. .zecutes his notes tu the retiring partner for the amount agreed upon to be paid him, can the former set up an unwritten agreement that the payment to the latter was to be contingent upon the result of the closing up of the partnership affairs? Where a bill or answar con'ains scandalous and impertinent matter, the opposite party should except thereto and cause it to be expunged: that counsel had fallen int . ) a loose and improper practice as to such matter, or that the complainant's bill con• ains scandalous and impertinent matter, is not a very sati4actory reason for disallowing except tions to an answer for scandalous and impertinent matter, that should not be permitted to stain the rceords of a tribunal of justice. The complainant in a bill in chancery has no right to com pla i n that the circuit court dissolved his injunction with damage+, oo the coming in of the answer, where upon the ti oal hearing it appears that he was not entitled to an injunction. Appeal from the Circuit Court of Independence County in Chancery. ON. BE ‘UFORT H. NEELY, H Circuit Judge. -Watkins & Gallagher, for the appelm lents. Fowler & for the appellee. ENGLISH, C. J. Oa the 30th of De-
JULY TERM, 1856. BURR V, BURTON. cember, 1850, Edwin T. Burr executed business of complainant, could afford to Philip P. Burton, three promissory him material assistance in collecting notes for $1,000 each, payable one, two debts, etc. To accomplish this double and three years from date. In July, purpose complainant advanced to 1851, Philip P. Burton died, and his Shaw & Burton, to enable them to father, Patrick P. Burton, was after-carry on business, their whole capital wards appointed his administrator, be-stock, of the value of $10,000, out of ing his so e heir and distributee. On his own means, they being personally the 7th of July, 1853, he, as such ad-unable to obtain the means, etc. With ministrator, brought an action of debt the capital so furnished, Shaw & Bur-against Burr, on the two notes first ton proceeded to carry on business. due, in the Independence circuit court; Complainant not only acted as their and on the 20th March, 1854, recovered agent iu purchasing goods for them, judgment for balance of debt $1,640, but often, toonable them to replenish and $157.30 damages, and for costs. their stock, became responsible for O. the 12th of January, 1854, Burton, money borrowed, and merchandise as such administrator, commenced suit purchased by them, they being with-against Burr, on the note last due, in out credit, etc. the same court, an'd on the 20th of For a short time, all things betokened Marco, of the same year, obtained prosperity and success; but in the fall judgment for $750 residue of debt, $9.35 of 1847, Philip P. Burton got ilit'ô a 216*1 dam • ages, and for costs. Exe-personal difficulty with one Dr. Aikin, cutions were issued upon the two judg-whom he afterwards killed; and being mel.ts, and levied on the property of indicted thetefor, the anxiety and rest-Bu rr. lessness caused by the pendency of a On the 16th of Auge..4t, 1854, Burr criminal prosecution of such nature filed a bill against Burton as such ad-unfitted him for business. Besides, ministrator, ete., on the chancery side Burton having a natural desire to re-of the Independence circuit court, for tain friends, conciliate persons not .the purpose of enjoining both of the devoted to him, and to avoid judgments. The grounds upon which offending any who might in-he i!laims the injunction are substan-fluence his fate; and knowing tialiy as follows: that complainant (who was his In the spring of the year 1847, com-brother-in-law, and devoted to hia plainant having been engaged for *cause) was the person to whom [*217 many years in the mercantile business, said firm was indebted for its capital, in Batt sville, desired to withdraw os-and would regard no sacrifice to pro-tens.bly therefrom, in order to wind tect him, the business of the firm was up his long unsettled affairs. He also conducted in a loose and careless man - de-ired to set up in business a confi-ner, and in the sale of the stock on dential clerk named Green F. Shaw, hand, credit was offered and given to who had served him long and faith-any and all persons desiring it. Philip fully: and Philip P. Burton, the P. Burton gradually became more and brother-in-law of complainant. By more dissipated and inattentive to this, he expected to reap a double ben-business; and finilly, after his acquit-efit: 1st, by advancing the capital for tal, in the fall of 1849, the firm of Shaw Shaw & Burton, he would derive a ez Burton being largely indebted, hav-proportionate share of the profits of ing realized no profits, but suffered their business; and 2d, Shaw being heavy losses, was dissolved. . thoroughly acquainted with the past After its dissolution, the business was
BURR V. BURTON. VOL. 18 carried on by Philip P. Burton in his his notes to Philip P. for $3,000. To own name, for a few months, upOn the the first part of the proposition com-remnant of capital stock remaining plainant consented, but with the undisposed of, which complainant had second he refused to comply, represent-purchased with his own means for the ing to Philip P. as a reason therefor, firm of Shaw & Burton, no addition that the firm of Shaw & Burton had having been made to said stock by lost money ; the existing firm of Burr Philip P. Burton. & Burton had not been doing business Philip P. became more and more long enough to make any profits; that reckless and dissipated, but complain- business had been dull ; losses incur-ant desiring to reclaim his wife's red; that he, Philip P., had in no way brother, if possible, in the winter of contributed to the capital stock of the 1850 formed a partnership with him, concern ; and was largely indebted to for the purpose of carrying on a mer- the firm for money and merchandise cantile business in Batesville. Philip received by him from it. and appropri-P. advanced no part of the capital ated to his individual use, etc. To stock, and his personal services were these representations, Philip P. re-of no real advantage, but complainant sponded that he knew the firm of Shaw was actuated in the matter by a desire & Burton had sustained heavy losses to fedeem him from his course in life ; ins ead of making profits ; and that it but it was of no avail, his dissipation, was doubtful whether there would be etc., increased until he made no dis- any profits from the business of Burr tinction between friend and foe, and & Burton when wound up ; but that filially began to manifest inimical feel- his only motive in demanding said ings towards complainant. notes of complainant was to show con-About that time, complainant paid clusively to the world that he had en-to Shaw $3,000, not on account of any tirely withdrawn from said firm, and profits or assets of the then late firm of had no further interest in it, or in any-Shaw & Burton (for Shaw admitted thing connected therewith. That he that, instead of profits, heavy losses had no intention to seek to enforce the had been sustained by that firm) ; but payment of the notes until the affairs solely in payment of long and faithful of the partnerships of Shaw & Burton, services rendered by Shaw to complain- and Burr & Burton should be finally ant for a number of years, commencing wound up ; and then if it appeared in 1840, and for which he bad never that there were no profits to be divided been recompensed. or that he was not entitled to anything This act of justice to Shaw only in- over and above what he shoe ld be creased the personal violence of Philip found to be indented individually to P. Burton towards complainant; and the partnership, he would thereupon the former meeting, in his daily walks, cancel and surrender up to complain-persons enstranged from him in con- ant his several notes. Philip P. again sequence of his unfortunate difficulty and again pressed the above proposi-with Dr. Aiken, and his locality in the tion upon complainant for his accept-community becoming unpleasant, he, ance ; and he constantly refused to ac-218*] in the latter *part of the year cede to such portion thereof as required 1850, proposed to complainant to dis- him to execute to the said Philip P. solve all business transactions with his notes for $3,000, or any other sum. each other ; and that complainant These refusals tended to inflame the should take upon himself the burden already diseased mind of Philip P., and of winding up the same ; and execute he often broke out in most violent and
JULY TERM, 1856. BURR V. BURTON. deadly threats against complainant, to further agreed, that when a settlement such an extent.as to alarm many of his should take place between Patrick P. friends, and to induce them to believe Burton and complainant, the former that the said Philip P. might (in being indebted to the latter, the amount the paroxysms of his ungovernable found due should be placed as a credit anger, laboring under such mental on the one of said notes last due. Pur-2191 *excitement and disability as suant to this agreement, complainant he then was) commit personal vio- did, on the 30th December, 1850, make lence upon complainant, and even and deliver to Philip P. the three might take his life. To the oft re- notes as aforesaid; and it was at the peated demands of Philip P. that com- time expressly agreed between them plainant should comply with his prop- that Philip P. should retain the notes, osition, were joined the entreaties of and make no attempt to enforce the the personal friends of the complain- collection thereof until the winding up ant, that he should comply therewith, of the business of said partnerships; and in order to allay the hostile feelings of then if it appeared there were no said Philip P., inasmuch as it was well profits to divide between them, or that known that in the end said notes would the individual *indebtedness of r220 have to be canceled and surrendered Philip P. to the partnerships equaled up. Complainant was also advised by or exceeded his share of the profits, if counsel, that such being the considera- any, then he should cancel and sur-tion of the notes, if upon winding up render to complainant the said notes the partnership concerns there were no without delay. That the notes so exe-profits to divide, or that the share of cuted are the same notes upon which Philip P. did;not exceed his indebted- Patrick P. Burton, as administrator of ness, etc.; the notes could not he col- Philip P., obtained the judgments lected, etc. Thereupon, moved by sought to be enjoined, contrary to the these considerations, and in order to agreement aforesaid, and in fraud of avoid all personal difficulty with Philip complainant's rights, was attempting P., and to allay and put to rest this to execute the same upon his property, family discord and contention, com- etc. plainant acceded to the proposition, Complainant further avers that the and it was agreed between hint and business of the two firms had not been Philip P. that the complainant should completely wound up by him, and wind up the business of the firms of would not be for a long time, because Shaw & Burton and Burr & Burton; of the great numbers of bad and doubt-that the latter partnership should be ful debts, and the necessity of tempor-dissolved ; that all the assets of both izing in the efforts to collect them; firms should be transferred to the sole but that sufficient had been done to and exclusive use and benefit of com- show beyond the shadow of doubt that plainant; that he should pay all the there would be no profits arising there-debts of the said pattnerships, and pay from; and that the individual indebt-$2,911.50, borrowed by Philip P. of his edness of Philip P. to the firms was father, Patrick P. Burton (the defend- largely more than any claim of his as-ant), upon the guarantee of complain- sets, etc.; and if his administiator ant. ; and pay certain other individual should be allowed, in the teeth of the debts contracted by Philip P., and also above agreement, to collect the amount make and deliver to him three promis- of the judgments upon the notes afore-sory notes for $1,0e0 each, payable at said, or any part thereof, it would be a one, two and three years. And it was fraud upon complainant, etc. That no
BURR V. BURTON. VOL. 18 other consideration was given for the ant consented, and gave up to Patrick notes than that above stated, etc. P. said note for $400, and considered Complainant also alleges that after the whole debt due from him to com-the execution of the notes, Philip P. plainant as extinguished, and said Pat-became in various modes indebted to rick P. never afterwards paid:him one him, over and above the sums credited cent thereon, but only credited the one thereon; but these claims were disputed of the said three notes last due with by the answer, and not proven at the $250, as aforesaid, etc. bearing, and therefore the allegations That after this agreement with said of the bill in reference to them need Patrick P., complainant regarded the not be particularly stated. whole matter as settled, but in disre-It is further alleged, that after the gard thereof, and in violation of the death of Philip P. and before adminis-agreement between Phillip P. and com-tration, the defendant, Patrick P. Bur-plainant, etc., etc., said Patrick:P. had ton, his father, sole heir, etc., being in afterwards sued upon said notes, etc., possession of the three notes aforesaid, etc. and well knowing that they were exe-Prayer that an: account:be taken be-cuted for the consideration, under the tween complainant and:Patrick P. as circumstances, and upon the agree-such administrator, etc., etc., and that ment.above stated; and being also well the judgments at law upon 3the three aware that upon a final settlement of notes be perpetually enjoined, etc., etc. the partnership concerns aforesaid, On the filing of thebill a temporary nothing would be due to Philip P., etc., injunction was wantedabyhe circuit promised complainant, of his own free judge, etc. will and accord, to deliver up said The answer of Burton] was filed at three notes to his wife, who was the return term, on the 5th September, the daughter of said Patrick P., 1854. but he afterwards failed to do so. He admits that Burrhad been en-2211 *Again, in July, 1851, said gaged in the mercantile business in Patrick P. being indebted to complain-Batesville, for some years prior to the ant in the sum of about $600, for house formation of the firm of Shaw St Bur rent, money loaned, goods, etc., $400 ton , but was not informed as ` to the of which was evidenced by note, etc., precise objects or motives which he had declared that he would deliver up said in view touching the formation of such three notes to complainant's wife, but partnership. Nor did respondent know in consideration thereof complainant that *Burr had advanced capital [*222 should agree that the debt due from to the amount of $10,000, ',:as alleged, Patrick P. to him should be consid-but had heard, and believed it to be ered as paid and extinguished And true, that whatever capital he did put said Patrick P. moreover stated that into the firm was in goods which he inasmuch as complainant would never then had on hand, or purchased ; and have to pay any of the balance of said he doubtless had an interest in the three notes, they should just consider business of the firm ; and:aided in pur-the amount due from him to complain-chasing goods, thought in this the part-ant to be $250, and that he would enter ners did their part, and in borrowing that sum as a credit on the oue of the money for the firm Philip P. was three notes last due ; although the more efficient than complainant. Re-amount really due from Patrick P. to spondent did not know what propor-complainant was over 8600 as above tion of stock the parties, or Burr, put staled. To this proposition complain-into the firm, and he submits that this
JULY TERM, 1856. BURR V. BURTON. has nothing to do with the subject mat- vices to the firm; and complainant ad-ter of this suit. Admits that Philip P. mitted the same to respondent, speak-was involved in the difficulty referred ing of the tact of Philip P. in the 'to in the bill, indicted, tried and ac- management of their business, and in quitted; but how far it occasioned a raising funds, often being able to bor-neglect of the business of the firm, re- row money, as complainant told respondent did not know, nor did he spondent, for the use of the firm upon suppose that such matters had any his naked word, when complainant connection whatever with the subject could not obtain it from the same per-matter of this suit. sons on bond with security. Indeed, He admits that the firm of Shaw & complainant told respondent that Burton was dissolved about the time Philip P. was indispensable to him in stated in the bill; and that for a short the business, and that he could not get time afterwards, the business was car- along without him. Admits that ried on in the name of Philip P. alone; Philip P., became dissipated toward but upon what terms, or with what the close of his life, but denies that it capital, respondent did not know. produced any such results as alleged in Admits that about the time stated in the bill, affecting prejudicially the busi-the bill, complainant and Philip P. en- ness of the firms; and to respondent's tered into a mercantile partnership as own knowledge, he rendered much alleged, but as to the terms, or propor- valuable service to the firms and to tion of capital advanced by each, re- complainant, in addition to the per-spondent had no positive or particular formance of ordinary business in mak-knowledge, but he denies that com- ing long and hazardous trips in the in-plainant advanced all the capital. This clement seasons of the year for the pur-firn1 succeeded to that of Shaw & Bur- pose of selling horses purchased by the ton subject to the short time in which firms, and disposing of them to advan-the business progressed in the name of tage. Burton alone ; and complainant and Denies that the causes alleged in the Philip P. both told respondent that bill are the true ones which induced they had purchased Shaw's interest in Philip P. to seek a dissolution of the the firm of Shaw & Burton at $3,000, partnership with complainant ; and which they gave him for it, and they avers that he became dissatisfied with had made an advantageous purchase, the conduct of complainant on very his interest being worth $6,000. This different grounds, such as forbade a interest and stock so purchased of further association with him in busi-Shaw, and the interest and stock of ness, etc., etc., and detarmined to seek Philip P. in the firm of Shaw & Bur- a dissolution through means of the law, ton commenced their mercantile busi- if it could not be done by agreement. ness, as they informed respondent. Denies that complainant made any And respondent denies the allegations such representations to Philip P., as al-in the bill, that Philip P. did leged in the bill, of reasons why he not advance any portion of the could not, upon such dissolution, ex-capital stock, and that his per- ecute his notes to him for $3,000, or 223) *sonal services were of no real that Philip P. made any such reply advantage to the firm. And re- thereto, as alleged ; and that he would spondent states and believes that hold such notes subject to the contin-Philip P. advanced a fair proportion gency of profits on the winding up of of the capital stock, and rendered his the business of the firm, etc.; and this full share of advantageous personal ser- denial is not only made upon respond-
BURR V. BURTON. VOL. 18 ent's belief, but on the statements appear upon settlement that such sums made to him by Philip P. himself in were due to him, the notes should be his lifetime. delivered up and canceled ; but the Has no personal knowledge of the whole of such allegations and every threats of personal violence alleged to part thereof are absolutely untrue, etc., have been made by Philip P., towards etc. That Philip P. often told re-2241 com*plainant, but denies the spondent that the acceptance of the truth thereof to the extent stated, or notes for $3,000 was merely to obtain a that if any such threats were made, dissolution of the firm, and get entirely they were made with the view to coerce free from complainant, and that the complainant to make such notes, or that sum was much less than was actually they had any such influence upon him, and honestly due to him, and which re-or that any of the acts of complainant spondent verily believed to be true. were done under duress, or on account He therefore denies that he was at-of fear ; and doubts if he was influenced tempting to enforce the payment of in the matter, by the oft repeated en- said notes in fraud of the rights of com-treaties of personal friends as pre- plainant as alleged, but was only seek-tended, etc. ing what was justly due, etc., etc. Respondent avers, on the contrary, *He denies that said Philip P. p225 that complainant and Philip P., differ- at the time of his death, or respondent ing as to the terms of dissolution, as h is ad ministrator since, was i ndebted the terms were finally agreed upon, by to any of said firms in any sum what-Wm. Byers acting for both parties, upon ever. a full and deliberate conference as to After disputing the validity of sever-the terms, and freely assented to by al claims set up by co m plainant against complainant, reduced to writing and Philip P., as having accrued after the signed by the parties as a final and ab- execution of the notes, respondent solute settlement and dissolution of the states that every credit to which com-partnership, subject to no future con- plainant was justly entitled, had been tingencies whatever, except such as endorsed upon the notes, and allowed are expressed iu the writing ; the sub- and deducted in obtaining the judg-stance of which is in part stated in the ments thereon, etc. bill, and a copy of the instrument ex- He positively denies that he ever hibited with the answer, the original knew or believed, or that it was in fact being in possession of H. F. Fairchild, true, that the three notes were ex-and held by him for the benefit of the ecuted for the considerations and in-parties. ducements, and subject to the contin-The three notes were made and de- gency, etc., alleged in the bill, or that livered by complainant in pursuance he was ever aware that upon a final of said article of dissolution ; and re- settlement of the parcnership concerns spondent positively denies on the au- nothing would be due to Philip P., etc. thority and statement of said Philip P. He admits that alter the death of that at the time said notes were made, Philip P. the notes were in his posses-or at any other time, there was any sion, but he positively denies that he, agreement whatever, either express or at any time, or iu any manner, prom-implied, that the notes should be re- ised complainant to deliver up said tained by Philip P. until the winding notes to his wife as alleged in the bill. up of the business of said firms ; and He denies flatly, that in July,1851, he that he would not attempt to collect was indebted to complainant iu the them until then ; and that if it did not sum of $600, or in any sum; and avers
JULY TERM, 1856. BURR V. BURTON. that the note for $400 mentioned in the sets of every description of the firms of bill as still due at that time, had been Shaw & Burton, Burr & Burton, and previously paid by respondent to com-of the business done in the name of plainant, though not given up, and its Philip P. Burton, which succeeded payment was admitted by complainant. Shaw & Burton, upon the following He denies that he ever offered to de-terms and considerations: 1st. The liver up said three notes to complain-said Burr binds himself to pay, or settle ant's wife, on consideration that he to the satisfaction of Win. Byers, the would agree that the pretended debt debt Shaw and Burton owes Mrs Em-alleged to be due from respondent to ily S. Byers, wife of the said Wm. By-complainant should be considered as ers, which amounts to the sum of paid, etc.; or that he ever stated that $679.37. inasmuch as complainant would never 2d. Burr is to pay off and discharge have any of the balance of said three all of Philip P. Burton's accounts and notes to pay, they would just consider individual indebtedness about the town the amount due from respondent to of Batesville, and sorrounding country, complainant to be $250, and that re-viz: to Mrs. Newland, R. W. Watson spondent would enter that sum as a & Co., George Daugherty, Mr. Aiken, eredit on the one of the three notes last Mr. Hunt, Mr. Maxfield, Mr. Bates, due, and that complainant consented ,Mr. Sloan, Col. C. F. M. Noland and thereto; or that respondent entered Mr. Harpham, and any other indebt-such credit on the note. On the con-edness of the said Philip P. Burton in trary he alleges the truth to be that this part of the State of Arkansas, al-complainant claimed of respondent though not herein mentioned, except $250, which he did not owe him, and one J. H. Egner. insisted on having it credited on one of 3d. The said Burr is to pay and save the notes, to which respondent as-the said Philip P. harmless from all 226*] . seuted for the sake of quiet, debts and liabilities of the said firms of and for complainant's accommodation, Shaw & Burton, P. P. Burton, succes-though he did not owe him one cent, sors to Shaw & Burton, and Burr & and told him so at the time; and when Burton, and that may in anywise respondent assented to it, complainant grow out of the business of the said himself endorsed the credit on one of firms, and it is to acquit the said Philip the notes. He denies that after this, P. from all claims and detnands which complainant considered, or had any he the said Burr may have against the grounds to consider the whole matter said Philip P. of every description settled as alleged, etc., or that respond-whatever. ent afterwards put said notes in suit, 4th. The said Burr is to pay in the etc., in violation of any agreement be-manner following to the *said [4'227 tween complainant and Philip P., or Philip P., the amount the said Phil-between respondent and coinplainant ip P. has advanced to the said. as alleged. The copy of the written firm of Shaw & Burton, to-wit: the agreement dissolving the partnership sum of 82,911.50, for which sum he is between Burr & Burton, exhibited to execute his two several notes to P. with the answer, and admitted to be P. Burton, one for $1,455.78, with ten correct, is in substance as follows: per cent, interest from date, payable "This memorandum of agreement six months after date, the other for tbe witnesseth that Philip P. Burton has same sum, and same rate of interest, this day sold to Edwin T. Burr, all his payable twelve months after date. right, title and claim in and to the as-5th. Barr is to pay to said Philip P.
BURR v. BURTON. VOL. 18 Burton, in addition to the above, the were executed by him under circum-sum of$3,000, for which sum he is to stances of duress; and 2d, that they execute to the said Philip P. his three were made upon an agreement that several notes for $1,000 each, payable they were not to be paid until a final one, two and three years from date. settlement of the mercantile firms in 6th. Burr is to pay said Philip P. which Philip P. Burton was interested, money for his expenses when he leaves and then only in the event that it ap-this place, say from one to two hun- peared that the amount of the notes dred dollars, which sum, when paid, is were due to him out of the profits of to be credited on the note of 81,000, the business, etc.; and that the com-first due above named. plainant had so far settled the affairs 7th. Burr hinds himself to pay a of these firms to ascertain that there debt of two hundred dollars, which the were no profits, and that nothing was said Philip P. owes to Joseph H. due to Philip P. therefrom. Egner, which said sum the said Philip Passing over the objection of the is to credit on the $1,000 note last due counsel of the appellee that these above named. And it is further un- grounds of relief were properly cog-derstood between the parties, that nizable as defenses to the suits at law, there is a settlement to be made be- upon the notes; and that the com-tween said Burr and Dr. Patrick P.- plainant having failed to interpose Burton, and the said Philip P. hereby them there, was precluded from resort-agrees with the said Burr, that when- ing to a court of equity for relief, we ever said settlement is made between will proceed to determine whether the the said Burr and Dr. Patrick P. Bur- complainant has made out his case ton, that whatever amount may fall upon the merits. due from the said Patrick P. Burton It may be remarked that every to the said Burr upon such settlement, material allegation of the bill tending that he, said Philip P., will credit the to support the grounds for relief relied same on the said note of $1 ,000 above upon by the complainant, is positively named last to become due. denied by the answer of the defend-8th. And the said Philip P. Burton ant. acquits the said Burr of all demands To say the least of the answer, it bad which he may or might have against the effect to put the material allega-him up to this date. tions of the bill at issue, and require Done at Batesville, this 30th of De- them to be proven by the complainant. cember, A. D. 1850. And the defendant's sworn denial of E. T. Bunn, matters charged to be within his per-P. P. BURTON." sonal knowledge, as some of the mat-The cause was finally heard, at the ters in the bill are, should be over-March term, 1855, on bill, answer, rep- turned by the testimony of two oppos-lication, exhibits, the depositions of ing witnesses, or one with strong cor-Shaw, Fairchild and Byers, and the roborating circumstances. Gresley's bill dismissed for want of equ ity; and Eq. E y. 227. 1 Greenl. Ev., sec. 260. Burr appealed from the decree. Watson v. Palmer, 5 Ark. R. 591. It may be seen from the above state- Cummins ad. v. Harrell, 6 Ark. 309.' ment of the allegations of tbe bill, that The deposition of Parehild, read by the complainant sought an tnjunction complainant, proves nothing material 228*] of the *judgments at law upon to the issues in the cause. He merely two groands: 1st, that the notes upon states that the original instrument o f which the judgments were obtained, 1. Not 80 under the code. Sec. 5055, Hans. Dig.
JULY TERM, 1856. BURR V. BURTON. agreement dissolving the partnership subject, but authorized witness to make between Burr & Burton, after its exe-the sale and settlement for him, in-cution by the parties, was placed in his vesting him with full authority, and ha p & for safe keeping, and that the agreeing to abide by and confirm what-copy exhibited with the answer of ever he did in the matter. Witness defendant is substantially correct. He then had several conversations with knew of no other agreement, or under-Burr and with Fairchild, who appeared standing between the parties. to be acting as the friend and attorney 229 .] *The deposition of Wm. Byers of Burr in the matter; and finally wit-was read by defendant. He states, in ness drew up an agreement to be signed substance, that in the latter part of De-by the parties, and submitted it to cember, 1850, Philip P. Burton called Fairchild, as the friend and attorney upon him to actas a friend and attor-of Burr; and requested him to take it ney in effecting a sale of his interest in to Burr, and present it to him to sign, the mercantile firms of Shaw & Bur-as the last proposition that would be ton, P. P. Burton, successor, etc., and made by witness in behalf of Philip P. Burr & Burton, to complainant Burr; in relation to the matter. Fairchild at which time there appeared to be took the paper thus submitted to some difficulty or misunderstanding the store where Burr & Burton had between said Philip P. and Burr about *been doing business, and in a [*230 the matter of settlement or sale. Wit-few minutes returned with it executed ness consented to act as the friend and by Burr. Witness then took it to Philip attorney otPhilip P.; and, as such, he P., read and explained it to him, and had several conferences with Burr he executed it. Witness then, at the about the-matter; and Burr and Philip request of Philip P. and Burr, de-P. had several interviews on the same posited tbe instrument with Fairchild subject in his presence; but they could for safe keeping. A copy thereof is not agree about all the details of the exhibited with the answer of defend-sale and purchase of Philip P.'s inter-ant. This written agreement, as wit-est in the:firms, etc. They could not ness understood it at the time, was a agree in what manner Burr should pay final settlement of the subject matter witness what was due to his wife, nor to which it related. He knew of no as to the time that Burr should have to other agreement, or conditions to said pay the amounts of capital or money agreement, than are expressed in the put into the firm of Shaw & Burton instrument so executed by the parties. by Philip P., nor as to the security that A few days after its execution, Burr Burr should give for the payment of paid witness the amount therein stipu-the $3,000. Philip P. insisted that Burr lated to be paid to his wife; aud exe-should pay Mrs. Byers in cash down, cuted the notes named in said agree-and Burr wanted to make some other ment under it, and witness understood arrangements, etc. Philip P. insisted the matter finally settled. The three that Burr should pay said capital im-notes upon which the j udgments sought mediately, and Burr insisted upon to be enjoined were obtained, are the time. Philip P. insisted that Burr same three notes mentioned in the should give securitY for the three notes agreement, and were executed by Burr of $1,000 each, payable in one, two and under said agreement. It was about three years; but Burr refused to give a week, from the time witness agreed security. The disagreement was so to act as the friend and attorney of great that Philip P. declined to have Philip P. in the matter, until the con-anything further to say to Burr on the tract was executed, during which time
BURR V. BURTON. VOL. 18 there was a number of interviews be-paid or settled by Burr except a small tween the parties, etc. In speaking of balance due on the $3,000, which he capital stock above, witness referred to looked to Burr to pay." If Philip P. a certain amount of money which he ever put any capital in the firm of understood from Burr & Burton, that Shaw & Burton, witness never knew Patrick P. Burton, the defendant, had it. Burr was interested as a silent loaned to Philip P. or to Shaw & Bur-partner, and put in all the goods the ton, or in some way permitted Philip firm commenced business on, which P. to put into said business, and which invoiced about $10,000. Burr was to was to be paid or returned to said Pat-contribute his personal services to the rick P. firm, which he did as long as witness During the negotiations between was a partner. Philip P. got into the Burr and Philip P., the latter told wit-difficulty with A ikin a short time after ness that he had closed the front door the firm commenced, and devoted but of the store, and that it should never little time to the business, until he be opened until said bu s . iness was set-was acquitted, which occurred a short tled. He said he and Burr had had a time before witness sold out. His dif-quarrel about the matter, and his feel-ficulty was prejudicial to the business ings had become so exasperated against of the firm at home, and impaired its Burr that he finally declined having credit abroad. It prevented the col-any interview with him about the mat-lection of claims, etc. After witness ter, for fear they would have a diffi-sold out, the house went on in the culty, and submitted the whole matter name of Philip P until March or April, to witness to settle for him. Witness 1850, when the firm of Burr & Bur-knowitig the temperament of Philip P., ton was formed. Witness was absent and fearing that they might have a from March until November. Soon difficulty, advised him not to have any atter his return, Philip P. told him he further intercourse with Burr, but to intended to quit business and leave the submit the inatter to him, which Philip country, and if he could not close up P. did, and witness finally effected the one way he would another. He then settlement. closed the doors, and told Burr they 231'9 *Philip P., for some time be-should not be opened until they set-fore he sold out to Burr, as above stat-tled—that he intended going to Texas — ed, had been in the habit of drinking that he was tired of business, and "dis-ardent spirits, and witness thought the gusted" with the community. He said habit constant, but he had not no rec-he intended to have a settlement with ollection of ever seeing him intoxica-Burr without going into court . ted, or so much under the influence of Burr and Philip P. finally settled, liquor as to impair his business facul-the exact terms of which witness did ties. Witness thought the habit of not know—but Burr was to execute drinking increased on him. three promissory notes to Philip P. The deposition of Shaw was read by after paying some amounts for him complainant. He states in substance, about *Batesville, and a debt the [*232 that he commenced business with Phil-house owed Mrs. Byers. Philip P. also ip P. Burton, under the style of Shaw & said that if he was satisfied the house Burton, in March 1847; sold his interest had made no money he did not want in the firm to Philip P. in Nov., 1849, anything from Burr, but that he be-for $3,000 ; after his accounts were bal-lieved the result of business would lite anced "inclusive" of his expenses and that the house had made money. wages as clerk of Burr, "which were After the settlement between Burr
JULY TERN, 1856. BURR V. BURTON. and Philip P., the latter told witness Philip P., the firm owed Burr for stock confidentially that he never intended about $10,000. The whole indebted-that they should interfere with Burr's ness of the firm was about $15,000 or business—that he never intended to $18,000, besides its indebtedness to harass him, for he had the kindest feel-Burr. The firm was in the habit of ings toward Burr—that he never in borrowing money, but In this Philip tended to call on Burr for the money P. was not more efficient than either until he knew Burr could pay it with-of the other members. He borrowed out its embarrassing him. Ior the firm about $2,000 from his The conversation between Burr and father, etc., but used part of it himself, Philip P. about their business, during etc. Philip P. never went off with a the time the doors of the store were drove of horses, or other produce, for closed, were generally of a quarrelsome the firm of Shaw & Burton. He went haracter as far as witness knew ; and to New Orleans• once, mostly for his Philip P. frequently requested witness health, and while there purchased to talk to Burr about their business— about $2,000 worth of groceries for this saying that he would not talk to Burr firm. Shortly after the d i ssolution of about it, that Burr could outtalk him this firm, he went off with a drove of and that he wanted other persons than horses, and returned with some three, himself and Burr to settle their busi-four or five of them. ness. The above is the substance of all the During the quarrelsome conversation testimony introduced upon the hear-between Burr and Philip P., the latter ing. -said he would have a settlement, and A contract made by a party, under that he had the keys of the store, and compulsion, is void; because consent the pocket book containing the notes is of the essence of a contract, and due to Burr and the several concerns, where there is compulsion, there is no and that he would not give them consent, for this must be voluntary. up until the business was settled be-Such a contract is void for another tween him and Burr. Philip P. first reason. It is founded in wrong or demanded of Burr a release of all liabili-fraud. It is not, however, all compul-ties to him, and the firm of Shaw & sion which has this effect; it must Burton, the house of P. P. Burton, and amount to duress. But this duress $5,900, over and above his liabilities may be either actual violence, or to those houses. He finally demanded threat. 1 Parsons on Cont. M.' to have the sum of $3,000 from Burr, The bill alleges, that Philip P. Bur-but he also told witness that if the ton threatened complainant, and the house had not made money, he would apprehension of personal violence was not demand that amount from Burr ; one of the inducements to the execu-but he was satisfied they had made tion of the notes. money, and therefore, he demanded a Duress, by threats, says Mr. Parsons settlement of Burr on the foregoing (Id. 320), exists not wherever a party terms. has entered into a contract under the Witness could not say whether the influence of a threat, but only where firm of Shaw & Burton had made such a threat excites a fear of some money or not. There was a great many grievous wrong, as of death, or great outstanding debts still due the firm, bodily injury, or unlawful imprison-and Burr had been exerting himself ment, 233*] flo close up the business ot the 2. On dui ess see \rick v. Shinn, 49-70, and cases firm. At the time witness sold out to cited. Bosley v. Shanner, 26-280. 32 Rep.
BURR V. BURTON. VOL. 1€ The evidence shows that Philip P. which are discussed by his counse) Burton and Burr disagreed about the here, and which it may be well to no-terms of dissolution and settlement of tice, though their determination will their partnership affairs—that Philip not affect the final. result, asannounced P. quarreled with Burr about the mat- above. ter—and, finally through the interven- On the filing of the answer, the com-tion of their friends, Byers and Fair- plainant filed exceptions thereto, and child, they came to an agreement, and moved the court to expunge therein pursuance of this agreement the from a number of expressions and notes were executed. Possibly Burr portions of sem ences as imperti-234*] *was induced, under all the cir- nent and scandalous, %% hide %ere cumstances, to consent to terms which particularl3 designated. The ex-he did not regard as being as favora- ceptions being, by consent of ble to him as they should have been, parties, submitted to the court, in order to close up the matter, and get without reference to the master, the clear of Philip P.; but it is fairly to be court decided as follows, the record inferred from all the testimony, that he states:—"The court is of the opinion finally executed the notes voluntarily, that although the matter of the answer and under no such compulsion as excepted to, is not. couched in such would constitute duress in a legal language as is strictly proper for sense. an answer, and under other cir-The proof also fails to sustain the *cumstances part of the same [*235 other ground of relief relied on by might be considered scandalous or lin-Burr. It appears that the terms of dis- pertinent, yet, considering the loose solution, and sale of the intere-t of and improper practice, which counsel Philip P. to Burr, as finally agreed have generally fallen into in such mat-upon, were reduced to writing, signed ters, and that the bill contains fully by the parties, and the three notes in as much scandalous and impertinent queslon executed by Burr in pursu- matter as the answer, and which was ance thereof. There is nothing in the the foundation of such matter in the written agreement i n dicating that the answer, said exceptions ought, nor payment of the notes was to be con- ought either of them to be sustained, tingent upon the result of the closing and they are therefore, disallowed." up of the partnership affairs. If it The complainant excepted to the de-were competent for Burr to set up an cision. outside unwritten agreement to defeat Neither of the reasons given by the the payment of the notes, he failed to court for its decision is very satisfac-establish it by proof. Neither Byers tory. If ,he bill contained scandalous nor Fairchild testifies to any such and impertinent matter, the defend-agreement. Shaw does not pretend to ant should have excepted thereto, and have been present when the terms of caused it to be expunged, at the cost settlement were agreed upon, or when of the complainant and his solicitor. the written instrument, or the notes Story's Eq. Pleading, see. 266. If coun-were executed. sel had generally fallen into the loose Upon the whole record, the final de- and improper practice of inserting cree dismissing the bill for want of scandalous and impertinent matter in equity, must be affirmed. their pleadings, it was the duty of the During the progress of the cause court to reform a practice so unprofes-several exceptions were taken by com- sional ; and it might well have complainant to decisions of the court, menced the reformation in this ease.
JULY TERM, 1856. In the answer, some of the allegations of the bill are pronounced "naked and unmitigated falsehoods ;" others "knowingly and uullfully false ;" and in more than one instance, dishonesty and perjury are in effect imputed to the complainant. There are expressions also in the bill, that were unnecessary and improper. A direct charge of a fact in the bill, or a positive denial in the answer, is sufficient for all the legal purposes of pleading, without resorting to imputations of dishonesty, willful falsehood, perjury, etc. These are the expressions of excited litigants, and should not be permitted to stain the records of a dignified tribunal of justice. On the coming in of the answer, supported by the affidavit of Byers, stating substantially what he afterwards stated in his deposition, the court dissolved the injunction with damages, refusing to continue the injunction on the motion of complainant umil the next term, etc., and exceptions were taken 236*] to these *decisions of the court, etc. The final result of the cause showing that complainant was not entitled to an injunction, he has no grounds to complain of these decisions, and they Deg(' not therefore be reviewed. The decree of the court below is af— firmed. Absent, Hon. C. C. Scott. Cited:--18-436; 26-280-420; 49-73.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.