Koehler v. Wilson

1. Instruction: when not specific: practice. The remedy of a party who complains that the law upon a given point is not given to the jury with sufficient explicitness, is an application for more specific instructions. 2. Evidence: should be pertinent: error without pbejudice. The evidence should correspond with the allegations and he confined to the points in issue; hut when admitted in violation of this rule, without prejudice to the appellant, it will not justify reversal. 3. Husband and Wife: duress: when it may be pleaded. The wife may plead the duress of the husband in an action to recover her property wrongfully obtained from him.

Appeal from Hamilton District Court. PlaiNtiff in the first count of her petition alleges in substance that on the 1st day of May, 1871, her husband, C. C. Koehler, loaned of her money to the firm of Wilson, Funk & Smith, the sum of four hundred dollars, and took a note therefor in his own name, due in six months, with interest at ten per cent., all of which is due and unpaid except the interest for one year. That said Wilson, Funk & Smith knew that said money was plaintiff’s separate property, and she notified them to withhold the amount due thereon from C. C. Koehler, and to pay the same to her. That about the 7th day of April, 1873, the defendants verbally threatened to accuse the said 0. 0. Koehler, who has said note in his possesseon, of the crime of grand larceny, and to prosecute him therefor unless he would give up to them said note, and promised not to prosecute him if he would give up the same, and that by such threats and promises, and by duress, they extorted said note from the said C. 0. Koehler, and now have it in their possession; that she has demanded said note, or the value thereof, of'the defendants, and they refused to deliver the same to her or to pay her any part thereof, and that the note is of the value of four hundred and fifty-five dollars. The second count of the petition alleges that on the 18th of May, 1871, the firm of Wilson, Funk & Smith borrowed of plaintiff’s money from her husband, 0. C. Koehler, the sum of four hundred. dollars, and gave their note therefor; that said note was in the possession of C. C. Koehler, who was in the employ of defendants, they being partners in the sale of merchandise; that defendants well knew the note to be the separate property of plaintiff. That in the month of March, 1873, defendants agreed with plaintiff that if she would purchase goods at their store on account of her husband, from him as salesman, and report to them the items and amount thereof, they would obtain said note from said 0. C. Koehler, and deliver the same to her, or pay her the amount thereof with interest; that she purchased goods at their store on account of her said husband, from him as salesman, and reported to the defendants the items and amount thereof, and in all respects fulfilled said agreement on her part. That said defendants on or about the 1st day of April, 1873, obtained said note from said C. C. Koehler, by extorting the same, as charged in the first count of the petition. That after they had obtained possession of said note, and frequently before the commencement of this action, plaintiff demanded from defendants said note or the value thereof but they refused to deliver the same or to pay any part thereof. Plaintiff states that the note referred to in each count of the petition is the same, and that she asks for judgment only on one count. Judgment is asked for four hundred and fifty-four dollars, and interest. Defendants answered, admitting that Koehler loaned the firm of Wilson, Eunk & Smith four hundred dollars and took a note therefor in his own name; that said note is not in plaintiff’s possession; that it was in the possession of 0. 0. Koehler, who was in the employ of defendants-in Mai’ch, 1873, and that plaintiff demanded the note or the proceeds thereof, before the commencement of this suit. The answer denies all the other allegations of the petition. Eor further answer defendants allege that about the 9th of April, 1873, C. C. Koehler held the note mentioned, and certain other claims against defendants. That at, and before, that date a controversy had arisen between defendants and Koehler, out of a claim of defendants against Koehler for a large amount of moneys, goods, wares and merchandise beloging to defendants, wrongfully appropriated by Koehler to his own use, and that defendants were about to bring suit against Koehler to recover the value of the goods so appropriated by him. That to avoid litigation and as a mutual compromise it was agreed between Koehler and said defendants, that said note and other claims should be cancelled, satisfied and discharged, in satisfaction of defendant’s claim against Koehler, for moneys and goods wrongfully converted by him to his own use. That this agreement was carried out, and the note was surrendered to defendants, and satisfied and cancelled. There was a jury trial, and a verdict and judgment for plaintiff for $456.20. Defendants appeal.