Shriver v. McCann

<p>1. Brokers (§ 82*) — Actions for Compensa- ■ tion — Defenses.</p> <p>In an action to cancel a note and mortgage pursuant to an agreement for their cancellation as compensation for procuring a purchaser for land, where plaintiff pleaded that defendant repudiated the agreement, and that, by reason of the repudiation and of threats by defendant to foreclose the mortgage and criminally prosecute plaintiff, the note and mortgage had been renewed, and was evidenced by and merged in a new note and mortgage, plaintiff was not entitled to the relief asked without pleading and proving facts sufficient to avoid the new note and mortgage.</p> <p>[Ed. Note. — For other cases, see Brokers, Cent. Dig. §§ 101-103; Dec. Dig. § 82.*]</p> <p>2. Appeal and Error (§ 719*) — Assignments of Error — Necessity.</p> <p>The court’s error in canceling a new note and mortgage, pursuant to an agreement for their cancellation as compensation for plaintiff’s services as a broker, although it appeared that they had been merged in a new note and mortgage, and no matters in avoidance of the new instruments were pleaded or submitted to the jury, was fundamental, apparent upon the face of the record, and reviewable without any assignment.</p> <p>[Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982; 3490; Dec. Dig. § 719.*]</p> <p>3. Contracts (§ 128*) — Legality of Object and Consideration — Compounding Offenses.</p> <p>A contract made in consideration of compounding a criminal offense is void because in contravention of public policy as well as Pen. Code 1911, art. 422, providing that one agreeing not to prosecute an offender or inform upon him in consideration of something valuable promised to be paid is 'himself guilty of an offense, and such a contract, if executory, will not be enforced, or damages allowed for its breach.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 633-653; Dec. Dig. § 128.*]</p> <p>4. Cancellation of Instruments (§ 37*)— Pleading — Mortgages—Consideration.</p> <p>In an action to cancel a note and mortgage pursuant to an agreement for their cancellation as compensation for services, a petition alleging that by threats to foreclose the mortgage and to criminally prosecute plaintiff the note and mortgage had been renewed, and was merged in a new note and mortgage, was insufficient to raise the issue of the invalidity of the new note and mortgage because based on an agreement to compound a criminal offense.</p> <p>[Ed. Note. — For other eases, see Cancellation of Instruments, Cent. Dig. §§ 66-80; Dec. Dig. § 37;* Contracts, Cent. Dig. § 1196.]</p> <p>5. Cancellation op Instruments (§ 37*)— Mortgages — Pleading—Supbtciency.</p> <p>In an action to cancel a note and mortgage, a petition alleging that, by reason of threats of criminal prosecution, they had been renewed and were merged in a new note and mortgage, was insufficient to raise the issue whether the new note and mortgage were procured under duress of imprisonment, since it did. not allege the character of the offense for which the party was threatened with prosecution,_ nor sufficiently show that he was thereby deprived of freedom of contract.</p> <p>. [Ed. Note. — For other cases, see Cancellation of Instruments, Cent. Dig. §§ 66-80; Dec. Dig. § 37 ;* Contracts, Cent. Dig. § 1196.]</p> <p>6. Contracts (§ 95*) — Validity op Assent —Duress.</p> <p>To render a contract invalid as having been procured under duress of imprisonment, the party’s freedom of contract must have been thereby overcome.</p> <p>[Ed. Note. — For other cases, see Contracts, Cent. Dig. §§ 431-440; Dec. Dig. § 95.*]</p>