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(252 8.W.)

[4] VIII. We also rule that the defense of the illegality of the note sued on, as being given under an implied agreement not to prosecute said Begley, Jr., criminally, is well stated in the answer.

The answer alleges that

rect threat to prosecute the son was made by, was overcome. Turley v. Edwards, 18 Mo. the banks nor by the employer, in the Rhode App. 689-690. Island case, who appealed to his mother to make good her son's embezzlement. But in - each case the parents knew that their son had committed a felony and would be exposed to a criminal prosecution, with a moral certainty of conviction unless they complied with the demand made upon them. In each case, the court held the parent was not a free and voluntary agent in making the agreement, but was moved to do so by fear of such exposure, prosecution, and conviction by the pressure of the circumstances and what was said and done, although no direct threat was made to prosecute the son.

So, in this case, we hold the threats, facts, and circumstance including the hasty and precipitate action required of defendants by the plaintiff, independent of the direct allegation in the latter part of the answer, that plaintiff threatened to itself prosecute Begley, Jr., for the crime. of forgery, were well calculated to expose said forgery, with a moral certainty of his criminal prosecution and conviction therefor, and to destroy the free agency of the defendants and make out a good defense of duress herein.

VI. The fact that plaintiff had a right to prosecute said Begley, Jr., criminally, to sue him for damages or for recovery of the money loaned him, based upon said forgery, or to sue on all said notes by attachment, charging him with a felony in the affidavit, does not prevent plaintiff's threat of instituting • such action or actions from operating as duress upon the defendants. They were only the more humiliated and intimidated because he was guilty, and they knew it, and could be compelled to testify in all criminal as well as civil suits which might be brought against him, and thus forced to become the instrument of his and their own and their family's punishment, humiliation, and suffering. This is one of the peculiarly powerful circumstances in this case which makes for 'duress. The case of Davis v. Luster, 64 Mo. 43, holding that there is no duress in such cases, if the relative charged with crime is guilty was expressly overruled on that point by Hensinger v. Dyer, 147 Mo. 219, 48 S. W. 912. See, also, section 325 of Corpus Juris, above quoted.

[3] VII. It is also contended, that the answer is insufficient because it does not expressly allege that defendants' will was overcome by anything except the threat to bring the civil suit based upon the forgery and upon the undue forged notes. As such threats carried with them the terror of exposure and criminal prosecution of the son by the state, we have held they in themselves were sufficient to constitute duress. Besides, as the substantive facts are stated from which duress may arise, the pleading is good with out expressly alleging the defendants' will

"At the time of the signing of said note by these answering defendants, it was mutually understood and impliedly agreed by and between the parties thereto at said county and state aforesaid, that in the event defendants would sign the note described in plaintiff's petition that said George Begley, Jr., would not be prosecuted criminally for the crimes of forgery aforesaid, which prosecution at the time was being threatened by the plaintiff, and that no court proceeding would be instituted that would expose the said George Begley, Jr., and humiliate and disgrace these answering defendants, and defendants say that because of said threats aforesaid, and the understanding and agreement aforesaid, they signed said note and for no

other reason whatsoever."

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It has long been settled in this state that such agreements need not be express, and that it is sufficient if they may be implied from all the evidence, facts, and circumstances in the case. Sumner v. Summers, 54 Mo. 343; Sprague v. Rooney, 104 Mo. 358, 16 S. W. 505; Bell v. Campbell, 123 Mo. 1, 25 S. W. 359, 5 Am. St. Rep. 505; Cheltenham FireBrick Co. v. Cook, 44 Mo. 29; Baker v. Farris, 61 Mo. 389; McCoy v. Green, 83 Mo. 632; Janis v. Roentgen, 52 Mo. App. 117; Malone v. Fidelity & Casualty Co., 71 Mo. App. 1; Met. Land Co. v. Manning, 98 Mo. App. 249, 71 S. W. 696; Turley v. Edwards, 18 Mo. App. 684.

IX. But, it is objected, that whether or not such agreements would be implied, depends on all the facts and circumstances surrounding the transaction which must be set out in the answer, in order to enable the court to see whether such agreement may be implied therefrom. We do not agree to this contention. Agreements are both express and implied. If the agreement is expressed, it would be sufficient to charge that it was an express agreement, or simply an agreement. And so, if the agreement was implied, it would be sufficient to say that it was impliedly agreed or simply agreed. It would not be necessary to plead all the evidence as to what was said and done to prove the express agreement, if one was alleged. And it is no more necessary to set out in the pleading the evidence of the implied agreement charged to have been made. In Sumner v. Summers, 54 Mo. 343, above cited, which seems to be a leading case, an instruction to the jury was approved, stating that if the jury believe

from the evidence, "the obligation sued on was executed by defendant upon an agreement or understanding either expressed or implied, between said Watson and said defendants, that said Watson would suppress or abandon said prosecution or abstain from the further prosecution of said charge, then said obligation is void, and the jury must find for the defendant."

We rule this point also against the respondent.

The result is the judgment below is reversed, and the cause remanded, for trial and further proceedings according to the views herein expressed.

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claim in prior action not pending suit. That counterclaim in a prior suit might have been prosecuted as an independent suit after plaintiff had dismissed its petition did not make it a prior suit pending between the same parties. as respects a later suit by the counterclaiming defendants against the plaintiff in the first suit, so as to make plaintiffs' petition in the later suit demurrable, under Rev. St. 1919, § 1226.

4. Cancellation of instruments 10 Rule against cancellation of nonnegotiable note, where there is defense at law, inapplicable where suit on note may be dismissed.

The rule that equity will not cancel a nonnegotiable note, where the maker would have an adequate remedy by being able to defeat a suit at law on the note, will not be applied where plaintiff in the legal action may at any time dismiss it and bring another at his convenience, and it is made to appear that by bringing and dismissing suits the holder of the note intends to harass defendants with litigation; the legal remedy in such case being inadequate.

James T. Blair and Graves, JJ., dissenting.

Appeal from Circuit Court, Butler County; Almon Ing, Judge.

Action by Edith Ruth Begley and others against the Mississippi Valley Trust Company and another. From judgment for defendants, plaintiffs appeal. Reversed in part, and affirmed in part.

Abington & Abington and Sam M. Phillips, all of Poplar Bluff, for appellants.

Jourdan, Rassieur & Pierce and Samuel H. Liberman, all of St. Louis, for respondents.

SMALL, C. I. Appeal from the circuit court of Butler county.

This is a companion case to the case of Mississippi Valley Trust Co. v. Edith Ruth Begley, Effie M. Ruth, and George Begley, No. 22749, 252 S. W. 76, which we have just decided.

The petition in this case was filed April 3, 1920. The facts stated in the petition are the same as those stated in the answer in said cause No. 22749, with the further statement, as follows:

"Plaintiffs further state that the defendant Mississippi Valley Trust Company has instituted its suit in the circuit court of Butler county, Mo., upon the above described $70,000 note upon its petition, a copy of which is herewith filed, marked 'Exhibit A' and asked to be taken and considered as a part of this petition;" that the defendants in that case (plaintiffs in this case) have filed their answer in said case, a copy of which is herewith filed, marked 'Exhibit B' and asked to be taken and considered as a part of this petition, setting out the facts hereinabove pleaded and set forth; that said cause is now docketed and set for trial in the circuit court of Butler county, Mo., on Thursday, April 15, 1920, upon the petition and an

swer.

"Plaintiffs further state that since the institution of the suit last aforesaid, the defendant has filed suit on the same $70,000 note in the circuit court of the city of St. Louis, and has caused process to be served upon the plaintiffs George Begley and Effie M. Ruth, in said city of St. Louis; and plaintiffs say defendant has listed and filed a verified copy of said note for allowance and payment in the bankrupt estate of George Begley, Jr., now being administered

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(252 S. W.)

"Sam M. Phillips, "Abington & Abington,

in the United States District Court within and, such other and further relief as to the court for the Southeastern Division of the Eastern may seem just and meet in the premises. District of Missouri; and plaintiffs have good cause to believe and do believe, and so state the fact to be, that defendant is contemplating other and further vexatious litigation against these plaintiffs on account of and growing out of their signing said note aforesaid.

"Plaintiffs further state that the defendant Mississippi Valley Trust Company has now ordered its codefendant, Wm. McGuire, who is the duly qualified and acting clerk of the circuit court of Butler county, Mo., to dismiss, in vacation, the case filed in said Butler county circuit court and to dismiss plaintiffs' (defendants in that case) cross-action, and plaintiffs aver that, unless enjoined and restrained by an order of this court, said defendant Wm. McGuire will dismiss in said case, not only plaintiffs' cause of action, but the cross-action and cross-bill of defendants in that case (plaintiffs in this case).

"Plaintiffs further state that under the law

of the state of Missouri the defendant Wm. McGuire and his codefendant Mississippi Valley Trust Company are not authorized to dismiss, in vacation, plaintiffs' (defendants in that case) cross-action in said suit, and that the contemplated action of defendants so to do will work irreparable injury to plaintiffs, will result in a multiplicity of suits, and long and vexatious litigation.

"Plaintiffs further state that the circuit court

of Butler county now has jurisdiction of said suit, filed in the circuit court of said county, and that said litigation can be determined speedily in said county, and that, if the case is dismissed and plaintiffs are sued in various counties and jurisdictions in the state of Missouri, it will entail a great expense upon plaintiffs in defending said actions, in securing the attendance of witnesses; will result in a multiplicity of vexatious suits whereby plaintiffs and each of them will suffer irreparable injury and damage.

"Plaintiffs further state that they have no adequate remedy at law in the premises, and unless granted injunctive relief herein will suffer irreparable injury and damage and be subjected to a multiplicity of vexatious suits.

"Wherefore, the premises considered, plaintiffs pray the court that the defendants be enjoined and restrained from dismissing said law suit aforesaid now pending in the circuit court of Butler county, Mo., and from negotiating or disposing of to a third party the $70,000 negotiable promissory note aforesaid, described in defendants' (plaintiffs in that case) petition hereto attached marked 'Exhibit A'; or instituting other suits or further litigation against these plaintiffs on said note or concerning the same, or further prosecuting said case instituted in the circuit court of the city of St. Louis aforesaid, until this case can be adjudicated on its merits; that this suit be consolidated with the case of the Mississippi Valley Trust Company, a corporation v. Edith Ruth-Begley, Effie M. Ruth, and George Begley, now pending in the circuit court of Butler county, Mo., and set for trial on Thursday, April 15, 1920; and that the defendant be required to produce said $70,000 note, which it still has in its possession and under its control, in this court, and that this court by its judgment declare, adjudge, and decree said note to be null and void and for

"Attorneys for Plaintiffs."

The petition was duly verified. Exhibit A was the petition in the prior suit in the Butler county circuit court by the Mississippi Valley Trust Company on said $70,000 note against Edith Ruth Begley, Effie M. Ruth, and George Begley, brought to the 1920 April term of said court.

Exhibit B, referred to and made a part of the petition in the case before us, was the answer of said defendants in said prior suit, and was substantially the same as the answer in cause No. 22749, which we have just decided, except that it included the defendant Edith Ruth Begley in said answer, as well as defendants George Begley and Effie

M. Ruth.

The defendant McGuire filed a demurrer to the petition on the ground that it does not contain a statement of facts sufficient to constitute a cause of action, which was sustained by the court and judgment rendered dismissing said cause as to defendant McGuire.

Defendant Mississippi Valley Trust Company also filed a demurrer, in words and figures as follows:

"Now comes the defendant Mississippi Valley Trust Company and, appearing specially for this purpose and without waiving the jurisdiction of the court, demurs to the petition of plaintiffs for the following reasons:

"(1) Because said petition shows on its face that the defendant is denied the equal protection of the laws guaranteed to it under the Fourteenth Amendment of the Constitution of the United States and under article 2, § 30, of the Constitution of Missouri."

"(3) Because the assumption of jurisdiction by the court would, as shown upon the face of the petition, deprive the defendant of its property without due process of law, in violation of the Fourteenth Amendment of the Constitution of the United States and of article 2, § 30, of the Constitution of Missouri.

"(4) Because the petition shows upon its face that there is another action pending between the same parties for the same cause in this state.

"(5) Because the petition shows upon its face that there is another action pending between the same parties for the same cause in this state, so that plaintiffs have an adequate remedy at law without recourse to equitable relief in this action.

"(6) Because, without waiving the jurisdiction of the court, the petition does not state facts sufficient to constitute a cause of action.

"(7) Because the plaintiffs are not entitled to any equitable relief since they have not come into court with clean hands, but participated in the alleged illegal transaction involved in the alleged compounding of a felony.

"Jourdan, Rassieur & Pierce,
"Henson & Woody, and
"David W. Hill,

"Attorneys for Defendant."

Judgment was duly entered on said demurrer in favor of said defendant trust company and against the plaintiffs.

statutes relating to the venue of civil actions did not treat all libelers alike, whether corporate libelers or individual libelers, when there was no reason for making any distinction as to such suits only. But the court did not hold that the general statute, section 1180, R. S. 1919, being section 1754, violated the equal protection provisions of the Fourteenth Amendment, On the other hand we think that the opinion of Judge Graves in the Julian Case recognized the validity of said section 1180, relating to the venue of suits against corporations generally as reasonable and legal classification.

In the Julian Case, Judge Graves said (209 Mo. loc. cit. 103, 107 S. W. loc. cit. 511): "If we admit, as we must, that laws may not be violative of constitutional inhibitions, where they apply to all of a class, because each and every member of the class has the same rights and is subjected to the same inconveniences and penalties, yet that does not affect this case. The class here is not corporations, but the class is libelers or publishers of libels, which publisher may be an individual or a corpora

Which said demurrer was sustained by the, Clung Case and of the dissenting opinion of court, on the ground that the court had no Judge Graves in the case of Julian v. Kanjurisdiction in this cause. sas City Star, 209 Mo. loc. cit. 102, 107 S. W. 496, upon which the decision in the McClung Case is based, will show that our ruling in the McClung Case held the classificaAfter unsuccessfully moving for a new iton made by said section 1755 arbitrary and trial, the plaintiffs appealed to this court. unreasonable, because said section 1755 only [1] II. It is insisted by respondent's learn-related to the bringing of libel suits against ed counsel: That section 1180, R. S. 1919, corporations; that by reason thereof our which provides that: "Suits against corporations shall be commenced either in the county where the cause of action accrued or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business," is unconstitutional because section 1177, R. S. 1919, requires actions against the resident of the state to be brought "either in the county within which the defendant resides, or in the county within which the plaintiff resides and the defendant may be found." That therefore corporations, being persons within the meaning of the equal protection clause of the Fourteenth Amendment to the Constitution of the United States, are thus denied the equal protection of the laws of this state relating to the venue of civil actions. In other words, that such laws make an arbitrary and unreasonable classification of individuals and corporations in fixing the venue of civil actions. In support of this proposition, the main case cited is McClung v. Pulitzer Pub. Co., 279 Mo. 370, 214 S. W. 193, which held unconstitutional, because vicious class legislation, section 1755, R. S. 1909, which provided that "suits for libel against corporations shall be brought in the county in which the defendant is located, or in the county in which the plaintiff resides." We do not agree to this contention. We held, in that In the McClung Case, supra, the learned case, that, by reason of the enactment of special judge who delivered the opinion of said section 1755, the classification as to the the court, admitted that the Legislature had venue as between individuals and corpora- power to make a reasonable classification 'as tions sued for libel, made by our venue stat- to individuals and corporations in deterutes, was made arbitrarily and unreasonable, mining the venue of actions. He said (279 because individual libelers were not includ-Mo. loc. cit. 394, 214 S. W. loc. cit. 198): ed in said section 1755; that suits for libel against individuals were required to be brought as other actions generally under section 1751, R. S. 1909, in the county where the "defendant resides, or in the county within which the plaintiff resides and the defendant may be found." Consequently, an individual who lived in Cole county under said section 1755, could sue a corporation located in St. Louis which libeled him by publication in St. Louis in Cole county. Whereas, if the libelous publication had been made by an individual residing and publishing a newspaper in Kansas City, he could not sue the libeler in Cole county, unless he was able to find and get service on the defendant in Cole county, but would have to bring his suit for libel in Jackson county.

tion."

In Houston v. Pulitzer Pub. Co., 249 Mo. 332, 155 S. W. 1068, the court in banc overruled the majority opinion in the Julian Case, and followed the dissenting opinion of Judge Graves.

"The Legislature of the state has the power to make reasonable classification of people and of corporations in determining the venue of actions, but it has not the power to make an arbitrary or unreasonable classification."

In Houston v. Pulitzer Pub. Co., supra, the court in banc, per Graves, J., said:

"Personally we think, as fully discussed in the Julian Case, that this old section 997 can should have been done, and which when done be given a construction, which to my mind, would obviate all constitutional objections."

The construction contended for by Judge Graves in his dissenting opinion was (209 Mo. 102, 107 S. W. 510):

"The cause of action mentioned therein, in cases of libel, means the cause of action acAn examination of our opinion in the Mc- cruing by the first publication of the article."

(252 S.W.)

So that the learned judge again interprets | of fundamental laws, except as applied to the section of our statutes relating to venue libel cases from which this case is, as we now under consideration as not subject to have seen distinguishable. We rule this constitutional objections, because it requires point against the respondents. all suits against corporations to be brought in the county where the cause of action accrued although suits against individuals were not required to be so brought.

In State ex rel. v. Gantt, 274 Mo. 490, 203 S. W. 964, the law relating to the venue in sults against foreign corporations, was considered, and it was held that such corporations, the same as other corporations, were suable in the county where the cause of action accrued, as provided by the first clause of section 1754, R. S. 1909, for all suits against all corporations. Judge Faris, in a learned opinion in that case, adds (274 Mo. 506, 203 S. W. 968):

"That is what the statute says, and we are unable to find any authority to sustain any other view which would not offend the Constitution."

[2] III. We think that the plaintiffs were not entitled to injunctive relief against the defendant company and McGuire, clerk of the court, to prevent the dismissal in vacation of the prior suit instituted against plaintiffs by defendant company in said Butler county.

Section 1409, R. S. 1919, provides:

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"The plaintiff in any suit in any court of record may dismiss such suit in the vacation of the court, upon the payment of all costs that may have accrued therein."

But appellants contend, that inasmuch as the answer in said prior cause pleaded the invalidity of the note sued on, to wit, said $70,000 note, for duress and as being given to suppress the prosecution of a felony, and asked for the surrender into court and cancellation thereof, it set up a counterclaim,

Judge Graves, in his concurring opinion, and therefore plaintiff could not dismiss its says (274 Mo. 510, 203 S. W. 969):

petition under section 1304, R. S. 1919.
Admitting that defendants' answer con-

vent the dismissal under said section 1304,
R. S. 1919, by the plaintiff of his petition.
Lanyon v. Chesney, 209 Mo. loc. cit. 7, 106
S. W. 522 (citing and quoting from Atkinson
V. Carter, 101 Mo. App. 477, 74 S. W. 502).

"I feel compelled to agree that (under exist-tained a valid counterclaim, this did not preing statutes) a foreign insurance company cannot only be sued in the county wherein the cause of action arose, but may likewise be sued in any county wherein it has an agent for the transaction of its ordinary and usual business. I think that there might be a valid classification of corporations as to the venue of actions."

tition in the cause now before us subject to demurrer for that reason under section 1226, R. S. 1919. Rodney v. Gibbs, 184 Mo. loc. cit. 10, 82 S. W. 187; Rookery, etc., Co. v. Johnson (Mo. Sup.) 243 S. W. loc. cit. 129. [4] V. The remaining question is, Did the plaintiffs' petition set up facts sufficient to entitled them to the relief sought? In addition to the matters alleged in the answer in the companion case aforesaid (No. 22749), which we held showed that said $70,000 note involved in this litigation was void for du

[3] IV. The fact that said counterclaim might have been prosecuted as an independent suit after plaintiff had dismissed its peAnd, upon principle, we can see no in- tition did not make it a prior suit pending justice or unreasonableness-nothing arbi-between the same parties for the same cause trary, in the classification made as to all suits in this state, so as to make plaintiff's peagainst all individuals and all corporations by said section 1180, R. S. 1919. The section embraces all corporations, and includes all manner of suits against them. The individual gets no unfair advantage by the classification made. The provision that suits must be brought against the corporation in the county where the cause of action accrued is not a discrimination in any manner against the corporation or in favor of the individual, because the cause of action may accrue, as well in the.county where the corporation is located, as in the county where the individ-ress and as having been obtained to suppress ual bringing the suit resides, or it may accrue in some county where the corporation is not located, has no agent, and where the plaintiff does not reside. The classification, which the courts hold is vicious and violates the Fourteenth Amendment, is only unreasonable and arbitrary classification, and does not apply to reasonable and proper classification.

the prosecution of a felony, the petition, in the case before us, set up the institution of said prior suit in Butler county, the filing of the answer; that said cause was docketed for trial in said Butler county on April 15, 1920, upon the petition and answer; that the Mississippi Valley Trust Company had also filed suit on said $70,000 note in the circuit No authorities need be cited in sup- court of the city of St. Louis and served port of this proposition. It is elementary. George Begley and Effie M. Begley with proThe statute complained of has been in exist- cess; and that plaintiffs in this suit had ence as it now stands since the revision of good cause to believe and do believe that the 1855, and as far as we have been able to as- Mississippi Valley Trust Company is concertain the bar of this state has never before templating other suits and further vexatious in this court attacked it as being unreason-litigation against the plaintiffs in this case able and arbitrary classification and violative on account of and growing out of their sign

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