ON MOTION FOR REHEARING. Counsel for defendant in his motion for rehearing insists that our conclusions on the question of the settlement contract, to the effect that there was no lawful consideration for same under conditions shown, is based upon a theory not presented in the lower court.
The first point made by defendant in its brief is the assertion that the acceptance of the money paid barred plaintiff's action. A question of law being thus raised by defendant, it certainly became the duty of the court to determine same. The fact that the court gives reasons for its conclusions on a point raised by an appellant does not conflict with the rule that an appellate court must determine the issues on the same theory as presented and determined in the lower court.
Defendant complains that this court did not give consideration of its contention that acceptance of benefits of the actions of an attorney, even though not employed, bound the plaintiff.
As to the employment of Mr. Mitchell we stated in substance that the question of his employment was one for the jury.
As to the other phase now complained of, suffice it to say, that this court having, for reasons assigned, found that plaintiff received nothing that she was not entitled to receive and that defendant parted with nothing that it was entitled to retain, eliminates the question raised that plaintiff plaintiff received benefits by the services.
Our conclusion in the above matter is based upon the above and not upon any depreciatory holding as to the services of the learned counsel in question. We are glad to say that there is nothing shown in the record of this case, which reflects upon his professional conduct or which reflects upon his right to make charges for the same, and in the light of our conclusion, defendant got more in plaintiff's instruction No. 1 than it was entitled to when the recovery by plaintiff was predicated upon the question of whether the attorney was employed or not.
As to the omission, in the opinion, of the record evidence upon which we based our conclusion as to duress being an issue of fact in the case, we concluded that as the defendant so completely submitted the issue of duress in its given instructions "L" and "M," that the burdening of the opinion with the facts shown in the record as to that issue was superfluous. Further, it appears shown by the record that defendant did not raise the issue by demurrer nor otherwise *Page 219 than by objection to a refusal of its instruction "C," and as before stated, defendant thereafter submitted the issue by its offered instruction. However, even to the extent of unnecessary length of judicial opinion and for the satisfaction of complaining counsel, we quote testimony of plaintiff as follows:
"They told me if I didn't sign it, there would be things brought out about my husband's character that would not be — business dealings that would be a disgrace to the family. They came in the bedroom. I didn't know I signed two things. They said they did not think they owed me anything. I did not read what I was signing. I didn't want to sign it but they told me to sign it."
Again plaintiff testifies:
"I didn't know what they would do. I didn't know anything about law. I didn't know whether the statement made by my daughter and Mr. Thore and Mr. Mitchell were true. He said he could get fifty witnesses from south St. Joseph that my husband did crooked dealings. I did not know whether that would happen in court if I did not sign. I signed the release because they said I would not get anything if I did not sign that, and my husband's character would be brought out and things — business dealings that he had that were crooked."
The evidence shows that the woman was at home, sick, nervous, and in bed when the instrument was signed.
"The character of threats is not material, it being sufficient to constitute legal duress if they deprive the party purporting to be obligated by the contract of free moral agency, and threats to expose the contracting party or his near relatives by blood or marriage to deep disgrace may be sufficient." [Mississippi Valley Trust Co. v. Begley, 252 S.W. 76, 298 Mo. 684.]
While we gladly set forth the evidence above, it should always be borne in mind, that the statute should not be so followed as to unduly swell the length of judicial opinions. [Smarr v. Smarr,6 S.W.2d 860; Turner v. Anderson, 236 Mo. 533, 139 S.W. 180.]
Complaint is made of the language in instruction to-wit: "Threats and undue influence." Preceding in the instruction the jury was required to find that the execution of the instrument was under compulsion. When the instruction is read as a whole it limits the issue to duress by threats and undue influence of the officers and agents of defendant, and, as the instruction directs that it must be found that the same overcame plaintiff's will, we conclude, no error is presented.
Complaint is made that instructions do not set out facts of duress but submit the issue as one of law.
It is not customary to set out evidence in the instructions, and it is shown that defendant asked and received an instruction withdrawing from the jury such facts as it concluded did not constitute *Page 220 duress. We conclude that the evidence, remaining after exclusion of all asked for by defendant, is a sufficient showing of fact to support the finding of the jury on that issue; that the instructions taken as a whole fairly declare the law; that there was a fair and impartial trial had in the lower court; and that there is nothing presented on defendant's motion for rehearing which alters our conclusions as expressed in the opinion handed down at the October call.
Motion for rehearing denied. All concur.