suit. He is a son of one of the parties, H. C. Mahnken; a brother of another, W. L. Mahnken. W. L. Mahnken. It does not appear positively whether G. W. Rosenbaum is a relative or not. There is testimony indicating, inferentially, that he is an uncle. D. C. Horning is not a relative- merely a neighbor. John Mahnken was engaged to be married to plaintiff in error on December 5, 1893. Prior to that date, it does not appear just how long prior, he requested a postponement of the ceremony on account of the illness of his mother. This request was refused. On December 3, he departed for Missouri. On January 24, 1894,

66

re

the notes in suit were executed and delivered, and at the same time plaintiff in error executed the following lease: " "The consideration of the note of $500, and one of $400, and $100 in cash in hand, the value of which is received, we hereby release all claims from John Mahnken for any damages which she might have received for reason of breach of promise to marry her." John Mahnken returned from Missouri, as nearly as he can remember, about the first of March, 1894. He testified that defendants in error had no authority from him to make any settlement with plaintiff in error, and that he did not learn of the execution of the notes until after his return. The trial court rendered judgment for defendants, making the following findings:

"That the notes given in evidence and sued upon by the plaintiff at the time the same were given to the plaintiff did not constitute a settlement of the difficulties and disputes existing between the plaintiff and one John Mahnken."

The court further finds that "said defendants had no authority to make a settlement of the difficulties and disputes existing between the plaintiff and one John Mahnken, nor to give said notes in settlement thereof, and that no settlement in fact of said difficulties has been made, and therefore the court finds that the notes sued upon are without consideration and void."

The finding that defendants had no authority from

But de

John Mahnken is sustained by the evidence. fendants did not assume to act for John Mahnken. The plaintiff in error made no attempt in her petition to charge him. She had actually released all claims against him by her written instrument, which specified the consideration for such release as the two notes now in suit, and one hundred dollars paid in cash. The trial court finds that this was not a "settlement of the difficulties and disputes existing between the plaintiff and one John Mahnken." It would seem to be immaterial whether it was a settlement of disputes and difficulties or not. It was a release, upon consideration of one thousand dollars, of all claim for damages for the breach of promise to marry plaintiff in error on the fifth day of December. It is urged that John Mahnken was not bound by this contract. He had nothing to release, and no reason is apparent why he should be bound by this instrument. The purpose and effect of this instrument was to release, not to bind him. Plaintiff in error is bound, beyond question, by her written release of all claims for damages, executed upon receipt of a valuable consideration therefor.

A

It is also urged that the makers of the notes received no consideration therefor. It is not necessary that any benefit should be received by them as a consideration. valid consideration for a note may consist of an injury to the payee as well as of a benefit to the maker. Or the consideration may be a benefit to a third person.

Several of the defendants testify that they would not have executed the notes if plaintiff had not threatened to kill John Mahnken. They say, in substance, that they executed the notes to settle the matter and keep her from killing John Mahnken. Some of the witnesses say they were afraid that she or some of her relatives would do the murder. There is no evidence of any threat by any one but herself. At the time of the threat John Mahnken was in Missouri, and she and defendants were in Wyoming. The law recognizes such a thing as duress per minas. The law upon this subject is well epitomized as follows:

Duress by threats exists, not wherever a party has entered into a contract under the influence of a threat, but only where such a threat excites a fear of some grievous wrong, as of death, or great irremediable injury, or unlawful imprisonment, about to be then and there, or at least very shortly, inflicted. The threat must be such as would naturally excite such a fear (grounded upon the reasonable belief that the person who threatens has at hand the means of carrying his threat into present execution) as would overcome the will of a person of ordinary courage." 6 Am. & Eng. Ency. Law, 64.

No authority has been cited going to the extent that a woman can coerce four men in Wyoming by threatening the life of a fifth man, who is at the time in a distant State. Judgment reversed, and case remanded for new trial.

POTTER and CORN, JJ., concur.

Reversed.

INDEX.

ACCOUNTS. Mortgage of, see Chattel Mortgage, 6, 7.

ACTION. For services rendered, see Master and Servant, 1, 2.
On covenant in lease, see Landlord and Tenant, 2, 6-12.
For destruction of grass by fire, see Parties, 4-11.

To quiet title, see Pleading, 1-3.

As to election contests, see Elections, 1-4.

See also, Contract, 1-4.

ADMISSIONS. By vendors of personal property, see Evidence, 2–4.
See also, Evidence, 9, 10.

AFFIDAVIT. See Record, 2; Verdict, 1, 2.

AGENCY. See Principal and Agent.

AMENDMENT. To pleading in Election Contest, see Elections,
2-4.

ANSWER. See Appearance, 1.

APPEAL AND ERROR.

1. Where the testimony is conflicting, the finding of the trial
court should not be disturbed unless the appellate tribunal
is convinced that such finding is clearly erroneous or against
the great weight of the evidence. Jackson v. Mull, 55.
2. Nothing which could have been assigned as a ground for new
trial in the court below will be considered in the supreme
court, unless it shall appear that the same was properly pre-
sented to the court below by a motion for new trial, and
that such motion was overruled and exception at the time
reserved to such ruling, all of which must be embraced in
the bill of exceptions. Boulter v. State, 66.

3. A judgment against a bank will not be reversed for the erro-
neous admission in evidence of declarations of its cashier,
where such declarations concern matters not material to the
issue, or the same facts are brought out by other testimony
not objected to, some of which testimony came from wit-
nesses on behalf of the bank. In such case the bank is not
prejudiced by the admission of such declarations. Rock
Springs National Bank v. Luman, 123.

4. The general rule is that if a trial court arrives at the correct
result, no matter how incorrectly it reasoned, the errors
occurring at the trial, if not prejudicial, are cured by a

547

APPEAL AND ERROR - Continued.

proper final decision. The error complained of must be
wrong and prejudicial, and must probably have operated to
bring about a wrong final result. Id.

5. Where the evidence supports the judgment, it is not ground
for reversal that it is asserted, however truthfully outside of
the record, that the trial court, trying the case without a
jury, was largely or entirely influenced by some matters
which are not material, or do not in themselves determine
the relative rights and liabilities of the parties. Id.
6. An appellate tribunal will not reverse upon a mere question
of fact unless it appears that the trial court decided against
the weight of evidence or contrary to the evidence. A
mere conflict is not sufficient cause for reversal, but the
court must have decided against the weight of the evidence,
or upon insufficient evidence.

Id.

7. The presumption is that the proceedings of a trial court are
correct until affirmative error has been shown, and error
can not be predicated, upon rulings made during the trial
unless they were erroneous and prejudicial and contributed
to a wrong result. Id.

8. The action of the trial court sustaining an attachment can
not be reviewed in the absence of a bill of exceptions con-
taining the evidence produced upon the hearing of the
motion to dissolve. The Syndicate Improvement Co. v.
Bradley, 171.

9. The affidavits, motions, and other papers in an attachment
proceeding can not be brought into the record by copies
thereof certified to by the clerk of the court, but they can
only be made part of the record by bill of exceptions. Id.
10. In the absence of a bill of exceptions embracing the motion
and affidavit for change of judge, the action of the court in
overruling such a motion can not be reviewed.

Id.

11. The error, if any, in overruling a motion for change of
judge is waived if no exception is taken to the ruling. Id.
12. A party asking a jury trial must cause the record to show a
due request therefor, a refusal by the court, and an excep-
tion, in order to complain of the refusal of a jury; for, in
the absence of countervailing facts, it will be assumed that
the court did not usurp the functions of the jury. Id.
13. An assignment of error that a demand for a jury was denied
is unavailing, where the demand was made after one wit-
ness for the plaintiff had testified, no such demand being
made upon the formal calling of the docket at the first day
of the term, the record showing a waiver of a jury by a