American Nat. Bank v. AMERICAN BAPTIST HOME M. SOC.

• Decision Date: 16 August 1939
• Docket Number: 134.,No. 133,133
• Citation: 106 F.2d 192
• Parties: AMERICAN NAT. BANK OF BRISTOW, OKL., v. AMERICAN BAPTIST HOME MISSION SOC.
• Court: U.S. Court of Appeals — Second Circuit

106 F.2d 192 (1939)

AMERICAN NAT. BANK OF BRISTOW, OKL., v. AMERICAN BAPTIST HOME MISSION SOC.

Nos. 133, 134.

Circuit Court of Appeals, Second Circuit.

August 16, 1939.

Patterson, Eagle, Greenough & Day, of New York City (Carroll G. Walter of New York City, and Creekmore Wallace, of Oklahoma City, Okl., of counsel), for appellant.

Hughes, Richards, Hubbard & Ewing, of New York City (Charles E. Hughes, Jr., Leighton H. Surbeck and Richard W. Hogue, Jr., all of New York City, of counsel), for appellee.

Before AUGUSTUS N. HAND, CHASE and PATTERSON, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

The defendant, American Baptist Home Mission Society, a New York corporation, owns and operates Bacone College and Murrow Indian Orphans' Home near Muskogee, Oklahoma. The Orphans' Home is a charitable institution for orphan Indian children and Bacone College is also primarily a school for Indian students, many of whom cannot pay for an education. A few white students attend, but the great majority of the student body is Indian and over one-half pays no tuition. Since 1918 the President of the College and Superintendent of the Orphans' Home has been Dr. Benjamin Weeks, an ordained Baptist minister, who solicited the transfers of $50,000 and $100,000 to the defendant in the years 1920 and 1923 made by Suma Burgess and her mother, Lucy Poloke, respectively.

In August 1919 Dr. Weeks spoke to meetings of the Muskogee-Wichita-Seminole Baptist Association about the needs of the school and the Orphans' Home, and a committee of Indians was appointed to visit the school and home and investigate their needs. Suma Burgess and her mother, Lucy Poloke, were present and there met Dr. Weeks for the first time. Suma had received considerable education and read, wrote and spoke English, but Lucy spoke only Creek although she understood English to a slight extent. Both Suma and Lucy were deeply interested in work of the Baptist Church and were active in various Baptist Church organizations. Lucy was a member of the Women's Missionary Society for many years and Suma was president of it for two years. Likewise Suma had been secretary, treasurer and vice-president of the Ladies Aid Society and had taught Sunday School. The next gathering of the Association in August of 1920 was attended by Suma, who presided at a meeting of the women, and also by Lucy. Dr. Weeks announced at the meeting that land had been donated on which to build new dormitories and that two fireproof buildings costing at least $50,000 each were necessary to accommodate the children of the Orphanage.

The next day, on the suggestion of a Mr. Harjoe, the donor of the land, Dr. Weeks visited Suma and her mother at their tent in the grounds nearby. Peter Ewing, a full-blood Indian preacher who had been chairman of the committee sent to investigate the needs of the Orphans' Home, went along as interpreter for Dr. Weeks. They did not find Suma in then, but on their return the next morning they informed Suma and her mother of the need of a building, and Suma stated that she would give $20,000 and her mother $30,000 provided the Department approved. Suma explained to her mother in the Creek language the amount needed and the latter replied: "that is a good thing."

Shortly thereafter, and pursuant to arrangement, Suma met Dr. Weeks in Muskogee at the office of Mr. Parker, the local Superintendent of the Five Civilized Tribes, with whom she discussed the proposed donations. The Superintendent testified that Suma told him that she had been interested in young peoples' work in the church and that she and her mother wanted to help them by making this donation. Mr. Parker testified that he was satisfied that Suma fully understood that she was making a gift and that it was her voluntary act. He favored the gift and advised Suma and Dr. Weeks, who was not in the room during the conference, that he was willing to consider the application but that it must be made in writing. He also testified that Lucy was present at the conference and conversed with Suma during the discussion.

Under date of August 25, 1920 Suma and her mother signed letters (the mother's signature being by thumb mark) addressed to the Superintendent in which they expressed a desire to make a donation to the Orphans' Home. These letters were on the stationery of an attorney named Paul Lamb, an Indian who had known Suma since her childhood. At the foot of her letter Suma stated, in her own handwriting, that she desired to give $20,000, and at the foot of her mother's letter similarly stated that her mother desired to give $30,000. These letters were produced from the files of the local Indian office and Dr. Weeks had nothing to do with their preparation.

Superintendent Parker advised Dr. Weeks that a contract should be drawn covering the transaction and one was prepared by an attorney named Broaddus. Dr. Weeks testified that he took the contract to Suma's home and explained it to her on September 20, 1920, that Suma then signed the document and assisted Lucy to put her thumb mark on it. Peter Ewing also testified to going with Dr. Weeks to the home of Suma, and to translating and explaining the 1920 contract to both Suma and her mother. Applications were thereafter made by Suma and her mother for payment of the gifts of $20,000 and $30,000, respectively. Two unsigned checks for the proper amounts made out to Suma and to Lucy were delivered to Dr. Weeks, who secured their endorsements and returned the checks to Superintendent Parker. The checks were then signed by the disbursing officer and returned to Dr. Weeks.

The dormitory, known as the "Poloke-Bosen Hall," was constructed thereafter at a cost slightly in excess of the $50,000 donation. Suma was present at the ceremonies for the ground breaking, the laying of the corner stone and the dedication of the building. On each occasion speeches were made to the effect that the building had been made possible through the donations of Suma and her mother, and Suma appeared very pleased at the references to her. Both Suma and Lucy stated to friends on other occasions that they had made this gift for the construction of the dormitory and indicated that they were pleased with having done so. Suma spoke of this gift and a later one in 1923 as the best investment she had ever made.

Dr. Weeks and Suma met at the Association meeting the following August of 1921 but at that time no mention was made of any further contributions. In January 1922 Dr. Weeks and Peter Ewing saw Suma and Lucy at their home and requested another contribution. He took with him a draft of a contract, similar to ones used by the Baptist Home Mission Society for 65 years, and explained its terms to both women. Peter Ewing was present and acted as interpreter for Dr. Weeks. The suggested terms of the donation were that Suma and Lucy should make a gift of $100,000 for the benefit of Bacone College and the Orphans' Home; and that $5,000 per year should be paid to the donors during their lives, and afterwards all the income should go to the Orphans' Home and the school. Suma and her mother indicated that they were not prepared at that time to give an answer. In August 1922 Dr. Weeks spoke to Suma at the annual Association meeting as to certain interest that had accumulated on the fund of $50,000 between the time of its receipt and the time of payment for construction of the dormitory, but he apparently did not bring up the subject of another contribution. Suma advised Dr. Weeks that the interest might be used for the benefit of the orphan children. Shortly thereafter Dr. Weeks asked Mr. McComb, a Creek preacher, and one of the founders of Bacone College, to solicit a contribution to the endowment from Suma and Lucy, and Mr. McComb reported back the results of his conversation with them. The subject was not raised again until Dr. Weeks met the two women unexpectedly during the summer of 1923. As he was turning to leave them, he expressed a desire that they make the contribution. Suma then got out of her car, saying she wished to speak with him, and stated during the ensuing conversation that she and her mother would make the gift if he would take Liberty bonds. She then fixed a date for meeting him at the office of the Superintendent, who at that time was Mr. S. E. Wallen. Dr. Weeks testified that according to his recollection Suma told him she would give $17,000 in bonds and her mother would give the total of $83,000, of which $53,000 would be in bonds.

After the above conversation Dr. Weeks had two contracts prepared by Broaddus and met Suma, as agreed, outside the office of Superintendent Wallen. While waiting there he read and explained to her the nature of the contracts. Dr. Weeks then introduced Suma to Mr. Wallen, left the contracts with them, and retired to the outer office. Thereafter Wallen accompanied Suma to the office of Ward, acting attorney for the Creek Nation, and there Suma, in the presence of Ward and Edward Merrick, another lawyer connected with the local agency, who acted as witnesses, executed the contract.

Edward Merrick testified that Superintendent Wallen asked him to be sure that Suma understood what she was signing and said that he believed that he had gone over the contract with her. He could not remember the details of the transaction but stated that his invariable habit had been never to witness the signature of an Indian to a contract unless he was satisfied that the Indian knew exactly what was being signed.

Assistant Superintendent Hunt testified that he went over the contract with Suma and explained it to her prior to the time of execution. He was convinced that she understood it and wanted to make the donation.

Superintendent Wallen also went over the contracts with Suma and Lucy at some date not precisely fixed but prior to execution. He testified that he had explained the contracts thoroughly to Suma and had spoken about the donations to Lucy and that she too...