Boyle v. Mountford

• Citation: 270 P. 537,39 Wyo. 141
• Decision Date: 25 September 1928
• Docket Number: 1491
• Parties: BOYLE v. MOUNTFORD [*]
• Court: United States State Supreme Court of Wyoming

270 P. 537

39 Wyo. 141

BOYLE v. MOUNTFORD ^[*]

No. 1491

Supreme Court of Wyoming

September 25, 1928

ERROR to District Court, Albany County; WILLIAM A. RINER, Judge.

Action by A. L. Mountford against A. C. Boyle, Jr. Judgment for plaintiff, and defendant brings error.

Judgment affirmed.

Cassius M. Eby, for plaintiff in error.

Plaintiff's motion to strike allegations of undue influence should have been sustained, Turner v. Gumbert, 114 P. 33. There was no evidence of laches, Coolidge v. Rhodes (Ill.) 64 N.E. 1074; Pratt Land Co. v. McClain, 93 Am. St. R. 35; 38. Attorneys fees and other expenses are not recoverable in actions to cancel written instruments on grounds of fraud, Baird v. Gibbard, (Id.) 189 P. 58; Hull v. Kary, 119 Am. St. R. 639; McDonald v Norton, (Ia.) 34 N.W. 458; Day v. Wentworth U.S. 14 L.Ed. 181; Nichols v. Maes, (Calif.) 82 P. 265; Henry v. Davis, 123 Mass. 345; Clinton v. Lansing, (Mich.) 28 N.W. R. 125. Punitive damages cannot be recovered when no income is involved, Burt v. Henderson, (Ark.) 238 S.W. 626; Bird v. Willington Co., 64 Am. Dec. 739. The burden is upon plaintiff to prove his allegations of fraud, Ross v. Alworth, 231 P. 885; Eureka Dairy Co. v. McSween, (D. C.) 377 App. 1; 12 R. C. L. 323. Motion for judgment should have been granted, 38 O. S. 87. Plaintiff's motion to re-open should have been granted, Penn. v. Georgia R. Co., 60 S.E. 172; Loan Co. v. Johnston, 33 Wyo. 467. The evidence of Mr. Sullivan should have been excluded as incompetent, Connor v. People, 36 A. S. R. 301. Undue influence must be shown to have been sufficient to overcome the will, Mallow v. Walker, 91 A. S. R. 161; Thompkins v. Thompkins, 100 N.E. 965; and plaintiff assumes the burden of proof, Argo v. Coffin, (Ill.) 32 N.E. 679; Sanders v. Rhea, (Okla.) 249 P. 350. Burden of proving fraud is upon the party alleging it. Lith. Co. v. Houppert, (Ala.) 55 A. S. R. 77; Kahn v. Ins. Co., 4 Wyo. 476; Patterson v. Co., 7 Wyoming 415. Cancellation of contracts will be exercised only in clear cases and for definite cases, Du Bois v. Water Works, 53 A. S. R. 679; Smith v. Smith, 109 N.E. 830; Condit v. Dady, (Ill.) 45 N.E. R. 224; Maberry v. Nichols, (Tenn.) 39 S.W. 881; Merchant v. Bower, (Texas) 22 S.W. 763. Equity will not relieve an improvident bargain, Breckenridge v. Waters, (Ky.) 17 Am. Dec. 46; Harrison v. Tyson, (Pa.) 64 Am. Dec. 661; Inadequacy of consideration is not of itself ground for setting aside a deed, Hardy v. Dyes, 67 N.E. 652. Or for failure of consideration, Lawrence v. Gayetty, (Calif.) 12 A. S. R. 30. Hale v. Hale, 14 L. R. A. (N. S.) 226. The judgment of the trial court should be reversed.

Sullivan and Garnett, for defendant in error.

The finding of the trial court as to the weight of the evidence is conclusive. Edwards v. Wilson, 30 Wyo. 275; Lellman v. Mills, 15 Wyo. 152. Defendant's so called demurrer to the evidence was properly sustained. The record up to that point made a prima facie case, 38 Cyc. 1549, 26 R. C. L. 1065; Bales v. Breedlove, 222 P. 542; Security Co. v. Ins. Co., 240 S.W. 265; McPherson Co. v. R. R. Admr., 203 P. 913; Bower-Venur Grain Co. v. Smith, 204 P. 265; Smiley v. Jessup, 282 S.W. 110. Want of consideration goes to establish fraud. Hale v. Hale, 14 L. R. A. (N. S.) 221. Denial of defendant's motion to strike was not error, 21 C. J. 401; Kleinolaus v. Dutard, 81 P. 516; Laughlin v. Hopkinson, 126 N.E. 591; Brighman v. Judy Co., 186 S.W. 15; 1 Sedgwick Dam. (9th Ed.) 367; Ranch Co. v. Packing Co., 33 Wyo. 14, 44. The testimony of witness Sullivan was competent. Ranch Co. v. Packing Co., supra. Blodgett v. Park, 76 N.H. 435. Denial of defendant's motion to re-open was justified; Hecht v. Coal Co., 19 Wyo. 18, 31; Loan Co. v. Johnston, 33 Wyo. 457, 467; Stratton v. Murray, 138 P. 1015. The pleadings and evidence show a case of actual fraud and authorities on the question of undue influence or mental incapacity are not in point. Leonard v. Roebuck, 44 So. 390; Kemery v. Ziegler, 96 N.E. 950; Johnson v. Carter, 120 N.W. 320; Thomas v. Whitney, 57 N.E. 808.

Cassius M. Eby, in reply.

The Hale case cited for the Defendant in error differs from the present case on the facts. The only testimony in the case at bar concerning the nature of the instrument, is that of the plaintiff, who testified that when they came to the Notary's office, defendant told the scrivener, to draw up a power of attorney, and some prior talks, in which he says Boyle asked him for such power. All of this testimony is so fully contradicted that it is unworthy of belief and insufficient to vacate the deed. At common law Appellate Courts reviewed the evidence in equity appeals. Section 5555 C. S. abolishing the distinction between actions at law and suits in equity, did not as we understand it, abolish the distinction between legal and equitable rights, nor the right to a trial by jury in law cases. (Const. Art. 1, Sec. 9) 16 R. C. L. 182; Cole v. Reynolds, 18 N.Y. 74; Dixon v. Caldwell, 15 O. S. 415. The trial court should have re-opened the case and permitted the reception of the letters and check which were material evidence.

BROWN, District Judge. BLUME, Ch. J., and KIMBALL, J., concur.

OPINION

BROWN, District Judge.

For convenience the parties to this action will be called plaintiff and defendant as they appeared in the trial court.

Plaintiff and defendant were two of fifteen locators of an Oil Placer Mineral Claim or claims in what was locally known as the Rex Dome Oil Field. They had known each other for several years, and during that time had worked together in the discovery and location of mineral claims. Each had confidence in the ability and integrity of the other. The defendant is a geologist. For some years he had held the position of Professor of Geology in the State University at Laramie. At the time of the trial he was the geologist of the Union Pacific Railroad Company in Wyoming. The plaintiff was a practical miner, having commenced work in the coal mines in the State of Pennsylvania when nine years of age. He was uneducated, having never attended school at all. He could read and write with difficulty; some hand writing he could not read at all. He was not familiar with legal phraseology. On July 5, 1923, he executed and delivered to the defendant a quit claim deed to his interest in the above mineral property in Section 26. The property extended beyond the borders of said Section 26, but that portion outside of Section 26 was not included in the deed. Plaintiff claims in this action that it was represented to him by defendant and he so understood from the conversation at the time of the signing, that the instrument was a power of attorney from him to the defendant, desired by the defendant, so that he could sell both of their interests in said mining property to a party he was negotiating with, who was in the market for such interest. The defendant on the other hand claimed that in consideration of his locating the plaintiff in the future on other mineral claims to be located by him, plaintiff deeded to him his interest in this property. The judgment of the lower court was in favor of the plaintiff. Defendant brings the case here for review on error proceedings.

At the close of plaintiff's case the defendant moved for judgment, and now complains of the adverse ruling. If plaintiff made a prima facie case, the ruling was correct. Plaintiff testified that defendant approached him with the proposition that he was negotiating with a man from the east who was in the market for an interest in the Rex Dome property, but that this man was not interested unless he could secure at least 2-15 interest--that is, the interest of both the plaintiff and defendant--and wanted authority from the plaintiff to sell his interest with that of his own, and suggested a power of attorney from the plaintiff to himself so that he could make the sale. This plaintiff was willing to do. Together they then went to the office of defendant's attorney, and defendant in plaintiff's presence requested the attorney to make out a power of attorney from plaintiff to himself for plaintiff's signature. Plaintiff did not have his glasses with him. He signed and delivered to the defendant the instrument that was prepared by this attorney in the presence of both of them without attempting to read it, and without its being read to him, relying, in doing so, upon the statements of the defendant. This instrument proved to be a quit claim deed. All of the elements of fraud are here present. A motion for judgment at the close of the plaintiff's case is in the nature of a demurrer to the evidence, and admits its truth. From a view of plaintiff's evidence we are satisfied that he made out a prima facie case. It was said by the court in Whitesell v. Strickler, 167 Ind. 602, 78 N.E. 845; 119 Am. St. Rep. 524;

"In situation like this, and in all cases where the relations in life are such that influence is acquired by one and confidence reposed by another, so as to give rise to opportunity for imposition or undue influence, such as arises between guardian and ward, parent and child, husband and wife, principal and agent, and the like and where one of the parties, by reason of his surroundings, is unable to treat with the other upon terms of equality, courts of equity will carefully scrutinize the dealings between them and compel restoration in the absence of absolute fairness. * * * And this rule in equity is not confined to formal relations, such as those alluded to, but extends to every case where confidence exists on the one hand and influence on the other, 'from whatever cause they may spring.'" See, also, Hoge v. George, 27 Wyo. 423, 442, 200 P. 96, 102, 18 A. L. R. 469.

Even though a prima facie case was not made out by the...