Burnham v. Heselton

• Decision Date: 15 March 1890
• Citation: 20 A. 80,82 Me. 495
• Parties: BURNHAM v. HESELTON.
• Court: Maine Supreme Court

20 A. 80

82 Me. 495

BURNHAM

v. HESELTON.

Supreme Judicial Court of Maine.

March 15, 1890.

(Official.)

Exceptions from superior court, Kennebec county.

W. Gilbert and W. C. Fletcher, for plaintiff. Heath & Tuell, for defendant.

EMERY, J. The plaintiff held a note of $250 against the Burnham Shutter Worker Company, which, on the 23d day of March, 1888, he committed to the defendant, an attorney at law, for collection. The defendant ascertained that one Stone had for a consideration assumed and agreed to pay all the company's debts, and that Stone was amply able financially, and entirely willing, to pay this note on presentation. After ascertaining these facts, the defendant, on the 26th day of May, 1888, made an agreement in writing with the plaintiff, by which the defendant was to collect what he could of the note at his own expense, and pay the plaintiff $75, if so much was collected, and retain for his services and risks all he should collect over $75. A short time after this agreement the defendant caused the note to be presented through a bank to Stone, who paid it in full, with interest, to the bank for the defendant. July 4, 1888, the defendant paid the plaintiff $75, and took his receipt in full "for the note, according to agreement." The next fall, November 20, 1888, the plaintiff brought this action of assumpsit for money collected and money had and received by the defendant to his use. The object was to recover the balance of the money collected on this note by the defendant. The defendant pleaded the general issue only, and at the trial put the above agreement and receipt in evidence in defense. The plaintiff contended these were not valid against him on the ground that he was not informed of the facts known to the defendant in relation to the note, and the chances of its speedy and full collection. Whether the plaintiff was so informed of those facts was the real issue before the jury.

The presiding justice instructed the jury, in the first instance, that the burden was on the defendant to establish the affirmative of the proposition that the plaintiff made the agreement or sale with full knowledge of all the facts known to the defendant, his attorney, and without concealment or suppression on the defendant's part. But in the same connection he used this further language: "But, gentlemen, while the burden is upon the defendant to do this, there is another principle which it is always the right and duty of the jury to consider in determining the question of burden of proof, and that is the question of presumption; that is, the probability or improbability involved in the charge of fraud. * * * In other words, there is in these cases, you will perceive, whether in civil or criminal procedure, where a fraud is charged,—where something wrong is charged, an opposing presumption, an improbability,—which you have a right to consider in determining when the burden of proof has been discharged. * * * You have a right to consider the element of the presumption of innocence and the element of improbability that is involved, if it is involved in your judgment. It is for you to say when the burden of proof is discharged." Again, in commenting on the credibility and bearing of the several testimonies, the presiding justice, after reminding the jury of the legal presumption of the innocence of the defendant, further said: "Gentlemen, I do not think it necessary to remind you that the time has not yet come when a fair and honorable character, which has been built up in the county by the process of years of worthy endeavor and honorable dealing, shall not count for something in a court of justice as well as out of it."

There was no evidence in the case touching the general character of the defendant, nor anything relating to his character at all, except the relations of the witnesses on the one side and the other, touching the transactions of the defendant in these premises. To the language above quoted the plaintiff excepted, the verdict being for the defendant.

The law hates fraud or deception of any kind. It will uphold no contract or seeming right obtained through fraud. When the parties to the contract are upon equal footing, each dealing for himself, without any relation of trust or confidence between them, the law will not permit any misleading, any deception, of one party by the other. It will not enforce any advantage so gained. But in such cases the law will not presume there was fraud. It will assume that each party acted for himself, upon his own judgment, without being misled by the other party, until such misleading is proved. Any such party, seeking to avoid any contract or other transaction on the ground of fraud, has the burden of proving the fraud. Such transactions are presumed to be valid until proved to be invalid.

When, however, the parties are not upon an equal footing, each acting for himself, but some relation of trust or confidence exists between them, touching the subject-matter of the contract, the law is not so considerate or trustful. Where such relations exist, it views the transaction with caution, if not with suspicion in such cases it will not assume in favor of the agent or fiduciary that the contract was fairly made, and that there was no abuse of confidence. It waits for such party to satisfy it affirmatively,—to...