Coe v. McGran

• Decision Date: 29 March 1913
• Citation: 23 Idaho 582,131 P. 1110
• Parties: NELLIE W. COE, Respondent, v. PHIL MCGRAN, Appellant
• Court: Idaho Supreme Court

131 P. 1110

23 Idaho 582

NELLIE W. COE, Respondent, v. PHIL MCGRAN, Appellant

Supreme Court of Idaho

March 29, 1913

WANT OF CONSIDERATION-SUFFICIENCY OF EVIDENCE-UNDUE INFLUENCE.

1. Evidence examined, and held sufficient to support the verdict and judgment.

2. Where it appears that C., in whose favor a check was executed, performed services in caring for G., who executed the check, and in taking him into her home, which she would not have performed except for promise made by G. that he would either buy C. a farm or compensate her by money consideration, held that a consideration is shown for the execution and delivery of a check from G. to C., on which action is subsequently brought.

3. Preference and goodwill from one toward another, growing out of kindnesses and attentions paid an aged person, are not sufficient to show undue influence, in the absence of proof of imposition or fraud practiced by the one upon the other.

(Sullivan J., dissents.)

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Charles P. McCarthy, Judge.

Action for debt. Judgment for plaintiff. Defendant appealed. Affirmed.

Judgment affirmed, with costs in favor of respondent.

Ira E Barber, for Appellant.

Any relation which gives rise to confidence, though not a badge of fraud, which may arise from other circumstances, holds the parties to a fuller and stricter proof of the fairness of the transaction, and may in some cases be deemed conclusive evidence of fraud. (Bump, Fraudulent Conveyances, 3d ed., 59; Eaton & Gilbert, Com. Paper, p. 279, 79 Cyc. 463.)

The confidential relations of the parties to this action were such that a voluntary delivery to plaintiff of this large check in consideration of future support, without reservation or written agreement guaranteeing such support, was improvident and void by reason of the confidential relationship importing undue influence. (White v. Daly (N. J.), 58 A. 929; Potter v. Woodruff, 92 Mich. 8, 52 N.W. 83.)

When parties are nearly related, proof of the fairness of the transaction is required to be more clear and convincing than when they are strangers. (Lehman etc. Co. v Greenhut, 88 Ala. 478, 7 So. 299; Thomas v. Beck, 39 Conn. 241; English v. Porter, 109 Ill. 285; Schroeder v. Walsh, 120 Ill. 403, 11 N.E. 70; Burton v. Boyd, 7 Kan. 18.)

In the relationship of these parties the burden is on the beneficiary to show the transaction is absolutely fair, adequate and equitable. (Street v. Goss, 62 Mo. 226; Gibson v. Hill, 23 Tex. 77; Ray v. Lawrence, 38 Ky. (7 Dana) 78; Schwartz v. Gerhardt, 44 Ore. 425, 75 P. 700.)

When a benefit is obtained without consideration from one not in possession of his mental faculties, the transaction is void. (Valentine v. Lunt, 51 Hun, 544, 3 N.Y.S. 906.)

Such transactions will not be upheld. (Goodyear v. Adams, 52 Hun, 612, 5 N.Y.S. 275, approved 119 N.Y. 650, 23 N.E. 1149; Becker v. Schwerdtle, 141 Cal. 386, 74 P. 1029.)

A promise to make a gift lacks a consideration, and is unenforceable. A promise to pay money when there is no legal obligation to pay and no other consideration is not enforceable.

A promise founded only on a good consideration is gratuitous and unenforceable. (Peck v. Brummagim, 31 Cal. 440, 89 Am. Dec. 195; Williams v. Forbes, 114 Ill. 167, 28 N.E. 463; Warren v. Durfee, 126 Mass. 338; Jackson v. Twenty-third St. Ry. Co., 88 N.Y. 520; In re Crawford's Appeal, 61 Pa. St. 52, 100 Am. Dec. 609; Clark v. Jones, 85 Ala. 127, 4 So. 771; Oullahan v. Baldwin, 100 Cal. 648, 35 P. 310; Fink v. Cox, 18 Johns. (N. Y.) 145, 9 Am. Dec. 191; Brooks v. Owens, 112 Mo. 251, 19 S.W. 723, 20 S.W. 492, and other cases cited. 9 Cyc. 316, et seq.)

In such cases the burden of proof shifts to the beneficiary, and requires a showing that the transaction was absolutely fair and the consideration adequate. (Baughes v. Buckles, 2 Ohio Cir. 498; Winter v. Nobs, 19 Idaho 18, Ann. Cas. 1912C, 302, 112 P. 525; Vaughan v. Johnston, 20 Idaho 669, 119 P. 879, 37 L. R. A., N. S., 816; Adee v. Hallett, 3 A.D. 308, 38 N.Y.S. 273; Derrick v. Emmons, 14 N.Y.S. 360.)

A promise to pay, where there is no legal obligation, is not binding. (Waterloo etc. Co. v. Cole, 51 Cal. 381; Martin v. Stubbings, 20 Ill.App. 381; Lyon v. Williams, 71 Mass. 557; Logan v. Mathews, 6 Pa. 417; Houser v. Hobart, 22 Idaho 735, 127 P. 1000; Steele v. Sanchez, 80 Iowa 507, 45 N.W. 870; Tulane v. Clifton, 47 N.J. Eq. 351, 20 A. 1086.)

While weakness of mind alone will not avoid a contract, when combined with inadequacy of consideration, it will be sufficient to show the influence exercised over the party was undue. (Worthington v. Major, 94 Mich. 325, 54 N.W. 303; Kroenung v. Goehri, 112 Mo. 641, 20 S.W. 661; Konrad v. Zimmermann, 79 Wis. 306, 48 N.W. 368.)

If the party who reposes trust and confidence in the other is afflicted with weakness, either physical or mental, such fact greatly strengthens the presumption of undue influence arising out of confidential relations. (Ashmead v. Reynolds, 134 Ind. 139, 39 Am. St. 238, 33 N.E. 763; Woodbury v. Woodbury, 141 Mass. 329, 55 Am. Rep. 479, 5 N.E. 275; Martin v. Baker, 135 Mo. 495, 36 S.W. 369; Lewis v. McGrath, 191 Ill. 401, 61 N.E. 135; Dorsey v. Wolcott, 173 Ill. 539, 50 N.E. 1015; Gibbins v. Gibbins, 175 Pa. 475, 34 A. 846.)

Between persons in a confidential relation, the fact that the party seeking relief was aged and infirm and was induced to enter into the transaction by a contract which was not performed, still further strengthens the presumption of undue influence. (Stuyvesant v. Wilcox, 92 Mich. 228, 52 N.W. 617; Tomlison v. Tomlison, 103 Iowa 740, 72 N.W. 664; James v. Groff, 157 Mo. 402, 57 S.W. 1081; 1 Page on Contracts, 218, and cases cited.)

S.E. Blaine and Good & Vaughan, for Respondent.

As to the question of undue influence, the burden of proof of undue influence rests upon the parties alleging the same. (Mayers v. Kaiser, 85 Wis. 382, 39 Am. St. 849, 55 N.W. 688, 21 L. R. A. 623; Ginter v. Ginter, 79 Kan. 721, 101 P. 634, 22 L. R. A., N. S., 1024; Sellards v. Kirby, 82 Kan. 291, 136 Am. St. 110, 20 Ann. Cas. 214, 108 P. 73, 28 L. R. A., N. S., 270; Towson v. Moore, 173 U.S. 17, 19 S.Ct. 332, 43 L.Ed. 597; Kelly v. Perrault, 5 Idaho 225, 48 P. 45.)

"Influence gained by kindness and affection will not be regarded as 'undue,' in the absence of any proof of imposition or fraud being practiced by the grantee of a deed of gift." (Turner v. Gumbert, 19 Idaho 339, 114 P. 33; Shaughnessy v. Hood, 21 Idaho 709, 123 P. 641; Goodwin v. Goodwin, 59 Cal. 561; Shea v. Murphy, 164 Ill. 614, 56 Am. St. 215, 45 N.E. 1021.)

"The law does not inquire as to the propriety or import of the conveyance, but as to the grantor's capacity to make it, and whether it was made freely and with his assent." (Bump on Fraudulent Conveyances, 3d ed., p. 451; Mallow v. Walker, 115 Iowa 238, 91 Am. St. 158.)

"Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration, and every person whose signature appears thereon, to have become a party thereto for value." (Sec. 3481, Rev. Codes; 8 Cyc. 224.)

"In the case of a bank check, it is presumed that the drawer was, at the time of giving the check, indebted in the amount named to the payee." (Matter of Humfreville, 6 A.D. 535, 39 N.Y.S. 550; Mills v. McMullen, 4 A.D. 27, 38 N.Y.S. 705; Poucher v. Scott, 33 Hun (N. Y.), 223.)

"There is a sufficient consideration for a promise if there is any benefit to the promisor or any loss or detriment to the promisee." (Visalia Gas etc. Co. v. Sims, 104 Cal. 326, 43 Am. St. 105, 37 P. 1042, 9 Cyc. 311, and cases cited.)

"The law will not inquire into the adequacy of the consideration. It is sufficient that there is actually a consideration; that such consideration is legal, and that it has some value. If there be any consideration, the court will not weigh the extent or value of it." (3 Am. & Eng. Ency. of Law, 831, and notes; 9 Cyc. 333, 365; Sayward v. Houghton, 119 Cal. 545, 51 P. 853, 52 P. 44; Des Moines Valley R. Co. v. Graff, 27 Iowa 99, 1 Am. Rep. 256; Goward v. Waters, 98 Mass. 596; Wilson v. Clonbrock Steam Boiler Co., 105 F. 846; Johnson v. Staenglen, 85 F. 603, 29 C. C. A. 369.)

AILSHIE, C. J. Stewart, J., concurs. SULLIVAN, J., Dissenting.

OPINION

AILSHIE, C. J.

This is an appeal from a verdict and judgment on a check issued by the appellant in favor of the respondent. The defense interposed is want of consideration and undue influence. The appellant had been living in respondent's home from time to time for several months and had been taken care of by respondent at times when he was very ill. He was an old man some seventy years of age, and apparently in easy financial circumstances and had no family or relatives. He appears to have taken a liking to the respondent, and, indeed, called her his adopted daughter, and introduced her on some occasions as his adopted daughter.

It could serve no good purpose for us to review and discuss the evidence in a written opinion. It is sufficient to say that there is evidence in the record sufficient to support the verdict and judgment.

It is quite clear that the respondent performed services for appellant in caring for him and taking him to her own home which, in all probability, she would not have performed except for the promises he repeatedly made her to compensate her either in buying her a farm or in giving her a money consideration.

The record fails to show any undue influence having been exercised by respondent over this old man. That he was exceedingly fond of her is conceded on all sides, and that she was kind to him and took every care of him while in her home is equally clear. It is well established, however and this court has so held,...