Hearn v. Hearn

• Decision Date: 25 July 1902
• Citation: 24 R.I. 328,53 A. 95
• Parties: HEARN v. HEARN.
• Court: Rhode Island Supreme Court

53 A. 95

24 R.I. 328

HEARN

v. HEARN.

Supreme Court of Rhode Island.

July 25, 1902.

Suit by Ernest H. Hearn against John Hearn." Heard on bill, answer, and proof. Decree for complainant.

Argued before STINESS, C. J., and TILLINGIIAST and ROGERS, JJ.

Doran & Flanagan, for complainant.

C. J. Farnsworth and J. Osfield, Jr., for respondent.

ROGERS, J. This is a bill in equity brought for the purpose of obtaining the avoidance and cancellation of a release in writing and under seal given by the complainant to the respondent, and which it is alleged was obtained by misrepresentation and fraud.

The undisputed facts are that the complainant, who is 28 years of age, is the son of the respondent; that on October 5, 1900, the complainant recovered a verdict against the respondent for $5,178.60 in the common pleas division of this court; that thereafter said respondent filed his petition for a new trial in this division, and which petition has been submitted to this court for decision; that said verdict was secured by an attachment on the respondent's personal property; that on the evening of March 30, 1901, the complainant and the respondent had an interview at the complainant's residence in Taunton, Mass., in regard to a settlement of said law suit, at which the complainant and his wife and the respondent and one Patrick Creed were the only persons present; that at that interview (but whether on said March 30th or on the morning of March 31st is disputed) the complainant executed and delivered under seal a general release to the respondent of all actions, causes of action, debts, dues, claims, and demands both in law and equity, and especially referring to the verdict the complainant had recovered against the respondent, the consideration expressed being nominal, but that upon the delivery thereof the respondent paid to the complainant the sum of $2,000; and that upon the filing of this bill on April 18, 1901, the complainant paid the sum of $2,000 into the registry of this court to await the determination of this suit.

The case is now before us on bill, answer, and proofs, and the issues as agreed on by the parties are as follows, viz.: First. Was the consideration for the release mentioned in the bill the sum of $2,000 cash paid to complainant, and respondent's agreement to provide complainant with employment at a minimum salary of $12 a week as long as respondent should remain in business, and the agreement of respondent to pay the attorneys of complainant? Second. Was the consideration for said release only said sum of $2,000 paid to complainant? Third. Was said release obtained by promises insincerely made? Fourth. Was said release obtained by fraud? Fifth. Was said release delivered on Sunday?

1. In addition to the undisputed facts already detailed, a careful examination of the testimony satisfies us of the existence of the following facts, viz.: That the respondent was very anxious to settle the case in which the complainant had obtained a verdict against him, and for the smallest possible figure; that he had visited Taunton, where his son resided, from Providence, where he himself lived, several times for that purpose; that on March 30, 1901, he again went there, meeting a man named Creed, who, instead of being a disinterested party as he himself swore to being, and as counsel argued, was a mere tool of the respondent, to aid the respondent to accomplish his purpose; that, having had a release drawn up by a lawyer in Taunton, the respondent and Creed called at the complainant's house, and, after an interview with the complainant and his wife extending through several hours, induced the complainant to sign the same; that the respondent appealed to his son's natural filial regard and trust in his father's honor, and urged the lack of necessity of having aught but the amount of money named as the consideration of the release; that the real consideration therefor was not only $2,000 cash, but also an agreement to give the son permanent employment at not less than $12 a week, with the expectation of succeeding to the father's business—that of a saloon-keeper—and also an agreement to pay the son's counsel fees, which were to be one-half of the amount recovered; and that the release did not express the whole consideration was due to the misrepresentation, undue influence, and fraud practiced by the respondent upon the complainant.

The testimony of the complainant and his wife on one side, and that of the respondent and the witness Creed on the other, as to what took place at the interview on the evening of March 30, 1901, are in such irreconcilable conflict as to utterly exclude the idea that both sides are telling nothing but the truth. The testimony of the complainant and his wife practically agrees, and under the circumstances seems reasonable, and commands our confidence. On the other hand, the testimony of the respondent and Creed contradicts each other in such a way as to thoroughly impair confidence in both. The father swore (Rec. p. 109) as follows: "I told him if he came to work for me I could give him $12 a week. * * * 1 told him I would pay him $12 a week. Q. 792. Did you ever agree to pay him $12 a week during life? A. No, sir. Q. 793. You did say you would furnish him with employment? A. Yes, sir. The amount of money I was going to give him so that he could go into this ten per cent. business alone." See, also, Rec. p. 127. Creed in his testimony not only frequently contradicts himself, but also the respondent. Creed swears (Rec. p. 293): "C. Q. 267. What did Ernest say about making a contract about work? A. His father said he could work there as long as he wanted. 'You say you have turned over a new leaf; you can come there and get $12 a week; and when I can do better I will do better.' C. Q. 268. When did he say that? A. That was said before the thing was signed. There wasn't a thing...