McCall v. Bushnell

• Decision Date: 07 June 1889
• Citation: 41 Minn. 37,42 N.W. 545
• Parties: MCCALL v BUSHNELL ET AL.
• Court: Minnesota Supreme Court

41 Minn. 37

42 N.W. 545

MCCALLvBUSHNELL ET AL.

Supreme Court of Minnesota.

June 7, 1889.

(Syllabus by the Court.)

1. A contracting party, who has knowingly executed a written instrument intended to embody and evidence the agreement, should not be allowed to avoid the legal effect of the instrument, on the ground that its execution was procured by fraud, unless the proof be clear and strong.

2. Evidence held not to justify a verdict avoiding a release executed by the plaintiff after it had been read to her, the plaintiff claiming that she paid no attention to the reading because of previous fraudulent statements as to its contents.

Appeal from district court, Ramsey county; BUCKHAM, Judge.

Action by Carrie B. McCall against W. M. Bushnell and A. R. Bushnell to recover commissions. Verdict for plaintiff. Defendants appeal.

Omar Bushnell, for appellants.

J. C. Grace, (John D. O'Brien, of counsel,) for respondent.

DICKINSON, J.

The defendants are partners, engaged in the business of real estate agents and brokers. This action is for the recovery of a share of commissions earned by them in the sale of certain real estate. The evidence went to show that the defendants had agreed to share with the plaintiff their commissions from such business of this kind as she might secure for them, and that she did bring about negotiations resulting in the sale referred to. The jury awarded a recovery of $243.75, and the verdict should be sustained, unless a release executed by the plaintiff was effectual to bar her action.

The only question upon which there can be doubt is whether the execution of the release was procured by such fraudulent means as to avoid it. Prior to the executing of the release, the plaintiff had contracted, through the defendants, as agents of one Foulke, for the purchase of certain land of the latter. She had paid to the defendants $100 of the purchase price, and had obligated herself by contract to make other payments. In October she wrote to the defendants stating that she had experienced difficulty in securing money to make such payments on her contract of purchase. After referring to “the two hundred and forty odd dollars due me from you as commission on that sale of last summer,” she says: “I ask you if you will not allow me to withdraw from the contract, and forfeit the money paid; also the commission due me, before spoken of.” No reply was made to this letter, but some two months later the plaintiff had an interview with the defendants at their office. The evidence is conflicting as to the conversation and circumstances attending the rescission of the plaintiff's contract of purchase, and the executingof the release, which was done at that time.

The plaintiff's version of the transaction, upon which alone her case depends, is in substance as follows: In the course of the conversation she remarked that the defendants had never mentioned the commissions they had promised her. One of the defendants stated that they were credited to her in their office. The defendants agreed or consented to the rescission of her contract of purchase, and insisted that if that was done she should be repaid the $100 she had paid thereon. She at the time stated her willingness that they should retain that as forfeited, and expressing her appreciation of their honorable and generous conduct, when the repayment of this was insisted upon. Nothing was said in this interview about her forfeiting her commission due from them. The parties then executed a formal written agreement annulling the plaintiff's contract for the purchase of the Foulke land. No question is suggested as to the authority of the defendants to do this. One of the defendants, with whom this negotiation was principally carried on, then said: “My brother will now read to you a paper, and after you have signed it, the cashier will give you a check for a hundred dollars.” She asked what was the use of having another paper drawn up. He said that it was a mere matter of...