212 P. 801 | Or. | 1923
The law as to the modicum of proof necessary to establish fraud is well settled and counsel do not disagree in respect to that. Particularly in cases of this kind where the alleged fraud is not constructive, but deliberate and intentional, clear and satisfactory proof is required to establish it.
“While it is not necessary, in order to sustain an allegation of fraud, that the evidence should be so decisive as to leave no doubt, unless it be in the case of an attempt to overturn a writing, the rule requiring clear and satisfactory evidence. appears to mean more than is meant by satisfactory evidence of other facts not involving turpitude. There is, it seems, in the case of a charge of fraud, a presumption of honesty to overcome, and stronger evidence will accordingly be required than would be necessary in a case' in which no presumption to be met existed”: 1 Bigelow on Fraud, p. 145.
The evidence in the case at bar is far from being of the satisfactory character indicated in the above quotation.
The only witness to the original conversation is the plaintiff himself, who claims, perhaps falsely, and Mr. Sewall’s testimony indicates, that he cannot understand .English; and the interpreter who was with him at that time was absent from the state when the trial was had, and was therefore not called. Mr. Magruder flatly contradicts him. So, as to the original understanding we have the testimony of a witness who
As to what took place in Mr. Sewall’s office, we have the testimony of the plaintiff under the same limitations as before, against the testimony of Mr. Sewall, a highly respected member of the bar, and of Magruder, so that there is no outweighing of the testimony in favor of the plaintiff. Moreover, the circumstances relied upon by him to add weight to the direct testimony of himself and his interpreter are equivocal and add little or nothing to the sum of our information on those subjects. Mr. Magruder testifies that the provision in regard to using defendant’s influence to cause water to be pumped under certain circumstances was inserted in many other leases to other parties, and this is not denied. He gives as a reason for this that the defendant had no authority to designate the time of pumping, as the pumping equipment belonged to the drainage district, of which organization the defendant was only a member along with many others. It seems reasonable that whenever drainage was necessary for one owner on this flat, swampy land it would be necessary for all or nearly all of the other owners, and that self-interest would lead the cultivators in the drainage district to unite in pumping when necessary, wherefore the defendant could safely promise that its influence would be directed to that end, with every probability that a request of that kind would meet with a favorable response. To have promised more would have been unreasonable under the circumstances. We do not believe that such an agreement as plaintiff contends for was made. There is not sufficient testimony to justify us in so finding.
The decree of the Circuit Court is affirmed.
Affirmed.
