Burch v. Smith

| Tex. | Jul 1, 1855

Wheeler, J.

There is no complaint of the instructions, or any ruling of the Court upon the trial; and the only question is whether the evidence was sufficient to warrant the verdict.

It is true that fraud will not be presumed, but must be ' proved ; and that mere inequality in the bargain, or inadequacy of consideration will not, in itself, afford a distinct ground for annulling a contract; yet fraud maybe proved by circumstantial evidence. It is not, in its nature, discernible by the direct evidence of the senses; and is usually so covert and concealed, or is attended with such attempts at concealment, as to be incapable of proof otherwise than by circumstantial or presumptive evidence. Its existence, in a given case, may be proved, either by intrinsic evidence of unfairness i itself, or by evidence of facts and circumsta^^. a^^^j^pSvhich, by the ordinary tests by which we judge of the motives'1 action appear inconsistent with an honest ¿/|]i^^eg^^0|j|when it is said that fraud cannot be presumed, it is not meant jthat the presumption of fraud may not arite, Jg^l^|tiimtely deduced by a jury from such evidence ysbut only, ffra&lt' is not to be assumed of a transaction, that it is fragment, in the absence of proof afforded by intrinsic evidence of unfairness in the transaction itself, or extrinsic facts and circumstances leading to that conclusion. There is reason to apprehend that juries are not unfrequently mislead, in cases of this character, by being told that fraud cannot be presumed, but must be proved; thereby inducing the belief, that fraud is a thing which has a material existence, is tangible, and cannot be otherwise proved than by evidence direct and positive. Such is not its nature ; it is not a thing susceptible of ocular observation, or physical demonstration. Yet its existence, in a given case, may be sufficiently demonstrated for judicial purposes, and to warrant judicial action, by intrinsic evidence of unfairness in the contract or transaction itself. Thus, though mere inequality in a bargain, or inadequacy of consideration, would not, of itself, unattended with fraud, afford a distinct ground for annulling the contract, yet, “ there may be (in the words “ of Judge Story) such an unconscionableness or inadequacy in “ a bargain, as to demonstrate some gross imposition, or some ' “ undue influence ; and in such cases Courts of Equity ought to “ interfere, upon the satifactory ground of fraud. But then “ (he adds) such unconscionableness or inadequacy should be “ made out, as would (to use an expressive phrase) shock the “ conscience, and amount, in itself, to conclusive and decisive 11 evidence of fraud. And where there are other ingredients in “ in the case, of a suspicious nature, or peculiar relations be- “ tween the parties, gross inadequacy of price must necessarily “ furnish the most vehement presumption of fraud.” (1 Story, Eq. Sec. 246.) Thus, it is seen that Courts of Equity recognize the doctrine, that there may be such unconscionableness and inadequacy in the bargain as to amount, in itself, to decisive evidence of fraud; and though mere inadequacy of price, joe?’ se, is not, yet fraud is sufficient and satistactory ground of relief against a contract.

The present case is not wanting in evidence, both intrinsic and extrinsic of the contract, sufficient to warrant the setting it aside, upon the ground of fraud. In her answer to interrogatories, the defendant admits that but forty dollars of the consideration was paid ; that she promised to pay the residue of the two hundred and forty dollars, the real consideration, in the notes, or draft of a third person ; but says she was unable to do so, and that it was agreed, that, when the plaintiff should prove up a debt or demand she had on the estate, and prove before the Court her marriage—but being unable to do so in Texas—should forward to the defendant from Tennessee, proper evidence of her marriage with her deceased husband, she was to give the plaintiff her own note payable on the final settlement of the estate, in place of the notes or draft first agreed to be given ; which she professes her readiness to do, when the plaintiff shall have complied with her part of the agreement; and she insists that the plaintiff’s performance was a condition precedent to performance on her part. Upon these terms and. conditions, she says, the plaintiff, of her own free will, executed and delivered to her the deed in question. According to this, the defendant’s own version of the contract, if the plaintiff should fail to perform the precedent conditions, the defendant was to retain and enjoy the title and right of the plaintiff in the estate, without the payment of anything more, or without any consideration, except the forty dollars she says she had already paid. And though she imposed such terms, and required solemn proof of the plaintiff’s marriage as a condition precedent to her even giving her note for the payment of the consideration, she did not hesitate to take from the plaintiff a full and formal deed, conveying all her “ right, title, interest, claims or demands, in esse, or in expectancy, as widow or surviving wife,” of the deceased. Such a contract, in itself, would seem so flagrantly unequal, unjust and oppressive, as (in the language of Judge Story) “ to demonstrate some gross imposition or some undue influence.” “ Such unconscionableness and inadequacy” as to “ shock the conscience, and amount in itself to conclusive and decisive evidence of fraudand especially when the circumstances, and the relations subsisting between the parties are considered, to afford a satisfactory ground for annulling the contract.

But there is also other evidence extrinsic of the' contract, besides that afforded by the situation and relations of the parties, which conduces to the same result. The evidence of the witness Patton shows, that the plaintiff was deceived by promises of payment held out by the defendant up to the very time of her departure from the country ; and the jury might well conclude that the deception was intentional, practiced with the design of depriving the plaintiff of her rights in her deceased husband’s estate without compensation. Where the question is one of fraudulent intent, it is peculiarly the province of the jury to judge of the weight and sufficiency of the evidence. (Briscoe v. Bronaugh, 1 Tex. Re. 326.) We are of opinion that --the verdict was well warranted by the evidence, and that the-Court did not err in giving judgment thereon annulling the deed. The judgment is affirmed.

Judgment affirmed.