43 Colo. 301 | Colo. | 1908
delivered the opinion of the court:
This was an action to foreclose a mortgage on real estate, given to secure the payment of a promissory note for $175.30. Defendant denied that she made the note, but alleged that she did make one for $120.00 under the following circumstances:' That she was a servant in the employ of a Mrs. Bush, who kept a rooming house in the city of Denver; that her employer had failed to pay .her wages for some time, and that she pretended to be indebted to one Dunning, who claimed to be the landlord of the premises; that Dunning and Mrs. Bush entered into a conspiracy for the purpose of defrauding defendant and procuring from her a note and mortgage, and that they falsely represented to the defendant that Mrs. Bush was indebted to Dunning in the sum of $120.00 for rent, and that unless the same was paid Mrs. Bush would he ejected and defendant would lose her wages; that if the defendant would sign a note, Dunning would protéct and hold her harmless and that the indebtedness would be paid within sixty days by Mrs. Bush; that, relying upon these representations and having confidence in Dunning and Mrs. Bush, defendant agreed to sign the note for $120.00 payable in two months, but that she subsequently learned that the note she had signed was for $175:30; and that she was old. and feeble, had defective eyesight, and was unable to read and did not read the note or mortgage.
These allegations were denied by plaintiff. Judgment was rendered for defendant and plaintiff appeals. The only assignment of error presented is that the judgment is not supported by the testimony.
Plaintiff testified that Mrs. Fitzgerald, came to his office and wanted to make a loan, stating that she wished to help a friend. He sa,id that he did not
Ernest W. Dunning testified that he told the defendant the amount of the note and mortgage and
The note was made payable in one year. Defendant inquired of Dunning if she could pay it at any time, and she insisted that the note be made that way, so¡ he wrote in the words “on or before”; that the matter of $120.00' was not spoken of.
Defendant testified that she was 64 years old; that she supported herself by doing housework; that she was working for Mrs. Bush and that Mrs. Bush did not pay her; that she had never been in plaintiff’s offices.until after the note was signed; that she had nothing to do with plaintiff; that she transacted all of the business with Dunning; that she had cataracts on her eyes and could not see very well; that she refused to pay the interest when notified that it was due; that she did not remember seeing the note and mortgage; that Mrs. Bush wanted her to borrow $120.00 and let her take it, and that Dunning came to the house and Mrs. Bush asked defendant to sign the papers; that she said “all right,” and signed them and asked Mr. Dunning if he would protect her for a month or two, and he said that he would as far as he could; that she did not read the paper and. did not know what it was. She never thought it was a mortgage and thought the note was for $120.00 and that the length of time it would run was two months; that Dunning did not tell her he was a notary public and did not ask her to acknowledge her signature to the
The sister of the defendant testified that defendant was a widow and had to earn her own living; that a couple of years before the trial defendant was in-injured on a tramway car, which laid her up for six weeks, and there were times when she said- that her head * ‘ swims around. ’ ’
Upon this testimony the court rendered judgment for the defendant. Appellee, in order to sustain this judgment, insists upon the application of the doctrine that a judgment based upon conflicting testimony should not be disturbed. This is true, but there must'be a substantial conflict in the testimony. The evidence must be legally sufficient to uphold the finding of the court. If it does not clearly warrant the judgment, the judgment must be reversed. — The LaCrosse Gold Min. Co. v. Scudder, 4 Colo. 44; London C. M. M. Co. v. Findlay, 6 Colo. 571; Int. Trust Co. v. United Coal Co., 27 Colo. 246.
In this ease the allegations made in the answer were of a conspiracy between- Dunning and Mrs. Bush; that the representations were falsely made; that Mrs. Bush was indebted to Dunning, and that these representations were made for the purpose of procuring the defendant to. borrow this money.
Promissory notes and mortgages, which are duly executed and acknowledged before a notary public, ought not to he set aside as invalid for fraud, except upon the most clear and convincing proof of their fraudulent character, and we cannot find anything in this testimony which warrants 'the finding and judgment of the trial court. The judgment will, therefore, he reversed. Reversed.
Chief Justice Steele and Mr. Justice Goddard concur. -