Loftus v. Maloney

89 Va. 576 | Va. | 1893

Richardson, J.,

(after stating the case,) delivered the opinion of the court.

It is quite clear that the decree complained of is entirely without error.

The bill directly charges that the defendant, Maloney, (appellee here,) came to Newport News with a view of procuring the partnership with the complainant, Loftus, (appellant here,) and to cheat and defraud said Loftus out of his property for a mere song; and that, having secured the partnership, Maloney, by every means in his power, persuaded and induced his partner, Loftus, to drink ardent spirits, for two or three weeks, to such excess as to deprive him of an agreeing mind, and to render him, in effect, non compos mentis and utterly incapable of protecting his interests; and that in this condition he was induced by Maloney to become the purchaser of his interest in said firm of Loftus & Maloney at an exorbitant and unconscionable price. These charges are repeated time and again in the bill, and -with alleged circumstances of aggravation which, if true, would render the appellee, a very demon and the author of a fraud the enormity of which is rarely, if ever, surpassed. But, in his answer, the appellee, Maloney, with circumstantial particularity responds to each and every form" of the charge, and indignantly denies and repels the charge in each and every form in -which it is imputed to him. Not only does he do this, but he goes on to present in minute detail all the circumstances connected with the formation of the partnership, the conduct of the firm’s business, and the circumstances which made it incumbent upon him to demand a dissolution of the co-partnership; and lie most positively disclaims having ever observed or known of the alleged drunkenness of the appellant for two or three weeks next preceding the contract in question, or that he ever, within the time specified, knew him to be drunk, except on one occasion, which was on a Sunday, some weeks prior to the contract, for which he remonstrated with him ; and he most positively denies that he ever in any way induced the appellant to drink ardent spirits, with the view of taking advantage of his inebriety or in any way ovezneaching him; and he positively avers that the terms of dissolutiozi were' proposed by the appellant, and were accepted by him, and that the appellant was at the tizne absolutely sober.

Then comes the sworn answer of W. J. JSTelzns, trustee in the deed of trust, and the specially-employed and trusted counsel of the appellant to prepare the necessaz-y papers for the completion of the contract, wdio says: That he knew nothing of the az-rangements between Loftus and Maloney in regard to the dissolution of the partnez-ship until Loftzzs appz-oached him and requested that he should draw the necessary papers, saying they had dissolved, and mentionizzg the terms of the dissolution ; that at the time this conversation occurred, in the respondent’s office, this respondent believed Loftus to be of sound and agreeing mind, and did not notice any peculiarities, nor did he notice or observe that Loftus had been drinking at all, and that certainly respondent would zzot have drawn any papers affecting Ms client’s interest had he for one nzoment thought or believed him of'other than a sound and agreeing mind, " and perfectly capable of making, the arrangement affecting his property.

These important averments in the answers of the two defendants are izz respozise to the demand in the bill that they be reqizired to answer under oath. Viewed, then, in the light of the bill and answers, the averznents in the latter being necessazúly called forth by the bill, the case is unmistakably and overwhelmingly with the appellee. And now, in turning to the evidence, we shall see that the appellee’s case, so far from being weakened thereby, is decidedly strengthened.

The plaintiff below (the appellant here) introduced four witnesses, Fowler Hamilton, Thomas McLaughlin, C. E. Talmadge, and E. G. Wells.

Fowler Hamilton, after the usual preliminary questions, is asked : “ Ques. Did you often see M. W. Loftus for several weeks prior to the 21st day of July, 1890? Ans. Yes, sir. Ques. State whether or not said Loftus was drinking to excess during the two or three weeks prior to 21st day of July, 1890 ? Ans. I think he was. Ques. Did you see, during that time, J. M. Maloney serve drinks to said Loftus whilst said Loftus was under the influence of liquor? Ans. I think I have. Ques. State whether or not, in your opinion, the said Loftus was capable of understanding the nature of any important contract on the 21st day of July, 1890 ? Ans. I did not see him that day. Before that he had been drinking for two or three weeks, and T did not think he was, hardly. Ques. When was the last time, prior to the said 21st day of July, that you saw M. W. Loftus? Ans. I couldn’t say exactly. It w'as a day or two before the 21st that I saw' him. I generally went home on Friday or Saturday. I know' it was two or three days from the time I went home until I came back, when Mr. Maloney told me he had sold out. Ques. Was Loftus drunk when you went home ? Ans. I did not see him when I first went there. I saw him later on the same day— that is, the day I came back. I think it was the next day, or the second day, I saw him. Ques. What was the condition of Loftus when you went home, and what had been his condition for two or three weeks prior to the sale on the 21st day of July, 1890'? Ans. He had been drinking quite some for two or three weeks before the 21st day of July, 1890. Ques. State whether or not, in your opinion, the mind of said Loftus was so impaired and weakened on the 21st day of July, 1890, from continuous previous intoxication, as to render him incapable of ful-ly understanding the nature of an important contract? Ans. I don’t think hardly he was fit for business in the shape he bad been in. Ques. Did you see Loftus on the 21st day of July, 1890, or any time soon thereafter; and, if so, state whether or not he was under the influence of liquor then? Ans. I think I saw him certainly within two days thereafter. He was not in good shape then ; had been drinking. Ques. Would you have been willing to enter into any important contract with said Loftus for two weeks before he bought out .Maloney? Ans. I don’t know as I would; don’t think I would.- Ques. Why would you not ? Ans. I don’t think he was capable of doing business, on account of his drinking.”

On cross-examination, this witness was asked : “Ques. Do you think, from what you know of Mr. Maloney, that he is the kind of man to make another drink, and then take advantage of his condition to cheat him? Ans. Ho, sir; J never judged him that way.”

In answer to other questions, this witness (Hamilton) deposes that the appellant, Loftus, had been drinking heavily for a week or two prior to the transaction in question, and that during that time he did not consider him capable of under standing the nature of any important transaction; that he never knew the appellee, Maloney, to encourage the appellant, Loftus, to drink; and that the last time he saw Loftus before the transaction in question was some two days previous thereto, and did not see him again until some two days subsequent to the consummation of the contract.

Surely there is nothing in all this that reasonably tends to support the charge in the bill that the appellee induced the appellant to drink and be drunk, and that the latter was, at the time of this transaction, drunk, and his mind so impaired by his then and previous continuous drunkenness that he was incapable of understanding the nature of the transaction in question.

Thomas McLaughlin, another witness for the appellant, deposes as follows : “ Ques. State whether or not you saw M. W. Loftus at any short time previous to the 21st day of July, 1890, and, if so, when, and what was his condition—whether sober or intoxicated—when you saw him ? Ans. I was there within three days prior to the dissolution of co-partnership of Loftus & Maloney. It might have been two days. I am certain it was within three days. Mr. Loftus was not then drunk, but was intoxicated. Ques. How often did you see Loftus the two weeks just previous to the dissolution of partnership ? Ans. Most every day. Ques. What was his general condition during that time as to soberness? Ans. He was not sober, nor beastly drunk—what you might call helplessly drunk; some time he vas not sober. Ques. In your opinion, was or not his mind at that time too much impaired from drink to enable him to enter into an important contract understandingly ? Ans. The last time I saw him, three days previous to the dissolution, his mind was not in any condition to make a contract, but his mind might have been all right when the contract was made.”

This is the entire deposition of the witness, Thomas McLaughlin. He, like the preceding witness, Hamilton, proves nothing to the purpose. He last saw Loftus three days prior to the transaction in question, and does not pretend to know anything of his condition three days later, when the contract was consummated, but he says his mind might have been all right when the contract was made.

Another witness, O. E. Taluiadge, was introduced on behalf of the appellant, Loftus, and he deposes: “Ques. Hid you or not see M. W. Loftus frequently for the two weeks prior to the 21st day of July, 1890, or before the dissolution of the partnership of Loftus & Maloney? Ans. Yes. Ques. State whether or not Mr. Loftus-was drinking to excess during those two weeks? Ans. I think he was. Ques. State whether or not,, in your opinion, his mind was so impaired and weakened from drink as to render him, on the 21st day of July last, or the dissolution of the partnership, incapable of fully understanding the nature of an important contract? Ans. I know he was quite full of liquor at night. I did not see hinx in the day. I don’t know; it is qxxite a hax-d thing to say. I am quite sure the old gentleman was drinking quite hard. I did not know of any trouble between hinx axxd Mr. Maloney at that time; it was none of my business. Ques. Did, you consider Mr. Loftus -to be in such a frame of mind as to enable him to transact important business at that time, or on the 21st day of July, or for several days prior ? Ans. I know during that time that I considered him sober. Ques.- "Was he, on the 21st day of July, 1890, the day of the dissolution of the partnership, or for several days previous, in such a frame of mind as to render him capable of entering voluntarily into an important contract ? Ans. Well, I don’t know aboxxt that. I couldn’t tell what the xnan thought, or what he was thinking about.”

After these confused and contradictory statements, this witness goes on to say that, from what he saw of Loftus, he would not have trusted him to transact important business for him (witness), and that he (witness) would not have entered into any impox'tant contract with Loftus on or about the day of the dissolution of the partnership of Loftus & Maloney.The witness was then asked : “ Ques. State whether, in your opinion, Mr. Loftus had been in the same frame of mind— that is, incapable of attending to important business—for several days prior to the night you have spoken of? Ans. In my opinion, he was not.” This last answer clearly means, if anything, that Loftus, on the 21st of July, 1890, the day of the contract, and for several days prior thereto, was not incapable of attending to important business, he having previously stated that on said 21st day of July, and for several days prior thereto, he considered Loftus sober.

On cross-examination this witness admits that he does not remember the day of the week on which the dissolution of the co-partnership of Loftus & Maloney occurred. Yet, in answer to the question, “ Are you absolutely sure that you saw Loftus on the night preceding the dissolution ? ” he answered: “ Yes; I was there, and drank with him.” Now, it is conceded on all hands that the contract and dissolution -was consummated on Monday, the 21st of July, 1890 ; hence the preceding night was Sunday night of the 20th of July. But the witness, a little later, was asked: “Were you in the bar the Sunday preceding the dissolution ; and, if so, were you there in the evening, and how long did you stay, if you were there ? Ans. I don’t remember of being in there that Sunday. Ques. Was Mr. Loftus drunk on the Sunday preceding the dissolution, or do you fail to remember ? Ans. I don’t remember.” And here the deposition of this witness ends; and it proves, if anything, much more against than for the appellant, Loftus. It proves that on the 21st of July, 1890, the day of the contract, and for several days prior thereto, Loftus was sober, and capable of attending to business.

The only other witness who was examined on behalf of the plain tiff, Loftus, (appellant here,) was E. G-. Wells. This witness manifests towards the appellee, Maloney, a rancor evincing spite, if not deep-seated hate. This is manifest from his answers to the two most important questions proqiounded to him—one on his examination-in-chief and the other on his cross-examination. On his examination-in-chief, after the usual preliminary questions, he was asked : “ Did you see M. W. Loftus frequently for a week or two prior to the 21st day of July, 1890—the day Maloney sold out to Loftus ; and, if so, state whether or not he (Loftus) had been drinking to excess at that time? Ans. I did; and considered him (Loftus) a complete imbecile. I don’t think he was competent to take charge of anything.” And on his cross-examination he was asked: “Do you regard Mr. Maloney as aman who would make another drunk, and then cheat or swindle him ? Ans. I’ll tell you. I think that Loftus was completely under the influence of liquor, and that he was cheated, and that Mr. Maloney was not too good a man to do it. That is my evidence, and you can make the best of it.” In other respects the statements of this witness are as' indefinite, inconsistent, and unintelligible as those of the other witnesses on behalf of the appellant, Loftus. This witness (Wells) having stated, as above set forth, that he considered Loftus a complete imbecile, &c., was examined further, as follows: “ Ques. What caused this state of mind in Mr. Loftus? Ans. Drink, as far as I could ascertain. That is the effect it has on me—that is, no man, -while drinking to excess, can attend to business. Ques. Did you, during the above-mentioned time, see Maloney serve drinks to Loftus? Ans. I saw him on one occasion give him a drink. McKey and myself carried him to his room on Sunday, and he laid there all day as if he was dead. Ques. State whether or not the Sunday you speak of was about the time the said sale was made ? Ans. It was Saturday, the 19th, they separated. It was somewhere in that locality. I stayed one -week after they were separated. Ques-Ton say it was somewhere in that locality. Do you mean by that answer to say it was the Sunday following the 19th ? Ans. It was somewhere about that immediate time. I couldn’t state exactly the day. Ques. Did you see Loftus every day about that time, or for several weeks prior to that time? Ans. I saw him pretty nearly every day I was in the house. Mr. Maloney generally had charge of the bar. Loftus was not in a condition to take charge of anything.”

Such is the entire evidence-in-chief of the witness Wells. How, observe the witness had stated positively that on one occasion he saw Maloney give Loftus a drink, and that McKey and witness carried Loftus to his room on Sunday, &c.; but he did not state what Sunday it was. Hence it became necessary to settle the matter by showing that it was the Sunday next preceding the day of the contract, and to that end the witness was asked “ whether or not the Sunday spoken of was about the time the said sale was made ” ; but the witness answered positively: “It -was Saturday, the 19th, they separated ”—meaning that it was on that day that the partnership of Loftus & Maloney was dissolved. This threatened to overturn the whole theory of alleged drunkenness and incapacity of Loftus on the day of the contract, and for several days prior thereto, for no other witness mentions any occasion on which Loftus was absolutely drunk; and if, as this witness had said, the dissolution occurred on Saturday, the 19th of July, that Loftus was then, and for several days previous, drunk and incapable of attending to business, then the drunkenness referred to, if previous to Saturday, the 19th, must have been on Sunday, the 13th of July, or on some Sunday previous thereto, and thus too far in advance of the date of the dissolution of the partnership to make it an efficient factor in giving color to the alleged drunkenness on the day the contract was consummated, and for some days prior thereto ; and if, on the other hand, the Sunday’s drunkenness referred to occurred on the day succeeding the transaction in question, or on any subsequent Sunday, then, being after the contract was completed, it was wholly immaterial. In this dilemma the question was, in a more direct form, repeated, and the witness pressed to state whether, by his previous answer, he meant to say it was the Sunday following the 19th; and the witness was so far accommodating as to answer: “ It was somewhere about that immediate time. I couldn’t, state exactly the day.” Yet this witness,-on his cross-examination, makes the following answers to questions put to him : “ Ques. You recognize the difficulty of remembering what took place so long ago, and do not attempt-to locate the day exactly? Ans. I have the day of separation on an envelope. It was on the 19th of July. Ques. You are absolutely certain that the separation took place on this day, are you? Ans. Yes, sir.” So at last this witness (Wells), if he proves anything, proves that the total drunkenness of Loftus referred to by him occurred on the Sunday succeeding the day of the contract, and has, therefore, no bearing whatever on the question involved.

This is all the evidence offered by the plaintiff below (the appellant here) to sustain the allegations of the bill that the defendant, Maloney, (the appellee here,) induced and persuaded the appellant, Loftus, to drink to excess, and to'be drunk and incapable of understanding the nature of an important contract, and that the appellant was, at the instance and by the inducement of the appellee, drunk, and his mind so impaired by drink, at the time of entering into the contract here in question, that he did not enter into it understandingly, and that therefore the contract should be rescinded, the trust deed executed by the appellant to W. J. Helms, trustee, to secure to said appellee the payment of the purchase-money notes therein mentioned, should be annulled, and that the appellee should be perpetually enjoined from collecting said purchase-money.

In turning now to the .evidence on behalf of the appellee, it will be seen, not only that the appellant signally failed to make good the charges in his bill, but that the appellee, by an overwhelming array of uncontradicted and highly-satisfactory evidence, actually disproves every material allegation and charge contained in the bill.

The principal defendant, Maloney, as well as W. J. Helms, trustee in said deed, were called upon in the bill for answers under oath. In his answer the appellee, Maloney, indignantly denies all fraud, over-reaching, or unfair dealing in any way. He sets forth in detail and at large all the circumstances leading up to the dissolution of the firm of Loftus & Maloney. He says it is entirely false that he at any time used any inducements to Loftus to drink ardent spirits, or to keep him drunk; that, so far from doing so, he at all times used every moral means in his power to restrain his appetite for strong drink; that from the 30th day of June, 1890, when he returned from a visit to Pennsylvania, to the time of the dissolution of the firm of Loftus & Maloney, he (Maloney) never saw, or in any way knew of, the alleged drunkenness of Loftus, and that from the best of his observation he cannot believe that Loftus was drunk within the time mentioned, with a single exception, which was on Sunday, at least two weeks before anything was said about a dissolution of the firm; that on an occasion prior to respondent’s said visit to Pennsylvania, in a certain bar-room in the town of Newport News, respondent remonstrated with Loftus in reference to his druuken condition, which was taken in very ill part by Loftus, but that on his return from his said visit he found such marked improvement in the habits of said Loftus that he (respondent) was persuaded that it was due to what he had said before his departure, and that their mutual business was for some time transacted without friction.

The respondent, Maloney, then proceeds to say that, in the conduct of the business of the firm, he ascertained that there was a large shortage in the bank account of the firm, occasioned, as he afterwards ascertained, by Loftus having checked upon the fund to pay his individual accounts; that the unpleasantness thus occasioned was in a manner obviated by the promise on the part of said Loftus that his fault should not be repeated, but that from that time the conduct of said Loftus towards respondent was annoying and irritating to the last degree, and that the reason of respondent’s going to Loftus and telling him that the partnership, until then existing between them, must be dissolved, was the result of a combination of ever-recurring little things, rather than that of a single proximate cause.

And the respondent farther says that the only time anything was ever said by him to Loftus in reference to the dissolution of the firm was at the time when the final offer of said Loftus was made—his first and final offer being made in the same conversation, at the same place, on the same day; and that, in so far as the allegations in the bill point to a different conclusion, they are false and misleading. That the conversation— a very short one—was, in effect, this: “ I told Mr. Loftus that one or the other of us must get out of the firm; whereupon he offered me, for my interest in the business, the amount which I put into the firm in the outset. I refused his offer, being persuaded that it was inadequate, when, with no intermediate offer, he offered me double what I put into the firm, and offered to assume all the debts of the firm.” That to that offer respondent replied, “ I accept.” That Loftus rejoined : “ I am very much obliged to you, sir. I have made some money out of you this morning.” And this respondent says he is certain that at this time Lóftus was absolutely sober, and that, immediately upon respondent’s signification of his acceptance of the offer, Loftus locked the books of the firm in the safe, and assumed control of the. business; that Loftus refused, however, to settle with respondent, as he should Have done, and that it was- only after respondent sent his attorney to Loftus that the latter agreed to arrange for the payment of the sum becoming due to respondent on account of tlie sale of his interest in said firm to said Loftus ; that at least five hours were consumed in the preparation of the necessary papers, and that, when the same were prepared and ready for signature, respondent and Loftus, with their respective attorneys, met at the office of B. G. Bickford, in the town of Newport News, where the papers were read, and the same, proving satisfactory, were signed by the parties, and that Loftus, during this time, was not only not drunk, but his appearance did not indicate that he had been drinking at all; that when the sale was concluded, and the papers signed, respondent, trusting to the honesty of Loftus to make the first payment, as he had agreed to do, handed him a roll of money, aggregating considerably over one hundred dollars, which had come into respondent’s hands in the course of the firm’s business, but that, after the lapse of several days, Loftus still neglecting to pay the amount, and by his manner and course of action exciting respondent’s suspicions as to the honest intentions of Loftus in the premises, he (respondent) instituted his said action at. law for the recovery of said sum, from proceeding in which, at the instance of said Loftus, the respondent has been enjoined.

And the respondent denies that said contract of sale was unconscionable, and says that the lot upon which said business was conducted has increased in value at least five hundred dollars since its purchase, and wdxile in the hands of said firm, and that, from its peculiar advantages of location, the property would x-eadily command a rental of $75 per month, which, leaving out of question the stock and choses in action assigned, would yield a matter of 15 per cent, yearly on said purchase. And respondent utterly and entirely denies that he ever in any way persuaded or induced said Loftus to drink; denies, further, that the mental condition of said Loftus at the time of sale was in any way other than normal, and expressly avers that to all appearances the said Loftus, at the time of the sale, was possessed of an agreeing mind, and in every way qualified to make a reasonable and sensible bax’gain.

And he further says : “ Your respondent expressly, and with all force and earnestness, avers that, in the transaction of all business at any time had with said Loftus, he has acted in all respects as an honorable man should do, and with an entire absence of any intent to defraud or over-reach, and that his conduct is free from any taint of fraud, dishonesty, or irregularity of any kind whatsoever. ' Your respondent is amazed at the averments in the complainant’s bill, having neYer believed until now that any sentient human being would so pervert, mis-state, and falsify the truth.”

This answer is directly responsive to the bill, and it directly and specifically denies every material allegation therein contained. It is a proposition too long and well established to need either argument or the citation of authorities to sustain it, that to overcome the effect of such an answer requires two witnesses, or one witness and strong corroborating circumstances. It has already been shown, not only that no two witnesses sustain the material allegations in the bill, but that such allegations are not sustained by any one witness; and, as to the surrounding circumstances, they all stand opposed to the bill. It follows, therefore, that, upon the bill and the evidence adduced in support thereof, and the answer of the appellee, Maloney, the case is clearly with said appellee.

But the appellee does not rest his case alone upon this state of facts. On the contrary, there is a mass of clear, cogent, and uncontradicted testimony, fully sustaining the answer of the appellee, Maloney,'in its denial of the principal averments of the bill.

The defendant, W. J. Nelms, trustee as aforesaid, who, as counsel for the appellant, Loftus, was present at the execution of the contract, says “ he knew nothing of the arrangements between the said Loftus and Maloney in regard to the dissolution of partnership until Mr. Loftus approached him and requested that he should draw the papers necessary for the dissolution; saying that they had dissolved, and mentioning the terms of the dissolution of said co-partnership; that at the time this conversation occurred, in respondent’s office, this respondent believed the said M. "W. Loftus to be of sound and agreeing mind, and did not notice any peculiarities, nor did he notice or observe that he had been drinking at all. Certainly this respondent would not have drawn any papers affecting his client’s interest had he for one moment thought or believed him of other than a sound and agreeing mind, and perfectly capable of the arrangement or arrangements affecting his property.”

R. G. Bickford, a witness for the defense, was, as the counsel of the appellee, Maloney, also present at the execution of the contract. He says: “I am attorney for the defense in this case. My first knowledge of the case dates from the morning of the 21st of July, 1890, at which time Mr. James M. Maloney, the defendant in this case, came to my office and asked me to see Mr. Matthew Loftus, the plaintiff, in relation to a sale which had just been arranged between them. In consonance with this wish, I went to the business house of Loftus & Maloney, whei’e I met Mr. Loftus. I told him that Mr. Maloney had told me that they had agreed to dissolve the co-partnership formerly existing between them, and that he (Loftus) had become the purchaser of Maloney’s interest in the firm, paying him a certain sum therefor, and agreeing to assume all the debts of the former firm. Mr. Loftus said : ‘Yes, I agreed to pay him double what he put in, and assume all the debts of the firm.’ He said further: ‘I regarded my offer and his acceptance as a sale, and consequently took, and still hold, possession of the property.’ At this time I am certain that Mr. Loftus was sober. He added, further, that he was ready to execute the proper papers at any time. I asked him what time would suit him, and he said, ‘ As soon as I can see my attorney.’ The preparation of the papers and arrangements as to payments consumed at least five hours. When they were at last prepared Mr. Loftus and his attorney, Mr. Nelms, came into my office, meeting there Mr. Maloney and myself. Quite a little time was then consume'd in reading the papers to both parties, when, after the reading, the papers were signed. Mr. Loftus, in the conversation held in my office, said that he would in two or three days pay the sum of five hundred dollars, which was due as cash payment on the sale, as well as the sum of seventy-five dollars, which he acknowdedged to he due Mr. Maloney on another matter. I approached him several days later in regard to the sum so agreed to be paid, and, in refusing to pay, his manner was of so doubtful a character as to raise my suspicions, whereupon I entered suit upon the amount, from the prosecution of which my client has heen enjoined. Throughout the whole conduct of my business with Mr. Loftus in this regard I did not see anything that looked like, or in any way savored of, drunkenness, or any mental failing whatsoever.”

It is proved by the uncontradicted testimony of two witnesses for the defense, John Enright and John Lowery, that on Sunday, the 20th of July, 1890, the day preceding the contract, that there was a meeting of the Catholics of Newport News, at which mass was celebrated, and that after mass a meeting was held to raise funds with which to erect a Catholic church in said town; that the appellant, Loftus, was present at the celebration of mass, and also at the meeting to raise funds for a chm-ch building; that he was quiet and orderly, and did nothing to indicate intoxication or imbecility, and that he was offered the office of collector of the fund to be raised, but declined it.

To C. F. Hobson, another witness for the defense, the appellant, Loftus, in the afternoon of the day of the execution of the contract, spoke exultingly of the purchase by him of the interest of Maloney in the firm of Loftus & Maloney; and the witness says that Loftus seemed to be pleased at the bargain he had made, and asked witness to take a drink on it,. and that he was not drunk. And, in answer to the question, on cross-examination, “ Has not Mr. Loftus been a very dissipated man since you have known him ? ” answered : “ He has not. He takes his regular drinks every day, as far as I have seen him. The old man boarded with me for about six months—commencing the preceding October—and I have never seen him so he could not attend to his business yet.”

W. H. Webber, another witness for the defense, deposes that he saw Loftus on the morning of the 21st of July, when the sale of Maloney’s interest in the firm of Loftus & Maloney was made to Loftus, and that “ he was sober and all right; that he saw Loftus a number of times during the day; that he was sober, and attending to his business; that he never saw Maloney urge or encourage Loftus to drink, and that witness was at the house of Loftus & Maloney from Friday evening previous to the transaction until the succeeding Tuesday, and that Loftus was sober during that time.”

In the face of this unbroken current of testimony, it is worse than idle—it is absurd and ridiculous in the extreme— to claim that the contract sought to be rescinded and annulled was entered into by the appellant, Loftus, when he was drunk and his mind so impaired that he did not know what he was doing, and that such drunkenness and impairment of intellect was induced and procured by the appellee, Maloney, with the fraudulent pur-pose of getting the appellant’s property for a mere song. Ho witness testifies to any fact, nor does any circumstance disclosed by the record tend reasonably to any such conclusion.

The law touching intoxication as a defense to contracts is clearly and succinctly stated in 11th Am. and Eng. Ency. of Law, p. 778, where it is said: “ An express contract, entered into when 'the obligor is in a state of intoxication, so as to deprive him of the exercise of his understanding, is voidable; and the party may, for that cause, avoid it, although the intoxication was voluntary, and not procured through the circumvention of the other party.” And in a note it is said : " To render the transaction voidable, he who sets up intoxication as a defense should have been so drunk as to have drowned reason, memory, and judgment, and impaired his mental faculties to an extent that would render him non compos mentis for the time being, especially where there is no pretense that any person connected with the transaction aided in or procured his drunkenness”—citing Bates v. Ball, 72 Ill. 108 ; Birdsong v. Birdsong, 2 Head. (Tenn.) 289. It is not alone the influence of liquor which avoids a contract, but it must be shown to exist to such an extent as to seriously impair the reasoning faculties. Hickett v. Sutter, 5 Cal. 412; Cavendor v. Waddingham, 5 Mo. App. 457. At the time of making the contract the party seeking to avoid it must have been in such a state of drunkenness as not to know what he was doing. Johns v. Fretchey, 39 Md. 258.

The doctrine of these decisions rests upon the natural, plain, and true ground that the contract of a party non compos mentis is without the essential element of an agreeing mind, and is voidable merely at his option, and capable of ratification by the intoxicated party on becoming sober. And it cannot be impeached by third persons so long as the party who was intoxicated acquiesces, but.it may be avoided by his legal representatives. Wigglesworth v. Stears, 1 Hen. & Munf. 70.

But it is useless to discuss the principles applicable to intoxication as a defense to contracts where, as in the present case, the alleged drunkenness is not only not sustained by proof, but is actually proved not to have existed—the, to say the least, overwhelming weight of testimony being that the appellant was not, at the time of the contract, drunk and incapable of knowing what he was doing, but was sober, and his mental facilities in no way impaired.

It is contended, on behalf of the appellant, that the contract was unconscionable. In answer to this it is only necessary to say that the uncontradicted testimony is that the property in question would yield from 12 to 22 per cent, annually in rent. An investment capable of yielding such a return cannot possibly be considered the result of an unconscionable bargain.

It is also contended that the court below erred in not directing an issue out of chancery to be tried by a jury. In the light of the testimony there was no occasion for such an issue, and the trial court would have been guilty of gross error had it directed an issue, the evidence being clear and decisive in favor of the defendant (the appellee here), and the object of such an issue being to aid and satisfy the conscience of the chancellor, where the evidence is, as to the fact to be determined, so conflicting as to make it doubtful what the decision should be. Hence, in Harding v. Handy, 11 Wheat. 103, Chief Justice Marshall said: “There seems to be, ordinarily, no reason for the intervention of a jury to try an issue of fact in a chancery cause, unless the court would be satisfied with the verdict, however it might be found.” See, also, Beverly v. Walden, 20 Gratt. 154, where it is said “ that when the allegations of the bill are positively denied by the answer, and the plaintiff has failed to furnish two witnesses, or one witness and strong corroborating circumstances, in support of the bill, it is error in the chancellor to order an issue.”

For the reasons above stated it is entirely clear—1st, that the appellant, Loftus, was not drunk or otherwise incapacitated at the time of the execution of the contract; 2d, that the contract was entered into at the instance of Loftus, and that no undue or improper conduct is imputable to Maloney; 3d, the bargain was not unconscionable. It follows, therefore, that the decision of the court below is clearly right, and must be affirmed.

Decree affirmed.