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FIRST DEPARTMENT, JULY TERM, 1903.

of the individual defendants in relation to the management of the equipment company, and also in relation to the organization and proceedings of the defendant, the Consolidated Railway Lighting and Refrigerating Company. Assuming for the purposes of this argument (a question which it is not necessary that we should discuss) that some of the acts of the individual defendants, as set forth in the complaint, would give a cause of action in favor of the refrigerating company, the plaintiff not being a stockholder in that company and having no interest in it, cannot enforce any right of action that exists in favor of that corporation against the individual defendants. The plaintiff's right to any relief in this action must depend upon his showing that the corporation of which he is a stockholder has some right of action against some of the defendants which the directors of that company have refused to enforce, and which he as a stockholder had a right to ask the court to enforce in favor of the corporation in which he is in. terested. Both of these corporations are organized under the laws of the State of New Jersey and both do business in this State. The equipment company was engaged in the manufacture and sale under patents owned or controlled by it which secured a practical monopoly of machinery, whereby electricity generated by the revolving of the axles of car wheels was stored and applied to the lighting of railroad cars, and it also owned patents for a system of “ electrical car refrigeration," and owned stock in other corporations which were interested in or controlled patents relating to business of this kind. It is alleged that between the 1st of January and the 28th of March, 1901, there was in the treasury of the equipment com. pany, in cash, the sum of $600,000, all of which was available as working capital for the said company; that the defendant refrigerating company was organized on the 1st day of March, 1901, for purposes similar to those of the equipment company; and that subsequent to its incorporation on the 20th day of March, 1901, the refrigerating company was authorized to increase its capital stock to the sum of $22,000,000; that the refrigerating company

in part owned and controlled by the defendant Rice who was also the president of the equipment company; and “th the sa Refrigerating Company was so incorporated by or at the direction of the said last mentioned defendants (Rice and the other individual defendants) in violation of their duties and obligations as officers and directors of the Equipment Company, for the purpose of enabling them to perpetrate a fraud upon the said Equipment Company and the stockholders thereof for their own benefit and as one step in a fraudulent conspiracy to that end which had been devised by the said last mentioned defendants for the purpose of furthering their private interests." That the organization of the refrigerating company for such a purpose by Rice and the other oficers of the equipment company would be wrongful may be conceded, but unless there was something that this company thus or. ganized or those who organized it did which would tend to injure the equipment com. pany or its stockholders, it is quite clear that there would be no cause of action in favor of either the equipment company or its stockholders. The complaint then sets forth a scheme alleged to have been devised by Rice and his associates to induce the stockholders of the equipment company to exchange their stock' for stock in the re. frigerating company, which resulted in a

(Vol. 86.

large majority of the stockholders of the equipment company transferring their stock to the refrigerating company, and in addition thereto paying two dollars in cash per share, receiving therefor an equal number of shares of stock in the refrigerating company. The plaintiff, however, refused to exchange his stock in the equipment company, so any wrong that was done to the stockholders who were induced to make the exchange cannot be remedied by this plaintiff. He has escaped from the scheme alleged to have been derised by Rice and his associates to defraud the stockholders of the equipment company by retaining his stock in the equipment company; and has all the advantages that, according to this allegation, Rice and his associates endeavored to induce him to surrender. It does not appear, there. fore, that this plaintiff has any right to com. plain of the acts of Rice and his associates in endeavoring to defraud the stockholders of the equipment company. We have then to ascertain whether there is any act of Rice or his associates, or of the refrigerating company, which has defrauded the equipment company, or deprived it of any property or right to which it was entitled. To induce the stockholders of the equipment company to sell to the refrigerating company their stock, and to receive therefor an equal amount of the stock of the refrigerating company, there was issued an offer of the refrigerating company to purchase the stock of the equipment company, and at the same time Rice issued a circular to the stockholders of the equipment company in which he said: In view of the advertisement which has been issued by the Consolidated Railway Lighting and Refrigerating Company, a number of stock. holders have called upon me for my opinion as to the proposed offer, and, while it is outside of my province, as president of the Consolidated Equipment Company, to give any advice to the stockholders of that Company as to the sale of their stock, it seems to me per. fectly proper, in my capacity as stockholder of that Company, to give to my fellow-stockholders the reasons which impel me to accept the offer of the Consolidated Refrigerat. ing Company; "and after stating the reasons which induced him to accept the offer, his circular concludes: “I desire to impress upon the stockholders that this arrangement wl I have succeeded in making is purely an option secured for them, and that they will not in any way prejudice their present posi. tion by declining to avail themselves thereof. The two companies are not at all competing, as the Refrigerating Company controls no lighting patents; while the methods of refrigeration controlled by it, being much simpler and more practical, of necessity precludes competition on part of the Equipment Company for refrigeration business, whether the shareholders of the two compapies become identical or remain distinct." The complaint alleges that many statements in this communication to the stockholders of the equipment company were uptrue, and that the circular was issued by Rice as a part of an unlawful plan or conspiracy formed between himself and certain other directors of the equipment company, to enable the refrigerating company, which was controlled by the defendants, and of which they afterwards became directors, to obtain possession of the assets, moneys, cash and good will of the equipment company, by obtaining a controlling interest in its stock with a view to diverting the same from the said equipment company, and enabling the refrigerating company to take possession of

was

App. Div.]

FIRST DEPARTMENT, JULY TERM, 1903.

the assets, moneys, cash and good will of the equipment company unlawfully and in the manner therein alleged; that Rice and his associates caused the refrigerating company to be incorporated with a name very similar to that of the equipment company; that in pursuance of the unlawful plan and in violation of their duties as oficers and directors of the equipment company, the defendants have permitted the refrigerating company to take possession of the offices of the equipment company; that they have erased the name of the equipment company from a point on the outer door of such offices, where it was formerly printed in large and conspicuous letters, and have caused such name to be printed in small and inconspicuous letters on a side panel of such door, and have caused the name of the refrigerating company to be printed in large and very conspicuous letters on the entrance of such office; that the action of the defendants and the refrigerating company has in fact caused a diversion of the good will of the equipment company, and that the refrigerating company has in fact partially ousted the equipment company from its aforesaid offices and has ap. propriated the same to its own uses, and is receiving the benefit of all business brought to the said offices; and that the similarity of name has in fact caused a confusion as to the identity of the said corporations, and has prevented, and will continue to prevent, the said equipment company from receiving business which would otherwise be brought to it; that the individual defendants have permitted and caused the refrigerating company to appropriate to its own use still further assets and properties of the equipment company, and to make use of and control in its own interest all or many of the officers and employees of said company, and to make use of and occupy the factories of the said company; and that the refrigerating company, acting under the control of the other defendants, has taken possession and control of all the assets, good will, moneys, contracts and other belongings of the equipment company, and is conducting the affairs for its own benefit, and without regard to the rights of the said equipment company, and is intermingling the moneys and other assets of the equipment company with its own, and is using the same indiscriminately for its own benefit as well as for the uses of the equipment company; in the course of the transactions set forth in the complaint, the defendants, other than the equipment company, or some of them, have made large profits which they are lawfully bound to account for and to pay over to the said equipment conipany; and that the acts of the defendants therein set forth have caused a heavy loss and damages to the equipment company, and that unless the said defend. ants shall be compelled to desist therefrom they will utterly destroy the said equipment company, and will inflict great and irreparable loss upon it and upon the plaintiff and all other stockholders of said company: The substantial allegations of the complaint are put at issue by the answer of the de. fendants. and the action came on for trial at Special Term. The court there filed its decision dismissing the complaint upon the merits upon the ground that “the evidence did not establish that the Consolidated Railway Lighting and Refrigerating Company (hereinafter called the Refrigerating Company) had taken over any of the assets or business of the Consolidated Railway Electric Lighting and Equipment Company (hereinafter called the Equipment Company).

The vast majority of the stockholders of the Equipment Company had expressed their approval of the plan assailed by the plaintiff, and the legal right of the minority stockholders was not invaded by the adoption of that plan. * The executive management of the Equipment Company has been continued precisely the same as before the formation of the Refrigerating Company. There was no proof that the business of the Equipment Company had been interfered with or that its business or assets had been diverted. The personal wrong imputed to the defendant Rice affected only those who exchanged their stock without knowledge of his conduct. The plaintiff was not misled and those who were have since, with full knowledge of the transaction, approved his acts. The names of the two corporations are easily distinguishable - the distinctive feature of the old corporation being the word Equipment' and of the new corporation the word 'Refrigerating.' They are not substantially the same, and any supposed similarity is not likely to deceive the public nor work an injury to the plaintiff.'' If this finding is sustained by the evidence, it necessarily follows that the court below was entirely right in refusing to the plaintiff any relief in this action. It is quite unnecessary for us to review the evidence. It is sufficient to say that there is an entire failure to prove any fact that would sustain a finding that either the individual defendants or the refrigerating company has done any act which would justify the court in awarding the plaintiff any relief. There is proof that at one time the refrigerating company borrowed a sum of money, the amount of which is not stated, from the equipment company; but the evidence is uncontradicted that subsequently the refrigerating company ad. varced large sums of money to the equipment company, and that the equipment company was when the action was commenced indebted to it in a large amount. So, whatever advances were made by the equipment company to the refrigerating company have been repaid. The evidenco is also uncontradicted that after the refrigerating company acquired this interest in the equipment company by the purchase of its stock, the business of the equipment company had largely increased, and has passed from what was called the "experimental stage” to the " 'commercial stage, and while at the time of the commencement of the action the equipment company was not earning sufficient to meet its expenses, the business was rapidly increasing. In relation to the use of the offices of the equipment company by the refrigerating company, it was proved that after the refrigerating company occupied those offices it contributed to the expense of offices and employees of the corporation, and so far as it appears from the evidence, it paid its full proportion of such expenses. There is no proof that the refrigerating company has attempted in any way to compete with any of the business of the equipment company; or that it has diverted any of its business, or appropriated any of its assets; but, so far

appears, the individual defendants have worked to advance the interests of the equipment company; to develop its business, and to put it upon a paying basis. We think, after a review of the evidence, that the finding of the Special Term is amply sustained, and that no other finding would have been possible in view of the undisputed facts which appeared upon the trial; and whatever motive may

as

FIRST DEPARTMENT, JULY TERM, 1903.

[Vol. 86.

have induced the defendant Rice and his associates to organize the refrigerating company and to induce the shareholders of the equipment company to sell their stock to the refrigerating company, there is certainly no evidence to justify a finding that they have done any act by which the property or business of the equipment company has been interfered with or injured, and that upon these facts as proved the equipment company could be entitled to no relief as against either the refrigerating company or the individual defendants. It follows that this cause of action, which is to enforce a right of action vesting in the equipment company, must fail, and that the judginent appealed from should be affirmed, with costs. Van Brunt, P. J., O'Brien, Me

Laughlin and Hatch, JJ., concurred. Katherine C. K. Hasan, Appellant, v. Sidney

Ward and Others, Respondents. -- Judgment affirmed, with costs. Appeal from judg. ment entered upon decision of the court at Special Term dismissing the complaint.INGRAHAM, J.: The plaintiff, as the next of kin and heir at law of Auna Sutherland, deceased, commenced this action to set aside a conveyance executed April 30, 1896, whereby Anna Sutherland conveyed to Louis V. Sone her interest, subject to certain life estates, in certain real and personal property in the city of New York and in the county of Westchester. The complaint al. leges that this sale and transfer of her interest in this property was not made by the said Anda Sutherland of her own free will, but was obtained from her by the defendant Sone for a grossly inadequate consideration, by fraud, duress and undue influence practiced and brought to bear upon the said Anna Sutherland by said defendants. It appeared that at the time of this transfer the said Anna Sutherland was about forty-eight years of age, and her mother, Frances A. Skinner, the life tenant, was about sixty-eight years of age; that the interest which the said Anna Sutherland had in this property was a vested remainder acquired under the will of Francis C. Fleming, her brother. By the will of Francis C. Fleming, the testator, after the payment of certain specific legacies, gave to his executrix and executors, in trust, all the rest, residue and remainder of his estate, real and personal, to pay to his mother, Frances A. Fleming (now Frances A Skinner), and his father, Thomas Fleming, in equal proportions the interest and income therefrom, and after the death of either to pay to the survivor the whole of the interest or income during his or her life, and after the death of both father and mother he devised one-third of the residue of his estate to the said Anna Sutherland. The defendant Sone was appointed an executor by the will of Francis C. Fleming, but refused to qualify. Letters testamentary were issued to the tes. tator's father, Thomas Fleming and his mother, Frances A. Fleming, and after the death of Thomas Fleming, Frances A, Fleminz, now Skinner, became the sole acting executor and trustee under this will, having power to sell and convey any and all real estate of which the testator died seized and possessed. There was also in the will of Francis C. Fleming a bequest of $50,000 to his executors in trust, the income to be paid to Mary C. Cowie, and upon her death onethird of the said $50,000 was to be paid to tho said Anna Sutherland. Some time prior to April 30, 1896, Anna Sutherland had expended all of the property that she had inherited under the will of her father and brother and was without money to supply her necessary

living expenses. She had become indebted to people who had supplied her with neces. saries, and her creditors were pressing for payment and refused to give her furiler credit. She had quarreled with her mother, who was entitled to the life interest in the property in which she had a remainder, and she refused to apply for assistance from her. She had become addicted to the use of alco hol, was incapable of earning any money. and was without resources except this interest in remainder. This, generally speaking, was the condition when her necessities compelled her to obtain some pecuniary assist. ance to pay her pressing indebtedvess and support her for the rest of her life. All her property consisted of this remainder in an undivided interest in real and personal property left by her brother, in which her mother had a life estate and was sole trustee with a power of sale. In this emergency Mrs. Sutherland consulted Messrs. Cannon & Atwater, attorneys at law, to procure some money for her. Mr. Cannon of that firm applied to Mr. Sidney Ward, also an attorney at law, who was the attorney for the defendant Sone, to learn if Mr. Sone would make Mrs. Suther. land a loan. This application was followed by several communications from Mr. Atwater, which were introduced in evidence. The first letter would appear to have been dated the 14th of December, 1895. Mr. Ward appears to have made some examination as to the property. These negotiations continued until early in January, 1896, when Mr. Atwater applied to Mr. Sone for a loan to Mrs. Sutberland of a few thousand dollars secured by a mortgage on her interest in the real estate. which Mr. Sone refused. Further applications appear to have been made to Mr. Sone to purchase some of Mrs. Sutherland's property, when, at the suggestion of Mr. Atwater, a physician employed by Sone called upon Mrs. Sutherland to ascertain her mental and physical condition, and made an examination and reported the result of that examination to Mr. Sone. Before this examination there had been a proposition to Mr. Sove to purchase Mrs. Sutherland's interest in the property, he to make a cash payment and to agree to give Mrs. Sutherland an annuity during her life. That physician reported to Soue that “Mrs. Sutherland is ill with ailments which render her recovery unlikely, if not impos. sible. I do not believe it is possible to forecast with any approach to certainty the duration of her life, for there are too many conditions involved. Her paralysis is of that type which is slowly progressive; but while it would undoubtedly cause death ultimately. I would incline to think that she is in greater jeopardy from intercurrent disease rather than from it. Much depends upon herself. Indulgence of certain kinds would provoke gastritis and likely a fatal issue. On the other hand, good nursing and the services of a skillful physician, such as she now has, might prolong her health for a considerable time. My impression is she cannot withstand the prostration which ensues in hot weather. It is more than likely she may succumb before that time by the indulgence above alluded to." After this examination and report, on February 11, 1896, Mr. Atwater wrote to Mr. Ward that he had heard from Mrs. Sutherland that this physician had made a medical examination and continued: “Have you re. ceived the report, and are you in shape now to endeavor to agree upon an arrangement ? As I told you on Saturday last, I am anxious to hurry it forward as much as possible. Whenever you are ready to take up the details of the agreement I should be glad to

App. Div.]

First DEPARTMENT, JULY TERM, 1903.

call and talk them over with you.” The pegotiations then continued. The suggestion came from Cannon & Atwater that Sone should agree to pay Mrs. Sutherland $4,000 in cash and an annuity of $6,000 during her life, and $100,000 on the death of her mother if she should die within two years, or $50,000 if she lived over two years. This Sone refused as entirely out of the question. To induce Sone to make this agreement, statements were made to him that Mrs. Sutherland was ill and could not live a great while, and it was to ascertain the truth of this statement that Sone, at the suggestion of Candon & Atwater, instructed his physician to examine Mrs. Sutherland. Sone testified that he was anxious to do something for Mrs. Sutherland, as he understood that she was in need of money, and he made a calculation as to the amount that it was safe for him to advance upon this property. His estimate disclosed the fact that, upon the basis which was finally adopted, if Mrs. Suther. land lived eleven years, he would have to pay out as much cash as her entire interest in the estate, leaving out of the question an instrument which Mrs. Sutherland had executed, which it was claimed imposed an incumbrance upon the property. On March 5, 1896, there was submitted to Mrs. Sutherland a statement of the real and personal estate of Francis C. Flem. ing, deceased, which showed the total of the estate to be $338, 145.54, and this was submitted to Sone. On March 7, 1896, Mr. Atwater, acting for Mrs. Sutherland, wrote to Mr. Ward in relation to this statement of the Fleming estate. He estimated the total value of the estate at $350,000, and that, leaving out of consideration the $50,000 in which Cowie had a life interest, the money that would be distributed upon the death of Mrs. Skinner, the life tenant, could be roughly stated at $300,000, and in this Mrs. Sutherland had a present vested interest of one-half ($150,000). The letter then continued: “My proposition is that she sell this entire interest to Mr. Sone, to be paid for by him on the death of Mrs. Skinner, when the estate comes into possession, and in consideration of his advancing her a sum of money in hand sufficient to pay off her debts and enough to enable her to arrange herself on a new footing, which at the out. side will be $6,000, and agreeing to pay her for the balance of her lifetime, or until the death of Mrs. Skinner, $6,000 a year, quarterly, in January, April, July and October, Mrs. Sutherland will sell this interest at a price less than its apparent value. The price to be paid to be determined in this way. Upon the death of Mrs. Skinner the value of the property to be agreed upon by Mrs. Sutherland or her personal representa. tive and Mr. Sone, and in case they are not able to agree, then the value to be fixed by appraisers to be chosen in the usual manner, and Mr. Sone to pay the valuzztion agreed upon or appraised, less a percentage to be determined by the number of years Mrs. Skinner lives. It was stated then that Mrs. Sutherland was perfectly willing to make a very liberal concession for present assiste ance; that she must have enough money to make her comfortable for the balance of her life; that whether on her death she leaves a larger or smaller estate was of very little importance to her. This letter was submitted to Mr. Sone, who said that he would not entertain that proposition, and that ended the negotiations. On April 1, 1896, Mrs. Sutherland reopened the negotiation by a letter to Mr. Ward, which was as follows:

DEAR SIR. - After consulting with my friend, Mr. Jenkinson, concerning my affair, I have come to the conclusion to offer Mr. Sone, through you, my entire interest in my late brother Francis C. Fleming's personal and real estate property for the following consideration: Mr. Sone to pay my debts, not exceeding $6,000. Mr. Sone to pay me the yearly allowance for the rest of my life, $6,000 per annum, At Mrs. Skinner's death, if she dies within two years, Mr. Sone to pay me, or any person or persons I may desig. nate, the sum of $75,000 in cash. If Mrs. Skinner should survive longer than the said two years, Mr. Sone to pay ine, or any person or persons I may desiguate, the sum of $50,000, cash only." This letter was transmitted to Mr. Ward and by him submitted to Mr. Sone, who, after some consideration, authorized Mr. Ward to submit a counter proposition to Mr. Atwater, which Mrs. Sutherland did not accept, but on April 11, 1896, there was submitted on behalf of Mr. Sone a final proposition, which Mrs. Sutherland accepted, and it was this agreement that was formally executed on the thirtieth of April. During the balance of Mrs. Suther. land's life Mr. Sone complied with all the conditions imposed upon him by the agreement, and paid to Mrs. Sutherland an amount ex. ceeding $14,000; and under the agreement he agreed to pay an additional sum upon the death of Mis. Skinner. For this he received a transfer of all of Mrs. Sutherland's interest in the Fleming property. During all this period and down to the time of her death, Mrs. Sutherland attended to her own business. Her correspondence shows that she actually appreciated her condition and necessities. She understood perfectly well the property that she had and the disposition that she desired to make of it, and endeavored to procure for herself as much as she could. There is certainly in this evi. dence not one suggestion that this agreement was made at the solicitation of Sone, or that he in any way suggested to or induced Mrs. Sutherland to transfer the property to him. All of the solicitations came from her and her attorney. Mr. Atwater, acting at her suggestion, made the first proposition to make Mrs. Sutherland a loan, and subsequently her attorneys made the first suggestion of a sale of her interest in the property; and when the final proposition by her attorney was rejected by Mr. Sone she renewed the proposition for a sale upon more advantageous terms to him, when Sone, upon a full examination of the conditions, made his final proposition, which he adhered to. That proposition was accepted by Mrs. Sutherland, after consultation with her attorneys, with full appreciation of its effect and perfectly understanding the disposition that she made of her property. Certainly a finding based upon this evidence that this agreement was induced by fraud or undue influence would be contradicted by all the evidence introduced by the plaintiff, and would be without the slightest support. It was Mrs. Sutherland that solicited Mr. Sone to make the purchase, and, so far as appears, it took from December to April to induce Sone to make any proposition for a purchase of the property. It may be conceded that Mrs. Sutherland's necessities were very great; so great, in fact, that the immediato effect of her failure to obtain money had a much greater influence upon her mind than the amount of money that she would leave upon her death. But the evidence is that she had no one in whom she was sufficiently interested to make it important for her to

First DEPARTMENT, JULY TERM, 1903.

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leave any considerable property in comparison with an arrangement which would make her comfortable for the rest of her life. This property was hers and she could do with it as she pleased. If she considered that her own comfort, with the certainty of a liberal support for the rest of her life, was of more importance to her than the interest of those who should succeed her, and made an arrangement without any fraud or undue influence practiced upon her, which assured her comfort and absence from care for the rest of her life, there is certainly no basis for a court of equity to set aside that arrangement because its ultimate result would inure to the benefit of the only one who was willing to assist her at this critical period of her life. She could have given this property away if she pleased, but instead of doing so she transferred it to Mr. Sone for a consideration which assured her comfort for the rest of her life. That this agreement was not solicited by Sone, pot proposed by him, and was accepted by him only after long negotiations, during which Mrs. Sutherland had competent legal advice and understood perfectly well what she was doing, is proved by uncontradicted evidence, and if Mrs. Sutherland's mental condition was such that she could appreciate and understand what she was doing, and deliberately made this agreement, which in its substantial details was proposed by her and approved by her legal adviser, I am unable to see any principle upon which a court of equity can interfere. The learned counsel for the appellant lays great stress upon the inadequacy of the consideration paid by Sone to Mrs. Sutherland for this transfer of property, and claims that the agreement should be set aside because advantage was taken by Sone of her neces. sities to procure from her an unconscionable agreement. But in considering this we must look at just what Sone acquired. He acquired a remainder in an estate where nothing could actually come to him until after the death of Mrs. Skinner, a life tenant, who was about sixty-eight years of age. Fifty thousand dollars of the property was tied up during the lifetime of another person whose age, I do not find stated. The property in the meantime was in the hands of a trustee whose management of the estate had, to say the least, not been satisfactory. The amount of property that would be finally received would necessarily depend upon the management of the trust during the lifetime of the life beneficiary, and looking back at the situation from our present standpoint, it would appear that the transaction was a very advantageous one for Mr. Sope. Mrs. Sutherland had a right to make it. It insured her living in comfort for the remainder of her life and enabled her to enjoy her own property. When the action was commenced Mrs. Skin. ner was still alive, and there was no certainty then as to when Sone would receive any of the property or be repaid the advances that he had made. It is insisted, however, that this must be treated as from the stand. point at the time Sone made the agreement; that from the report of the physician he was justified in assuming that Mrs. Sutherland would live but a few months, and thus the total amount that he would be required to pay would be the $6,000 in cash at the execution of the agreement, and one or two of the quarterly payments on the annuity. As a matter of fact, Mrs. Sutherland lived for about eighteen months after the execution of this agreement, and there was certainly nothing in the situation that presented itself

[Vol. 86.

at the time the agreement was made that made it impossible that she should live for several years. Undoubtedly the fact that she was addicted to the use of alcohol would tend to shorten her life, and living as she did, it was quite doubtful whether the habit that she had acquired could be changed; but Sone had a perfect right to refuse to make any agreement with her. He was under no obligation to furnish her with any money to support her. He made no application to her to buy her property, and had the right to impose the terms upon which he would make these advances. No one else could be procured who would supply her with any money to relieve her necessities, and while it may be said he drove a hard bargain with Mrs. Sutherland, it was

still & bargain. He imposed the terms upon which he would furnish her with what she required, and she accepted those terms; and the mere fact that her necessities compelled her to accept those terms is no reason for taking away from him a purchase which he has made without fraud or deceit, without solicitation or undue influence, simply because the amount that he will receive will be in excess of what he paid. But we are not now considering the question as to whether or not there was any evidence to sustain a judgment for the plaintiffs. The question is whether a finding by the trial court that the agreements referred to in the complaint ** were negotiated for, made, executed and delivered by Anna Sutherland of her own free will for an adequate consideration with the advice and assistance of able and reputable counsel selected by berself and that said Anna Sutherland, at the time of such execution and delivery thereof and during the negotiations leading thereto, was competent to negotiate for and make and execute the same. That said transfers were not obtained from her for an inade. quate consideration, por by any fraud, duress, undue intiuence or harsh or oppres. sive use of her necessities,” is sustained by the evidence. The utmost that can be said is that there was a question for the trial judge upon the facts disclosedi as to whether or not this transfer was made under such circumstances as to constitute a fraud upon the grantor, and the finding of the trial court was certainly conclusive upon that subject. There was much evidence as to the habits of Mrs. Sutherland and the effect of the excessive use of alcohol upon her, but there was no evidence to justity a finding that she had not suficient mental capacity to execute a contract or convey. ance, and the evidence is undisputed that she perfectly well understood what she was doing when she made this conveyance, a conveyance affecting property that belonged to her and of which she had a right to make any disposition that she desired. The physi. cian that attended her from January 23, 1895, to the date of her death, September 16, 1897, was called by the plaintiff and testified that while the diseases from which she suffered and which ultimately caused her death were caused by an excess of diet and stimulants, he never saw her intoxicated at any time, or even under the influence of liquor, either in 1895, 1896 or 1897, and never saw anything that indicated mental trouble; that she was bright and intelligent and a person of refinernent; that on all ordinary occasions when the physician saw her she seemed in full possession of her faculties. And the evidence is undisputed that down to the time of the execution of this agreement she continued to transact her own business, controlled her household, and exhibited no

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