Daily Los Angeles herald., 1884-01-20

II
party is not free agent, and Is not
equal to protect himself, the court will
protect him." "Cireumstan-
ces also of extreme necessity and dis
tress Of the party, although not accom-
panied by any direct restraint or duress.
may in like manner so entirely overcome
his free agency as to justify the court
setting aside contract made by him
on account Of some oppression, or fraud
ulent advantage, or imposition attendant
on it.
In this case imposition or undue influ-
ence should be presumed from inade-
quacy Of price and the position of the
parties.
Moore VS.. Moore, Sc Cal. p. s9.-Un-
due influence Is defined by the Civil
Code of CAL, Sec. 1875, thus sUndue
influence consists
l. an the use by one in whom a
confidence is reposed by another, or
who holds q real or apparent authority
over him, Of such confidence or authority
for the purpose of obtaining an unfair
advantage over him.
.. 'In taking an unfair advantage of
auother's weakness OF mind, or
3. 'Tn taking a grossly oppressive
and unfair advantage Of another's ne
cessities Or distress"
1t seems to be proved that defendan.
took advantage Of plaintiffs distress of
mind and necessities.
There eau be no doubt, under the
proof, that Pico had much more advan.
tageous offers than the contract obtained
by Cohn. He was offered money at 6
per cent. per annum, and yet hs made
the contract with defendant.
IL is no doubt true, that when parties
deal at arms length that inadequacy Of
price is no gronni to rescind contract,
but when there is undue influence, man
ageipent and intrigue. the Courts have
uniformly held that inadequacy OF price
is ground Of recision. 10 this case
there is conclusive evidence of manage.
ment and undue inflaence. The contract
resembles in it's features what the earlier
Chancery cases denominatcd ''catch-
ing bargain. :"
LOOMS 4 Hnbbell held judgment
and sale over Pico. which would expire
on the day the contract was made, un-
less the sale under their Judgment was
redeemed for about $500 The sale
under the judg nent embraced all Pico's
property. 1t did not appear certain
that any OF the parties purposing to aid
him would have the money on the ground
ready in time to make the redemption.
An old man of SO years of age was nat
urally apprehensive Of the loss Of all his
property, especially when he had been
impressed with the idea that his Coun-
sci and everybody was endeavoring to
manage so as to prevent the redemption
of his property from the sale under the
Hubbell judgment.
"When undue influence, based OH the
circumstances and conditions Of the par.
ties, is exercised and a bargain thus
ELECTED the saction cannot stand, un.
less the person claiming the benefit of it
10 able to repel the presumption from
contrary evidence, proving it to have
been in point Of fact fair, just and rea-
sonable."
Wharton on Contracts, Sec. 100.
The defendant has failed to adduce
such evidence. and the burden Of proof
was on him to do so.
Wharton on Cont, Secs l0l-l62.
1t is not shown that plaintiff had com.
petent advice or any counsel as to the
contract.
Wharton ON Cont, Sec. l6l.
Undue influence when once established
is presumed to continue unless the proof
shows the contrary.
Wharton on Cont, Sec. 1872 and notes.
There is no evidence that Brodrick or
Prayer had anything to do with the nego-
tiation or any participation in the fraud,
If there was any. Cohn was their agent
in the negotiation, and they were bound
by his knowledge and his acts as their
agent.
Jones on Mortgages, section $40 says
"A bill in equity may be maintained
to redeem as from mortgage land
which the defendant holds by deed from
the plaintiff upon evidence that the
deed, though absolute in form, was
really taken as security for loan. The
decree is for a reconveyance of the land
upon the payment of the amount which
may he found due the grantee. or upon
compl auce with such terms as the Court
may impose"
Campbell va. Dearborn, 100 Mass,
100.
McDonough vs.. Squire. Ill i'd, 2l7.
West!ake VS. Horton, s. ILL.,, 22S.
Article 3i03 of the Civil Code of Cal
ifornia provides:
ION adjudging the resoision of con-
tract. the Court may require the party
TO whom such relief is granted, to make
any compensation to the other which
justice may require"
Messrs. Rowan, Egan and Foster
made the following offer to Cohn ON be.
half of Pico:
B. COIN, Esq., Dear Sir-Aceording
to the agreement between us with refer.
ence to the Ranshito, Pico House
and Bank, hereby offer to pay you
the sum agreed upon. to-wit: S65, 900,
and also the sum of $4l 900 paid by you
in settling with the Savings and Loan
Society, together with interest and any
other sums you may have expended on
my account, and also any other amount,
and also any other legitimate charges
you have against me, and l demand of
you u deed of conveyance Of the
property. Respectfully,
Pro Proc.
The answer admits the reception Of
the demand and the return of the fol.
lowing written reply:
''Los ANGELES, May 3lst, 1888.
Messrs. Rowan, Egan. ct al:
"GESTLEMEN-I object to your tender
on the part of Mr.. Pho Pico, on the fol-
lowing grounds:
First-'I demand a tender in United
States gold coin, or legal tenders of the
Government Of the United States.
Second-"As you have no account
stated in your letter, l deaand the sum
of $l85, 900, then am ready and will
ing to sign the deed. B. CoHN'"
This is only an objection to the money
and amount rendered. 1t is an admis-
sion that defendant is under obliga ton
to convey, when the proper, money and
amount due is rendered. 1t sets up no
other claim than that of holding the
property as security. Defendant does not
decline to convey because he claims to
own the property by absolute convey
ance.
The production and counting the
money would be of ne use when the de-
fendant refused to receive II and sets up
an adverse claim to the property.
Wharton on Contracts, Seo. 9S3.
Tallech VS.. Tallman, 81, N. Y, LOG.