The Minneapolis journal. [volume] (Minneapolis, Minn.) 1888-1939, 1905-12-17

agreed upon as the multiplication table.
1t would be futile to cucumber this
record with citations OF quotations con
corning it. This court has repeatedly
frauds 1t has spoken with no uncer-
tain sound as to the propriety Of the
doctrine and has enforced it with I'M
failing certainty. Ashton VS.. Thomp-
son, 80 Mimi, IS; King VS.. Remington,
36 Mimi, Is; in re Sperl's Estate, JOB
N. W., SOP. There is no presumption Of
a fiduciary relation between brothers,
especially where both. of them are of |
mature years and have had experience
fraud is alleged. The fact that such
fiduciarY relation existed much be af-
Tentatively established by proof; the
burden of proof rests upon the party
asserting it. The equitable doctrine,
however, has been applied to cases in j,
volving the relationship of brother to
brother, and equitable relief has been
advantage was taken in cases in which
the circumstances were much less dem
onstrative Of the right to impose con-
fdence, and less fraught with breach
of duty than are found here. More vs.,
More, 65 Pac., 1,044; Birdsong VS.. Bird
song, 2 Head, 300. -.t,...,.af i
The plaintiff and defendant in this
case did not deal at arms length. This
case is not one, to which the rule of
trary the Relationship was vastly more
intimate, confidential and dependent
than that which normally exists be-
tween one brother and another, older
by fifteen years. Where the elder went
into the new country, in which he was
to inaugurate his great success the
younger, lad of II, came;. when the
elder changed the scene of his labors,
his brother followed him. Thomas fixed
his abiding place; there Edwin Eddd made mad,
he went to defendant for aid which
never failed. "Measurably,'' Thomas
says, "From the time he (Edwin) was
a boy he had always depended upon me
and had always received advice, instruc-
tion and help and direction as to every.
thing concerning his business life and
property affairs.' Thomas was the
patron; Edwin the pupil in lumber
manager to proprietor his brother re.
manned subordinate but his wages
grew and his forms Of usefulness in
creased. Without his knowledge, he
was elected director of corporations
controlled by Thomas and was employed,
as 'stool,% pigeon. - The fortune.
Thomas made, in degree Edwin shared.
The marriage Of the two brothers to-
two sisters, augmented alike their inti-
macy and the younger's. dependency.
The benefactions of the elder brother
deed that generosity became y" over
whelming' beyond plaintiffs ability
ssto make a proper feturn.' Turnout
his struggle with the sin that did so
easily beset him, the elder brother s
hand was invariably extended, Seek
ing for self mastery with the aid of
medical treatment, the weaker brother
tried to conceal his, failures from his
more potent benefactor to whom he
owed much and from whom he was en-
couraged to hope for more. The agree
ment was executed when the younger
brother and his wife were the guests in
the home of the elder. "a man of
strong and positive character, naturally
self -willed, self-reliant and confident ,
Edwin was advised ana directed in his
affairs and largely Influenced in his
character and life by his trust in and
his admiration for the stronger broth
ers's leadership and achievements, min
ss4 sS NTH ffaS St III nd%ss
man as positive and dominant in ma
lture as he was bold and successful in
Eco1nmerce. The habitual attitude OF
nfThomas was that f1ascendency; Of Ed
! win, Difference. It, is not material by
what epithet the influence Of the elder
hover his struggling younger brother be
described; it amounted to more than
advice or direction: it was substantial
control. The relationship was quasi
parental.
The legal aspect of this confidential
relationship is to be considered in the
light of the mental and physical con
dition of the, younger brother at the
time of the negotiations leading up to
the agreement here sought to be avoid
ed, and Of the execution CT that instru
ment. Years Of indulgence in drink by
this man whose head had been severely
injured in infancy; who had twice tax
en- the Kelley cure, and who was either
dipsomaniac or the victim of an Eun
conquerable habit, did not prevent his
having lucid intervals between The
breaking out Of spree and the time Of
recovery, but it wrought havoc with M
life. The answer alleges that from 1885
to the present time it would have beer
impossible for the plaintiff to have. Sc
cured or retained employment with any
other person than his brother, because
Of drinking habits, and that the defen
dant caused him to be retained in thu
employment of various companies, sole
ly because of his relation to the defen
dant and interest in his welfare
The plaintiff became incompetent t.
conduct the business at Crookston
which he had for a while managed 81
successfully The defendant realized
this so completely as to enforce hi
resignation. Instead of producing {
reaction for reform, that resignation
precipitated the weakened man init
such a debauch that he was, according
to the answer, at times incapable o:
rational thought or action. When tn,
contract was in fact signed. his con
dition was pitiable; that he collapsed
immediately afterwards, is legally sig
nificant, as it serves to show how readi
~ his actions could be moulded by hi
forcible and arbitrary brother. Sc,
Taylor VS.. Taylor, 8 How, 1888; how
: unable, under the circumstances, HI
was to assert independent Judgment
;, and how unfair it was Immediately be
fore to have insisted upon his dispo
sition of all his fortune. See Kilgor,
VS.. Gross, l Fed, 49, That Thomas ap
preciated his brothers. condition an,
!. the great responsibility of his own par
TALLY fraternal and partially paterna
position, is shown conclusively by tn
: effect made himself the guardian of hi
! brothers. future business undertak
ings and a trustee to pay him quarterl,
, dividends for five years. Extrem
+ weakness will raise an almost necessar
presumption of imposition, even ,wher
it stops short Of incapacity; and tho
r contract in the ordinary course o
+ things reasonably made with such
person might be admitted to stand, we
q if it should appear to be of such
nature AS that S1lch a nerSOn cOu10 no