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

purpose of his staying in doors during
Saturday and Sunday was to sober
up the only ,whiskey he drank on
these days was giyen. to HIM by ms WE re
the morning of January 10Th, defendant
entered the bedroom and requested Mrs.
Edwin to leave Gas he wished to talk
to Eddie - There is difference Of recol-
lection between Mr.. and Mrs. Thomas
Shevlin and Mr.. and Mrs. Edwin Shey-
lin, as to just what language, was used,
but it appears that Mrs. Edwin burst
win s selling his stock and insisted that
he was in no condition to think about
or engage in so important business.
There is direct conflict of testimony
also as to Edwin g mental and physical
condition on that eventful Monday.
According to the, testimony OF the
peessfa We baP"t ocoek
she was at his bed side trying to make
him swallow some raw eggs, which she
fed him, because his own hands were
too tremulous to hold the glass. 1t is
conceded that Edwin got up from bed
and either dressed or was dressed by his
wife, and that he and Mr.. and Mrs.
Thomas Shevlin drove down town IN
the Shevlin- Carpenter =. Lumb Der Com
pany. Edwin arrived There about ten
o'clock in. the forenoon and remained
until nearly noon Of that day: There
was testimony of persons in the office
who knew, the plaintiff that they
noticed nothing unusual about his men
tai or physical condition., Thomas
sation with his brother when the agree.
ment was made is as follows: ~ said
Ed, now that you are going to leave
this business, I think it is only fair and
right that you should sell back to me
this stock which / sold to you. When
you bought it of me sold it with the
agreement that you was to come to o
business, and relieve me of a great deal
of responsibility. I sold it to you at
derstanding. Now, you have gone up
there and stayed twenty-five months,
you have broken your promise to me
not to drink; you have, gone on and
drank, so that these people that are as
ISOLATED with me won't permit you to
stay any longer, and I don't want you
to stay on account Of your conduct:
And he said, this is all right. -
Plaintiff signed an agreement whereby
he sold to his brother the 200 shares
of stock in the St. Hilaire Lumber
Company and 100 shares of stock IN me
Crookston Lumber Company. for 49,.
and the balance. less plaintiff s indebt-
edness to defendant, on or before i've
years from date, with interest at six
per cent payable quarterly. That agree
ment expressly provided that If at any
time Edwin desired to engage in bust
ness, subject to the approval Of Thomas,
then Thomas agreed to pay Edwin the
the Instrument was signed, Edwin re
| turned to his brothers. house pros
trated. The doctor, then sent for found
Edwin in bed in a condition OF pro
found nervous collapse and of marked
muscular tremor with a weak pulse anc
in a cold sperspiration. He was men
tally confused and suffering. from men
weakness, accompanied by a tendency
to cry, upon reference to his condition
or it's cause. On the 18th and on sew
eral subsequent days, Edwin was abou'
and around town doing various errand'
preparing for his journey to CALIFORNIA
for which place he left on, the, 22nd :, O
January. Edwin with his devotedl,
faithful wife and; his children, went t.
Europe in the early fall of 1901. Othe
facts will be stated subsequently in con
| nection with the legal questions IN
volved. H.
The trial court found for the defen
dant and refused plaintiff all relief
From the Judgment entered plaintiff
took this appeal.
The assignments Of error, as fnall;
formulated, present the case for 3decl
which, to peculiar degree, the finding
of fact by the trial court, in who's
presence the witnesses were produced
are entitled to the recognized presump
ton in their favor. The plaintiff cal
prevail in this court only upon fact
which are SO found, or are essentiall
Iuncontroyerted, or stand admitted b.
;; been stated and will hereafter be con
sidered in substantial accord with tn
defendants own account. Of the rela
tions and transactions of the parties
In this view also, we are satisfied tina
the plaintiff, Edwin Shevlin, was notss
r far mentally incompetent that the as
, signment Of the stock and the contrac
, was not his act: (See Perry vs.. Pear
+ son, 25 n. E. 636:) and that the relic
in this case should not be based on tn
, ground of actual fraud, deceit, or dures
y and undue influence alone; (see Bar
croft vs. Bancroft, 40 Pac. 1885, apar
from the peculiar relationship Of tn
= parties and from the well establishe
; equitable principles applicable to vic
: lation of the duties imposed by such
relationship.
To defendant IS own version Of tn
J, dealings and relations of the parties
j, the language of johnson J. (concurrinq
in Wormley, VS.: Wormley: 8 Wheat. AZ:
: applies mutatis mutandis: After
I most careful examination of this volt
9 minous record, I<think it is due to tn
: parties defendant, to express the opi1
y ion that cannot discover any evidenc
of fraud in any part of their transa'
|, lions I can see nothing bu
: liberality in the conduct of Strobe 9th
:, trustee against whom relief was sought
t towards WormleY, and little else tina
t lmprOvidence, caprice and lngratltude
8 the conduct Of the latter. Nevertheless
r there are canons in the court of equit
d which have their foundation. not in tn
y hallowed orison lead us not into tenn
r tation.' One of these is, that a ,truste
/ shall not be permitted to mix up h
i own affairs with those of the cestui gu
G trust. Those who have examined tn
:. workings of the human heart, we
r know, that in. such eases, the party mos
O likely to be imposed upon is the actc
y. himself, if honest; and, if otherwis
:. that the scope for imposition given
: human ingenuity, will enable it gene
q ally to battle the utmost subtlety {
=. legal investigation. Hence y
= the rule is positive and general that tt
= cestui que trust may be restored to h
original rights against the trustee, ;
> his OPTION 80, 80
: The first question here to be dete
u mined is whether or not the transit,
e Of the stock by plaintiff to defenda1
J was made under such Circumstance
$ as to entitle plaintiff to the equitab
l.,.o1s 80 L. I, > . . = .