Smith v. Mosbarger

<p>1. Action — Joinder of Causes — Parties—Joint Tort. — Plaintiff properly joined in his aetion panties whom he alleged had combined and colluded together to defraud and cheat him out of his property, since they were charged with being joint wrongdoers in a common object.</p> <p>2. Evidence — Parol Evidence Affecting Writing — Fraud.—When parties competent to contract have reduced to writing the terms and conditions of their agreement, the law protects with great caution the written memorial of their contract thus made, and will permit its impeachment only for fraud or imposition.</p> <p>3. Contracts — Fraud—Degree of PIroof. — One challenging a written contract for fraud or mistake of fact must make his case by clear and convincing evidence, since written contracts are always presumed to be fair and honest in their inception and execution.</p> <p>4. Contracts — Avoidance for Fraud. — Where fraud or mistake is alleged as a ground for avoiding the stipulations of a'written contract, it must be made to appear, not that the party has made a bad bargain, but that he has been wrongfully or fraudulently induced to execute something contrary to what he thought to be his contract.</p> <p>5. Contracts — Validity — Mental Weakness. — Mere weakness of mind alone, without imposition or fraud practiced upon the party, forms no ground for vacating a contract; but if there is any unfairness in the transaction, such as gross inadequacy of consideration, the intellectual imbecility of the party may be taken into consideration to show such fraud as will afford ground for annulment.</p> <p>6. Contracts — Validity—Inability to Read. — Inability to read and understand the language in which a contract is negotiated, upon showing that its contents were misrepresented, justifies a court of equity in declaring it ineffective.</p> <p>7. Pleading — Demurrer—Admission.—A demurrer admits the allegations of the pleading to which it is opposed.</p> <p>8. Vendor and Purchaser — Fraud by Buyer. — Where the buyer of land, at request of the seller, who was feeble and unable to read English, read over the written contract between them, and, explaining it at the seller’s request, materially misrepresented its terms and that he had $1,800 in the bank to secure payments to the seller, and thereafter the seller delivered the conveyance to a bank officer to hold in escrow until the buyer should perform the conditions of the contract, which bank officer immediately transferred to the buyer without waiting for performance, taking a mortgage baek rto himself for the price, there were sufficient acts of fraud to entitle the seller to avoid the contract.</p> <p>9. Trial — By Court — Submission of Questions. — In a suit to cancel a deed, where the allegations of the complaint that plaintiff was in feeble health, illiterate and unable to read and understand English, were denied by the answer, as were allegations that defendant represented that by the .terms of the contract of sale plaintiff would receive such sums of money as he should require, and the whole purchase price within a year, and that defendant had on deposit in a bank $1,800 that he would pay as requested, appropriate questions embodying such issues should have been propounded and submitted to the jury by the court, since controverted questions of fact involved in an equity .case must be submitted to the jury.</p> <p>[As to when vendor may recover possession of the property from vendee, see note in 107 Am. St. Rep. 722.]</p>