Hand, J.
The counsel for respondents suggested at the close of his argument before us that there was no evidence of a delivery of the note to Strong the payee, and the find
ing of delivery by the referee was entirely unsupported. He does not however make this a point in his printed brief, and did not present it strenuously or with any emphasis in his oral remarks.
It is true that the evidence in this respect was not very satisfactory. Ordinarily the possession and production of the note by the payee will raise a presumption of delivery to him. But this presumption must be very much weakened when the possession is shown not to precede .the possession of all the maker’s papers and effects by the payee as executor: when the note appears to have been all in the handwriting of the maker and to have been taken with a stub attached also in his handwriting from a blank book belonging to him, and when installments of interest falling due in the maker’s lifetime were not paid and although years elapsed after they so became due before his death there is no proof of any demand of them by the payee or recognition of liability by the deceased. I am not prepared to say however that these circumstances absolutely destroy the presumption from possession and production of the instrument. While some evidence on the part of the plaintiff, showing that the note had been delivered to Strong in his grandfather's lifetime, or at least negativing the idea that Strong found it in the bank book or among the papers of the deceased when he took possession of them as executor, could probably have been easily produced if consistent with the fact, yet we cannot hold its absence conclusive against the plaintiff upon this point, upon the record as it stands. No motion for judgment or to dismiss was made on this ground by the respondents although the trial was in other respects treated by the counsel on both sides as one before a referee appointed in the ordinary way to hear and determine and direct judgment as in an action, and we cannot say but that if the plaintiff had been notified of such an objection, the evidence would have been supplied. The finding of the delivery by the referee was not even excepted to, although there were exceptions to the finding of consideration. Under these circumstances we
must, I think, assume an acquiescence in the truth of the finding by the respondents for reasons known to them and which if disclosed would probably be entirely satisfactory.
The majority of the General Term put their reversal of the judgment upon the ground that it conclusively appeared from the stub attached that the note was intended as a gift and was without consideration. In this I am unable to concur.
The referee’s finding that the note was delivered not as a gift but for a valuable consideration has some evidence to support it, in the proof of the services rendered by Strong to the deceased and his abandonment of a profession at the request of the deceased, in the intention expressed by the latter to make some compensation for those services, and the conversation had with his counsel not very long before the date of this note, in which he was dissuaded from making this compensation by will and advised to do it while alive,. to which he assented. What appears upon the stub is not in my opinion conclusive against this result.
There is perhaps difficulty in giving any entirely satisfactory construction to this memorandum made by the deceased, but the interpretation of the General Term seems to my mind inconsistent with the known facts of the case. Strong certainly had had and the deceased knew that he had had property of the value of $32,000 given him before the date of this note, and perhaps $30,000 more in bonds. The $20,000 note could not have been therefore as the General Term supposes a gift to make him equal in gifts with his cousin Charles to whom only $20,000 had been given in all.
But not only do the circumstances show that the memorandum could not mean that this gilt of the $20,000 to Strong would make Mm equal in gifts to Charles, but the memorandum itself does not say so. Its language is “to make the amount the same as Chas. W. Cornell.” While, as has already been said, there is probably insuperable difficulty in discovering precisely all that the deceased meant by this
expression, its intrinsic sense is merely that the amount of tins note $20,000 is so fixed to make it the same as an amount possessed in some way by Charles and this is consistent with both amounts being gifts, or the one being fixed upon in the testator’s mind as a fair compensation for Strong’s services and at the same time .equal to an amount he had given or intended to give to Charles. ' On the whole I think this memorandum was a piece of evidence to be submitted with the other evidence to be considered by the referee on the question of fact. His decision upon all this evidence cannot be disturbed by this court.
The same may be said of the proof of large gifts to Strong either all before, or some before and some after the date of the note.
The reversal by the General Term is not stated to be upon the facts, and on the argument it was conceded by the counsel for the respondents to be upon the law merely. It may be that a finding upon all the evidence that the note was without consideration and a gift would not be disturbed and would be held by us as not unauthorized by the evidence. On the other hand we cannot accede to the proposition that a finding to the contrary such as has been made by the referee here must by reason of the contents of this stub or other testimony be reversed as erroneous in law.
It follows, that, except as bearing upon undue influence and the relations of parties hereafter considered, the inadequacy of the services or the extravagance of the compensation are not material. That was a matter purely of agreement between Strong and the deceased and with which the court will not interfere under ordinary circumstances.
(Earl
v.
Peck,
64 N. Y., 597;
Worth
v.
Case,
42 id., 362;
Johnson
v.
Titus,
2 Hill, 606.) Although the consideration of a promissory note is always .open to investigation between the original parties (and we agree with the court below that the plaintiff here has no better position than Strong himself), yet as pointed out by the Chief judge in
Earl v. Peck (supra),
mere inadequacy in value of the thing bought or paid for is
never intended by the legal expression, want or failure of consideration. This only covers either total worthlessness to all parties or subsequent destruction partial or complete.
Assuming then, as I think we must, that there was no error as matter of law in the finding of the referee that this note was given for a valuable consideration, and that the adequacy of that consideration is something with which we have no concern if the parties dealt on equal terms, the only point remaining to consider is the relations existing between the deceased and Strong at the date of the note.
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Hand, J.
The counsel for respondents suggested at the close of his argument before us that there was no evidence of a delivery of the note to Strong the payee, and the find
ing of delivery by the referee was entirely unsupported. He does not however make this a point in his printed brief, and did not present it strenuously or with any emphasis in his oral remarks.
It is true that the evidence in this respect was not very satisfactory. Ordinarily the possession and production of the note by the payee will raise a presumption of delivery to him. But this presumption must be very much weakened when the possession is shown not to precede .the possession of all the maker’s papers and effects by the payee as executor: when the note appears to have been all in the handwriting of the maker and to have been taken with a stub attached also in his handwriting from a blank book belonging to him, and when installments of interest falling due in the maker’s lifetime were not paid and although years elapsed after they so became due before his death there is no proof of any demand of them by the payee or recognition of liability by the deceased. I am not prepared to say however that these circumstances absolutely destroy the presumption from possession and production of the instrument. While some evidence on the part of the plaintiff, showing that the note had been delivered to Strong in his grandfather's lifetime, or at least negativing the idea that Strong found it in the bank book or among the papers of the deceased when he took possession of them as executor, could probably have been easily produced if consistent with the fact, yet we cannot hold its absence conclusive against the plaintiff upon this point, upon the record as it stands. No motion for judgment or to dismiss was made on this ground by the respondents although the trial was in other respects treated by the counsel on both sides as one before a referee appointed in the ordinary way to hear and determine and direct judgment as in an action, and we cannot say but that if the plaintiff had been notified of such an objection, the evidence would have been supplied. The finding of the delivery by the referee was not even excepted to, although there were exceptions to the finding of consideration. Under these circumstances we
must, I think, assume an acquiescence in the truth of the finding by the respondents for reasons known to them and which if disclosed would probably be entirely satisfactory.
The majority of the General Term put their reversal of the judgment upon the ground that it conclusively appeared from the stub attached that the note was intended as a gift and was without consideration. In this I am unable to concur.
The referee’s finding that the note was delivered not as a gift but for a valuable consideration has some evidence to support it, in the proof of the services rendered by Strong to the deceased and his abandonment of a profession at the request of the deceased, in the intention expressed by the latter to make some compensation for those services, and the conversation had with his counsel not very long before the date of this note, in which he was dissuaded from making this compensation by will and advised to do it while alive,. to which he assented. What appears upon the stub is not in my opinion conclusive against this result.
There is perhaps difficulty in giving any entirely satisfactory construction to this memorandum made by the deceased, but the interpretation of the General Term seems to my mind inconsistent with the known facts of the case. Strong certainly had had and the deceased knew that he had had property of the value of $32,000 given him before the date of this note, and perhaps $30,000 more in bonds. The $20,000 note could not have been therefore as the General Term supposes a gift to make him equal in gifts with his cousin Charles to whom only $20,000 had been given in all.
But not only do the circumstances show that the memorandum could not mean that this gilt of the $20,000 to Strong would make Mm equal in gifts to Charles, but the memorandum itself does not say so. Its language is “to make the amount the same as Chas. W. Cornell.” While, as has already been said, there is probably insuperable difficulty in discovering precisely all that the deceased meant by this
expression, its intrinsic sense is merely that the amount of tins note $20,000 is so fixed to make it the same as an amount possessed in some way by Charles and this is consistent with both amounts being gifts, or the one being fixed upon in the testator’s mind as a fair compensation for Strong’s services and at the same time .equal to an amount he had given or intended to give to Charles. ' On the whole I think this memorandum was a piece of evidence to be submitted with the other evidence to be considered by the referee on the question of fact. His decision upon all this evidence cannot be disturbed by this court.
The same may be said of the proof of large gifts to Strong either all before, or some before and some after the date of the note.
The reversal by the General Term is not stated to be upon the facts, and on the argument it was conceded by the counsel for the respondents to be upon the law merely. It may be that a finding upon all the evidence that the note was without consideration and a gift would not be disturbed and would be held by us as not unauthorized by the evidence. On the other hand we cannot accede to the proposition that a finding to the contrary such as has been made by the referee here must by reason of the contents of this stub or other testimony be reversed as erroneous in law.
It follows, that, except as bearing upon undue influence and the relations of parties hereafter considered, the inadequacy of the services or the extravagance of the compensation are not material. That was a matter purely of agreement between Strong and the deceased and with which the court will not interfere under ordinary circumstances.
(Earl
v.
Peck,
64 N. Y., 597;
Worth
v.
Case,
42 id., 362;
Johnson
v.
Titus,
2 Hill, 606.) Although the consideration of a promissory note is always .open to investigation between the original parties (and we agree with the court below that the plaintiff here has no better position than Strong himself), yet as pointed out by the Chief judge in
Earl v. Peck (supra),
mere inadequacy in value of the thing bought or paid for is
never intended by the legal expression, want or failure of consideration. This only covers either total worthlessness to all parties or subsequent destruction partial or complete.
Assuming then, as I think we must, that there was no error as matter of law in the finding of the referee that this note was given for a valuable consideration, and that the adequacy of that consideration is something with which we have no concern if the parties dealt on equal terms, the only point remaining to consider is the relations existing between the deceased and Strong at the date of the note.
It is insisted strenuously by the learned counsel for the respondents that these were such as to call for the application of the doctrine of constructive fraud, and threw upon the plaintiff the burden of proving not only that the deceased fully understood the act, but that he was not induced to it by any undue influence of Strong, and that the latter took no unfair advantage of his superior influence or knowledge.
The court below were hardly correct in the suggestion that the plaintiff conceded this burden to be upon himself, and for that reason, instead of resting upon the statement of consideration in the note, gave evidence in opening his case of an actual consideration ; for this may have been done to show in the first instance that the note was not a gift and hence void under the law applicable to gifts. Indeed it appears from the findings and refusals to find, and the opinion of the referee, that such was not the theory upon which the action was tried or decided.
We return then to the question whether this case was one of constructive fraud. It may be stated as universally true that fraud vitiates all contracts, but as a general thing it is not presumed but must be proved by the party seeking to relieve himself from an obligation on that ground. Whenever, however, the relations between the contracting parties appear to be of such a character as to render it certain that they do not deal on terms of equality but that either on the one side from superior knowledge of the matter derived from a fiduciary relation, or from
overmastering influence, or on the other from weakness, dependence, or trust justifiably reposed, unfair advantage in a transaction is rendered probable, there the burden is shifted, the transaction is presumed void, and it is incumbent upon the stronger party to show affirmatively that no deception was practiced, no- undue influence was used, and that all was fair, open, voluntary and well understood. This doctrine is well settled. (Hunt, J.
Nesbit
v. Lochnan, 34 N. Y., 167; Story’s Eq. Jur., § 311;
Sears
v. Shafer, 2 Seld., 268;
Huguenin
v. Basely, 13 Ves., 105; S. C., 14 id., 273; S. C., 15 id., 180;
Wright
v. Proud, 13 id., 138;
Harris
v.
Tremenheere,
15 id., 40;
Edwards
v. Myrick, 2 Hare, 60;
Hunter
v.
Atkins,
3 My.
&
K., 113.) And this is I think the extent to which the well considered cases go, and is the scope.of “ constructive fraud.”
The principle referred to it must be remembered is distinct from that absolutely forbidding a purchase by a trustee or agent for his own benefit of the subject of a trust, and charging it when so purchased witli the trust. That amounts to an incapacity m the fiduciary to purchase of himself. He cannot act for himself at all however fairly or innocently in any dealing as to which he has duties as trustee or agent. The reason of this rule is subjective. It removes from the trustee, with the power, all temptation to commit any breach of trust for his own benefit. But the principle with which we are now concerned does not absolutely forbid the dealing, but it presumes it unfair and fraudulent unless the contrary is affirmatively shown.
This doctrine, as has been said, is well settled but there is often great difficulty in applying it to particular cases. .
The law presumes in the case of guardian and ward, trustee and
cestui que trust,
attorney and client, and perhaps physician and patient, from the relation of- the parties itself that their situation is unequal and of the character I have defined ; and that relation appearing itself throws the burden upon the trustee, guardian or attorney of showing the fairness of his dealings.
But while the doctrine is without doubt to be extended to many other relations of trust, confidence or inequality, the trust and confidence, or the superiority on one side and weakness on the other must be proved in each of these cases ; the huv does not presume them from the fact for instance that one party is a grandfather and old and the other a grandson and young, or that one is an employer and the other an
employe.
The question as to parties so situated is a question of fact dependent upon the circumstances in each case. There is no presumption of inequality either way from these relations merely.
In the present case it cannot be said that the fact that the deceased employed Strong as his clerk to read and answer his letters and cut off his coupons, and make out his bills, or as his bailiff to collect his rents, or that at this time he was old and of defective vision, or that Strong lived near him and Avas his grandson, taken separately or together raise a conclusive presumption of laAV that their situation was unequal, and that dealings between them as to compensation for these services Averc betAveen a stronger and a weaker party, a fiduciary
in hac re
and the party reposing confidence. These relations as a matter of fact may have led to or been consistent with controlling influence on the part of the grandson or childish weakness and confidence on the part of the grandfather, but this Avas to be shoAvn and is not necessarily derivable or presumable from the relations themselves as in the case of trustee, attorney or guardian.
From these relations and the large gifts shown from the deceased to Strong and from the extravagant amount of the compensation in the note, it is very possible the referee might have found as a fact the existence of weakness on the one
side, or undue strength on the other, which rendered applicable the doctrine of constructive fraud and thrcAV upon the plaintiff the burden of disproving such fraud. These circumstances may have well been of a character, if not sufficient to shift the presumption, at least to authorize a setting aside of a contract without any decisive proof of fraud but
upon the slightest; proof that advantage was taken of the relation, or of the use of “any arts or stratagems or any undue means or the least speck of imposition.” (
Whelan
v. Whelan, 3 Cow., 538 ; Ld. Eldon L. C.;
Harris
v.
Tremenheere,
15 Ves., 40; Ld. Brougham,
Hunter
v.
Atkins,
3 My.
&
K., 135.)
But the referee not only has not found as fact any inequality in the situation of the deceased and Strong but refused to find as matter of law its existence and there is really no evidence whatever of any arts or stratagems or “ speck of imposition ” on the part of Strong as to this note.
We are not permitted to supply these findings even if we thought them proper for the referee to make, nor can we sustain a reversal of the original judgment upon facts not found and not necessarily inferable from uncontradicted evidence in the case, the General Term not having in any way interfered with the findings of the referee.
On the whole therefore we reach the conclusion that there was no good reason for disturbing the judgment of the referee. This large claim upon the estate of the deceased is not so clearly justified and explained in the evidence as we could have wished, and the circumstances are such as to compel this court to look upon the case, if not with suspicion, certainly with anxiety, yet after careful examination we can find no material error in the original decision.
The order granting a new trial must be reversed, and judgment for plaintiff affirmed, with costs.
All concur, except Miller and Earl, JJ., absent.
Judgment accordingly.
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