Caspar v. Parker

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 557 Action by Sarah K. Caspar against Viola Parker to recover on a note. Judgment for defendant, and plaintiff appeals. REVERSED. REHEARING DENIED. This is an action by Sarah K. Caspar against Viola Parker to recover the balance alleged to be due on a promissory note signed by the defendant, and payable to the order of the plaintiff. From a judgment for the defendant, plaintiff appeals. The complaint is in the usual form. It alleges the execution of the note for $4,000 by the defendant on August 20, 1936; acknowledges payment in the amount of $929.87 as itemized in a bill of particulars; and seeks judgment for the balance with interest and attorney's fees. By her answer the defendant admits signing the note, but denies that she delivered or authorized delivery *Page 558 thereof, and denies that she paid or authorized any payments thereon. She pleads want of consideration. As a separate answer, the defendant alleges that L.Z. Terrall had for the past ten or twelve years been her attorney and confidential adviser in whom she had reposed confidence and who had been entrusted with all of her financial affairs; that she is of the age of seventy-six years, lives alone without children or relatives, and is without business experience. She alleges that prior to and on August 20, 1936, the date of the signing of the note, L.Z. Terrall was also the attorney and legal adviser for the plaintiff herein and acted as such in securing from defendant the note in suit, and alleges further that defendant was not advised and did not know that he was acting for the plaintiff in securing said note. The further answer contains a lengthy narrative concerning a series of transactions relative to the estate of Esther E. Pursel, deceased, to relevant portions of which reference will later be made. The substance of her affirmative answer is that the note was obtained by fraud. The only alleged fraudulent representation is to the effect that the plaintiff, through her agent, Terrall, represented to the defendant that she was liable upon some previous indebtedness of the estate for money borrowed from the plaintiff. The answer alleges that Terrall, while he was acting for the plaintiff, fraudulently represented to the defendant "that she had to sign the note in controversy; that she was liable therefor." She alleges that the representation was false, known to be false, made for the purpose of deceiving the defendant and that she relied thereon and signed the note. The reply denies that Terrall was the plaintiff's agent, denies the allegations of fraud and continues *Page 559 with a narrative of the proceedings in the Pursel estate to which we will refer later. Pursuant to stipulation, the action was tried by the court without a jury. Thereafter, the court made findings of fact, the important portions of which will be noticed in the course of the opinion.