Coe v. McGran

AILSHIE, C. J. — This is an appeal from a verdict and judgment on a check issued by the appellant in favor of the respondent. The defense interposed is want of consideration and undue influence. The appellant had been living in respondent’s home from time to time for several months and had been taken e.are of by respondent at times when he was very ill. He was an old man some seventy years of age, and apparently in easy financial circumstances and had no family or relatives. He appears to have takeu a liking to the respondent, and, indeed, called her his adopted daughter, and introduced her on some occasions as his adopted daughter. It could serve no good purpose for us to review and discuss the evidence in a written opinion. It is sufficient to say that there is evidence in the record sufficient to support the verdict and judgment. It is quite clear that the respondent performed services for appellant in caring for him and taking him to her own home which, in all probability, she would not have performed except for the promises he repeatedly made her to compensate her either in buying her a farm or in giving her a money consideration. [587] The record fails to show any undue influence having been exercised by respondent over this old man. That he was exceedingly fond of her is conceded on all sides, and that she was kind to him and took every care of him while in her home is equally clear. It is well established, however, and this court has so held, that “influence gained by kindness and affection will not be regarded as ‘undue’ in the absence of any proof of imposition or fraud being practiced” by the one upon the other. (Turner v. Gumbert, 19 Ida. 339, 114 Pac. 33; Shaughnessy v. Hood, 21 Ida. 709, 123 Pac. 641. See, also, Goodwin v. Goodwin, 59 Cal. 560.) The appellant has assigned a great many errors but they all revolve about the two propositions above mentioned. We fail to find any ruling or action of the court or conduct of the jury that would call for a reversal of the judgment. This case is an apt illustration of the rule that an appellate court will not reverse the verdict of a jury where there is a conflict in the evidence and the jury have seen and heard the witnesses as they testified. In this case both the appellant and respondent testified in person before the jury;.the jury had abundant opportunity to see them and observe their manner and demeanor and to judge of their veracity and truthfulness. If the appellant was laboring under senile dementia, or was so advanced in age as to be incapable of transacting his own business or protecting his own interests, this, jury would undoubtedly have discovered that fact and rendered a verdict accordingly. On the contrary, many witnesses and some experts testified that he was entirely capable of taking care of his own business, and that he was laboring under no disability whatever. These matters have been passed upon by the verdict of the jury, and we are not inclined to disturb their finding. The judgment should be affirmed, and it is so ordered, with costs in favor of respondent. Stewart, J., concurs.