Barry v. Bennett

By the Court: The principal question made below at the trial was a question of fraud. The defendants allege that the plaintiff and one Brainard (confederating with him) represented to the defendants that the plaintiff had the refusal of a certain tract of land in the City and County of San Francisco, owned by one Frank Soulé, at eleven thousand eight hundred dollars, and induced them to unite with plaintiff and Brainard in its purchase at that price. It appears, however, that in fact the plaintiff, at the time, had the refusal of the land for a much less sum of money—a little more than six thousand dollars, besides broker’s charges. The defendants entered into the purchase, receiving the deed of Soulé run [84] ning to the plaintiff and to Brainard and the defendants as grantees therein, which deed falsely recited the consideration to be eleven thousand eight hundred dollars, instead of six thousand two hundred dollars, which was its true consideration—the latter sum being the whole of the purchase price actually received or to be received by Soulé. The note in suit given by the defendants to Barry represents a portion of the difference between the eleven thousand eight hundred dollars and the six thousand two hundred dollars. The note was executed to the plaintiff by the defendants and Brainard as joint makers, on account of the unpaid balance of the purchase money; it is not now denied, however, that its execution and delivery, so far as Brainard was concerned, was a mere pretense and a sham, for it was secretly agreed between Barry and Brainard, at the time of its execution, that the latter was not to pay anything thereon, but was to be absolutely released therefrom. In some two or three weeks afterwards, Barry and Brainard pretended to the defendants that Brainard, “ having money lying idle,” was desirous of immediately paying his purported one quarter of the sum named in the note, and asking and obtaining their consent to his doing so, and their stipulation that the note and the mortgage lien by which it was secured should continue for the unpaid balance. It so turns out that nothing whatever was paid or to be paid by Brainard on the note, but that he was released therefrom in pursuance of an agreement between him and Barry, made antecedent to the execution of the note, by which agreement Brainard was to pay nothing, but was to .have the undivided one eighth of the premises for his services to Barry in the transaction. The evidence is all one way on this point—mere evasive replies or faint negations upon the part of the plaintiff and others concerned with him in the transaction to questions put to them as witnesses, go but a little ways towards making up a conflict in the evidence—and Barry himself, when [85] testifying as a witness, distinctly admits that Brainard paid nothing and was to pay nothing, and that he promised him a release if he would sign the note and mortgage along with the defendants, which, it ought to he observed, is a somewhat remarkable admission for him, in view of the allegations found in his verified complaint filed in this case, in which it is directly averred and set forth that Brainard did pay to him a sum of money upon this note—the precise amount of that sum, even to a single cent, being stated— “ in satisfaction of his undivided one eighth part of said indebtedness.” He must have considered either the verification of the complaint or the oath administered to him in the presence of the Court as a witness—the one or the other—to have been somewhat a mere formality. We will not stop, however, to point out the numerous facts, admitted in some instances, in the other instances proven beyond controversy, which characterize the transaction as a bald fraud perpetrated by Barry and Brainard upon the defendants, and one totally unfit to become the foundation for relief at the hands of a Court of equity. We are of opinion, too, that when the counsel for the defendants desired to recall Dixon, who had acted as the broker of Soulé, and prove by him the fact that Barry had requested him to keep the defendants apart from Soulé while the transaction was being consummated, he should have been permitted to do so. It was stated to the Court below in connection with the offer by counsel incapable of attempting to mislead the Court, that this fact had come to their knowledge for the first time since the close of the defendants’ case in chief, and under the circumstances, the evidence at the trial not having been concluded and it not being pretended that it would work a surprise upon the plaintiff, we think that the Court should have allowed Dixon to be recalled. [86] Judgment and order denying a new trial reversed, and cause remanded for a new trial.