Sartwell v. Wilcox

The opinion of the Court was delivered, by Woodward, J. This action was founded on the agreement of 15th March, 1842. It might have been a legitimate ground of defence to the action that the contractivas corruptly and fraudulently obtained, but we see no suggestion of fraud in this record, except in the charge of the Court. No fraud is alleged in the pleadings, none proved in the evidence, and the defendant submitted no points to the Court touching fraud. Yet the Court, in answering affirmatively the plaintiff’s points, told the jury twice, that if there was any fraud by the plaintiff, or if the means used to obtain the agreement were mere trick and deceitful device, the agreement would not bind; and added, the facts are for the jury. It has been often ruled to be error to submit a question of fact to the jury of which there is no evidence. And, generally, no matter of fact is less helped by presumptions, or more dependent on direct proof, than actual ‘fraud. It is never to be presumed. The bargains of men, like men. themselves, are to he presumed honest and innocent until provéd to be otherwise. Here we have a written contract, entered into by two business men, touching a subject-matter with which both were familiar, founded in a valuable consideration- expressed in the instrument, drawn by a respectable lawyer at the instance of the parties, and attested by him. Surely the presumptions of law are not to he reversed concerning such an instrument. We are not to presume it fraudulent, till it is proved to be fair ; but rather, that it is fair, till it is proved to be fraudulent. If the defendant alleged fraud in this instrument, his allegation does not appear on the record; but, whether alleged or not, there is no evidence of it. It was error therefore to submit the question to the jury. As to the general charge of the . Court, we see no error in it, except in treating the purchase-money due Gaskill and others, and the necessary agencies and expenses connected with the sale to the German Society, as a prior lien upon-the fund out of which Sartwell was to be-paid. “All these claims,” said the Court, “must be paid out of the funds arising from the sale, before any part of them could he appropriated by the parties themselves.” This is not a correct construction of the contract in suit. Wilcox was to see to the application of the payments to be made by the German Society, and, by the letter of the agreement, Sartwell was to have an equal proportion, according to the amount of said payments, as they [124] regularly became due. That is, instead of waiting till all other charges,on the fund were met by the incoming payments, which would have been a virtual postponement of Sartwell to the profits of the speculation, he was to receive a share of each payment till his $1000 should be reimbursed. Whether this was consistent with Wilcox’s prior obligations and duties is not the question. The question now is,' what was his agreement with Sartwell ? That it was such as we have stated, is obvious from the words they employed to guide us to their intentions. As to the rest, it is sufficient to say, that the plaintiff, having counted on this agreement, and having alleged that the payments out of which his satisfaction was to come, had been fully made, it was for him to prove this fact to the satisfaction of the jury: Chambers v. Jaynes, 4 Barr 39. The judgment is reversed and a venire die novo awarded.