Cummins v. Hurlbutt

Mr. Justice Mercur delivered the opinion of the court, January 5th 1880. We cannot say the court erred in refusing to affirm plaintiff’s eighth point. The first specification of error is not sustained. The [167] second is to tlie charge of the court, stating the certainty of the evidence necessary to impeach a •written instrument for fraud. In November 1869, defendant purchased of the plaintiff, certain lands, on which a mine of coal was opened, situate in Beaver county. In payment thereof, he conveyed to plaintiff some lands in Missouri, and others in Delaware; and gave his bond with warrant of attorney, to confess judgment, conditioned for the payment of §33,648.40, payable in instalments. Judgment was entered thereon. The vein which had been worked, was visited and examined by the defendant before he purchased. He took possession under his purchase, and mined and shipped coal to market. He had difficulty in selling it. The quality was not as good as he claimed it had been represented by the plaintiff. He became dissatisfied, complained to the plaintiff and urged relief. On the 19th July 1870, he wrote plaintiff urging him to do “justice voluntarily ” to avoid “making a legal process necessary.” Interviews followed between the parties. The negotiation finally resulted in a compromise and settlement, made in writing, signed and sealed by the parties, on the 30th September following. By the terms thereof, the plaintiff gave back to the defendant the lands in Missouri, and agreed to receipt and satisfy five several payments on the judgment, amounting in the aggregate to $13,045. In consideration of which, the writing averred, the defendant “waives all objection to the payment of the remaining several payments on said bond, at maturity.” The five instalments were receipted on the judgment in pursuance of agreement. In December 1875, defendant applied to court to have the judgment opened. In June following, the rule to open was made absolute. The defendant pleaded “ want of consideration and fraud.” The object was to avoid the payment of the remaining instalments. This writ of error is to the judgment entered on the trial of that issue. The defendant attacked this deed of settlement and compromise, on the ground of alleged fraud. While this written instrument presents no legal bar against being impeached for fraud in the original purchase, yet this should not be done on doubtful or uncertain evidence. This agreement was executed about ten months after the defendant had received a deed and taken possession of the land. He had worked one of the mines, and appears to have had ample time and sufficient opportunity to inform himself in regard to the character and value of his purchase. With all this actual or presumed knowledge, and to avoid making “ a legal process necessary,” he executed the instrument which he now seeks to impeach. He accepted and retains the land in Missouri, restored to him, and the benefit of the satisfaction of $13,045, on the judgment. He keeps all which the writing avers to be the consideration for his waiving all objection to the payment of the residue of the judgment, and now seeks to avoid the payment of that residue. [168] His present defence then starts with a presumption against his right to make this further defence. The presumed conclusive effect of this writing, is sought to be overthrown by the evidence of the defendant, that he did not at the time of its execution accuse the plaintiff of fraud, nor think he had intentionally misrepresented in regard to the coal. It is, therefore contended, that the compromise was not made under any allegations of fraud, and consequently, no such question, was settled. On the other hand, the plaintiff testifies, that before the compromise, the defendant did charge him with fraud, and with having cheated and deceived him. Two other witnesses corroborate and sustain the plaintiff. The latter further testified, that the whole basis of the compromise was to avoid the law, and that they settled all matters. If the question of fraud in the sale was compromised and settled, it is conceded that it cannot again be set up by the defendant. In view of the undoubted fact, that the object of the compromise was to settle a controversy in regard to the plaintiff’s representations on a sale of the land, and that it resulted in a specific ratification of the part of the judgment now in dispute, we think the charge of the court was inadequate. It was hardly sufficient to say, the defendant should fairly and fully satisfy them of the fraud alleged by him. Under the unquestioned circumstances of this case, the jury should not be permitted to find fraud to impeach the written settlement, on any fancied equity, nor on vague, slight or uncertain evidence, although they might think it fairly and fully satisfied them. The evidence of fraud should be clear, precise and indubitable, and of that which occurred at the execution of the instrument. Evidence less than this, is insufficient to justify setting it aside for fraud : Stine v. Sherk, 1 W. & S. 195; Irwin v. Shoemaker, 8 Id. 75. In so far as the part of the charge covered by the second specification, is in conflict with this opinion, the assignment is sustained. Judgment reversed, and a venire facias de novo awarded.