Cain v. French

[500]

KERRIGAN. J.

The appeal in this case was taken to this court, and an opinion rendered and filed; but it appearing upon a petition for transfer to the supreme court that the action was one in equity, of which the appellate jurisdiction is in the supreme court, the petition for transfer was granted upon that ground. The case was subsequently by the supreme court transferred to this court for decision.

After a careful re-examination of the record and briefs, we are satisfied with the views expressed in our opinion heretofore filed, to which we adhere. That opinion is as follows:

“This is an action brought by the plaintiff against the defendant for the cancellation of a promissory note dated October 19, 1909, for $400. In addition to his answer denying the averments of the complaint defendant filed a cross-complaint, in which he prayed for judgment against the plaintiff for the amount of the note and costs. An answer to the cross-complaint was served and filed.

“The pleadings presented two issues, to wit, Was there a consideration for the note? (2) Was Annie Cain’s signature to the note procured by undue influence?

‘‘ The case was tried before a jury, which returned a special and also a general verdict, finding both issues in favor of the plaintiff. Findings of facts and conclusions of law were filed; a motion for a new trial was denied, and the case is here on an appeal from the judgment and order denying said motion.

“According to the story told by the defendant the plaintiff called on him at his law office in June, 1907, and stated to him that her uncle, a man of advanced age, with whom she had lived for 21 years, working hard for him during that time, had entirely changed his attitude toward her, and that she feared, from things he had said, that he would revoke a testamentary disposition theretofore made in her favor; that she instructed the defendant to interview her uncle, and if possible to persuade him to modify his attitude toward her, and either pay her for the services rendered him, or, in order that she might not be subject to his whims, to induce him to secure to her some of his property in recognition of her 21 years of service. That accordingly defendant interviewed plaintiff’s uncle, and persuaded him to make her an absolute deed of 75 acres of land in the Santa Clara Valley, worth over $200 per acre. The evidence introduced by the defend