Dissenting. — I am unable to concur in the conclusion reached by the majority of the court. The complaint alleges the delivery of the check involved in this case, for value, its indorsement and presentation by the plaintiff and the refusal of the bank on which it was drawn to pay it. The answer denies the execution and delivery of the check, denies any memory or remembrance of ever signing the check, and avers that if signed it was procured to be signed by fraud and undue influence on the part of the plaintiff exercised over the defendant at a time when he was seriously ill and near unto death, and without sufficient exercise of mind to know or understand the purport or meaning thereof; denies that any consideration whatever was ever given for said cheek; avers that as soon as the existence of such cheek was discovered, the defendant repudiated the same, and that if in his unbalanced state of mind he gave or delivered such check, it was as an incomplete gift, fraudulently and unlawfully obtained and without any consideration whatever, and was by the defendant upon his regaining consciousness of mind and his senses revoked and repudiated.
The defendant is a man seventy years of age or more, was greatly enfeebled in health, and on and prior to December 29, 1911, the evening said check was given, was seriously ill,— so ill that it was thought by all who knew his condition that he could not recover.
Plaintiff and defendant first met in October, 1910, at which time plaintiff rented a dwelling-house from the defendant. The defendant at the time plaintiff rented the dwelling contemplated going to California very soon, and remaining with plaintiff and family about a month, or until the latter part of November, 1910, during which time he lived with the family of plaintiff and paid his board. On his return from California the latter part of March, 1911, he lived and boarded with plaintiff and her family until the fore part of August, 1911, during which time he was to receive his board, etc., for the rental of the house. Early in August the defendant informed the plaintiff that he had sold the house in which they were living and the parties to whom he had sold it wanted *589possession of it, and thereupon plaintiff and her family removed from said house and plaintiff and defendant met only once or twice until the following December. Some time in December, 1911, the defendant and plaintiff entered into an agreement whereby the plaintiff was to rent a house from defendant and pay one-half of the rent therefor, and defendant was to stand the other half, and also furnish one-half of the provisions, etc., for the board of the family consisting of plaintiff, her husband and two daughters, under which arrangement the plaintiff took possession of the house referred to on December 20th, 1911, and defendant had a room in said house and boarded with the family.
About 3 or 4 o’clock on the morning of December 28th the defendant was taken violently ill, and plaintiff and her husband went to his room to minister to and care for him, and found him very sick, — so sick that it was thought he would die. A priest was called to administer to him and his banker was called, who procured an attorney to draw his will, which was done about 4 o’clock on the afternoon of December 29th. About 9 o’clock of that evening, when the defendant was in a very exhausted condition from his violent sickness, and when no one was present but plaintiff and defendant, the plaintiff went into his room and procured him to sign said cheek. She wrote the check herself and procured his signature to it, for $3,000, and next morning, between 10 and 11 o’clock, took the check and presented it for collection, not to the bank in Boise City on which it was drawn, but to another bank. The bank on which it was drawn was nearer to her home than the bank to which she presented the check, still she went to another bank to deposit said check for collection. At the time said cheek for $3,000 was drawn or presented, the defendant had but $400 to his credit in that bank. In the forenoon of December 30th, 1911, as soon as the defendant discovered that said check had been issued, he demanded its return, which was refused by plaintiff, and he thereupon advised his banker not to pay it.
The record shows that the plaintiff is an intelligent and an experienced business woman, having been stenographer for *590a Texas' congressman for two year’s; that her husband had served as deputy sheriff for many years, and that they were both keen, shrewd business people. The evidence clearly shows that the check was cajoled out of this feeble-minded old man at a time when plaintiff had reason to believe, and no dnubt did believe, that he would die in a very short time.
As to the consideration given for said check, the plaintiff testified as follows: “Q. What did you give or were you to give for this $3,000! A. Why, I was to make him a home. Q. You were to make him a home in the future? A. Or rather, he was to make his home with us and I would take care of him as I was doing, for the balance of his life. Q. That was why he gave you the check, is it? A. That is all he gave it to me for. Q. Yes. What, if any, past care had you given to him? A. Why, it wasn’t a case of past at that time; it was present. There has never been any subject of past care until December. Q. What did he give you that $3,000 cheek for in December? A. Why, Mr. Hawley, I told you that when we came back from Huntington and failed to get a ranch there, that Mr. McGran said he would give me $3,000 to buy a ranch in New Mexico and that he was to make his home with us the balance of his life. Q. This $3,000 check, then, was given — he was to receive a home for the balance of his life with you? A. If he cared to make it. Q. Was there anything in writing which would have — whereby he would be protected? A. There was no writing on his side or mine.”
It clearly appears from her whole testimony that there was no consideration whatever for said check. There was no obligation on the part of plaintiff to care for or support the defendant during his life, and the evidence shows that defendant had paid plaintiff for all care and board she had given him. If he ever promised to give her $3,000, it was nudum pactum and void for want of mutuality. It was not for past care that the plaintiff had given defendant that the check was given, as she positively testifies that it was not. The whole record shows the influence of a scheming, strong-minded, designing woman over a weak, senile old man, persisted in during á very *591short acquaintanceship. The plaintiff’s own testimony shows that she was to give nothing and did not obligate herself in any way for said $3,000 check, nor was she obligated or to be obligated to do or perform any services for the defendant in consideration of said check. The culmination of the scheme to secure this check from this weak-minded old man was at a time when it was believed by the defendant and his friends that he was in a dying condition, and then when she was alone with him, no one else present, she persuaded him to sign a check for $3,000 drawn by herself.
His last will had only been executed a few hours before said cheek was drawn, and he did not mention plaintiff in his will, she having signed said will as an attesting witness. If he owed her the $3,000, why did she not present the matter to his banker and the priest and the lawyer, who were there at the time the will was drawn, as any fair-minded person would have done? She waited until the still hours of the night, evidently preferring darkness rather than light, when she was alone with the weak-minded old man, then procured him to sign the check, and the next morning, at early banking hours, she hastened to the bank and deposited the cheek for collection, when the old man had only $400 cash in the bank with which to pay the cheek.
The plaintiff heard said last will of defendant read and signed it as a witness. This of itself is significant as indicating that she did not want it known that she was attempting to inveigle this feeble-minded and weak old man into giving her $3,000. It seems that she approved the making of said last will, disposing of all of defendant’s property to others, and was willing to take a chance on procuring the old man to give her a check for $3,000 in the dead of night, when no one was present except herself and the defendant. The defendant attempted to testify on the trial in this ease, and his testimony shows that he is a weak-minded old man.
Viewing this ease from any standpoint, either that of fair and open dealing or of a transaction between people on equal grounds, trading at arm’s length, or putting the case upon the footing of a fair and adequate or any consideration what*592ever, there is not only an entire failure ou the part of plaintiff to sustain the issues tendered, by her complaint, but there is au affirmative showing in the testimony of the plaintiff herself which goes to impeach the fairness of the transaction, from any view that may he taken of it.
There is no substantial conflict in the evidence npon the point that there was no consideration given for said check, or that the defendant was under any moral or legal obligation to execute said check in favor of the plaintiff. It appears from the record that the defendant is worth about $17,000, and the jury by a three-fourths vote evidently concluded they would distribute it differently from what the old man had undertaken to distribute it by his last will. By the decision of my associates, the plaintiff is given $3,000 without any past consideration for it and without any future obligation ou the part of plaintiff to care for defendant during the remainder of his life. The judgment ought to he reversed.
Petition for rehearing denied.