Cooper v. Agee

Replication numbered "third" is in two aspects, (1) fraud and (2) undue influence. We *Page 339 stated in the opinion that there is in the record enough evidence of the fraud to go to the jury on that question, and on rehearing counsel do not seem to take issue with that statement. But they point out that there is an averment, stated in the conjunctive, that defendant's agent knew of plaintiff's weak mental condition, and that there is no evidence of such averment. Assuming that the record is in accord with that contention, we cannot agree with the result claimed — that thereby there is such a failure of proof as that the replication is not sustained.

We agree that the rule is that, where the fraud relied upon consists of one representation or a series of them all as one transaction, the proof must support all the several statements in the pleading constituting the representation as an entirety. City Loan Banking Co. v. Byers, 1 Ala. App. 583, 55 So. 951; L. N. R. R. Co. v. Mothershed, 97 Ala. 261, 12 So. 714; L. N. R. R. Co. v. Coulton, 86 Ala. 129, 5 So. 458; Cent. of Ga. R. Co. v. Isbell, 198 Ala. 469, 73 So. 648.

But, if the pleading be divided into separate aspects, legally sufficient in averment, the fact that they are conjunctively connected does not make it essential that the descriptive matter of both such separate aspects shall be proven. L. N. R. R. Co. v. Mothershed, supra; L. N. R. R. Co. v. Coulton, supra; Shipman v. Furniss, 69 Ala. 555, 563, 44 Am. Rep. 528; So. Rwy. Co. v. Lee, 167 Ala. 268, 52 So. 648; B. R. E. Co. v. Baylor, 101 Ala. 488, 13 So. 793; L. N. Rwy. Co. v. Malone, 200 Ala. 380, 76 So. 296.

In Shipman v. Furniss, supra, this rule was applied to a bill in equity seeking relief for fraud and undue influence. And in Cox v. Parker, 212 Ala. 35, 101 So. 657, it is pointed out that mental weakness is usually an element of undue influence, and that evidence of it is admissible along with other evidence of undue influence (citing Shipman v. Furniss, supra), and that it is sufficient to aver generally that an instrument was the result of undue influence of a named person. Though undue influence is a species of fraud, the two terms are not synonymous, and present different issues based upon separate averments to sustain them. Shirley v. Ezell, 180 Ala. 352,60 So. 905; Dulaney v. Burns, 218 Ala. 493, 119 So. 21.

The averment of knowledge of the weak mental condition of plaintiff is alleged in replication third as descriptive of the claim of undue influence and not of fraud. And, though there may not be sufficient evidence to go to the jury on the issue of undue influence, there is such on that of fraud. Each is a distinct, independent averment presenting separate substantive grounds to avoid the effect of the written release, and proof of either is sufficient, though they are conjunctively connected.

Application for rehearing denied.

ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.