Petition for rehearing. The principal ground upon which we are asked to open the case is that it falls within the rule laid down by this court in Nobles v. Hutton, 7 Cal.App. 14, [93 P. 289], where the court said: "It is a well established principle that persons standing in a confidential relation toward others cannot entitle themselves to hold benefits which others may have conferred upon them, unless they can show to the satisfaction of the court that the *Page 463 person by whom the benefits have been conferred had independent advice in conferring them." (Citing, also,Yordi v. Yordi, 6 Cal.App. 20, [91 P. 348].) It was said inRobins v. Hope, 57 Cal. 493, 497: "The phrases 'confidential relation' and 'fiduciary relation' seem to be used by the courts and law writers as convertible terms. It is a peculiar relation which undoubtedly exists between client and attorney, principal and agent, principal and surety, landlord and tenant, parent and child, guardian and ward, ancestor and heir, husband and wife (naming some others). In these and the like cases the law, in order to prevent undue advantage from the unlimited confidence, affection, or sense of duty which the relation naturally creates, requires the utmost good faith (uberrimafides) in all transactions between the parties." (1 Story's Equity Jurisprudence, sec. 218.) In Scattergood v. Kirk,192 Pa. 263, [43 A. 1030, 1032], it was held that "the term 'confidential relation' is not confined to any specific association of the parties to it. While the most frequent illustrations are between persons who are related as trustee and cestui que trust, guardian and ward, attorney and client, parent and child, husband and wife, it embraces partners and copartners, principal and agent, master and servant, physician and patient, and generally all persons who are associated by any relation of trust and confidence." As further illustrating the meaning of these terms, it was held in Thomas v. Whitney,186 Ill. 225, [57 N.E. 808, 810], that "the relation exists and relief is granted in all cases in which influence has been acquired and abused, in which confidence has been reposed and betrayed. The origin of the confidence and the source of the influence are immaterial. The rule embraces both technical fiduciary relations, and those informal relations which exist wherever one man trusts in and relies on another."
Assuming that the power of attorney given to plaintiff by Proctor created a confidential relation between them in respect of the property, it does not necessarily follow that the principal could not sell or give the property to the agent except under the guidance of independent advice. The cases where the courts have attached importance to the fact that the party, alleged to have been overreached, received no independent advice, are cases in which the recipient of such party's favor had some over-mastering influence, actual or *Page 464 presumptive, over the latter by reason of their natural relation or because of some physical or mental infirmity by means of which the beneficiary was enabled to obtain an undue advantage. For example, where a child under majority conveys valuable property to the parent or releases his interest in some expectancy of value "the law," as said by Judge Story, "in order to prevent undue advantage from the unlimited confidence, affection, or sense of duty which the relation naturally creates, requires the utmost good faith in all transactions between them," and the absence of independent advice in such case might be given special significance. So, also, where the relation is that of husband and wife. But we do not think that it has ever been held that before such a transaction can be shown to be valid and binding it must appear in every case as indispensable that the child or wife had independent advice. Nobles v. Hutton, 7 Cal.App. 14, [93 P. 289], and Yordi v. Yordi, 6 Cal.App. 20, [91 P. 348], were cases where the court, because of the peculiar relationships of the parties, and the circumstances shown, attached special significance to the failure to show that the persons conferring the benefit acted under independent advice. But it was not intended to lay down the hard-and-fast rule that under no state of circumstances can a conveyance made by a minor child to his parent or wife to her husband be upheld unless it be shown to have been executed upon independent advice. An examination of the case of Nobles v. Hutton, supra, will show that the principle above quoted was enunciated with reference to the peculiar and controlling circumstances of the case. So, also, was it in Yordi v. Yordi, supra. The rule certainly cannot be more rigid when applied to the ordinary relation of principal and agent. To show that the principle contended for does not necessarily apply in all cases where the relation, for example, is that of parent and child, let us suppose a conveyance by the parent to his child. Here we have the relation, but the situation of the parties to the transaction is reversed and the rule would not ordinarily apply. Yet it might appear that the parent was of great age and of weak mind; that the child had the power to, and in fact did, exercise undue influence over his parent and that these facts and other circumstances attending the transaction would require that the act of the parent should be shown to have been performed under the direction of independent advice, *Page 465 i.e., by some impartial person or persons. Speaking of gifts by a child to a parent, Mr. Pomeroy says: "The law on the subject is well settled. A child makes a gift to a parent, and such a gift is good if it is not tainted with parental influence. A child is presumed to be under the exercise of parental influence as long as the dominion of the parent lasts. Whilst the dominion lasts it lies on the parent maintaining the gift to disprove the exercise of parental influence, by showing that the child had independent advice,or in some other way. When the parental influence is disproved, or that influence has ceased, a gift from a child stands on the same footing as any other gift; and the question to be determined is, whether there was a deliberate, unbiased intention on the part of the child to give to the parent. Where the positions of the two parties are reversed, where the parent is aged, infirm, or otherwise in a condition of dependence upon his own child, and the child occupies a corresponding relation of authority, conveyances conferring benefits upon the child may be set aside. Cases of this kind plainly turn upon the exercise of actual undue influence, and not upon any presumption of invalidity." (2 Pomeroy's Equity Jurisprudence, sec. 962, and note 3.) In 'the present case there is but slight if any evidence of actual undue influence exercised by plaintiff over Proctor. Aside from her personal attention to his wants, in a way to excite in him a sense of gratitude for her kindness, there is little if any evidence, and in this treatment no ulterior motive to possess his property is shown. His manifestation of trust and confidence in her is shown by the power of attorney to sell the property, but that she had some over-mastering power over him or could unduly influence him in matters of business there is no evidence. The witness Overton testified that she told him the property "was simply conveyed to her for the purpose of getting a lodging-house; for the benefit of the two of them; she was to run the house and they were to have a kind of partnership"; but this was in conflict with other evidence, and the trial court did not accept this as a statement to be believed, or, at least, as affecting the conviction of the court based upon the testimony of Mrs. Barnes and other evidence in the case.
It is further urged as ground for a rehearing that the court failed to comment upon the fact that defendant did not testify *Page 466 in the case. Why she was not called as a witness does not appear. It would doubtless have been more satisfactory had she made a full explanation of her relations with Proctor, but it cannot be said, as matter of law, that her failure to testify destroyed the probative force of the evidence submitted in the case in her behalf.
We are unable to discover sufficient ground for granting a rehearing, and it is therefore denied.
Hart, J., and Burnett, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on August 24, 1908.