I am unable to agree with the majority decision. I am not much impressed with the argument that in the transaction which led to the signature of the deeds by plaintiff her husband was an agent of the defendant-corporation. It seems a more reasonable view that he was merely putting himself in a position to comply with his arrangement with the corporation.
However, I would concede that point and still have grave doubt as to whether the evidence is strong enough to support a decree of cancellation of the deeds.
Plaintiff bases her claim upon the alleged false and fraudulent representation that the signing of the blank deeds was "a mere matter of form in connection with performing the functions of George Peter Nissen and the plaintiff with the Nissen Trampoline Company"; and that the blanks were thereafter filled *Page 486 out "falsely and fraudulently" by inserting descriptions, names, etc., so as to make them appear to be deeds from plaintiff to defendant.
She was or had been technically the secretary of defendant-company. The plain inference to be drawn from her pleading and testimony is that she was led to believe she was signing these printed blank deed forms as secretary of the company and not in her private or personal capacity.
She says:
"He told me that he needed my signature on some papers for the company, that as an officer of the company they had to have my signature on them. I had always done what he told me as an officer. I make no pretense to being an experienced business woman. All the years I worked with George Peter Nissen I relied on him absolutely in all business matters and I relied on him this day."
This states her complete case in its strongest light, except that she pleads she "was in ill health, greatly upset in mind and body." She testifies: "I was extremely upset * * *. I had been contemplating a separation and it was naturally a hard decision to make."
Of course her testimony as to knowledge of affairs and her mental and physical condition are uncontradicted except by her husband's testimony and by circumstantial evidence.
She was twenty-seven years old, had graduated from high school and had had one year in the state university and some courses in other institutions. She was champion tennis player in Cedar Rapids three years, including the summer of 1947. According to her own testimony, on the very evening of the day she signed the deeds she and her husband gave an athletic exhibition at Iowa City between halves of the basketball game with Purdue.
She had already been consulting a lawyer about her marital problem and her husband knew her intention and did not want a separation.
There is no contention or showing by pleading or proof that defendant-company owned, or that she believed it owned, any real estate that could be the subject of transfer by it. It is not *Page 487 clear she knew title to any of the properties stood in her name in joint tenancy until the assessor's office telephoned her that she had lost a homestead exemption by the transfer to defendant.
Of course the burden is on plaintiff to establish the alleged fraud by clear and convincing evidence. After a careful study of this record I am convinced she has not carried this burden. There is the further significant fact that on March 24, 1947, just as she was about to get her divorce she made a property settlement with her husband. At that time she had full knowledge of the fact that the deeds she had signed purported to convey the property to the defendant-corporation. According to her own testimony she had already confronted her husband with the charge of fraud in obtaining her signatures to the deeds and he had agreed to account to her in cash and she had told him that would be all right.
It does seem to me that on the whole record her case is too weak to justify a reversal of the trial court who was in a much better position to appraise the situation than we are. I would affirm.
MULRONEY, J., joins in this dissent.