plaint to enter into the contract; that the engine did not save 25 per cent. in the coal bills, but, on the contrary, caused an increase in the coal bills of 40 per cent.; and that plaintiff had sustained damages, by reason of the premises, in the sum of $2,500, for which he prayed judgment.

The court below found all the facts to be as alleged in the complaint, except that the damages sustained by the plaintiff were fixed at $1,600; and for that sum judgment was entered in his favor. In his statement on motion for new trial, defendant specifies as not justified by the evidence (1) the finding that the contract price of the engine manufactured by defendant for plaintiff was $1,000; (2) the finding that defendant warranted the engine to save plaintiff 25 per cent. of his coal bills; (3) the finding that the engine increased plaintiff's coal bills 40 per cent.; and (4) the finding that plaintiff had sustained damages in the sum of $1,600. The other findings, in reference to the implied warranties, under sections 1768, 1769, and 1770 of the Civil Code, are not questioned.

The question raised under the first specification is not material. Plaintiff testified that, at the beginning of the negotiations, defendant "stated that he would furnish one of his 12x12 automatic cut-off engines for $850 in money and my old engine, making $1,000." Plaintiff afterwards offered $750 and his old engine; and, as defendant was to have six weeks in which to manufacture the new one, he agreed to accept the price offered. There is nothing to show what the old engine was worth, or what plaintiff estimated it to be worth, and we consider it quite immaterial whether the finding correctly fixed the contract price at $1,000, or should have fixed it at $900.

As to the question raised under the second specification, it is enough to say that we think there was evidence from which the court might find the express warranty alleged. To create an express warranty the word “warrant” need not be used, nor are any particular words necessary. Any affirmation made at the time of the sale, as to the quality or condition of the thing sold, will be treated as a warranty, if it was so intended, and the purchaser bought on the faith of such affirmation; and whether it was so intended, and the purchaser acted upon it, are questions of fact for the jury. 5 Wait, Act. & Def. 555; Polhemus v. Heiman, 45 Cal. 573; Horton v. Green, 66 N. C. 596.

So, as to the third specification. There was evidence tending to show that the new engine consumed as much as 40 per cent. more coal than the old one in doing the same work. We cannot, therefore, say that this finding was not justified.

The law as to the damages which may be recovered in a case of this kind is declared in the Civil Code as follows: "Sec. 3313. The detriment caused by the breach of a warranty of the quality of personal property is deemed to be the excess, if any, of the value which the property would have had at the time to which the warranty referred, if it had been complied with, over its actual value at that time. Sec. 3314. The detriment caused by the breach of warranty of the fitness of an article of personal property for a particu lar purpose is deemed to be that which is defined by the last section, together with a fair compensation for the loss incurred by an effort in good faith to use it for such purpose." The plaintiff testified that he had "expended in money since the Ohmen engine was put in, in an attempt to make it do what it was wanted to do, $1,087.51;" and it was admitted that the then present value of the engine was only $250. It is claimed for the appellant that the plaintiff's testimony as to some of the items of his expenditures was indefinite and uncertain, and that some of the money alleged to have been expended by him ought not to have been considered in estimating his damages. It is true, the testimony seems open to criticism, but the court below had a better opportunity to judge of its weight and worth than we have. The court evidently rejected some of the items, or the damages would have been placed at a higher figure than they were. We are not informed which items were re

jected, or how the exact sum of $1,600 was fixed upon; but, looking at all the testimony, we cannot say that the court was not authorized to find as it did. During the progress of the trial the plaintiff was permitted, against the objections of the defendant, to file a supplemental complaint, setting forth "that since the commencement of this action the said plaintiff, by reason of the breach of the warranties set forth in said complaint, has suffered damage in the further sum of $141.05," for which he prayed judgment. Conceding that the court erred in permitting the supplemental complaint to be filed, still we are unable to see that defendant was prejudiced thereby. There is nothing to show that it was served or answered, or that any damages claimed under it were allowed. Besides, plaintiff was entitled, under his original complaint, to recover damages "for detriment resulting after the commencement" of his action. Civil Code, § 3283. Looking at the whole record, we find no sufficient cause for reversal of the judgment, and therefore advise that the judgment and order be affirmed.

We concur:

PER CURIAM.

FOOTE, C.; HAYNE, C.

For the reasons given in the foregoing opinion, the judg

ment and order are affirmed.

(75 Cal. 525)

BRISON v. BRISON. (No. 12,364.)

(Supreme Court of California. April 19, 1888.)

1. TRUSTS-CONSTRUCTIVE TRUSTS-STATUTE OF FRAUDS.

Under Civil Code Cal. § 1572, defining as actual fraud a promise made without intention of performing it, and with intent to induce another to enter into a contract, an oral promise made by a wife, upon a conveyance of land from her husband, to reconvey the same when requested, with no intention to keep such promise, is such actual fraud as to give rise to a trust, and bring the promise within a provision of the statute of frauds excepting from its operations trusts arising by operation of law.

2. SAME-RESULTING TRUSTS-CONFIDENTIAL RELATIONS.

Under Civil Code Cal. § 158, making transactions between husband and wife subject to rules controlling persons occupying confidential relations, a conveyance of land by a husband to his wife, upon her oral promise, in which the husband had confidence, to reconvey the land when requested, is constructively fraudulent, and gives rise to such a trust as to bring such oral promise within a provision of the statute of frauds excepting from its operations trusts arising by operation of law. 3. SAME-ACTION TO ESTABLISH-PAROL EVIDENCE TO CONTRADICT Deed.

In an action by a husband to compel his wife to reconvey to him certain lands conveyed to her upon her oral promise to reconvey them when requested, parol evidence is admissible to contradict the consideration expressed in the deed, and to show fraud and a resulting trust.

Commissioners' decision. Department 2. Appeal from superior court, Sacramento county; W. C. VAN FLEET, Judge.

A. P. Catlin and Add. C. Hinkson, for appellant. A. L. Hart, for respondent.

HAYNE, C. This was a suit to have a trust declared as to real property, and for a conveyance. The complaint shows substantially the following facts: The plaintiff and the defendant were husband and wife. The plaintiff was the owner of the property in controversy, upon which there was a mortgage. In order to raise money to pay off the mortgage, the "plaintiff determined to go to Arizona, and engage in business there, and was desirous of making a will before his departure, so that the property should go to his wife. But being influenced by the wish to save her the expense of probate proceedings in case of his death, and having confidence in her, and relying on her parol promise that she would reconvey to him upon his request, he made a deed to her absolute in form, and took no written acknowledgment from her. The deed recited that it was made in consideration of love and affection, and of the sum v.17 p.no.8-44

of $1, the receipt of which was acknowledged. But it is averred that, "though said deed recites a consideration, yet in truth and in fact there was no consideration therefor, and no money was paid or intended to be paid as a consideration for said deed." It is also averred that the promise by which plaintiff was induced to make the deed was in bad faith and false, and "made with intent on her part to deceive, and did deceive, the plaintiff." The defendant baving refused to reconvey the property, the plaintiff brought this suit to compel a reconveyance. The court below gave final judgment for the defendant upon demurrer, and the plaintiff appeals. The argument for the respondent is based upon the statute of frauds, and upon the rule that a writing shall not be contradicted or added to by parol evidence.

The statute of frauds expressly provides that a contract to convey land shall be void unless in writing (Civil Code, § 1624, subd. 4,) and that no trust in real property shall be valid unless created by writing or by operation of law. Civil Code, § 852. Under these provisions there can be no doubt but that the defendant's promise to convey was invalid, and could not be enforced. It is to be observed, however, that the statute excepts from its operations such trusts as arise "by operation of law." Substantially the same exception is in the English statute of frauds, and in the statutes of most of the United States. And the universal construction given to it is that it excepts from the operation of the statute, among other things, trusts which arise from fraud, actual or constructive, or, as they are termed, constructive trusts. It is no longer worth while for any counsel to argue against this construction of the statute. The only point which is open to debate in cases of this character is whether the facts show such a case of fraud as falls within the exception. Such fraud may be either actual or constructive; and, in our opinion, both exist in the case before us.

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1. We think there was actual fraud. As above stated, the complaint shows that the parol promise upon which plaintiff relied was false and "in bad faith," and "made with intent to deceive." The construction which we think must be given to this averment is that the promise was made without any intention of performing it. This is a well-recognized species of fraud. See Bigelow, Fraud, (Ed. 1888,) 483, 484; Sandfoss v. Jones, 35 Cal. 481, 482. And the Civil Code expressly provides that "actual fraud * * consists in any of the following acts committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract: * * * A promise made without any intention of performing it." Civil Code, § 1572. Now, inasmuch as it is admitted by the demurrer that the promise was made without any intention of performing it, we think the case falls directly within the provision. An instance of the application of the principle to facts similar to those of the case before us is Newell v. Newell, 14 Kan. 202. It is to be observed of this ground that the essence of the fraud is the existence of an intent, at the time of the promise, not to perform it. But for such intent there would be no actual fraud; for it is well settled that the mere failure to fulfill a promise is not fraud. Perry v. McHenry, 13 Ill. 236; Wheeler v. Reynolds, 66 N. Y. 234; Lery v. Brush, 45 N. Y. 589; Burden v. Sheridan, 36 Iowa, 125; Cowan v. Wheeler, 43 Amer. Dec. 283; Boyd v. Stone, 11 Mass. 348. But, if the evil intent existed, there was actual fraud; and, so far as this ground is concerned, it is immaterial whether there was a confidential relation or not. Christy v. Sill, 95 Pa. St. 387. If actual fraud existed, the statute of frauds is no defense. And it does not need any citation of authorities to prove that in cases of such fraud the rule as to contradicting or adding to a writing by parol evidence has no application.

2. But if the intent not to perform, above referred to, had not been averred, we think the plaintiff is nevertheless entitled to relief upon the other facts alleged, on the ground of the confidential relation existing between the par

ties. It is not every case where parties trust each other that the law recognizes as confidential, (Doyle v. Murphy, 22 Ill. 508; Steele v. Clark, 77 Ill. 474; Weer v. Gand, 88 Ill. 493, 494;) but the relation of husband and wife is expressly declared by statute to be of that character. The provision of the Civil Code is as follows: "Sec. 158. Either husband or wife may enter into any engagement or transaction with the other, or with any other person, respecting property, which either might if unmarried; subject, in transactions between themselves, to the general rules which control the actions of persons occupying confidential relations with each other, as defined by the title on Trusts.' It is not surprising that, in taking away the wife's common law incapacity to contract, the legislature should have thought it prudent to throw around her the safeguards which arise from the trust relation. Possibly, at first view, it might seem strange that it should have been thought necessary to accord the same protection to the husband. Perhaps this is to be regarded as an acknowledgment of woman's position in modern society. But, at any rate, the provision is in positive and direct language; and, where such is the case, the courts are not at liberty to disregard it. Nor is it necessary to consider what would be the rule in cases where it appears that there was in fact no actual confidence between the parties; that is to say, where the wife is living in independence of or hostility to the husband, (see Falk v. Turner, 101 Mass. 496;) for it is averred that the plaintiff "had at all times confidence in his said wife and her devotion and fidelity to him," and that he made the deed "having confidence in his said wife, and in her said representation and promises, and relying upon the same. The relation of the parties to each other, therefore, was confidential in fact as well as in law. The plaintiff was induced to make the deed by the confidence which he had in his wife, and the belief thereby engendered that she would perform her promise. But for that he would not have made it. The betrayal of such confidence is constructively fraudulent, and gives rise to a constructive trust. This is independent of any element of actual fraud. 1 Story, Eq. Jur. §§ 258, 307. The law, from considerations of public policy, presumes such transactions to have been induced by undue influence. Civil Code, § 2235; Bigelow, Fraud, (Ed. 1888,) 261, 262; Kerr, Fraud & M. (Bump's Amer. Ed.) 151; Hov. Fraud, 18. The extent and variety of the application of this principle to persons in confidential relations with each other may be seen from the notes to the leading case of Huguenin v. Baseley, 2 Lead. Cas. Eq. pt. 2, p. 1156. From the cases there cited it will abundantly appear that, while it is not impossible that a gift between persons in such relations may be valid, yet that all such transactions are constructively fraudulent, and are only to be upheld upon a showing of special circumstances. See, also, Hatch v. Hatch, 9 Ves. 296. Now, if this be so, if the law does not permit such transactions to stand even where there was an intention that the donee should have the property,-how much more should it interpose where, as here, there was no such intention, but only an intention that she should retain the semblance of ownership for a time.

We think the authorities fully bear out the assertion that in such cases a constructive trust arises, and that the statute of frauds has no application. In Wood v. Rabe, 96 N. Y. 426, a son was induced by the parol promise of his mother to confess a judgment in her favor, and allow her to purchase under it a piece of his real property. It was held that a constructive trust arose; and the court, per ANDREWs, J., said: “It was, on the part of the son, the case of a confidence induced, not by the bare promise of another, but by the promise and the confidential relations conjoined. The confidence, in fact, has its spring and origin in the relation, and that relation was a controlling ingredient moving his action. It would be a gross wrong to permit that confidence to be betrayed, and we are of opinion that the statute of frauds cannot be invoked as a bar to relief. The principle that, when one uses a confidential relation to acquire an advantage which he ought not in equity and good

* * *

conscience to retain, the court will convert him into a trustee, and compel him to restore what he has unjustly acquired, or seeks unjustly to retain, has frequently been applied to transactions within the statute of frauds." So, where a devise is made to one upon his parol promise to hold it in trust for another, a trust arises, and the statute of frauds is not allowed as a defense. Church v. Ruland, 64 Pa. St. 442; Barrell v. Hanrick, 42 Ala. 71, 72; Hoge v. Hoge, 1 Watts, 163. So it has been held, although there is some conflict in the authorities, that where one is allowed to purchase at an execution sale, upon his parol promise to hold for the judgment debtor, a trust arises. Wolford v. Herrington, 86 Pa. St. 39; Arnold v. Cord, 16 Ind. 177. But the case which we think is most directly in point is Young v. Peachy, 2 Atk. 254. There a father obtained from his daughter, without consideration, a conveyance of real property, upon his parol promise to hold it for a particular purpose, viz., “as a trustee only for her and her heirs, and that he would not claim or insist upon any benefit or advantage thereof." No actual fraud was shown. The father died bankrupt: and on a bill against the assignees it was decreed that the conveyance should be set aside, not upon the ground of an implied or resulting trust, but upon the ground of constructive fraud, which would now be said to give rise to a constructive trust. Lord HARDWICKE said: "There have been a great many cases even since the statute of frauds where a person has obtained an absolute conveyance from another, in order to answer one particular purpose, but has afterwards made use of it for another, that this court has relieved under the head of fraud; for a practice of this sort is a deceit and fraud, which this court ought to relieve against. The doing it is dolus malus, and that appears to be the present case." See, also, Haigh v. Kaye, 7 Ch. App. 469. The principle of this case was extended, in Murray v. Dake, 46 Cal. 648, 649, to a transaction between parties who did not stand in confidential relations to each other. Whether that was a proper extension of the principle need not be considered here. It must be admitted that there are cases in which the relief has been denied. But it will generally be found that in such cases the confidential relation has been overlooked; and we think the cases we have cited are in accordance with sound principle. For, if the relief cannot be granted in this case, we do not see how it could be granted if an attorney should, by his parol promise, induce his client to put the property in his name for some temporary purpose, and then refuse to reconvey on the ground of the absence of a written acknowledgment; and so of principal and agent, parent and child, trustee and cestui que trust, etc. It is to be observed that the trust is not a resulting trust, properly so called. The relief is not granted merely on the ground of want of consideration. The fact that a deed is without consideration, or is, as is sometimes said, voluntary, is not of itself sufficient to avoid the deed. Viney v. Abbott, 109 Mass. 300; Jackson v. Garnsey, 16 Johns. 189; Green v. Thomas, 11 Me. 321; Laberee v. Carleton, 53 Me. 212; Poe v. Domec, 48 Mo. 443. This is at least one of the things designed to be expressed by section 1040 of the Civil Code, which provides that "a voluntary transfer is an executed contract, subject to all the rules of law concerning contracts in general, except that a consideration is not necessary to its validity." The want of consideration, however, is a fact proper to be proved in connection with and as a part of the constructive fraud. Shotwell, v. Shotwell, 24 N. J. Eq. 385. Nor does the recital of a consideration stand in the way of the relief. As is well known, it was a settled rule of the early law that, if no consideration was expressed or proved, a use resulted to the grantor. To prevent this it became common to make the deed recite a consideration; and, while such recital could be contradicted for collateral purposes, it could not be contradicted for the purpose of avoiding the deed, (Farrington v. Barr, 36 N. H. 89; Coles v. Soulsby, 21 Cal. 47; Rhine v. Ellen, 36 Cal. 362; Martin v. Splivalo, 69 Cal. 614, 11 Pac. Rep. 484,) or for the purpose of raising a resulting trust, (Russ v. Mebius, 16 Cal. 356; Graves v.