Sec 104

The question of mental incompetency rarely presents itself detached from that of undue influence.5 A person whose mind is enfeebled may make a will in solitude, but he cannot make a contract in solitude. To contract he must bring himself more or less completely within the sphere of the other contracting party ; and it is And on undue influence hard to conceive of a case, therefore, in which he is not at least in some degree influenced by such other party. The question, then, is, Was such influence undue? This is a question of fact, to be determined by induction from the circumstances of each case in the concrete. And the inference of fraud, in cases where the bargain is not equitable, rises in proportion to the obviousness of the mental incapacity of the party with whom the contract is made. Imbecility, when acted on by fraud, is ground for avoidance.1 Hence a contract made by a person of weak intellect for the ordinary conveniences of life will be sustained, when a speculative contract by the same person, made under undue influence, will be set aside. An elderly woman of weak understanding, with independent means, for instance, may make a valid contract for the purchase of a house, or for the sale of securities, under trustworthy advice, when validity would be denied to contracts for speculations in which the same person was cajoled by undue and improper influence to engage.

4 Conn. 208 ; Seeley v. Price, 14 Mich. 541 ; Henderson v. McGregor, 30 Wis. 78 ; Garrow v. Brown, 1 Wins. (N. C.) No. 2, Eq. 46 ; Rutherford v. Ruff, 4 Dessaus. 350; Birdsong v. Birdsong, 2 Head, 289 ; Killian v. Badgett, 27 Ark. 166.

1 Allore v. Jewell, 94 U. S. 506; Harding v. Wheaton, 2 Mass. 378; Mann v. Betterly, 21 Vt. 326 ; Taylor v. Atwood, 47 Conn.- ; Shakespeare v. Markham, 72 N. Y. 48 ; Hunt v. Moore, 2 Barr, 105 ; Beals v. See, 10 Barr, 60 Moore v. Hershey, 90 Penn. St. 196 Whitehorn v. Hines, 1 Munf. 557 Jones v. Perkins, 5 B. Mon. 222; Kee-ble v. Cummins, 5 Hayw. Tenn. 43; Buf-falow v. Buffalow, 2 Dev. & B. Eq. 241; Rutherford v. Ruff, 4 Des. Eq. 350; Halley v. Troester, 72 Mo. 73; see Turner v. Rusk, 53 Md. 65 ; Clearwater v. Kimler, 43 111. 272 ; Myatt v. Walker, 44 111. 485 ; Emery v. Hoyt, 46 111. 258 ; Cadwallader v. West, 48 Mo. 483;.

Seely v. Price, 14 Mich. 541; Jacox v. Jacox, 40 Mich. 473 ; Taylor v. Patrick, 1 Bibb, 168; Wilson v. Oldham, 12 B. Mon. 55 ; Birdsong v. Birdsong, 2 Head, 289 ; Killian v. Badgett, 27 Ark. 166; Henderson v. McGregor, 30 Wis. 78.

2 Story Eq. Jur. 12th ed. sec 224.

3 Infra, sec 158.

4 Yauger v. Skinner, 1 McCarter, 389, by Green, C.; S. P. Wilder v. Weakley, 134 Ind. 181; Ballard v. McKenna, 4 Rich. S. C. Eq. 358. The jury may consider how far the party was liable to be deceived, though the incapacity was only partial. Galpin v. Wilson, 40 Iowa, 90. See also Shakespeare v. Markham, 72 N. Y. 400, and Cadwallader v. West, 48 Mo. 483. In this last case, it was said that wherever inadequacy of consideration and mental weakness concur, the contract should be annulled. And see Owing's case, 1 Bland., 370, 390.

5 See infra, sec 157.