145. Undue influence is a species of fraud. It may be said generally to consist -

(a) In the use by one in whom confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him.

(b) In taking an unfair advantage of another's weakness of mind.

(c) In taking a grossly oppressive and unfair advantage of another's necessities and distress.

146. EFFECT. Undue influence renders a contract voidable at the option of the injured party.

Courts of equity have always given a wider interpretation to the term "fraud" than that adopted by the courts of common law. Looking beyond definite false and fraudulent statements, they have inferred from a long course of conduct, from the peculiar relations of the parties, or from the circumstances of one of them, that an unfair advantage has been taken of the promisor, and that his promise ought not, in equity, to bind him. The taking of such an unfair advantage is sometimes called "fraud," but it is more convenient, for the purpose of distinguishing it from the kind of fraud with which we have already dealt, to call it the "exercise of undue influence." 35 It is difficult to give a clear and gested that the contract will be void if the duress is so severe that the person on whom it is imposed is converted, into a mere automaton. See "Con-tracts." Dec. Dig. (Key-No.) § 95; Cent. Dig. §§ 431-440.

34 Miller v. Minor, 98 Mich. 163, 57 N. W. 101, 39 Am. St. Rep. 524; Fairbanks v. Snow, 145 Mass. 153, 13 N. E. 596. 1 Am. St. Rep. 446; Oregon Pac. R. Co. v. Forrest, 128 N. Y. 83, 28 N. E. 137; Veach v. Thompson, 15 Iowa, 380; Belote v. Henderson, 5 Cold. (Tenn.) 472, 98 Am. Dec. 432; Brown v. Peck, 2 Wis. 261; Deputy v. Stapleford, 19 Cal. 302; Eberstein v. Willets, 134 I11. 101, 24 N. E. 967; Bush v. Brown, 49 Ind. 577, 19 Am. Rep. 695; Sorn-borger v. Sanford. 34 Neb. 498. 52 X. W. 368; Commercial Nat. Bank v. Wheel-ock, 52 Ohio St. 534, 40 N. E. 636, 49 Am. St. Rep. 738. Ante, p. 291. A nego tiable instrument executed under duress is binding in hands of bona fide purchaser for value. Hogan.v. Moore, 48 Ga. 156; Clark v. Pease, 41 N. H. 414; Thompson v. NIggley, 53 Kan. 664, 35 Pac. 290, 26 L. R. A. 803. See "Contractu:' Dec. Dig. (Key-No.) § 95; Cent. Dig. §§ 431-440.

35 Anson, Cont. (4th Ed.) 165. Clark Cont.(3d Ed.) - 20

concise definition of "undue influence" because of the wide meaning of the term. The definition given in the black-letter text, and taken substantially from the proposed New York Code, is probably as good as can be framed without going beyond a mere definition.38 Another good definition is given by an English judge, who, in speaking of the sort of cases "which * * * raise, from the circumstances and conditions of the parties contracting, a presumption of fraud," says: "Fraud does not here mean deceit or circumvention; it means an unconscientious use of the power arising out of these circumstances and conditions; and, when the relative position of the parties is such as prima facie to raise this presumption, the transaction cannot stand unless the person claiming the benefit of it is able to repel the presumption by contrary evidence, proving it to have been, in point of fact, fair, just, and reasonable." 37

Neither in law nor in morals is a person standing in confidential relations to another prohibited from exerting any influence whatever to obtain a benefit to himself.' The influence must be what the law regards as "undue influence." 38 "Influence obtained by modest persuasion, and arguments addressed to the understanding, or by mere appeals to the affections, cannot properly be termed 'undue influence' in a legal sense;39 but influence-tained by flattery, importunity, superiority of will, mind, or char-acter, or by what art soever that human thought, ingenuity or cunning may employ, which would give dominion over the will" of a person "to such an extent as to destroy the free agency,40 or constrain him to do against his will what he is unable to refuse, is such an influence as the law condemns as undue." 41

36 Proposed N. Y. Civ. Code, § 231.

37 Lord Selbourne, in Earl of Aylesford v. Morris, 8 Ch. 490. See, also, Green v. Roworth, 113 N. Y. 462, 21 N. E. 165; In re Nelson's Will, 39 Minn. 204, 39 N. W. 143. See "Contracts,", Dec. Dig. (Key-No.) § 96; Cent. Dig. §§ 441, 1155, 1169.

38 Wallace v. Harris, 32 Mich. 397. See "Contracts," Dec. Dig. (Key-No.) § 96; Cent. Dig. §§ 441, 1155, 1169; "Deeds," Dec. Dig. (Key-No.) § 12; Cent. Dig. §§ 190-199.

39 Rogers v. Higgins, 57 111. 244; Wise v. Foote, 81 Ky. 10; Hale v. Cole, 31 W. Va. 576, 8 S. E. 516; Beith v. Beith, 76 Iowa, 601, 41 N. W. 371; Black v. Foljambre, 39 N. J. Eq. 234; Sturtevant v. Sturtevant, 116 I11. 340, 6 N. E. 428; Bowdoin College v. Merrett (C. C.) 75 Fed. 480; In re Coleman's Estate, 193 Pa. 605, 44 Atl. 1085; Du Bose v. Kell, 90 S. C. 196, 71 S. E. 371 (full statement of rules); Fjone v. Fjone, 16 N. D. 100, 112 N. W. 70. See "Contracts," Deo. Dig. (Key-No.) § 96; Cent. Dig. §§ W, 1155, 1169.

40Latham v. Udell, 38 Mich. 238; Layman v. Conrey, 60 Md. 286. See "Contracts," Dec. Dig. (Key-No.) § 96; Cent. Dig. §§ 441, 1155, 1169.

41 Schofield v. Walker (In re Disbrow's Estate) 58 Mich. 96, 24 N. W. 624.