Sec 103

A party who has mental capacity enough to make a contract which would bind him if fair, may, nevertheless, either in person or through his representatives, set up mental deficiencies as a defence when such deficiencies were fraudulently acted on by the opposing party to extort an undue advantage.4 And imbecility or hal-

Question conditioned by fraud.

1 This is now finally established in England, in Matthews v. Baxter, L. R. 8 Exch. 132 ; affirming Molton v. Cain-roux, 4 Exch. 17, see infra, sec 106. In this country may be cited to the same effect, Hovey v. Hobson, 53 Me. 451 ; Young v. Stevens, 48 N. H. 133; Allis v. Billings, 6 Met. 415 ; Howe v. Howe, 99 Mass. 88; Ingraham v. Baldwin, 9 N. Y. 45 ; Riggs v. Tract Soc, 84 N. Y. 330; Matthiesen R. R. Co. v. McMahon, 38 N. J. L. 537 ; Murray v. Carlin, 67 111. 286 ; McCormick v. Little, 85 111. 62; Scanlan v. Cobb, 85 111. 296 ; Wil-lemin v. Dunn, 93 111. 511 ; Van Patten v. Beals, 46 Ind. 62; Musselman v. Cravens, 47 Ind. 1; Freed v. Brown, 55 Ind. 310; Hardenbrook v. Sherwood, 72 Ind. 403 ; Rusk v. Fenton, 14 Bush, 490; Elston v. Jasper, 45 Tex. 409. In Matthiesen R. R. Co. v. McMahon, supra, though the court use the term void, the word is shown by the context to be meant in the sense of voidable.

2 Supra, sec 28 ; see also infra, sec 114. 3 The subject is considered more in detail in 1 Wh. & St. Med. Jur. 4th ed. sec 5 et seq. To sustain a contract made with a lunatic on the ground that it was made in good faith and for his benefit and without knowledge of his incapacity, and that it has been so far performed that the other party cannot, if it be rescinded, be placed in statu quo, these facts must be alleged and proved. Riggs v. Tract Soc, 84 N. Y. 330, reversing S. C. 19 Hun, 481. In Haydock v. Haydock, 34 N. J. Eq. 570, affirming S. C. 33 N. J. Eq. 494, it was said by Reed, J., in the New Jersey Court of Appeals : "The influence which is undue in cases of gifts inter vivos, is very different from that which is required to set aside a will. In testamentary cases, undue influence is always defined as coercion or fraud, but, inter vivos, no such definition is applied. Where parties hold positions in which one is more or less dependent upon the other, courts of equity hold that the weaker party must be protected, and they set aside his gifts if he had not proper advice independently of the other.".

4 Infra, sec 157 et seq., 232 et seq. ; Gartside v. Isherwood, 1 Bro. C. C. 560 ; Dane v. Kirkwall, 8 C. & P. 679 ; Dent v. Bennett, 7 Sim. 539 ; Rhodes v. Bate, L. R. 1 Ch. 252; Grant v. Thompson, lucination in the party imposed on, the other party having notice of such disability and taking advantage of it, is a ground for setting aside a contract which would have been sustained had the parties been of equal intelligence.1 But mere mental disparity between the parties, there being no fraud, will not be ground for interference.2 If it were, few contracts would remain undisturbed.3 And the better rule is, "that if the proof be clear that an executory contract to purchase was made in good faith, and for a full, fair price, when the lunacy of the vendor was neither known nor suspected, and that the contract was executed on the part of the purchaser without knowledge or belief of the existence of the incapacity of the grantor, the contract will be upheld."4.