of illness, findings and judgment were rendered in favor of defendants. From this judgment, and an order denying the motion for a new trial, the plaintiff has appealed. are involved in the question whether there existed such a fiduciary relation as called for a full, fair, and accurate statement by defendants of the condition of the affairs of the several corporations in which Mr. Colton, in his life-time, had been interested; counsel for appellant contending all the time that such relation did exist, and that by virtue of their superior knowledge and means of information, the duty of making a full disclosure and truthful statement by defendants became imperative and absolutely essential to the validity of any compromise based upon negotiations between the parties. The re litigation that the business relation of the several associates was not that of partners, and that upon the death of Mr. Colton the defendants owed plaintiff no duty other than that which arises from the relation of stockholders in a corporation. In this branch of the controversy the learned judge of the court below sided with the respondents, and upon this subject he expressed his opinion in the following language: "At no time were the defendants Leland Stanford, C. P. Huntington. Charles Crocker, and Mark Hopkins copartners, or associated in any business or Although the record herein covers about 12,000 pages of printed matter, there is no substantial conflict in the evidence. The questions involved in this appeal have been debated by counsel upon the assumption that the facts found by the learned judge of the court below are unassailable, and that the decision is correct, except as to the legal deductions drawn from the specific facts found. It is not contended by the appellant that the defendants knowingly made any false state-spondents have claimed at all stages of the ments, or intended to deceive plaintiff in the negotiations, but it is claimed that the facts found show the existence of a fiduciary relation between plaintiff and defendants; that in dealing with plaintiff it was the duty of the defendants to make a full and correct disclosure of the condition of the business in which Colton held an interest, whether the plaintiff was relying upon their advice or upon her own investigation, and the advice and judgment of Wilson and other friends; that it is immaterial whether the parties believed there was in fact any such duty resting upon the defendants, or whether the plaintiff did actually re-enterprise as copartners. Nor did they at ly upon and confide in them; that, where the negotiations begin in peace and confidence between trustee and cestui que trust, it matters not that suspicion, distrust, and fears may lead the beneficiary to make independent investigation during the negotiations, and rely upon independent advice and her own judgment in finally concluding the compromise; that the trustee can shake off the duty referred to, if at all, only by a clear and unequivocal dissolution of the trust relation before the negotiations commence; that the business relation between Colton and defendants was a partnership, and that the surviving partners were bound to know the condition of the business, and impart full information thereof to plaintiff; that in cases of this kind the surviving partners must show affirmatively that the settlement was fair and the consideration adequate, the contract being prima facie void; that the court erred in ignoring this principle, and in holding that it was for plaintiff to prove fraud; that the findings show both actual and constructive fraud and threats, and that the representations made by defendants with respect to the ownership of the 408 shares of Rocky Mountain Coal & Iron Company stock are sufficient of themselves to call for a reversal of the judgment; that the judgment should be reversed, and a judgment entered in favor of the plaintiff on account of undue influence, concealment, and fraudulent misrepre sentations, although it be conceded that the parties making the contract herein sought to be rescinded dealt as strangers, and that the findings do not cover the material issues; and that the court erred in its conclusions of law, and as to the effect of certain evidence. Many of the topics discussed by counsel any time carry on any business as copartners," etc. "At the death of Colton the association between him and the defendants and Mark Hopkins entirely ended and ceased. There was no property belonging to the associates as such. After his death the plaintiff was merely a stockholder in the various corporations. * ** After the death of Colton the individual defendants had no other power over the affairs of the plaintiff, and occupied towards her no other relationship, than as controlling the corporations in which she was a stockholder, and as creditors and pledgees." "But, if a trust relation of this character existed between these associates, what was the relation of the survivors, upon the death of Colton, to his representative? At his death the association was entirely ended. It was a case where confidence was given for confidence; service for service. There was no property belonging to the associates as such. No power over the affairs of Mrs. Colton or the estate of D. D. Colton survived his death. His position was one of great power over many things, through this mutual confidence. She was merely a stockholder in various corporations. It is true they continued to be virtual directors of these corporations, as they and Coiton had previously been. But this no longer depended upon any confidential relations with the holders of Colton's stock. * * * The pre vious relations with Colton did not affect the question. They and Colton had no vested interests in any new projects not yet begun. ** *There was not then, after Colton's death, any further active duties, as trustees, due from defendants to the estate of Colton." Supp, 8 West Coast Rep. 31. It must be admitted, however, that the arguments of the appellant upon this question are most persuasive, and make the business relation which existed between the associates look iike a partnership for the purpose of organizing, controlling, and operating railroad and other corporations; but, in view of the manner in which the compromise was effected, and of all the circumstances surrounding the settlement of the dispute, we deem it unnecessary to determine this particular question. There is no doubt that the associates occupied towards one another relations of the greatest confidence and trust. This relation of trust and confidence, indeed, was one of extraordinary character,-greater than ever existed in any partnership with which we have been acquainted. The power and authority possessed by each associate over the business, property, and standing of others interested with him never was possessed, perhaps, by a member of any other concern or association. That there was a relation of mutual trust and confidence of high character between the associates, and that such relation was recognized by Judge TEMPLE, is apparent from the following extracts taken from his findings and opinion: "Some of their transactions in the payment and disbursement of money were private and confidential between said associates, the character and reason of such disbursements being known only to and by said associates, and not recorded or entered in any books or writings kept by them, or any of said corporations; and said five associates, until the death of said Hopkins, and said four associates thereafter, until the death of said Colton. had and assumed and sustained relations of intimate and peculiar trust and confidence, each towards and with the others, in regard to their said enterprises, and their management and conduct; and they acquired, obtained, and had confidential information and control each concerning and over the affairs of the property and business connected with, growing out of, and accumulated by and through the enterprises in which said Stanford, Huntington, Hopkins, Crocker, and Colton were associated together. As each new scheme was determined upon, each had his part in the work, though each party then decided for himself whether he would go into each scheme or not, and there was no power in the majority to commit any one to any new enterprise until he approved of it." "Fiduciary relations may exist between stockholders of various corporations, who have associated themselves to control such corporations and make them work in barmony; but they would not be partners. And so I conclude, although the corporations managed by these associates cannot be regarded as partnerships, nor as mere instrumentalities of a partnership, the relation between the parties was nevertheless of a fiduciary character. I think it already appears that the parties to the agreement Exhibit A intended something more than to procure situations for each other as employes in various corporations. They had designs not stated in that paper, which were the real purposes of that association. The fiduciary relation must have existed under our Code as to these projected enterprises, and the management of the system of roads they had built and acquired. * * * Each had invested his money and expended his labor in reliance upon this fidelity of the others." It is a nice question whether the trust relation which had existed between the associates continued to exist after the death of Colton, and imposed any active duties upon the survivors as trustees of his estate; but, if any such duties were cast upon the defendants by reason of the death of Mr. Colton, they were waived by the plaintiff herself, and the relation of trustee and cestui que trust was so entirely discarded and dissolved during the negotiations that they were not bound by any fiduciary relation to counsel, advise, and protect the plaintiff, or to perform any other duty than to deal fairly by her, and in good faith to disclose all facts within their knowledge material for her to know in conducting the negotiations fairly, and to enable her to make a full and unhampered investigation into the matters in controversy. We have been unable to find a case in which a lump agreement of compromise, entered into by surviving partners and the representative of a deceased partner, or by a trustee and cestui que trust, the latter acting by the advice of experts and able counsel, and renouncing all confidence in the trustees,--after full, fair, and honest investigation, has been rescinded because of actual and unintentional inaccuracies discovered subsequent to the execution of the agreement; nor do we know of any universal rule of equity, or any provision of our Code, tending to establish the proposition that from the mere fact of a prior existing fiduciary relationship everything in the absence of proof must be presumed against the trustee who has entered into a contract with his cestui que trust, regardless of the question whether confidence has, in fact, been reposed and abused. Of course, in all trust relations the existence of confidence will be presumed, and, if it appear that any advantage has come to the trustee in dealing with his cestui que trust, the burden will be thrown upon him to show that confidence was not in fact abused. But it has always been held, as we understand it, that this presumption might be overcome by proof of the fact that confidence had not been abused, and that the beneficiary acted, not upon any reliance or confidence placed in the trustee, but upon the advice of an independent, professional, disinterested, and competent adviser. There is a distinction to be made between transactions occurring directly between the trustee and his beneficiary, and those transactions in which the trustee deals with himself or another party. Thus, if a trustee in the execution of his trust sells property to himself, the transaction may be set aside by the cestui que trust as void, without giving any reason or alleging any fraud, or any disadvantage or inadequacy of price. In such case there are no two parties to the contract, the trustee dealing with himself alone; but where the trustee deals directly with the cestui que trust, the latter having for himself an independent adviser, and the trustee making no pretense of advising him, the transaction is not voidable, at the election of the beneficiary, but it will devolve upon the latter, if he would set it aside, to show some reason therefor. He must show either actual or constructive fraud. Of course, the fraud may be shown in some instances by presumptions. Section 2219 of the Civil Code provides: "Every one who voluntarily assumes a relation of personal confidence with another is deemed a trustee, within the meaning of this chapter, not only as to the person who reposes such confidence, but also as to all persons of whose affairs he thus acquires information which was given to such person in the like confidence, or over whose affairs he, by such confidence, obtains any control." Section 2228 is as follows: "In all matters connected with his trust, a trustee is bound to act in the highest good faith towards his beneficiary, and may not obtain any advantage therein over the latter by the slightest misrepresentation, concealment, threat, or adverse pressure of any kind." Section 2229 is as follows: "A trustee may not use or deal with the trust property for his own profit, or for any other purpose unconnected with the trust, in any manner." Section 2235 is as follows: "All transactions between a trustee and his beneficiary during the exist ence of the trust, or while the influence acquired by the trustee remains, by which he obtains any advantage from his beneficiary, are presumed to be entered into by the latter without sufficient consideration, and under undue influence." That these provisions are consistent with the rules of equity, as we have construed them, is apparent, we think, when read in connection with the following provision: "The person whose confidence creates a trust is called the trustor;' the person in whom confidence is reposed is called the trustee;' and the person for whose benefit the trust is created is called the beneficiary." Civil Code, § 2218. These provisions show that the fundamental principle of the relation of trustee and cestui que trust is that of contidence. In the case at bar, Mrs. Colton not only did not rest any confidence or reliance upon anything said, done, or omitted to be said and done, by the defendants, or any of them, but she called in and secured the aid of four or five disinterested and competent advisers. Among these was S. M. Wilson, one of the leaders of the bar of this state, a man of irreproachable character, in the prime of life, for 25 years the warm, personal friend of her husband, and the man whom he had recommended on his death-bed, and she was fully informed by him as to her legal rights. She also obtained the services of Mr. Lloyd Tevis, a skillful and successful financier, to assist Mr. Wilson in his investigations as to the business of the corporations. The investiga tions made by these gentlemen and the plaintiff lasted for over six months, and were most thorough, careful, and diligent. It is found. as a matter of fact, that they had sources of information other than those possessed by the defendants, and that they were, in fact, more thoroughly acquainted with, and better qualified to form an accurate judgment as to the condition of, the affairs of the company than any of the defendants. Mrs. Colton had also the advice of Mr. Steinberger, an old friend of her husband, and the advice and assistance of Mr. Green, his secretary for many years, and of Mr. Douty, who was a cousin and intimate friend of Gen. Colton, and a business man of great capacity and experience, and a skillful and expert accountant. All the claims preferred by the defendants on their own behalf were fully discussed, considered, and investigated. The subjectmatters of the negotiations were of the most complicated nature, consisting in part of accounts running through many years, and recorded in many volumes of books, and thousands of vouchers and papers relating in part to the transactions, some of which had gone out of the memory of the parties thereto. The court found as a fact, and it seems practically undisputed, that during the negotiations defendants were ready and willing to answer, and did truthfully answer, all questions asked them, and submitted freely all the books and accounts in their possession, or under their control, to the inspection and investigation of the plaintiff and her agents. The plaintiff and her agents knew, partly from discoveries they made themselves, and partly from information given by the defendants before the compromise agreement was executed, that there were many inaccuracies in some of the statements furnished to the plaintiff. Among other important matters in dispute between the parties, and which were compromised, was the right to Western Development Company dividends, amounting, according to plaintiff's valuation, to over half a million dollars. At the time the negotiations were in progress the plaintiff saw no justice whatever in the transaction; her heart rebelled against the whole matter. She believed that the defendants were unworthy of any credit or contidence, and were endeavoring, by all the means in their power, to cheat and defraud her. suspected that the defendants had made some of the charges against her husband knowing them to be false, and that they had manipulated their books to sustain those charges. No source of information was withheld from them. No means of ascertaining intelligently the true state of the accounts were covered up before they acted upon and compromised the matters upon which the controversy Every fact which has since been discovered could have been discovered before arose. She the execution of the compromise agreement, | as well as thereafter. The witnesses who could throw any light upon the matters in controversy were within their reach. Mrs. Colton was most anxious to make the settlement. The defendants "insisted that they were not bound to discount the future of their securities for her, thus giving her the benefit of their contemplated enterprises and the expenditure of more millions. She was not entitled to the profits, when she would not share the risks." The property in controversy was of immense value,-chiefly speculative value. Mr. Tevis "was known as a bold, enterprising, and successful speculator. He was intimately acquainted with the railroads, and was a man of great wealth, abundantly able to pick up the burden where Colton had dropped it, and carry it along, without asking any favors from the defendants,"—all of which was known to the plaintiff at the time she acted upon his advice, and accepted the terms of the compromise. | until either time or circumstances had dispelled every possible chance of a successful contest, based upon new evidence or a rise in values. Such a construction of the provisions of our Code would not only place them in antagonism to all the authorities which have explained and applied the rules of equity governing such contracts between trustee and cestui que trust,-and the Code provisions are but a digest of these rules,-— but would convert a rule intended to prevent fraud into one creating an incentive to, and a cover of, fraud; because it would afford a convenient method for a party who had repudiated any reliance upon or trust in his trustee, and who had acted upon the advice of independent, skilled, and disinterested champions and his own investigations, to turn around, when subsequent facts showed that the bargain was to his disadvantage, and say, in effect: "It is true I did not place any confidence in your statements, and told you that I should not, but should rely on my trusted agents. It is true I acted only in my own interest, being sole legatee. It is true you laid before me all the means of information, and I and my agents assumed to act upon them. We had the means of infor but were not fully informed. It is sufficient to say that you did not correctly represent the condition of the business. It was your duty to do so. I admit that you acted honestly and fairly; that you did not intend to misrepresent any fact, or any value; and I admit that my means of information were as good as yours were. It matters not that I gave you notice, in advance, I should not trust you in anything you said or did, but should rely upon the investigations and advice of my friends, because your representations were not correct. It was your duty to make them full, fair, and accurate. I claim a rescission upon the representations you made, although, I did not believe them." If there is a case in which a court of equity has decreed a rescission under such circumstances, it has not been called to our attention. Whatever may have been said as to the presumptions arising out of proof of a fiduciary relation, the fundamental principle upon which rescission is granted is always, and under all circumstances, the claim and consideration that confidence has been reposed, and that confidence has been abused. No such claim can in reason be made where the party seeking the rescission-being of competent age and understanding, and acting only in his own interest-has undertaken to investigate for himself, called in experts, been given free and fair means of ascertain The findings show that the defendants in good faith disclosed every fact within their knowledge. There is nothing in the findings to show that plaintiff or her agents were mis- | led as to any matter except the statement in regard to the number of shares of the Rocky|mation, and might have discovered the truth, Mountain Coal & Iron Company stock, which they claimed to own, though held by Mr. Colton. Of this matter we shall speak hereafter. Here, therefore, we have a case in which-assuming the existence of a fiduciary relation, and that the presumptions as to confidence and the burden as to proof are as claimed by appellant-the undisputed facts show that there was absolutely no confidence reposed by the beneficiary, but that she acted exclusively upon the advice of several disinterested experts and professional friends, specially selected to investigate and counsel her, because of their ability and familiarity with the affairs of the trustees with whom she was dealing, and who acted towards her in the highest good faith. To hold that, under such circumstances, a contract, entered into by the parties, compromising and settling disputes of the most doubtful character and value, cannot stand, if it subsequently ap- | pear that the trustee did not impart to the cestui que trust not only all the knowledge | of the transactions of which he was possessed, but all that he might have acquired by diligent and skillful search, would be to place an absolute embargo upon all settlements of disputed questions between parties holding trust relations, although equity favors the amicable adjustment of claims which, like those involved in this settlement, bid fair to become a fruitful source of litigation. Under such a rule it would be difficult to finding the truth, acted upon his own judgment men fit to be trustees who would accept such a trust. There would be no inducement to compromise doubtful matters, however advantageous the settlement might seem to be to the cestui que trust; and no trustee, or his sureties, who had settled with his cestui que trust, would feel secure in his position and the advice of friends, and repudiated any confidence in or reliance upon the parties with whom he was dealing. It matters not what the relations of the parties have been prior to, or are at the time of, the negotiations for a settlement and compromise of their disputes, the principle is one of universal ap plication, and it is a principle of common sense and of good policy. | trust by first dissolving the trust relation, it is not too late for him to do so at any time before the cestui que trust is prevented from making a full and fair investigation and consideration of the business in hand, and before he executes the contract. Other points discussed at the bar are involved in the question whether plaintiff was induced by fraud, actual or constructive, to enter into the compromise agreement, whether there were false representations, concealments, threats, or any unconscionable advantages gained by defendants through their superior opportunities and power. Upon every material issue of fat the court below found in favor of defendants, except as to a part of the 408 shares of Rocky Mountain Coal & Iron Company stock, and its finding of fact upon that issue was, in the opinion of the court, insufficient, in view of other find It is unnecessary for us to review the authorities on this subject. They will be found, we think, to fully support the views we have expressed; and in order to make as brief as possible this opinion, which, perhaps, is already unnecessarily extended on this question, we simply cite some of the cases, without commenting upon the peculiar features of any of them. We have examined the cases cited by appellant, and find nothing in them which conflicts with what is said herein. Kimball v. Lincoln, 99 Ill. 578; Gage v. Parmelee, 87 Ill. 330; Casey v. Casey, 14 Ill. 113; Farnam v.. Brooks, 9 Pick. 213; Knight v. Marjoribanks, 11 Beav. 324; Morse v. Royal, 12 Ves. 355; Hunter v. Atkins, 3 Mylne & K. 113; Hager v. Thomson, 1 Black, 80; Courtright v. Burnes, 2 McCrary, 532; Geddes' Appeal, 80 Pa. St. 460; White v. Walk-ings, to support a decree of rescission. Since er, 5 Fla. 478; Hall v. Johnson, 41 Mich. 289, 2 N. W. Rep. 55; Bowman v. Carithers, 40 Ind. 90; Turner v. Otis, 30 Kan. 1, 1 Pac. Rep. 19; Murray v. Elston, 24 N. J. Eq. 310; Korn v. Becker, 40 N. J. Eq. 408, 4 Atl. Rep. 431; De Montmorency v. Devereux, 7 Clark & F. 188; Hough v. Richardson, 3 Story, 690; Loesser v. Loesser, 81 Ky. 139; Motley v. Motley, 45 Ala. 558; Kisling v. Shaw, 33 Cal. 425. It is claimed, however, that the trustee cannot, after negotiations are begun between himself and his cestui que trust, dissolve the trust relation, "and place the parties at armslength," and that "the rights of these parties and the rules by which they are to be investigated should be determined by the relation of the parties when their negotiations commenced." We see no reason for such distinction. Sugden's definition of the rule applicable is such cases is expressed in the following language: "It must not be understood that a trustee cannot buy from his cestui que trust where he is sui juris; the rule is that he cannot buy from himself. If the cestui que trust clearly discharges the trustee from the trust, and considers him as an indifferent person, he may purchase; but it must clearly appear that the purchaser at the time of the purchase had shaken off his confidential character by the consent of the cestui que trust, freely given after full information and bargaining for the right to purchase." 2 Sugd. Vend. 417, bottom p. 693. There is nothing in this text, or any decision we have seen, requiring a contract, preceding the contract to purchase or compromise, giving the trustee permission to purchase as a basis for a second contract, in which the terms of the sale or compromise may be lawfully agreed to. If, at the time of the purchase or compromise, the trustee has shaken off his fiduciary character, and the confidence which is presumed to result therefrom, it matters not what has occurred immediately preceding or long prior to the final transaction. In other words, if the transaction is one in which the trustee may lawfully deal with his cestui que | it is claimed, however, that the specific facts found do show fraud, concealments, and undue advantage, notwithstanding the general findings of the court, which negative the charges thereof, it becomes necessary to look into the circumstances under which the compromise was effected. So far as the exhibits of the condition of the Western Development Company (Exhibits D and E) are concerned. the facts found show that there was no fraudulent representation by defendants as to anything contained therein, and that plaintiff did not rely upon them. She relied upon her own judgment, and the advice of those who were assisting her, and entered into the compromise agreement after a careful and thorough examination of all the books and vouchers. The court finds that she was not ignorant of any fact or circumstance material to her rights; that there were no misrepresentations or concealments by defendants, but, on the contrary, they answered truthfully all questions relating to the affairs of the company, repeatedly went over the subjects under investigation with Mr. Wilson, and gave him free access to all the books, and secured for him all the assistance and information in their power. The defendants did not pret nd to know anything of the condition of the affairs of the Western Development Company outside of what was shown in its records. Mr. Wilson knew this. They told him So. They gave him every facility in their power of ascertaining the true state of the accounts. They instructed their employes to aid him as best they could. With their consent and approval, he had the books carefully and thoroughly examined by experts,-men who had been trusted friends of Gen. Colton, one of them his cousin, another his secretary. In no part of his testimony does Mr. Wilson indicate that he or the plaintiff placed any reliance upon the statements contained in Exhibits D or E, or upon any information furnished by the defendants with regard to the affairs of the Western Development Company. Mr. Wilson was active, |