On the other hand, a fiduciary relationship arises in fact when there is “ ‘something in the particular circumstances which approximates a business agency, a professional relationship, or a family tie, something which itself impels or induces the trusting party to relax the care and vigilance which he otherwise should, and ordinarily would, exercise.’ ” Hood v. Cline, 35 Wash.2d 192, 200, 212 P.2d 110 (1949) (quoting Collins v. Nelson, 193 Wash. 334, 345, 75 P.2d 570 (1938)).
" These general rules have been followed by the courts in this State. It was held in Collins v. Loyd, 31 Ga. 128 (2), that "Newly discovered evidence, notwithstanding it relates only to the verbal admissions of the party, going to show that he has recovered wrongfully, is a good ground for granting a new trial." In Mills v. May, 42 Ga. 623 (2), the court said "When on the trial of an action of ejectment the evidence turned on a question of title, and the verdict was for the defendant, and the plaintiff moved for a new trial on the ground of newly discovered testimony by which it could be shown that the defendant, whilst in possession of the land, had admitted that the same was the property of the plaintiff, he being the tenant, or in possession, as the agent of the plaintiff: Held, that this did not come within the rule of excluding cumulative testimony, as it went to a new and distinct right to recover, and a new trial ought to have been granted.
These allegations are insufficient as there must be something more beyond a contractual relationship and "mere friendly relations or confidence in another's honesty and integrity." Collins v. Nelson, 193 Wash. 334, 345, 75 P.2d 570 (1938). Zuriel's responsive briefing contains conclusory allegations absent from its pleadings which assert that Lamb Weston possessed superior knowledge, assumed the role of advisor, had "full discretionary authority in determining the contract terms," exerted "absolute control over the entire transaction," and "received a greater economic benefit than usual..." (ECF No. 7 at 14, 18; ECF No. 16 at 19-20).
To establish a fiduciary relationship upon the violation of which fraud is sought to be based, there must be something more than mere friendly relations or confidence in another's honesty and integrity. There must be something in the particular circumstances which approximates a business agency, a professional relationship, or a family tie, something which itself impels or induces the trusting party to relax the care and vigilance which he otherwise should, and ordinarily would, exercise." Collins v. Nelson, 193 Wn. 334, 345 (1938). As a general rule, "the relationship between a bank and a depositor or customer does not ordinarily impose a fiduciary duty of disclosure upon the bank.
There must be additional circumstances, or a relationship that induces the trusting party to relax the care and vigilance which he would ordinarily exercise for his own protection. Collins v. Nelson, 193 Wn. 334, 75 P.2d 570 (1938). Nor would the circumstances that plaintiff was a widow in poor health, without family, under severe emotional stress, and taking a number of powerful drugs, convert an ordinary agency into a fiduciary relationship, for every sick and emotionally dependent person of advanced years does not, merely in listing his property for sale with a real estate agent, make of the latter a fiduciary with respect to the listed property.
Unfortunately, when we have completed that task we are still without an easy answer to the problem because we have no precise rule to measure the probative force of the evidence and the inferences we have considered. One of the best statements of a rule of measurement which I have found is in Collins v. Nelson, 193 Wash. 334, 75 P.2d 570, 574, as follows: 'To establish a fiduciary relationship upon the violation of which fraud is sought to be based, there must be something more than mere friendly relations or confidence in another's honesty and integrity. There must be something in the particular circumstances which approximates a business agency, a professional relationship, or a family tie, something which itself impels or induces the trusting party to relax the care and vigilance which he otherwise should, and ordinarily would, exercise.
In the instant case, no effort was made to comply with the requirements of this Code section, especially the last sentence thereof. The plaintiff in error contends, however, under the authority of the ruling in Perry v. Hammock, 75 Ga. App. 171 ( 42 S.E.2d 651), that such supporting affidavits are not required. There is no merit in this contention because in Perry v. Hammock, supra, it is stated that the statutory requirements as to affidavits were fully met. Likewise in Collins v. Loyd, 31 Ga. 128, it is stated that the motion for new trial upon the ground of newly discovered evidence was supported by affidavits of named persons. While it is true that the deponent in the affidavit offered in support of the motion for new trial was one of the successful parties in the trial in which it was sought to cancel certain deeds from the plaintiff in error to each of three defendants, and that the affidavit in effect affirms that everything the deponent testified to upon the trial was false, the affidavit itself states that the deponent has deeded back the interest he received under the deed in question to him.
Respondent's favor in temporarily running appellant's hotel did not change the situation, for he never had a part in the corporate affairs. Hood v. Cline, 35 Wn.2d 192, 212 P.2d 110, and Collins v. Nelson, 193 Wn. 334, 75 P.2d 570, demonstrate that such does not make one a fiduciary. In the latter we said:
Meanwhile, a few days after Augusta Hood's death, Mr. Toner sold his half-interest in the farm to Mr. Cline for the sum of $30,500. Appellant's principal contention on this appeal is that a fiduciary relation existed between themselves and Mr. Toner. They contend that, this being the case, following the reasoning of Landis v. Wintermute, 40 Wn. 673, 82 P. 1000, Ackerson v. Elliott, 97 Wn. 31, 165 P. 899, and other cases, to some of which we shall refer, he was obliged to reveal to them the nature of his participation as purchaser. Our first problem, therefore, is to determine whether a fiduciary relationship was actually present, and, in considering this question, it is well to keep in mind the following observation from Collins v. Nelson, 193 Wn. 334, 75 P.2d 570, where this court said: "To establish a fiduciary relationship upon the violation of which fraud is sought to be based, there must be something more than mere friendly relations or confidence in another's honesty and integrity. There must be something in the particular circumstances which approximates a business agency, a professional relationship, or a family tie, something which itself impels or induces the trusting party to relax the care and vigilance which he otherwise should, and ordinarily would, exercise."
" In Collins v. Nelson, 193 Wn. 334, 75 P.2d 570, in discussing the question of consideration to the promisor, we said: "Assuming, as the court found, that the promise was in fact made, it was nevertheless nothing more than a promise without any binding legal effect upon Nelson.