The following opinion was filed April 29, 1913:
SiebecKeb, J.
It is contended that the finding of the jury that the plaintiff’s signature to the release in question was procured by the fraud or the misrepresentation of the defendant’s agent is not sustained by the evidence. It is declared in repeated adjudications of this court that if a party to a written instrument was induced to sign it by relying on false and fraudulent representations and he was guilty of no negligence in failing to ascertain what the instrument in fact was, he is not bound by it. Dowagiac Mfg. Co. v. Schroeder, 108 Wis. 109, 84 N. W. 14. It is also well recognized as a principle that “To accomplish impeachment of a formal written instrument on such grounds the proof must be clear and convincing beyond reasonable controversy.” Steffen v. Supreme Assembly, 130 Wis. 485, 110 N. W. 401.
Applying these principles to the case before us, can it be *338said that tbe evidence sustains tbe finding of tbe jury to tbe effect that plaintiff’s signature to tb© release in question was procured by tbe fraud of defendant’s agents? Plaintiff’s evidence as to bis mental condition at tbe time be signed tbe release is, in many respects, irreconcilable, and in its probative force is not clear nor convincing. Upon tbe trial be testified that when tbe defendant’s agent, Mr. Harrington, conferred witb bim and obtained the release, bis mind was in a state of stupor and confusion and that be bad no clear understanding of tbe nature of tbe transaction and understood that be was being paid two months’ wages. It appears, however, that as to other- details of what took place on this occasion bis recollection is reasonably clear and definite and wholly incompatible witb tbe claim that bis mental condition was such that be did not understand tbe nature of tbe transaction or comprehend tbe facts involved in tbe matter. Upon bis examination before trial bis recollection of tbe particulars concerning tbe amount of tbe draft delivered to bim was clear and distinct. He stated that be knew at tbe time tbe draft was delivered tbe amount thereof, and that be was then satisfied witb receiving this sum because be did not then believe that bis injuries were of a serious nature. He also testified that be did not consider this sum so received by bim was insufficient until be bad been at borne for some time and learned that bis injuries were of a more serious and permanent character than be believed them to be in tbe beginning. Plaintiff’s statements as to bis mental condition at tbe time of tbe transaction when be executed tbe release and received tbe draft in payment thereof are contradicted by Dr. Wiley, Sister Everesta, tbe attendant, Ming, an inmate named Pindar, and tbe defendant’s representatives, Harrington and Richardson. These witnesses observed tbe plaintiff at tbe time, and some of them before and after tbe execution of this release, and conversed witb bim in regard to tbe same, and they all testify *339that be displayed a normal and rational condition of mind and manifested an intelligent and comprehensive understanding of bis affairs; that be spoke of the transaction as a-settlement with the defendant, and referred to the receiving of the amount of the draft as a payment thereof. All the evidence given by the witnesses, except that of plaintiff’s cousin, Schooley, tends to show that at the time of these negotiations plaintiff was in full possession of his mental faculties; that he had the intelligence to comprehend them and the contents of the release; that he was capable of reading and understanding it. The evidence of defendant’s agents is that plaintiff read the release with Harrington, who prepared it and explained its contents to him, and that he freely assented to it.
These evidentiary facts and many of the accompanying circumstances, together with the plaintiff’s conduct in the matter, make it clear that he was not misled nor deceived into signing the release under the belief that it was a mere receipt for two months’ wages. The evidence falls far short of the legal requirements to impeach the formal written release. In probative force it is not of such weight and credibility as to constitute clear and convincing proof beyond reasonable controversy of the alleged fraud in procuring plaintiff’s signature to the release, and therefore as a matter of law does not sustain the finding of the jury on this question. Richards v. Millard, 146 Wis. 552, 131 N., W. 365; Denmark v. Milwaukee E. R. & L. Co. 142 Wis. 624, 126 N. W. 13; Jackowski v. Ill. S. Co. 103 Wis. 448, 79 N. W. 757.
By the Court.- — The judgment appealed from is reversed, and the cause remanded with directions to dismiss the complaint.
A motion for a rehearing was denied, with $25 costs, on June 18, 1913.