143 P. 991 | Or. | 1914
delivered the opinion of the court.
The only question to be considered is whether, under the testimony given at the trial, it was incumbent upon the plaintiff to return the money which she had received as a condition precedent to her right to main
Rev. John Cummisky, a Catholic clergyman, who at the time of the accident occupied a seat in the rear car of the train, testified that he subscribed his name as a witness to the plaintiff’s signature on the writing in question. Referring to her mental condition at that time, he, in answer to the court’s direction, “State what her conduct was, how she acted,” replied, “She showed a condition of being greatly shaken up, and in no condition whatever to sign anything. ’ ’ Alluding to a remark made by the defendant’s claim agent when the plaintiff accepted the money, the witness further testified:
“I heard him say to her that the $20 was to defray expenses for the rest of the journey on account of being detained — on account of the wreck.
“Q. What did he say about the paper when he handed it to her to sign, if anything?
“A. He asked her to sign this as a receipt.”
Without adverting to any additional authorities, the judgment herein must be affirmed upon the decisions rendered in the cases of Foster v. University Lumber Co., 65 Or. 46 (131 Pac. 736), and Woods v. Wikstrom, 67 Or. 581 (135 Pac. 192), to which we adhere. The defendant undertook safely to transport the plaintiff to her destination, and because she was detained by the wreck, and feared she would not arrive in time to meet her friends that evening, the claim agent, who hastened to the scene of the accident, solicitous for the welfare of the passengers, and recognizing a moral obligation on the part of his principal immediately to relieve the injured, offered to donate to her $20 to enable her to resume her journey. The
We place this decision on the elementary proposition that the donation by the defendant’s agent was in consideration of a recognition of a moral obligation by his principal, and the payment having been made on account thereof the contract became executed, and hence no rescission thereof was necessary. The law applicable to the facts involved may be deduced from the following illustration: The owner of a horse loaned it to another, to whom, pursuant to the terms of an express contract, he sold a sheep, receiving the value thereof; but the purchaser fraudulently took a bill of sale of the horse without the owner’s knowledge. In such case it cannot be said that there was no aggregate mentvum as to the sale of sheep, or that the consideration therefor should be returned before an action to recover the value of the horse should be maintained. In the case supposed the consideration for the sheep was legal, while in the case’ at bar it was only moral; but in principle there can be no difference, when the latter contract is fully executed.
The judgment is affirmed.
Affirmed.