| Mass. | Nov 15, 1872
The defence relied on was the plaintiff’s written release, for good consideration, of all claim on account of injury received, which was given near the time of the accident. To this the plaintiff replied that he was not in sound mental condition when the paper was executed. The defendants rejoined that even
The case finds that the judge told the jury that this contract was one capable of ratification by the plaintiff, when of sound mind, and gave instructions as to what was necessary to constitute a ratification and adoption, which were not excepted to and are not reported. We cannot see upon this statement that there was any error in declining to give the specific instruction asked. So far as that instruction is based upon the evidence disclosed in this record, it fails to embrace the elements necessary to constitute an estoppel. Retaining the consideration paid for the release, and not offering to return it, might be some evidence of ratification; but, without design on the part of the plaintiff that the defendants should act upon such conduct, and followed by no change in the defendants’ situation, it falls short of an estoppel. Turner v. Coffin, 12 Allen, 401. Andrews v. Lyon, 11 Allen, 349.
That part of the instruction which relates to the effect of allowing the defendants to pay the bills assumed by the settlement without objection, has no evidence to support it, and so far as the case reported shows, was a mere abstract proposition. Upon the whole, the instructions given were correct, and all that the case required, while that which waá requested was inaccurate and inapplicable. Exceptions overruled.