63 F. 791 | 8th Cir. | 1894
The judgment in this case must, be
reversed for (lie following reasons: The suit was brought by Charles W. and Alice Ires, who were husband and wife, under the Colorado damage act, for the negligent killing of their minor child, who was run over on May 20, 1892, in the city of Denver, by a car owned, and at the time operated, by the plaintiff in error, the Chicago, Burlington & Quincy Railroad Company. For a defense to the suit the defendant company pleaded, among other defenses, that it had been released from all liability for the wrong and injury complained of by a release duly signed and executed by the plain-jiffs on the 21st day of May, 3892, for a consideration expressed therein of $50, which sum had been duly paid to the plaintiffs. To this defense the plaintiffs replied, in substance, that their signatures ¡o the release pleaded had been obtained by fraud, and that the remase was not binding upon them; that the money paid to them thereunder had been tendered back to ihe company, and that the release had been repudiated and revoked as soon as they discovered Cue fraud and ihe true nature of the instrument by them signed. The record now before us recites that:
“The case was tried to a jury at the November term, 3892. which was a mistrial, the jury falling to agree'. At that trial the issue as to the release ' ® was submitted to the jury. The court, being- of the opinion that each submission was improperly made, the facts disclosed showing that the release was not properly obtained, declined to allow counsel to present ilie issue at this trial. This ruling was made when plaintiff's counsel was opening die case to the jury, and defendant's counsel then and there excepted to the ruling. The court, suggested to counsel for defendant that the evidence relating to the release at the first trial be put into this bill, to enable- the court of appeals to decide on the sufficiency of such evidence. Defendant's counsel declined to proceed in that manner.’'
The record further shows that after the plaintiffs had concluded their testimony in chief the defendant’s attorney, among other proof, offered a release signed by the plaintiffs, Charles W. and Alice