131 P. 736 | Or. | 1913
Lead Opinion
Opinion by
This testimony is substantially that one Porteous, the night foreman of the mill, visited him shortly after the accident, identified himself as a brother in the same secret order, and advised him not to sue the company, telling him that he had not a witness in the world, and intimating that the company would do well by him. To ibis he made no reply. Upon the day the release was
“A. He came down to my house and wanted to know how I was, and I told him. He says,.‘The old man wants to know why you don’t come down to the office. ’ I told him I had no business down to the office that I knew of. He says, ‘Well, the boys made up quite a purse for you.’ I says,‘Is that so?’ He says,‘Yes, they made up $192. I have got it here in my pocket, but I have it with some other papers so I won’t give it to you; I will wait and you will have to come down to the office this afternoon, because the old man wants to see you anyway.’ I went down to the office that afternoon.
“Q. Now, state to the jury what occurred there at that time?
“A. I went into the office and bid Mr. Kroenert the time of day. He wanted to know how I was feeling. I told him.
“Q. What did you tell him?
“A. I told him I was sick and suffering more pain than I really ought to under the conditions.
“Q. Were you under the care of a doctor at that time ?
“A. Yes, sir; Dr. Moore had dressed it. I think it was the day before this that he dressed my hand.
“ Q. In what shape were you in regard to the effects of the anesthetic?
“A. I was sick like an anesthetic makes anyone; sick at my stomach and vomited considerable.
“Q. Were you sick up to the time of this date that, you went there?
“A. For a month after. I went to see Dr. Moore something like a month after.
“Q. When you went in there this afternoon what occurred; what did Mr. Kroenert say to you?
‘ ‘ A, He bid me the time of day; wanted to know how I was feeling, and I told him; I told him I was sick and I was suffering more pain than I really ought tq. He says, ‘I have a check here that the boys made up for you for $192.’ He says, ‘Now, I am going to give*53 you au allowance myself on that’; and he says, ‘It will make you a nice little purse.’ He says, ‘That will carry you through until you are well’; and he wanted to know how I was hurt, and I told him.
“Q. What did you tell him?
“A. I told him I tripped up and put my hand on this guard, and apparently the guard was loose for it bent over when I put my hand on it and let me come down on the saw and cut my hand off. And he asked me if I would stay there for two or three minutes until he went out. I says, ‘Yes.’ He went out, and I did not have the time; I did not look at the time when he went out or when he came in, but it was not very long, and he came in with a tall dark-complexioned man I have never seen before, never seen since, and don’t know who he was. And he sat down at his table. ‘Now,’ he says, ‘look over that and sign it, and I will have Mrs. Somebody [I don’t recollect her other name] write you out a check for $200’; and he says, ‘I will give you a job as long as that mill runs, and I will see that you and your family will never want for nothing; if you are ever in want, I want you to come and tell me. ’ So I looked at the paper; I did not read much of it; I started in, and I turned around to him and I says, ‘Is that in this paper?’ He says, ‘No, but you can take it for granted from me that it will be just as I am telling you that it will; you sign that and I will give you $200 more and you will never want for nothing. ’ I signed the paper and he had that man sign it, and he had the woman sign it; the woman stenographer at his place sign it; and that was all, and I took the money and left.
“Q. In what shape was that, the money he gave you and the check?
“A. There was a check from the men for $192, stating from the men, and there was a check stating from the company so much.
“Q. When did you cash those checks?
“A. I cashed those checks the next day.
“Q. [By juror.] How much did you say was the check from the company?
*54 “A.. $200.
‘ ‘ Q. How much did they make the total amount ?
“A. $192 in the check and the day I received it my wife had received $2 in cash from Mr. Porteous.
“Q. No, you don’t understand. You got a check for $200 from the company?
“A. Yes.
“Q. And what did you get from the men added to that made how much?
“A. That was $392.
“Q. They were in two separate amounts ?
“A. Yes.
“Q. And you got $2 in cash ?
“A. $2 in cash from Mr. Porteous that he left with my wife.
“Q. That was a part of the subscription from the men?
“A. Yes.
“Q. Now, was anything mentioned in any shape or form or manner at the time you say you signed this paper about it being a release?
“A. No, sir; not anything.
“Q. When did you again see Mr. Kroenert?
“A. I don’t recollect exactly, but it was some days after that.
‘ ‘ Q. Under what circumstances ?
“A. He told me if my hand kept on paining, or if my hand was not proceeding as I thought it was, to come and tell him.
“Q. Did you go and see him?
“A. I went and seen him and told him I was suffering more pain at that time than I ought to.
“Q. What was done?
“A. I don’t know; he said no more.”
On cross-examination the witness testified as follows :
. “Q. And did not Mr. Kroenert hand you at this time this paper, which I now present to you, and which I will ask to have marked defendant’s Exhibit C?
*55 “A. That is my signature.
“Q. And this defendant’s Exhibit 0 is the paper, is it not, that you signed at that time?
“A. That is my signature on it.
“Q. Well, that is the paper signed by you at that time?
“A. Must be.
“Q. Now, as a matter of fact, you took that and read it, did you not?
“A. I did not.
“Q. At that time?
“A. I took it, but I did not read it.
“Q. You say, then, you did not read it?
“A. No, sir; I tried to read it; I glanced it over; and he says, ‘You go ahead and sign that, and I will have Mrs. Crary [or whatever her name is] make out a check for $200.’
“ Q. You had it in your hands ?
“A. I had it in my hands.
“Q. And glanced over it?
“A. I glanced at it; I am not much of a reader; and it would take me some time to read it; and I am suffering pain, I was sick at the time; I could not content myself to stay there so long.
“Q. You say you did not glance over it?
“A. I just glanced at it, yes; and I asked him if the job was on that; that he said that I and my family would never want for nothing; I asked him if that was on it, and he says, ‘No, but I will guarantee it is all right; you go ahead and sign it. ’
“Q. You had some conversation in the presence of these witnesses, didn’t you?
“A. That was it exactly.
“Q. Didn’t you have some conversation to this effect that Mr. Kroenert at the time asked you if it was perfectly satisfactory to you in the settlement of any matter you might have, and you stated to him, ‘Yes, it was.’
“A. The only time any settlement was made, when I seen this in this paper, was when Mr. Ditchburn read*56 it to me. They called it a release to release the company.
“Q. (Last question read.) In the presence of these witnesses who were there at that time?
“A. He asked me—
“Q. No, answer the question first.
“A. He handed me the checks, and after he handed me the checks he asked me if I was satisfied; I told him I was, to that extent. That was on this subscription they made up for me.
“Q. Did he not at that time, in speaking of the settlement of any possible claim yon might have against them, ask yon if you were entirely satisfied, and tell yon, if it was all right, to sign it, and, if yon were not satisfied, not to sign it?
‘ ‘ A. He did not; he did not.
“Q. Yon received at that time, did you not, this instrument here, which I will ask to have identified as defendant’s Exhibit D?
“A. Yes, sir.
“Q. And that is your signature on the back of it?
“A. Yes, sir..
“Q. Yon signed this instrument which is marked defendant’s Exhibit C on the 19th, did you not?
“A. If that was the first day I went down to see Mr. Kroenert, it was.
“Q. As I understand you, you told the jury that you deposited this check the next day.
í £ Yes
“Q. At what bank ?
“A. Bates’ Bank on the east side.
‘ ‘ Q. As a matter of fact, this settlement was made on Saturday afternoon, and there were no banks open, and you did not deposit it the next day, the next day being Sunday, isn’t that true?
“A. Yes, that is true. .1 deposited it on Monday morning ; I kept it in my house over Sunday.
‘ ‘ Q. So that you took this check home with you, did you not, Saturday afternoon?
“A. Yes, sir.
*57 “Q. And you had it in your house with you on Sunday?
“A. On Sunday, and I deposited it Monday morning in Bates ’ Bank, Monday forenoon.
“Q. So that your memory was faulty when you said it was the next day?
“A. I got that check after 3 o’clock. Mr. Kroenert himself told me I had to keep it until Monday.
“Q. What did you mean, when you said you deposited it the next day?
“A. Well, I supposed it was, because the first time the bank was opened I went and cashed it, and I supposed it was the next day. ° I have not got the dates of these things so I don’t know.
“Q. And during that afternoon and all the next day, which was Sunday, you had this check in your possession, which stated upon it, ‘For an accident while at work during the evening of the 11th of November, 1910’?
“A. I gave it to my wife as soon as I came home.
“Q. But you had this check subject to your inspection so you and your wife could read it before it was cashed?
“A. I had it there, but I was not reading checks then; I was caring for my hand.
“Q. Mr. Kroenert was not there to prevent you from reading it?
“A. He did not,'but he had my hand in such a shape it prevented me; he set the trap.
“Q. You had an anesthetic at the time your fingers were dressed and taken care of by Dr. Christmas ?
“A. I had an injection and then an anesthetic.
“ Q. Injected morphine into your arm ?
“A. Something, I don’t know what it was.
“Q. And then gave you an anesthetic at that time?
“A. Yes, sir.
‘ ‘ Q. What time in the morning was that anesthetic administered to you; you were hurt about 3 o’clock?
“A. Well, it was about half or three-quarters, between a half an hour and an hour after I was cut. I*58 sat in the office quite a long time before they got their instruments ready.
“Q. So you took your anesthetic on or before 4 o’clock on the morning of the 12th?
“A. I could not tell you just exactly what time it was — something after 3 o ’clock.
“Q. About 4 o’clock, because you were hurt about 3?
“A. Yes.
“Q. You say you were taken to St. Vincent’s Hospital?
“A. I was taken to St. Vincent’s Hospital.
“Q. Do you say that you were still under the influence of your anesthetic at the time you were in Mr. Kroenert’s office on the 19th day of November, seven days after that?
“A. Well, yes, pretty near a year after, and.I am still; I have got it in my system yet.
“Q- You have got that anesthetic in your system yet?’
“A. Yes, sir; I have.
“Q. So that you are still not quite in your right senses?
“A. I am in my right senses now at the present time, but my stomach is not through with it.
“Q. Were you out of your senses on the 19th of November at the time that receipt was signed?
“A. Almost from pain and sickness. •
“Q. From the anesthetic?
“A. Yes, sir; and the pain in my hand. There was affection in. my hand, which the doctor admitted which caused me to suffer the pain.
“ Q. You were suffering from the pain and not the anesthetic then?
“A. Both pain and anesthetic together.
“Q. You were?
“A. Yes.
“Q. Seven days after this accident?
“A. Yes, sir.
*59 “Q. TMs other check which has been presented, and which counsel has called for, is that your signature?
“A. Yes.
“Q. Is that the other check that was handed to you?
“A. From the men for $192, yes.
“Q. From the men?
“A. I don’t know whether it is from the men or not. The benefit from the day crew and the night crew, yes.
“Mr. Wilbur: I will offer this in evidence as de: fendant’s Exhibit E.
“Received without objection and marked defendant’s Exhibit E.
“Questions by the jurors:
“Q. Did you ever read these checks after you received them?
“A. No, I did not. I just looked at the amount on them and wrapped them up and went home and gave them to my wife and she opened them and looked at the amount and put them in our trunk.
“Q. Did she read them?
“A. No, she did not to my recollection.
“Q. Any discussion about them?
“A. No!
“Q. (By Mr. Wilbur, resuming.) Now, as to this defendant’s Exhibit E, which is the check from the day crew and the night crew for $192, their benefit, as a matter of fact, was that check not given to you by Mr. Kroenert in his office on Friday, the day before you got this check and signed this paper?
“A.- I got the two checks on the same day. This one and that one I got at the same time. I went home with them both the same time and cashed them both at the same time.
“Q. And you say you did not get this one on Friday?
“A. I got them both the same day.
“Q. Didn’t you go down on Friday to have your hand dressed and at that time go and see Mr. Kroenert and get that one and then he said he would give you*60 the $200 if you would sign the. release and you said you would?
“A. Pie did not say nothing to me about a release.
“Q. And you came back the next day and he gave you that?
“A. No, sir; he did not.
“Q. And both of these checks were in your possession?
“A. At the same time.
“Q. Over Sunday from Saturday afternoon?
“A. Yes.
“Q. With those statements on them of what they were for?
“A. I did not read them; I just looked at the amount.
“Q. You say he told you the question of this job was not in the paper?
“A. Yes, he told me that was not in the paper. I asked him if it was in the paper, and he said, ‘No.’
“Q. He told you it was not?
“A. Yes, I asked him, ‘Is that down in the paper?’ And he said, ‘No.’
“Q. Did Mr. Kroenert read that release to you?
“A. No, sir; he did not.
“ Q. Do you claim now that Mr. Kroenert misstated to you the contents of what that release was?
“A. He did not state what it was. He says, ‘Sign this and I will have Mrs. Crary write you out a check for $200, and that will make you a nice little bunch of money.’ That is what he said.
‘ ‘ Q. Then, as I understand, he did not tell you what was in that paper?
“A. No, sir; he did not; never mentioned what was in it whatever.
‘ ‘ Q. That was the only talk you had with him about that paper, which you signed, was whether or not the kind-of job was in that and he told you it was not?
“A. That was the only question that came up.
“Q. So that, as a matter of fact, Mr. Kroenert did not deceive you when you signed that paper, did he?
‘‘A. He did not.
*61 “Q. He did not say anything to yon'what was in it, did he?
“A. He did not say what was in it, no.
“Q. So that, as I understand yon to say, he did not represent to yon what that paper was at all?
“A. He did not.”
On redirect examination plaintiff testified as follows :.
“Q. Counsel asked yon if Mr. Kroenert deceived yon when you signed this paper?
“A. Yes, he did.
“Q. What had been your conversation prior to signing the paper?
“A. He' asked me how I felt-; asked me how I was cut, and had me explain it; and he told me that the boys made up a check for me, a purse for me for $192, and he says, ‘Now, I am going to go with them too, and that will make yon a nice little bunch of money, and as soon as yon are . able to go to work yon can come back and go to work.’ And he says, ‘Now, I know yon understand shingles thoroughly; yon can take that inspection job; and, furthermore, I will see that yon and your family will never want for nothing. ’ ’ ’
The check for $200 mentioned in the testimony was upon a printed form, except that the name of the payee, the amount, and the words, “For accident while at work during evening of 11th of November, 1910,” were typewritten thereon as follows:
No. 18713. Portland, Oregon, Nov. 19, 1910.
To Merchants’ National Bank, Portland, Oregon:
Pay to the order of O. Poster $200.00 Two Hundred & No/100 dollars.
[Not over Two Hundred $200$]
University Lumber & Shingle Co.,
Per A. J. Kroenert, Manager.
Settlement of account helow.
. Por accident while at work during evening of the 11th of Nov. 1910.
Endorsement of this voucher check constitutes acknowledgment by payee of full payment of account specified hereon. Void if altered or erased in any way. Betnrn to payor if not correct.
“The evidence was clearly competent as tending to show that defendant had removed the cause of the accident. The cases cited by appellant are all cases where it was attempted to be shown that after an accident a different or perhaps safer mode of structure, or preventive, or a different mode of conveyance or rate of speed was adopted after an accident, except in the case in -31 Hun, where it was attempted to be shown that, some months after an accident happened in the hallway of a tenement house by reason of a defective oil-cloth covering, the landlord put down a new one, there can be no question but that such evidence is incompetent as tending to prove negligence. If an accident happened upon a railroad by reason of a broken rail, it would be quite competent to show that after the accident the broken rail was removed and replaced by a sound one as a mere matter of fact, but it would be incompetent to show that after the accident a different make and style of rail was used as tending to show negligence in using the style of rail upon which the accident took place. ’ ’
The judgment is affirmed. Affirmed.
Dissenting Opinion
delivered the following dissenting opinion:
The plaintiff instituted this action to recover damages from the defendant for injuries suffered by him in its mill on account of the alleged negligence of the defendant in not providing for him a safe place in which to work. Admitting that the plaintiff was injured, the defendant denied all liability therefor and affirmatively pleaded, with other defenses, that the plaintiff, in consideration of the payment to him of $200, released the defendant from all liability on account of the accident described in the complaint. The release was in writing, and the plaintiff admitted in his testimony that he executed the same, which is as follows:
. “Portland, Oregon, November 19,1910.
“In consideration of two hundred ($200.00) dollars, the receipt of which is hereby acknowledged, paid to me by the University Lumber & Shingle Company, I do hereby release the said University Lumber & Shingle Co. from and on account of all or any claim for damages that I may have against it for any reason whatsoever, and particularly on account of an accident which happened to me on the eleventh day of Novem*68 ber, 1910, at tbe shingle mill of the said company near University Park, Portland, Oregon, at which time I lost all of the fingers and a portion of my thumb on my left hand, and im consideration of said sum I do hereby release said company from any claim for damages as is hereinabove set forth.
“[Signed] Chas. L. Poster. [Seal]
“Witnesses: [Signed] Irene Crary.
“C. E. Morton,”
Concerning this writing, the reply alleges as follows:
“The plaintiff, further replying to the said second and separate defense herein, alleges that on or about the 19th day of November, 1910, the employees in and about the mill of the said defendant, by and on account of the injury to the plaintiff, subscribed a sum of money for the plaintiff and placed the same in the hands of J. Kroenert, who is and was at said time the president and general manager of the defendant. That the said Kroenert promised and agreed that he would assist this plaintiff personally to the same extent as did the employees, and that while this plaintiff was suffering from the injuries to his left hand as set out in the complaint herein, and while he was suffering from the effects of the anesthetic administered to him at the time of the amputation of the fingers from his left hand, this plaintiff was ordered and directed to go to the said J. Kroenert to receive the money so subscribed. That plaintiff went to the office of said Kroenert. That thereupon the said Kroenert requested him to sign a paper, and falsely and fraudulently and unlawfully, and with intent to deceive and defraud this plaintiff, represented that the said paper was a receipt for the money so subscribed by the employees and by himself, and that the same was not intended and would not release the company from the damages sustained by this plaintiff, and that the defendant would continually employ the plaintiff in and about the mill and premises and pay to him the sum of seventy-five ($75) dollars each and every month as long as the mill continued to stand. That relying upon*69 the representation so made, and being sick and ill as aforesaid, this plaintiff signed the pretended release. ’ ’
In respect to this pleading, it will be noticed that, although the plaintiff claims that he was sick and suffering from the effect of the anesthetic nine days after the happening of the accident, he does not intimate that his mental faculties were in any way impaired or suspended. For aught that appears in the reply, the plaintiff had full control of his mind and memory, and, if he would defeat the release for want of understanding, he must plead either that he was non compos mentis or laboring under such mental distress at the time that he could not and did not comprehend the nature and consequences of the act he was performing in the execution of the release. Brown v. Feldwert, 46 Or. 363 (80 Pac. 414), was a case somewhat like this in that the writing sought to be impeached by the makers thereof was said to have been procured by fraud, and this court there held that: “It is absolutely essential in pleading that a signer of a paper was fraudulently misled as to what was being signed, to show that the signer was free from negligence in the matter.” No such allegation appears in the reply here. That pleading also does not state facts sufficient to constitute a rescission of the contract of release in that it is not averred that the plaintiff has restored to the defendant the money paid as a consideration for the release. In Scott v. Walton, 32 Or. 460, 464 (52 Pac. 180, 181), Mr. Justice Bean lays down the rule in this language:
“A party who has been induced to enter into a contract by fraud has upon its discovery an election of remedies. He may either affirm the contract and sue for damages or disaffirm it and be reinstated in the position in which he was before it was consummated. These remedies, however, are not concurrent but wholly inconsistent. The .adoption of one is the exclusion of the other. If he desires to rescind, he must*70 act promptly and return, or offer to return, what he has received under the contract'. He cannot retain the fruits of the contract-awaiting future developments to determine whether it is more profitable for him to affirm or disaffirm it. Any delay on his part, and especially his remaining in possession of the property received by him under the contract and dealing with it as his own, will be evidence of his intention to abide by the contract.”
In our own state, authorities to the same effect are these: Wells v. Neff, 14 Or. 66 (12 Pac. 84, 88); Crossen v. Murphy, 31 Or. 114 (49 Pac. 859); State v. Blize, 37 Or. 404 (61 Pac. 735); Dundee Mortgage Co. v. Goodman, 36 Or. 453 (60 Pac. 3); Van de Wiele v. Garbade Co., 60 Or. 585 (120 Pac. 752). The following authorities and many more which might be cited teach the same doctrine: Rabitte v. Alabama Great S. Ry. Co., 158 Ala. 431 (47 South. 573); Norwich Union F. Ins. Soc. v. Girton, 124 Ind. 217 (24 N. E. 984); Valley v. Boston R. Co., 103 Me. 106 (68 Atl. 635); Drohan v. Lake Shore Ry., 162 Mass. 435 (38 N. E. 1116); Pangborn v. Continental Ins. Co., 67 Mich. 683 (35 N. W. 814); Crippen v. Hope, 38 Mich. 344; Morris v. Great Northern Ry. Co., 67 Minn. 74 (69 N. W. 628); Lane v. Dayton Coal Co., 101 Tenn. 581 (48 S. W. 1094); Brainard v. Van Dyke, 71 Vt. 359 (45 Atl. 758); Town’s Admr. v. Waldo, 62 Vt. 118 (20 Atl. 325); Louisville etc. Ry. v. McElroy, 100 Ky. 153 (37 S. W. 844); East Tenn. Ry. Co. v. Hayes, 83 Ga. 558 (10 S. E. 350); Vandervelden v. Chicago Ry. Co. (C. C.), 61 Fed. 54; Barker v. Northern P. Ry. Co. (C. C.), 65 Fed. 460.
An apparent exception to this rule requiring the return of what has been received of benefit from a contract before rescission is allowed is found in cases where the amount due on the contract to the person executing the release has been fixed and determined so that the sum paid is really a part of a greater indebted
The case in hand is distinguishable in that respect from Olston v. Oregon Water Power Co., 52 Or. 343 (96 Pac. 1095, 20 L. R. A. (N. S.) 915). This was an action to recover damages for death of the plaintiff’s intestate caused by the negligence of the defendant. A release under seal was pleaded as a defense, but the plaintiff alleged not only false and fraudulent misrepresentations made by the defendant with intent to defraud and deceive the plaintiff, but also that he had returned all the money and other things received as a condition for the release, .thus bringing himself within the doctrine of the precedents of this state already quoted. Opposed to this rule requiring the return of the consideration in order to overturn the release of an unliquidated claim is the case of Girard v. St. Louis Car Wheel Co., 46 Mo. App. 79. That case, however, stands practically alone on the question directly involved, and it.bases its reasoning on cases where the claim was fully liquidated and the amount actually determined before the release was signed.
Passing the insufficiency of the reply in the respects mentioned, it is proper to examine the testimony in connection with the fraud charged. There are three elements of deception imputed to the president and
“And he asked me if I would stay there for two or three minutes until he went out. I says, ‘Yes.’ He went out and I did not have the time; I did not look at the time when he went out or when he came in, but it was not very long, and he came in with a tall dark-complexioned man I have never seen before, never seen since, and don’t know who he was. And he sat down at this table. ‘Now,’ he says, ‘look over that and sign it, and I will have Mrs. Somebody [I don’t recollect her name] write you out a check for $200’; and he says, ‘I will give you a job as long as that mill runs, and I will see that you and your family will never want for nothing; if you are ever in want, I want you to come and tell me.’ So I looked at the paper; I did not read much of it; I started in; and I turned round to bim and I says, ‘Is that in the paper?’ He says, ‘No, but you can take it for granted from me that it*73 will be just as I am telling you that it will; you sign that and I will give you $200 more, and you will never want for nothing. ’ I signed the paper and he had that man sign it, and he had the woman sign it; the woman stenographer at his place sign it; and that was all and I took the money and left. ’ ’
On cross-examination he testified as follows:
“Q. And did not Mr. Kroenert hand you at this time this paper, which I now present to you, and which I will ask to have marked defendant’s Exhibit 0?
“A. That is my signature.
“Q. And this defendant’s Exhibit C is the paper, is it not, that you signed at that time?
“A. That is my signature on it.
“Q. Well, that is the paper you signed at that time ?
“A. Must be.
“Q. Now, as a matter of fact, you took that and read it, did you not?
“A. I did not.
“Q. At that time?
“A. I took it, but I did not read it.
“Q. You say, then, you did not read it?
“A. No, sir; I tried to read it; I glanced it over; and he says, ‘You go ahead and sign that, and I will have Mrs. Crary [or whatever her name is] make out a check for $200.’
“Q. You had it in your hands?
“A. I had it in my hands.
“Q. And glanced it over?
“A. I glanced at it; I am not much of a reader; and it would take me some time to read it; and I am suffering pain, I was sick at the time; I could not content myself to stay there so long.
“Q. You say you did not glance over it?
“A. I just glanced at it, yes, and I asked him if the job was on that; that he said that I and my family would never want for nothing; I asked him if that was on it, and he says, ‘No, but I will guarantee- it is all right; you go ahead and sign it.’
*74 “Q. You say he told you the question of this job was not in the paper ?
“A'. Yes, he told me that was not in the paper. I asked him if it was in the paper, and he said, ‘No.’
“Q. He told you it was not?
“A. Yes, I asked him, ‘Is that down in the paper?’ and he said, ‘No.’
“Q. Did Mr. Kroenert read that release to you?
“A. No, sir; he did not.
“ Q. Do you claim now that Mr. Kroenert misstated to you.the contents of what that release was?
“A. He did not state what it was. He says, ‘Sign this and I will have Mrs. Crary write you out a check for $200, and that will make yon a nice little bunch of money. ’ That is what he said.
“ Q. Then, as I understand, he did not tell you what was in that paper?
“A. No, sir; he did not; never mentioned what was in it whatever.
“Q. That was the only talk you had with him about the paper, which you signed, was whether or not the kind of job was in that and he told you it was not?
“A. That was the only question that came up.
“Q. So that, as a matter of fact, Mr. Kroenert did not deceive you when you signed that paper, did he ?
“A. He did not.
“Q. He did not say anything to you what was in it, did he ?
“A. He did not say what was in it, no.
“Q. So that, as I understand you to say, he did not represent to you what that paper was at all?
“A. He did not.”
The plaintiff evidently understood that he was about to execute some obligatory writing; for when, as he says, the manager promised verbally to give him a job as long as the mill run, etc., he demanded to know if that was in the paper, but the manager says, “No, but you may take it for granted from me that it will be just
To make statements fraudulent, they must be representations of past or present material facts. Fraud cannot be predicated upon a statement or mere opinion or bare promises of something to be performed in the future. If the promise is a part of the contract, the person complaining must rest his action upon a breach of that promise. Moreover, neither the defendant nor its manager is being sued for a breach of a contract to furnish employment to the plaintiff for an indefinite period. Disproving as he does, by his own testimony, the allegations of fraud contained in the reply, the plaintiff presents a case where, having every opportunity to inform himself of the nature of the instrument he was signing, he acted upon his own judgment and signed the release. In the well-considered case of Wimer v. Smith, 22 Or. 469, 486 (30 Pac. 416, 421), Mr. Justice Lord lays down the rule thus:
“Even where misrepresentations are made, if a person relies upon his own judgment when he has full means of knowledge, he cannot complain of such misrepresentations. On a charge of fraud, the burden of proof is on the party alleging it.' The defendants*76 must clearly and distinctly prove the fraud or false representations they allege. The law in no case presumes fraud. The presumption is always in favor of innocence and not guilt. Fraud must be proved, but it must be proved by circumstances from which no other inference but that of fraud can be drawn. The rule is that, when proven by circumstances, they must afford a strong presumption. Circumstances of mere suspicion will not warrant the conclusion of fraud. ‘The evidence of it,’ Chancellor Kent said, ‘must be clear, strong, and satisfactory.’ And so likewise said the learned and eminent Dillon. In no doubtful matter does the court lean to the conclusion of fraud; it is not to be assumed on doubtful evidence. If the fraud is not clearly and strictly proved as alleged, relief cannot be had, although the party against whom the relief is sought may not have been perfectly fair in his dealings. The facts constituting fraud must be clearly and conclusively established by the court in finding it; but it may be proved by a preponderance of the testimony.”
Here is a skilled mechanic, able to read, with the opportunity of reading and the reading urged upon him, whose perfect command of the English language,' as disclosed by the testimony, shows him to be a man of more than ordinary intelligence. Under such circumstances, the releasor, having the opportunity to read, is bound by the terms of the instrument if he does not read it: Spitze v. B. & O. R. R. Co., 75 Md. 162 (28 Atl. 307, 32 Am. St. Rep. 378); Hoeger v. Citizens’ St. Ry. Co., 36 Ind. App. 662 (76 N. E. 328); Atchison, T. & S. F. v. Vanordstrand, 67 Kan. 386 (73 Pac. 113); McNamara v. Boston Elev. Ry. Co., 197 Mass. 383 (83 N. E. 878); Leddy v. Barney, 139 Mass. 394 (2 N. E. 107); Mateer v. Missouri Pac. Ry. Co., 105 Mo. 320; Williams v. Wilson, 18 Misc. Rep. 42 (40 N. Y. Supp. 1132); Missouri, K. & T. Ry. v. Craig, 44 Tex. Civ. App. 583 (98 S. W. 907); Watson v. Planters’ Bank,
It would have been an act of benevolent paternalism for the manager to have more thoroughly explained the nature of the writing which he presented for the plaintiff’s signature, to have called in the plaintiff’s friends and held a prolonged discussion concerning the advisability of making such a contract, but the defendant was under no obligations to do any of those things. The parties were adversary to each other. Having every opportunity to consider the matter, plaintiff was bound to take care of his own concerns and the manager could not assume to act as his guardian. Here was at least a debatable claim against the company in respect to which the defendant had a right to buy its peace. The law encourages settlement of disputes. Controversies once adjusted ought not to be reopened, except for very cogent reasons; and where, out of the mouth of the plaintiff himself, the alleged fraud is completely disproven, the court ought not to overturn the agreement which the parties themselves made. The reply is defective in that it does not show that the plaintiff was free from negligence in the execution of the release within the meaning of Brown v. Feldwert, supra; also in not alleging that he had returned the money received as a consideration for executing the contract of release. On the merits, the plaintiff should fail as against the contract, because out of his own mouth he shows that the allegations of his reply are completely disproven. It is not a case of there being some evidence to take the case to the jury. It is a total failure of proof. The release may have been Improvidently made, if we consider only the misfortune of the plaintiff’s injury without reference to whether he him
The judgment should be reversed and nonsuit directed.