He alleges the following facts as an explanation sufficient in law to account for his delay in bringing the present action : Being ignorant and unacquainted with law he relied wholly upon his attornej^s as to the form of action to be pursued. Soon after learning that he had been deceived he sought legal aid in recovering his rights. Ilis counsel were bona fide of the opinion that, under the facts of the case, no necessity existed for refunding the money paid before suing for the injury done by the accident, aud accordingly sued for the original negligence and tort. To this action defendant pleaded the accord and satisfaction, aud to this plea he replied by his evidence that said accord was fraudulently procured and not binding. Defendant joined issue on said allegation of fraud, and the trial resulted in a verdict for the plaintiff. Subsequently defendant moved for a new trial, and, after the motion was filed and brief of evidence made up, amended the motion, on February 23, 1889, attacking the verdict on the ground that petitioner had never offered to refund the $100. The motion was denied, and defendant took a bill of exceptions. Petitioner’s counsel pressed the matter to a hearing at the first possible term of the Supreme Court, which court determined that by reason of failure of petitioner so to tender the $100, his action was not maintainable. 83 Qa. 558. By custom at this bar the party prevailing in an action in the Supreme Court always brings down the . remitter and has the judgment of the Supreme Court entered as the judgment of the court below. In accordance with this custom petitioner’s counsel took no stops in the matter until, November 8, 1889, ascertaining for the first time that defendant’s counsel was not moving in the matter, he immediately sought leave from the court wherein the former suit was located, to bring down the remitter himself in order to.clear the record. Upon obtaining such leave, at the earliest possible moment, on November 11, 1889, he dismissed said action and instituted the present in lieu thereof.By the second count in his declaration he alleged: "While a eai’-coupler of defendant and carefully attending to the duties of his position, he was injured by the negligence of defendant’s agents, and his leg mashed and mangled in a terrible manner. lie was exercising all due care and caution, and his injury was the result of defendant’s negligence. The declaration then set forth his confinement from the injury, suffering, age, earnings, expenses, etc., substantially as stated above. For these injuries he brought his action in the city court of Atlanta, substantially in the foregoing language, to its December term, 1889, “whereby petitioner in consideration of $100.00 released defendant from its liability for said negligence and injury.” He sought to avoid said accord and satisfaction by showing a certain fraud practiced upon him in order to procure the accord, which fraud is hereafter set out. Defendant at the trial presented no question in reference to his not having tendered the $100 back before commencing his action, and made no objection on that ground to'his evidence of fraud. After the evidence was in and the argument to the jury was over, the court submitted' to the jury the controverted issues : whether petitioner was injured as alleged by defendant’s negligence, and if so, how much, and whether the alleged accord and satisfaction was pro-cared by fraud and deceit as claimed by petitioner, and if so, whether the fraud was material. The court also instructed the jury, if they found for plaintiff, to allow defendant credit for the $100 paid, and the jury thus instructed said plaintiff was entitled to recover $2,500. Defendant’s motion for new trial being refused, it carried the case to the Supreme Court, where it was adjudged that petitioner had no right to maintain this action, because he had not previously tendered back the $100, and a new trial was granted. Petitioner now avers that by these proceedings it has been adjudicated that, upon January 81, 1887, defendant injured and damaged him as alleged, $2,600 and became liable therefor, and that said accord was fraudulently jn’ocured by a deceit practiced on him. And now, therefore, he brings this action against defendant for the damage done him by the fraud and deceit, which was as follows : Some five or six weeks after the accident, he being ignorant, unacquainted with law or the human anatomy, altogether illiterate, entirely unacquainted with business, without means and with no person upon whom to depend for a support, having become able to hobble about on crutches, went to defendant for help, being then actually suffering for food. He was at the time under the impression that during his disability defendant was bound to pay for his lost time, whether the accident was its fault or not. He has since learned that he was wrong in this, but so thought at the time and went for that reason. Taking advantage of his position and circumstances, defendant fraudulently deceived him into accord by falsely persuading him and inducing him to believe that his leg was not permanently injured and would be practically as good as ever. By reason of this fraud he released defendant from its liability and has never since been able to rescind the same by paying back the $100. The facts so pleaded are of record in this coui’t, and show that petitioner was entitled to $2,600 damages originally, and that by reason of the alleged fraud he is entitled to $2,500 damages for said fraud. He alleges that the fraud was practiced through the instrumentality and agency of defendant’s superintendent and of its sux-geon who attended plaintiff after the injury and had negotiated himself ixxto the confidence of plaintiff’, and in both of whom plaintiff reposed peculiar confidexxce ; all of said attendance and acts having been procured by defendant. The declaration was filed November 12, 1889.The motion to dismiss was upon the grounds: (1) the declaration affirmatively disclosed that no effort had been made by plaintiff" to rescind the contract of aceoi’d and satisfaction, by paying back or offering to pay back the money alleged to have been received by plaintiff froxn defendant in pursuance thereof; (2) the fraud alleged coxxsisted in representations of a future matter, or a mere opinion or expression of hopeful anticipation in reference to the plaintiff’s future recovery ; and (3) the petition disclosed affirmatively that the' cause of action was barred by the statute of limitations.Hooper Alexander and W. T. Turnbull, for plaintiff.Dorsey, Brewster & Howell, for defendant.
