Holbrook, Cabot & Rollins Corp. v. Sperling, 239 F. 715

Holbrook, Cabot & Rollins Corp. v. Sperling

239 F. 715 | 2d Cir. | 1917

HOUGH, Circuit Judge

(after stating the facts as above). This action is at law, and the complaint does not attempt to allege fraud. The plaintiff below can read and write, and admitted that he had read at least a portion of the release he signed, but averred that it did not represent all of the promises made to him by the representative of his employer who settled the claim, viz. it omitted the agreement for life employment.

*716Under the pleadings in this action and the facts shown the release was a bar. Where fraud is asserted, a plaintiff may admit that he signed a paper called a release, yet assert that he did not execute it as a release; and if the jury finds fraud in the execution of the instrument it may be held for naught. De Lamar v. Herdeley, 167 Fed. 530, 93 C. C. A. 239; and see Drobney v. Lukens, etc., Co., 204 Fed. 11, 122 C. C. A. 325. This is as far as it was possible to go in an action at law, where a release under seal had been pleaded. On this plaintiff’s own story, there was no more than an omission from a document intended as a release, and which the plaintiff examined before execution being able to read and understand it. Even mutual mistake will not at law overcome such a document, nothing but proven fraud in its execution will do that. His remedy, if any, was in equity.

Judgment reversed, with costs, and cause remanded for a new trial.

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