Lomax v. Southwest Missouri Electric Railway Co.
95 S.W. 945
Mo. Ct. App.
1906
Check Treatment
ELLISON, J.

There was a collision between two passenger cars on defendant’ electric railway in Jasper county. Plaintiff was a passenger on one of the cars and was injured. He brought the present action for damages alleged to have been sustained. A trial resulted in a verdict for the defendant. Afterwards plaintiff’s motion for a new trial wаs sustained and defendant appealed from that order. Defendant’s answer besides denying negligence and damаge, pleaded a release executed to it by plaintiff after the injury. Plaintiff’s reply set up an avoidance of the release by a plea that it was obtained from him by fraud. [R. S. 1899, sec. 651.]

At the opening of the trial, defendant, by its cоunsel, admitted that the collision was through negligence, though it did not admit that plaintiff was damaged by its act. The main defense of defendant is based upon the release. So far as we can judge by the record, the defendant endeаvored to make the release the foremost and principal issue. It offered instructions on no other branсh of the case. On the other hand, the plaintiff in the first instance did not refer to the release during his first testimony; and it was not until аfter he had been cross-examined on the case that it was referred to by him. Then, on redirect examination, hе testified concerning it in a very meagre way. On recross-examination his evidence was still more unsatisfactory. Hе did not offer an instruction on that sub*198ject though all of defendant’s (eight in number) were in relation thereto. The only reference to the release in plaintiff’s instructions, is contained in a single expression, where, after directing a verdiсt for plaintiff if certain matters were believed by the jury, there was added, “unless you should find from the evidence and instructions of the court that plaintiff is bound by the release.” ‍​​​‌‌​‌​‌‌‌‌‌​‌​‌​‌‌​​‌‌‌​‌‌​‌​‌​​‌‌​‌‌​‌‌‌‌​​​‌‍The fraud charged in plaintiff’s reply in avoidance of the relеase, was not shown in evidence. The'evidence in plaintiff’s behalf from all sources, offered in support of such charge is far too vague, indefinite and uncertain, to be of any practical force. When the evidenсe for defendant is considered in such connection, it is not to be wondered that the jury found for defendant.

The chаrge of fraud should have been supported by satisfactory evidence and not left to rest, as here, upon mere surmise and conjecture. It is not supported by a single positive statement or certain fact. [Hancock v. Blackwell, 139 Mo. 453, 454; Mateer v. Railway, 105 Mo. 320; Mathis v. Railway, 185 Mo. 434, 459.] If a verdict setting aside a release on the evidence in this case could be permitted to stаnd, it would have the practical effect of annulling all settlements and compromises of disputed claims; things which thе law is supposed to look upon with favor.

, Notwithstanding the statute (section 654, Revised Statutes 1899) permits plaintiff by reply tо an answer setting up a release, to plead that it was procured by fraud, and to permit such issue to be tried by the jury ‍​​​‌‌​‌​‌‌‌‌‌​‌​‌​‌‌​​‌‌‌​‌‌​‌​‌​​‌‌​‌‌​‌‌‌‌​​​‌‍along with the case, yet we are of the opinion that it is necessary to tender to the defendant what he rеceived for such release. Such was held to be the law before the statute was enacted. [Hancoсk v. Blackwell, 139 Mo. 440, 453; Och v. Railway, 130 Mo. 27, 45; Carson v. Smith, 133 Mo. 606; McNealey v. Baldridge, 106 Mo. App. 11, and other authorities to be found collected in defendant’s brief.] The statute determined a matter of *199practice; but did not intend to interfere with the rights of the parties. It is a manifest injustice to permit one to retain thе fruits of a contract which he claims he was induced to execute through fraud and yet repudiate its obligations, and the statute has not altered the rights of parties arising from such consideration.

It seems that there was, what plaintiff tеrms a tender, but in which he does not seem to put full faith, inasmuch as an extended effort is made to show that no tender at all was necessary. However that may be, we think that in the circumstances disclosed, there was no tender made which should be ‍​​​‌‌​‌​‌‌‌‌‌​‌​‌​‌‌​​‌‌‌​‌‌​‌​‌​​‌‌​‌‌​‌‌‌‌​​​‌‍recognized by the law. Plaintiff claims that a tender springs out of equitable considerations and that it is not nеcessary in an action at law where equities cannot be adjusted. But justice may be had without, in all instances, resоrting to equity and the necessity for a restoration to the status quo may exist as well at law as in equity.

But plaintiff in order to avoid the necessity for a tender says that one need never restore that which in any event of the suit he is entitled to retain. [Goodson v. Ins. Co., 91 Mo. App. 339.] That would be сorrect if it were true that plaintiff was, in any event of this case, entitled to as much money as he received in сompromise and settlement. Such phase of the question was discussed in Alexander v. Railway, 54 Mo. App. 66, 71; Girard v. St. Louis Wheel Co., 123 Mo. 383, 387; Winter v. Railway, 160 Mo. 159, 190. But here, the claim is unliquidated, and if the release is to be cast aside and a trial of the merits had, plaintiff may not show that he was damaged in аny sum. But plaintiff suggests that if there should be a verdict for defendant, that would establish the release and he would be ‍​​​‌‌​‌​‌‌‌‌‌​‌​‌​‌‌​​‌‌‌​‌‌​‌​‌​​‌‌​‌‌​‌‌‌‌​​​‌‍entitled tо the money he received thereunder. And that if there should be a verdict for the plaintiff, that wonld establish the invalidity of thе release and plaintiff’s damages would be reduced by the amount paid for the release. If, however, in such сase as this, a defendant should pay more *200for the invalid release than a plaintiff should afterwards be awarded, he would find himself in a predicament that the suggestion does not meet.

So on the several phases of the case herein discussed plaintiff is without a cause of action and the verdict should not have been set aside, even though erroneous instructions may have been given. [Moore v. Railway, 176 Mo. 528, 545; Wagner v. Edison Light Co., 177 Mo. 44, 60.]

Since the foregoing was written our attention has ‍​​​‌‌​‌​‌‌‌‌‌​‌​‌​‌‌​​‌‌‌​‌‌​‌​‌​​‌‌​‌‌​‌‌‌‌​​​‌‍beеn called to the case of Robertson v. Fuller, 115 Mo. App. 456. We do not find any conflict between this and that case.

The order granting a new trial will be reversed and the cause remanded with directions to enter judgment on the verdict.

All concur.