197 Mass. 383 | Mass. | 1908
We are of opinion that the presiding judge was right in ruling that there was no evidence warranting a finding that the release given by the plaintiff was not binding on her.
It is settled on the one hand that it is no defence to a release that the person signing it neither read it nor understood its contents. Leddy v. Barney, 139 Mass. 394,396. Rosenberg v. Doe,
On the other hand it is also settled that a release can be avoided if there was a fraudulent misrepresentation as to its contents, and if the party signing it without reading it did so, relying on that misrepresentation. Bliss v. New York Central Hudson River Railroad, 160 Mass. 447. Peaslee v. Peaslee, 147 Mass. 171.
Further, there can be no question of his right to avoid it if he signed it when he did not have “ legal competency to act,” as it was put by Parker, C. J., in Farnam v. Brooks, 9 Pick. 212, 220.
The plaintiff’s evidence here did not go far enough to warrant the jury in finding that the release signed by her was obtained by fraud, or that it was signed by her when she was in such a condition that she did not understand what she was doing; or, as Chief Justice Parker put it, when she did not have “legal competency to act.” . .
A mere concealment of the contents of a release, even if there be an intent to defraud, is not per se enough to avoid it. The statement in McNicholas v. Prudential Ins. Co. 191 Mass. 304, 309, relied on by the plaintiff in this connection, does not lay down the true rule. McNicholas v. Prudential Ins. Co. was not a decision on the point now under consideration. In that case a receipt not under seal was given by the plaintiff for the money received by her. It is not necessary now to consider further the statement there made. The true rule is laid down in Freedley v. French, 154 Mass. 339, namely, that where the person to whom the release is given undertakes to state the contents of it and conceals a part of them, a fraudulent misrepresentation is made out.
1. So far as the representation goes that the defendant’s agent had been to the other houses and all the ladies had signed the paper, or that he went to all the houses and they signed (it was put both ways in the testimony), there was no evidence that this was not the fact. Four of the plaintiff’s fellow passengers who were put on the witness stand by her testified that they had signed a release. So far as appears, therefore, this statement was true. The statement did not mean that all the other women
2. The plaintiff did not testify that the defendant undertook to state the contents of the release. She did not testify that the $5 given her was paid to her to pay her doctor and so bring the case within Bliss v. New York Central & Hudson River Railroad, 160 Mass. 447. What the plaintiff testified to was that the defendant’s agent said that the $5 given her “ will pay for the doctor ” not that the $5 was given her to pay the doctor.
3. Lastly, the evidence did not warrant a finding that when she signed the release the plaintiff did not know what she was about, or, as Chief Justice Parker put it, that she did not have “ legal competency to act.”
The accident happened “ five or ten minutes after the car left Forest Hills going toward Boston.” Beyond this the time of the accident was not testified to. After the accident, with the help of friends, she boarded another car which took her “ near her home in South Boston.” How far that was from her home does not appear. She apparently walked home without assistance. According to her testimony “she got upstairs the best she could and took her clothes off, and lay on the lounge until bell rung.” How long a time elapsed from the time she lay down until the bell rang did not appear. . The plaintiff’s testimony is that about five minutes after she heard the bell ring, “ I tried my way down the stairs, and when I got down I almost collapsed. I rested for a moment and then I went and opened the door.” The defendant’s agent was at the door. The plaintiff in her testimony gave an intelligent account of what then took place. She testified that after the defendant’s agent left “ she was then in a very weak condition.” But her testimony went no farther. It was about fifteen minutes after four when the agent came to the house.
The plaintiff’s husband came home “somewhere around five o’clock.” He testified “ that he found his wife lying on the lounge, appearing very sick and weak and looking as if she had had a shock; that she was hysterical and not able to give a clear story of the accident; that she was in bed, very sick, for nine
The only testimony which it could be argued went far enough is that of the plaintiff’s husband that when he came home “ somewhere around five o’clock ” his wife “ was hysterical and not able to give a clear story of the accident.” What was in issue was whether she understood what she was doing when she took $5 and gave a release at about fifteen minutes after four. On the stand she gave an intelligent account of that transaction ; her husband testified that between five and six she “told the doctor ” how she got hurt, “ describing how the thing happened.” She did not testify that she did not understand the transaction ; the farthest that her testimony went was that after the agent left she was “ in a very weak condition.” As we have said, the evidence did not, in our opinion, go far enough to warrant a finding that she did not have “ legal competency to act ” when she signed the release.
Exceptions overruled.
