30 Mich. 128 | Mich. | 1874
On the 34th day of February, 1873, an accident occurred on the Jackson, Lansing & Saginaw Railroad, under control of the Michigan Central Railroad Company, whereby the defendant in error (who was accompanied by a son who was young, and a married daughter with her child) received injuries. The accident occurred at an early hour in the morning. The train, with, defendant and others on board, returned to Jackson, and she was taken home not far from 8 o’clock A. M. About ten o’clock certain persons acting on behalf of plaintiff in error went to her house, and under circumstances which are detailed in the bill of exceptions, procured the execution of a paper drawn up by one of them at that time in the following language:
“ Michigan Central Railroad Company, to Emily and George Dunham, Dr.
Feb. 34, 1873. To all damages from accident on Jackson, Lansing & Saginaw Railroad by car running off track February 34, 1873, by which Mrs. Emily Dunham received injuries^ — ........$100.
“This receipt is in full for all damages or injuries resulting from said accident to us, or either of us, or to our children.
“ Received of the Michigan Central Railroad Company, one hundred dollars in full of the above.
“ (Signed),
Emily Dunham,
his
George X Dunham.
mark.
“Witness, Lucy Howard.”
On the 37th of February Mrs. Dunham, through an agent, offered to return the one hundred dollars, which offer was refused. She then sued the company, and the jury rendered a verdict in her favor of three hundred and seventy-five dollars. '• Error is brought into this court, and the questions presented grow out of this document.
Two points are relied upon. The first is that the court
We find no attempt on the part of Mrs. Dunham to set up any such variation. She relied on no contract, but repudiated any supposed arrangement altogether. But the court went to the full length.requested, by charging that the receipt would be an absolute bar, unless nullified by such fraud as would render the settlement void, or by other facts which would prevent it from being her act in law. The charge very clearly gave the jury to understand that if the receipt was of any validity at all as an agreement or settlement, it was a complete defense. We can see nothing in the evidence or in the charges given or refused which could make the omission to give that particular instruction either erroneous or important.
The whole controversy was, really, whether any legal settlement had been made at all. The court could not, on any correct ground, exclude from the jury the evidence, which was largely from defendant’s own witnesses, concerning promises and assurances not secured or covered by the receipt, as directly bearing on the question of fraud, and on the other questions touching the knowledge and assent of Mrs. Dunham as to the terms of the supposed settlement.
The other error urged is the modification of a request concerning the duty of Mrs. Dunham in rescinding. The request asked was as follows:
“To avoid the contract of settlement and the receipt given, on the ground that they were obtained by fraud, the plaintiff was bound,' as soon as she discovered the alleged fraud, or became conscious of its existence, to have rescinded the contract, and restored the money she had received. And if you shall find that she acquiesced in the settlement, by using the money she had received from the defendant,*131 or any portion of it, or otherwise, after 'she knew of the fraud, or became conscious of its existence, then she is not entitled to recover in this suit, and your verdict' should be for the defendant.” This was given with the following' modification added: “Unless you shall find that she made a tender, returned the money, or offered to make a tender, and was prevented from completing it by the acts of the defendant or its agents.”
This addition was necessary to prevent the inference that a use of the money received from the railroad company, although they had refused to receive it back again, would have amounted to a waiver of the fraud and an affirmation of the settlement. The charge as requested was open to that inference, and required further explanation.
We have failed to find any thing in the remainder of the charge which would render this charge as given likely to mislead the jury. And if it contained any error it was in allowing the jury, to consider the question of waiver at all, as we have discovered no testimony which bears in that direction. When the adverse party upon rescission is only entitled to a refunding of money, and no action or right is otherwise involved, so short a delay as occurred here could not under any circumstances be considered" as material, with the fullest knowledge. And it cannot be seriously urged that it makes any difference whether the bills tendered back are the identical bills received. In law one dollar in money is the equivalent of any other dollar. The previous use of fifteen dollars of the hundred received, was not, therefore, of any consequence. It would have been contrary to justice if the jury had been led to regard the three days’ delay and the spending of that portion of the money, as decisive or important, if they also believed there had been no intelligent and valid settlement.
It was urged that the verdict of the jury, considered in the light of the evidence, showed that they must have been misled by these charges. As this is strongly enforced by the claims in the argument, we may perhaps be required
We think there was no error, and the judgment should be affirmed, with costs.