Rotheock, J.
The- plaintiff was rear brakeman •on a freight train running between Savanna, 111., and Van Horne, Iowa. At the time he sustained the injury for which this action was brought he was about forty years old, had a family, and had been in railroad ser*650vice for fifteen years. He had been in the employ of the defendant for about four months. On the eighth day of September, 1890, while engaged in said employment, his left hand was crushed, while attempting to-make a coupling, so that it was necessary to' amputate three fingers. It appears that the two cars which were to be coupled together were equipped with what is known as the “Janney coupler,” which is a new improved devise. This coupler may be attached to the old style coupler by the use of a link and pin, and there was a link and pin in one of the couplers, which it was necessary to remove before the cars came together. The link and pin were in the standing or dead car. The plaintiff claims that, as the train was backed down toward the standing car, he observed the link and pin, and, knowing that they must be removed, he signaled the engineer to stop the train, and his signal was obeyed, and the train stopped, when he went between the cars to remove the link and pin; that the pin was fast, and could not readily be removed, and while engaged in the attempt to remove it he was standing with his back toward the train; when, without any signal or sign from him, the train was carelessly and negligently backed down upon him, and his hand caught between the couplers, and was crushed. Some two or three other employees testified as witnesses in contradiction to the testimony of the plaintiff, to the effect that he did not give a signal for the train to stop, and that it did not stop, but moved down to the dead car in obedience to the plaintiff’s signal. It will be seen that there was a square conflict in the evidence upon that vital question in the case. We do not understand that it' is claimed that the judgment should be reversed on the ground that the evidence was not sufficient to authorize a finding by the jury that the employees of the plaintiff were negligent, and that the injury was caused without any negligence of *651the plaintiff which contributed to produce the injury.
1. Bailboads: injury to employees: settlement: fraud: right of action. I. The principal controversy on the trial in the. court below arose upon an alleged settlement and • release of damages, which was in writing, and signed by the plaintiff. It is in these words:
“The Chicago, Milwaukee & St. Paul Eailway Company, C. & O. B. Division, to J. C. O’Brien, Dr., residing at Delta, Iowa.
1890. Amount.
December 5. To this amount paid in full settlement of any and all claims against said railway company on account of personal injury as stated below... $250 00
Less paid Wm. Simpson for board................ 39 50
$210 50
“Eeceived of the Chicago, Milwaukee & St. Paul Eailway Company two hundred and fifty dollars, in full payment of the above account. In consideration of the payment of the said sum of money, I, J. C. O’Brien, of Delta, in the county of Keokuk, and state of Iowa, hereby remise, release, and forever discharge the said company of and from all manner of actions, cause of action, suits, debts, and sums of money, dues, claims, and demands whatsoever, in law or equity, which I have ever had or now have against said company, by reason of any matter, cause, or thing, whatever, whether the same arose upon contract or' upon, tort, and especially from all claim which I now have or may hereafter have, arising in any1 manner whatever, either directly or indirectly, in whole or in part, from, or on account of personal injuries received at Sabula Junction, Iowa, on or about September 8, 1890, resulting in loss of my first, third, and fourth fingers of my left hand.
“In testimony thereof, I'have hereunto set my hand this fifth day of December, 1890.
“J. C. O’Beien.”
*652The plaintiff claimed in his pleadings, and introduced evidence tending to show, that the said settlement and release was obtained from him by fraud and the false representations, of the agent or officer of the defendant who procured his signature thereto. It is not our purpose to set out the'pleadings of the plaintiff in detail. They are verbose and extravagant in statement, and contain many averments which are founded in mistake when read in connection with the evidence produced on the trial. But the pleadings do not appear to have been verified, and, after eliminating the mistakes, we think the evidence that this writing was procured by fraud and by overreaching the plaintiff was sufficient to authorize a verdict for him. And it is claimed by the plaintiff that he was in such physical and mental distress at the time the settlement was signed by him that he was incapable of entering into a valid contract of settlement. It is not our purpose to enter into a discussion of the evidence. We will state the ultimate facts which we think the jury were justified in finding from the evidence. This settlement was made by one Hinsey, upon the part of the defendant. He had been for many years engaged in settling claims of this character. He represented to the plaintiff that all of the trainmen who were eyewitnesses to the affair were against the plaintiff. He read part of the statements which had been procured from them, and stated that all were alike. This was not true. The statement of the conductor of the train was not inconsistent with the plaintiff’s right to recover. He represented to the plaintiff that Division Superintendent Goodnow, at Marion, in this state, had yard work that he could do, and that Goodnow would put him to work, and that he could always have work as long as he behaved himself. Now, it may be conceded that this last statement as to work in the future was a mere false promise, and not a false statement as to an exist*653ing fact. But the statement that Goodnow had positions at yard work at Marion, Yan Horne, and Perry was not true. 'The plaintiff immediately returned to Marion, and presented himself .to Goodnow for employment, and was bold that there was no employment for him. He again applied to Goodnow for work, and received the same answer. He went home to his family, at Delta, in this state, and, after a time, wrote to Goodnow, requesting employment, and received this answer:
“Maeion, Iowa, March 19, 1891.
“J. G. O’Brien, Delta, loiva.
“DeabSib: — Noting yours of the 16th instance, our business is very slack, and I have no work that I could offer you. It would be a waste of time to come here now. Truly yours,
“C. A. Goodnow.”
It ought to be stated that when Hinsey concluded his business with the plaintiff he gave him an open letter to Goodnow, of which the following is a copy:
“Chicago, III., Dec. 5, 1890.
“C. A. Goodnow, Superintendent, Marion.
“Deab Sib: — I have to day settled with the bearer, J. C. O’Brien, who was injured at Sabula Junction on September 8th last. The amount I have allowed' him is very small, considering the severity of his injury, and think, in addition, that he is entitled to any courtesy that can be consistently shown him in the matter of re-employment. His hand, as you can see, will not permit him to do very hard work at first. I have not made employment a condition of settlement with him, but promised to write you, and urge that you do the best you can for him.
“Yours, truly,
“John A. Hinsey, Special Agent.”
It was claimed by Hinsey that he made no representations as to the fact that places in the yards on *654Q-oodnow’s division were vacant at that time, but this statement raised no more than a conflict in the evidence.
It is also claimed, and the evidence tends to show, that the plaintiff knew the contents of this letter. But the jury found specially that, at the time this settlement occurred, the plaintiff was not in such a condition mentally “as to be able to attend to business and understand the nature and effect of the release set up by the defendant when he signed it.” And it was further found specially that he did not have “full opportunity and capacity to read the contract of settlement, and know its contents, before he signed it.”
It is strenuously urged that the' special findings ■are absolutely without support in the evidence. We have carefully examined the whole record, and our conclusion is that it. was a fair question for the jury to determine whether the plaintiff was at the time capable of making a valid settlement of his claim, and we do not think we should disturb the verdict on that ground.
2. Evidence: opimons. II. Objection was made because the court allowed the plaintiff to answer the following questions: “Question Describe your physical and mental eondition when you were there, at the time you signed that paper. Question. Describe your nervous condition at that time. Question. Tell the jury what your condition was at that time, as regards your physical and mental condition. Question. Tell the jury again, in your own way, as fully as you can, what your mental and physical condition was at the time you transacted this- business you have referred to. Question. What was your mental condition at that time?” It is claimed that these questions called for the opinion of the witness as to his mental condition. We do not think this position, can be sustained. He was asked to describe his physical and mental and nervous condition, not to give an opinion as to what his condition was in these respects.
*655s' resSssionoi fraud: action •wittiout tender of .benefits re-III. We come now to a consideration of what we regard as the material question in the case. It is conceded that the defendant paid to the plaintiff the sum of two hundred and ten dollars and fifty cents m money, and set- . . . ,. .. tied a bill for his boarding, amounting to thirty-nine dollars and fifty cents; and it is claimed by the defendant that, even if the settlement was voidable by reason of the fraud, or void because the plaintiff did not, at the time it was made, have sufficient mental capacity to make a contract, yet this action can not be maintained, because it was brought without tendering to the defendant the two hundred and fifty dollars received at the time of the settlement. It is true that no tender was made. The plaintiff commenced this action on May 14,1891, nearly two months after he was advised by Gfoodnow that it would be a waste of time to go to Marion to get work. The court instructed the jury that if they found for the plaintiff .they should deduct from the amount awarded to him the sum of two hundred and fifty dollars, which he had already received. The verdict returned was in the sum of three thousand, seven hundred and fifty 'dollars.
It is undoubtedly true that the general rule is that, whenever one has a right to rescind a contract, and exercises that right, he must restore the other party to the same condition he would have been in if the contract had not been made. The defendant claims that this release of a claim for damages comes within this rule. And it is not to be denied that there are adjudged cases which so hold. See Brown v. Hartford Fire Insurance Co., 117 Mass. 479" court="Mass." date_filed="1875-05-12" href="https://app.midpage.ai/document/brown-v-hartford-fire-insurance-6418100?utm_source=webapp" opinion_id="6418100">117 Mass. 479. A number of other cases are cited by counsel, prominent among which is E. Tenn. V. & G. Railway Co. v. Hayes, 10 S. E. Rep. (Ga.) 350. We have given these cases a careful examination, and our conclusion is that they are not applicable to a state *656of facts, such as is found in this case, and that there is another line of cases which, to our minds, announce the better rule. The case of Hendrickson v. Hendrickson, 51 Iowa, 68" court="Iowa" date_filed="1879-04-26" href="https://app.midpage.ai/document/hendrickson-v-hendrickson-7098336?utm_source=webapp" opinion_id="7098336">51 Iowa, 68, is precisely in point. It is there held that, where a party has fraudulently procured the execution of a contract, he is not entitled to an offer to restore what he has received as a condition precedent to reseis- ^ sion. It is claimed by counsel for the appellant that this case is overruled by the later case of Citizens’ Bank v. Barnes, 70 Iowa, 412" court="Iowa" date_filed="1886-12-17" href="https://app.midpage.ai/document/citizens-bank-of-grinnell-v-barnes--sons-7102442?utm_source=webapp" opinion_id="7102442">70 Iowa, 412. It is true there is language in the opinion in the last named case which is not entirely in accord with the former case. But the court expressly said that it was unnecessary to determine this question. The cases of Gulliher v. Chic., R. I. & P. Railway Co., 59 Iowa, 416" court="Iowa" date_filed="1882-10-04" href="https://app.midpage.ai/document/gulliher-v-c-r-i--p-r-7100163?utm_source=webapp" opinion_id="7100163">59 Iowa, 416, and Wallace v. Chic., St. P. M. & O. Railway Co., 67 Iowa, 547" court="Iowa" date_filed="1885-12-12" href="https://app.midpage.ai/document/wallace-v-chicago-st-paul-minneapolis--omaha-ry-co-7101820?utm_source=webapp" opinion_id="7101820">67 Iowa, 547, were much like the case at bar. They were actions to recover for personal injuries, and settlements and releases were set up in defense. The question is not made in said cases that it was necessary to return or tender the amount received in settlement before commencing an action. It is true the question was not directly made in the pleadings in those cases, but the right to maintain the actions was not questioned by the court or counsel. That the gen-j eral rule above announced has no application to an action like this, see Chic., R. I. & P. Railway Co. v. Lewis, 109 Ill. 120" court="Ill." date_filed="1884-01-23" href="https://app.midpage.ai/document/chicago-rock-island--pacific-railway-co-v-lewis-6962285?utm_source=webapp" opinion_id="6962285">109 Ill. 120. It is there held that, “if a release of a cause of action is obtained from a person by fraud and circumvention at a time when he is incapable of making a contract rationally, and money is paid him at. the time of its execution, he may repudiate the release, and bring his action without first paying or tendering Y back the money received by him.” And in Mullen v. Old Colony Railway Co., 127 Mass. 86" court="Mass." date_filed="1879-06-27" href="https://app.midpage.ai/document/mullen-v-old-colony-railroad-6419639?utm_source=webapp" opinion_id="6419639">127 Mass. 86, it was held, if a defendant obtains the signature of the plaintiff to a paper purporting to be a settlement and discharge of the cause of action, by fraudulent representations, it is merely a receipt for a gratuity, and the plaintiff may *657maintain Ms action without returning the money paid him. See, also, Railway Co. v. Doyle, 18 Kan. 58" court="Kan." date_filed="1877-01-15" href="https://app.midpage.ai/document/chicago-rock-island--pacific-railroad-v-doyle-7884342?utm_source=webapp" opinion_id="7884342">18 Kan. 58; Allerton v. Allerton, 50 N.Y. 670" court="NY" date_filed="1872-11-12" href="https://app.midpage.ai/document/allerton-v--allerton-3581842?utm_source=webapp" opinion_id="3581842">50 N. Y. 670; Kley v. Healy, 28 N. E. Rep. (N. Y. App.) 593. The last two cases are to the effect, that the rule, that he who seeks to rescind an agreement upon the ground of fraud must place the other party in as good a situation as he was at the time the agreement was made is satisfied if the judgment asked for will accomplish that result, and in such ease no offer to return that which was received is necessary. In the case of Kley v. Healy the court uses the following language: “A more satisfactory answer, however, may be found in the principle that one who attempts to rescind a transaction on the ground of fraud is not required to restore that which, in any event, he would be entitled to retain, either by virtue of the contract sought to be set' aside, or of the original liability.” This principle commends itself as eminently just. Applying it to the facts in the case at bar, we may well inquire, why should the plaintiff tender to the defendant that which the plaintiff was entitled to retain even if defeated in the action? In that event he would retain the two hundred aud fifty dollars by virtue of what the defendant contends is a valid transaction. When the court directed the jury that, if the plaintiff was entitled to 'recover, the sum paid at the alleged settlement should be deducted from the verdict, it was, in effect, a return of the money paid for the release.
We think there is no other question in the case which demands separate consideration. The border line of doubt we have had in this case is without the question of fraud, and the incapacity of the plaintiff to make a contract. But one. feature of the case appears to us to be without doubt. That is, that the plaintiff was overreached, and taken advantage of, in the settlement. He returned from Chicago to Marion in the *658belief that he would be given employment. The manner in which he was received, and the refusal to give him employment after a considerable lapse of time, and the fact that he is permanently disabled from performing most kinds of manual labor, must have had great weight in inducing the jury to reach the conclusion that he was unfairly dealt with. Affirmed.