47 So. 573 | Ala. | 1908
The plaintiff (appellant) instituted this action to recover damages for injuries received by her in consequence of the alleged negligence of the defendant, a common carrier of passengers. By special plea the defendant set up the defense of payment and written and executed release by the plaintiff of the damages alleged to have been her due, upon the recited consideration of $55. Three replications to this plea were filed by the plaintiff, wherein it is not denied that she executed the release, and confessing that she received said sum from an agent of the defendant, but asserting that the arrangement and her action was induced by the fraudulent acts and advice of agents or servants of the defendant, and that at the time she was mentally and physically in such state as to be unable to fairly take care of her own interests in the premises. Among other points of objection to the replications, taken by the demurrer, is that they seek a rescission, on the ground of fraud, of a merely, at the remotely expressed election of the rescinding party, viodable contract, without returning or offering to return, or averring some good reason for not so doing, the money received there
The principle invoked has been often applied by this court to cases of various kinds of agreements and contracts merely voidable, upon- seasonable election, in consequence of fraudulent representations or acts practiced upon the party desiring to remind the same. In order to clothe himself with all the. legal habiliments of right to be restored to that with which he has parted as a result of the fraud imputed to his adversary, or to remove the impediment of his agreement of contract, he must make restoration of what he has received from the adversary, place him in statu quo, or must show it was worthless, thus obviating the necessity to a restoration of the valueless, or that an offer of restoral Avould have been futile, or that it had been waived. The following decisions, among others, of this court, illustrate the principle stated: — Jones v. Anderson, 82 Ala. 392, 2 South. 911; Walker v. L. & N. R. R. Co., 111 Ala. 233, 20 South. 358; Young v. Arntze, 86 Ala. 116, 5 South. 253; Hoyt v. Turner, 84 Ala. 523, 4 South. 658; Wilcox v. San jose Co., 113 Ala. 519, 21 South. 376, 59 Am. St. Rep. 135; Wellden v. Witt, 145 Ala. 605, 40 South. 126; Royal v. Goss, 154 Ala. 117, 45 South. 231; and Harrison v. Ala. Mid. Ry. Co., 144 Ala. 246, 40 South. 394. The founda tion of the principle is that he cannot both assail his contract and retain its fruits. The decision last cited is immediately in point, and its influence in affecting the determination of the question considered cannot be qualified by an effort at differentiation. Nor can Ave draw from the replications, in this ruling on demurrer to them, any inference than that she received the sum averred by the plea to have been paid to her. Having-received it in satisfaction of her demand, her subsequent
The demurrer was correctly sustained, and the judgment is affirmed.
Affirmed
