Clark v. Northern Pacific Railway Company, a Corporation

• Decision Date: 18 April 1917
• Court: North Dakota Supreme Court

162 N.W. 406

36 N.D. 503

ELLA CLARK v. NORTHERN PACIFIC RAILWAY COMPANY, a Corporation

Supreme Court of North Dakota

April 18, 1917

Appeal from the District Court of Stark County; Crawford, J.

Affirmed.

Watson & Young and E. T. Conmy, for appellant.

"Where the signature of a firm name to an instrument shows that it was intended to be the act of all the parties, effect must be given to it accordingly, although only one of them is named in the body of the instrument." Also,

"When in an action at law upon his bond, the defendant sets up that it was procured from him by fraud, no evidence in support of the plea is admissible except that which relates to the execution of the instrument." George v. Tate, 102 U.S. 564, 26 L.Ed. 232.

"Proof of fraudulent representations by the parties, beyond the recitals in the bond, to induce its execution by plaintiff in error was properly rejected." Hartshorn v. Day, 19 How. 211, 15 L.Ed. 605; Osterhout v. Shoemaker, 3 Hill, 513; Belden v. Davies, 2 Hall, 433; Franchot v. Leach, 5 Cow. 506.

"The plaintiff's remedy is by a direct proceeding to avoid the instrument." Irving v. Humphrey, 1 Hopk. Ch 284.

Fraud in the execution of the instrument may be shown in an action at law. But where the fraud claimed relates to fraudulent misrepresentations as to collateral matters, or as to the nature and value of the consideration, resort must be had to a court of equity for relief. Papke v. G. H. Hammond Co. 192 Ill. 631, 61 N.E. 910; Chicago City R. Co. v Uhter, 212 Ill. 174, 72 N.E. 196.

False and fraudulent representations as an inducement to sign a release of claim for damages for injuries constitute an equitable, and not a legal, defense. Shampeau v Connecticut River Lumber Co. 42 F. 760; George v Tate, 102 U.S. 564, 570, 26 L.Ed. 232, 233; Kosztelnik v. Bethlehem Iron Co. 91 F. 606; Wagner v. National L. Ins. Co. 33 C. C. A. 121, 61 U.S. App. 691, 90 F. 395; Union P. R. Co. v. Whitney, 117 C. C. A. 392, 198 F. 788; Och v. Missouri, K. & T. R. Co. 130 Mo. 27, 36 L.R.A. 442, 31 S.W. 966; Pacific Mut. L. Ins. Co. v. Webb, 84 C. C. A. 603, 157 F. 155, 13 Ann. Cas. 752; Hartshorn v. Day, 19 How. 211, 15 L.Ed. 605; Union P. R. Co. v. Harris, 158 U.S. 326, 39 L.Ed. 1003, 15 S.Ct. 843, 10 Am. Neg. Cas. 585; Texas & P. R. Co. v. Daschiell, 198 U.S. 521, 49 L.Ed. 1150, 25 S.Ct. 737, 18 Am. Neg. Rep. 679.

Distinction in the form only of action is abolished. Law and equity still remain two distinct systems. Sykes v. First Nat. Bank, 2 S.D. 242, 49 N.W. 1058.

In such case it is necessary to determine from the pleadings the relief sought, the mode and scope of the exercise of such jurisdiction and power, the judgment or decree to be entered, and the office and effect thereof. McCormack v. Phillips, 4 Dak. 522, 34 N.W. 39; Comp. Laws 1913, § 7608; Barry v. Traux, 13 N.D. 131, 65 L.R.A. 762, 112 Am. St. Rep. 662, 99 N.W. 769, 3 Ann. Cas. 191; Smith v. Kunert, 17 N.D. 121, 115 N.W. 76; Cotton v. Butterfield, 14 N.D. 465, 105 N.W. 236; Laffy v. Gordon, 15 N.D. 282, 107 N.W. 969.

The question of whether or not a written instrument shall be set aside is a matter of purely equitable jurisdiction. Jasper v. Hazen, 4 N.D. 3, 23 L.R.A. 58, 58 N.W. 454; Prondzinski v. Garbutt, 8 N.D. 191, 77 N.W. 1012; Brummond v. Krause, 8 N.D. 573, 80 N.W. 686; Patnode v. Deschenes, 15 N.D. 100, 106 N.W. 573; Anderson v. Anderson, 17 N.D. 275, 115 N.W. 836; Ingwaldson v. Skrivseth, 7 N.D. 388, 75 N.W. 772.

"Where the issue raised by the reply was of an equitable nature and controlled by equitable rules, the case at law must fall, and the motion for judgment for defendant should have been granted." People v. Bailey-Marsh Co. 29 N.D. 355, 151 N.W. 18, 8 N. C. C. A. 516; Albrecht v. Milwaukee & S. R. Co. 87 Wis. 105, 41 Am. St. Rep. 30, 58 N.W. 74; Chicago City R. Co. v. Uhter, 212 Ill. 174, 72 N.E. 196; Hartley v. Chicago & A. R. Co. 214 Ill. 78, 73 N.E. 398.

There is no proof of fraud here sufficient to set aside the release in question. It is elementary that the plaintiff, in order to establish fraud and make a case, must prove the elements which go to make up and constitute fraud. There is no proof of any intent to deceive. Rev. Codes 1905, § 5293, Comp. Laws 1913, § 5849; Wagner v. National L. Ins. Co. 33 C. C. A. 121, 61 U.S. App. 691, 90 F. 395; Page v. Bent, 2 Met. 371; Stubbs v. Johnson, 127 Mass. 219; Kelly v. Pioneer Press Co. 94 Minn. 448, 103 N.W. 330; Nelson v. Minneapolis Street R. Co. 61 Minn. 167, 63 N.W. 486.

Defendant acted in perfect good faith, and plaintiff executed the release in good faith, and with a full knowledge of all the facts known at the time. Chicago & N.W. R. Co. v. Wilcox, 54 C. C. A. 147, 116 F. 913; Atchison, T. & S. F. R. Co. v. Bennett, 63 Kan. 781, 66 P. 1018.

Settlement of a claim for injury to person and loss of property will not be rescinded on the ground that it was intended only to cover the loss of property, where there was no fraud, simply because the party seeking to set it aside failed to inform herself of what was contained in the agreement. Barker v. Northern P. R. Co. 65 F. 460; Owens v. Norwood White Coal Co. 157 Iowa 389, 138 N.W. 483; Seeley v. Citizens Traction Co. 179 Pa. 334, 36 A. 229, 1 Am. Neg. Rep. 179; Jossey v. Georgia Southern & F. R. Co. 109 Ga. 439, 34 S.E. 664; Houston & T. C. R. Co. v. McCarty, 94 Tex. 298, 53 L.R.A. 507, 86 Am. St. Rep. 854, 60 S.W. 429, 9 Am. Neg. Rep. 383; Kane v. Chester Traction Co. 186 Pa. 145, 65 Am. St. Rep. 846, 40 A. 320.

"The effect of a release of a claim for personal injuries cannot be overcome in the absence of fraud in the execution thereof, where it appears that the plaintiff, having ability to read, did not read the same." Hartley v. Chicago & A. R. Co. 116 Ill.App. 277, 214 Ill. 78, 73 N.E. 398; Atchison, T. & S. F. R. Co. v. Higgins, 9 Kan.App. 672, 59 P. 175; Chicago, R. I. & T. R. Co. v. Williams, 37 Tex. Civ. App. 198, 83 S.W. 248; Rutherford v. Rutherford, 55 W.Va. 56, 47 S.E. 240; Spitze v. Baltimore & O. R. Co. 75 Md. 162, 32 Am. St. Rep. 378, 23 A. 307; McFarland v. Missouri P. R. Co. 125 Mo. 253, 28 S.W. 590.

"Where there is no evidence of want of sufficient mutual capacity to execute a release, that question should not be left to the jury." Och v. Missouri, K. & T. R. Co. 130 Mo. 27, 36 L.R.A. 442, 31 S.W. 962.

"It is absolutely necessary that one plead in avoidance of a defense of release." Emerson v. Knower, 8 Pick. 63; Cordner v. Roberts, 58 Mo.App. 440.

"A written release cannot be overthrown by slight evidence of fraud; it must be clear, precise, and convincing." Hicks v. Harbison-Walker Co. 212 Pa. 437, 61 A. 958; Fuller v. Madison Mut. Ins. Co. 36 Wis. 603; Sanger v. Dun, 47 Wis. 615, 32 Am. Rep. 789, 3 N.W. 388; Upton v. Tribilcock, 91 U.S. 50, 23 L.Ed. 205; Albrecht v. Milwaukee & S. R. Co. 87 Wis. 105, 41 Am. St. Rep. 30, 58 N.W. 74; Parlin v. Small, 68 Me. 290; Brown v. Blunt, 72 Me. 415; Martin v. Berens, 67 Pa. 459; Cannon v. Jackson, 40 Ark. 417.

"In an action at law a written release introduced by defendant cannot be impeached for fraud not affecting the execution of it, but going only to the consideration." McCall v. Bushnell, 41 Minn. 37, 42 N.W. 546; Hartley v. Chicago & A. R. Co. 214 Ill. 78, 73 N.E. 398; Seeley v. Citizens Traction Co. 179 Pa. 334, 36 A. 229, 1 Am. Neg. Rep. 179.

"It conclusively appears that he carelessly signed the release without reading it himself or having it read to him, and that no mistake of the contents was made." Ingwaldson v. Skrivseth, 7 N.D. 395, 75 N.W. 772; Nelson v. Minneapolis Street R. Co. 61 Minn. 167, 63 N.W. 486; McCall v. Bushnell, supra; Kelly v. Pioneer Press Co. 94 Minn. 448, 103 N.W. 330; Kilmartin v. Chicago B. & Q. R. Co. 137 Iowa 64, 114 N.W. 522; Nason v. Chicago, R. I. & P. R. Co. 140 Iowa 533, 118 N.W. 751.

Casey & Burgeson, for respondent.

The release of claim for damages and settlement signed by plaintiff can be set aside in this, an action at law, for the fraud and misrepresentations attendant upon its procurement. 34 Cyc. 1105, 1106; Comp. Laws 1913, § 5842.

Any act fitted and intended to deceive is sufficient ground for setting aside release of claim for damages for injuries sustained. Comp. Laws 1913, §§ 5844, 5849, 5851; Bank of Spearfish v. Graham, 16 S.D. 49, 91 N.W. 340; Reddington v. Blue, 168 Iowa 34, 149 N.W. 933; Rauen v. Prudential Ins. Co. 129 Iowa 725, 106 N.W. 198; O'Brien v. Chicago, M. & St. P. R. Co. 89 Iowa 644, 57 N.W. 425.

"A release of all claims, which is pleaded as a bar to an action at law, may, in that action, be shown to have been obtained by fraud, misrepresentation, or undue influence, if all the parties to the release are parties to the action; and the finding of the jury upon the question of fraud has the same force as their verdict upon any other issue in the action." Bussian v. Milwaukee, L. S. & W. R. Co. 56 Wis. 325, 14 N.W. 452; Missouri P. R. Co. v. Goodholm, 61 Kan. 758, 60 P. 1066; Pople v. Bailey-Marsh Co. 29 N.D. 355, 151 N.W. 18, 8 N. C. C. A. 516.

However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract, and such a contract may be fully explained. Comp. Laws 1913, §§ 5907, 5908.

"Whether a passenger's release of claims for personal injury was executed with knowledge of its contents, and whether it was procured by fraud, are questions for the jury." Comp. Laws 1913, § 5834; Brown v. Ann Arbor R. Co. 183 Mich. 574, 149 N.W. 1031.

There is ample proof of fraud and misrepresentation to support the verdict in this case. That one who has made a written surrender of a valuable writing, or release of a subsisting cause of action, may repudiate the same upon sufficient showing of fraud or mistake, even...