Girard v. St. Louis Car Wheel Company

• Citation: 27 S.W. 648,123 Mo. 358
• Parties: Girard v. St. Louis Car Wheel Company, Appellant
• Decision Date: 19 June 1894
• Court: United States State Supreme Court of Missouri

27 S.W. 648

123 Mo. 358

Girard v. St. Louis Car Wheel Company, Appellant

Supreme Court of Missouri

June 19, 1894

Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.

Affirmed.

W. E Fisse and Lee & Ellis for appellant.

(1) The replication of fraud against a plea of release is proper only in a case where the release is pleaded in a plea of puis darrein continuance. 1 Chitty on Pleading [16 Am. Ed.], p 608; Pomeroy, Rem. and Rem. Rights, sec. 650; 3 Blackstone's Com., 316; Stephen on Pleading [Tyler's Ed.], p. 97; 18 Am. and Eng. Encyclopedia of Law, 517; Wade v. Emerson, 17 Mo. 267; Buller's Nisi Prius [7 Ed.], 1817; Wild v. Williams, 6 Mees. & Welsby, 490; Crook v. Stephens, 5 Bing. (N. C.), 688; Phillips v. Claggett, 11 M. & W. 84; Legh v. Legh, 1 B. & P. 447. (2) The proceeding in this case is not only not according to the course of the common law, but is not in accordance with modern procedure. Pomeroy on Rem. and Rem. Rights [2 Ed.], sec. 90; Henderson v. Dickey, 50 Mo. 161. (3) The right to a jury trial being dependent, according to the statute, on the nature of the relief sought by the plaintiff in his petition, it follows that this right is not abridged by the nature of the defense interposed by the defendant. Wolff v. Schaefer 4 Mo.App. 367; S. C., 74 Mo. 154. (4) In the opinion under review, another fundamental principle of law is violated in order to sustain the judgment in favor of the plaintiff. It is this: That to the exercise of a right to renounce or rescind a contract, it is requisite that the party asserting such right shall surrender to the other all the advantage or benefit that he has received from him under and pursuant to the agreement. That such is the rule of law does not admit of question. See dissenting opinion of Biggs, J., and cases cited. 46 Mo.App. 116. This rule has often been announced and applied in the decisions of the courts of this state. Cahn v. Reid, 18 Mo.App. 115; Downing v. Stone, 47 Mo.App. 144; Bibb v. Means, 61 Mo. 284; Estes v. Reynolds, 75 Mo. 563; Clough v. Holden, 21 S.W. 1071; Taylor v. Short, 107 Mo. 384. (5) And it is no less certainly established by the decisions in other states. Jeffers v. Forbes, 28 Kan. 174; Kinne v. Webb, 49 F. 512; Brown v. Norman, 65 Miss. 369; Sanborn v. Osgood, 16 N.H. 112; McMahon v. Plummer, 50 N.W. 480; Regensburg v. Notestine, 27 N.E. 108; Brown v. Ins. Co. 117 Mass. 479; Potter v. Ins. Co., 63 Me. 440; Ins. Co. v. McRichards, 121 Ind. 121; Dillman v. Nadlehoffer, 7 N.E. (Ill.), 88. (6) The text books are unanimous in this statement of the rule. 2 Pomeroy Eq., sec. 910; 1 Bigelow on Fraud, pp. 75, 77; Bishop on Contracts, secs. 679, 833; Leake on Contracts, p. 395; 2 Parsons on Contracts, p. 679; Maxwell, Code Pleading, pp. 193, 431; 5 Lawson, Rights and Rem., sec. 2579; 21 Am. and Eng. Encyclopedia of Law, p. 84, and cases cited in notes. (7) Cases like the present, therefore, seem to be regarded in some quarters as proper exceptions to the general rule. The following is a list of the cases (it is believed to be complete) where, in their judgments the courts have treated circumstances similar to those here present as justifying an exception to this general rule. Railroad v. Welch, 52 Ill. 183; Railroad v. Lewis, 109 Ill. 120; O'Neil v. Iron Co., 63 Mich. 690; Schultz v. Railroad, 44 Wis. 638; Bussian v. Railroad, 56 Wis. 325; Lusted v. Railroad, 71 Wis. 391; Sobieski v. Railroad, 41 Minn. 169; Railroad v. Doyle, 18 Kan. 58; Addystone v. Copple, 22 S.W. (Ky.), 323; Railroad v. Brazzil, 78 Tex. 314; O'Brien v. Railroad, 57 N.W. 425. (8) It is submitted further that the evidence adduced at the trial altogether failed to establish plaintiff's allegation that the release was obtained from him wrongfully and when he was incapable of comprehending its nature and effect.

A. R. Taylor for respondent.

(1) The inference drawn by counsel from Chitty's failure "to cite any precedent or authority of his own period" in support of his replication of fraud to a plea of release, if correct, is of no consequence, because prior to the adoption of the Hilary Rules, which was subsequent to the publication of Chitty's work, fraud in any sealed instrument could be shown under the plea or replication non est factum. 1 Tidd's Practice, * 650; 2 Wils. 341; Lofft, 457; 2 Greenleaf's Evidence [14 Ed.], secs. 246-300. (2) Although fraud was one of the original heads of equity jurisdiction, yet in modern times this jurisdiction of courts of chancery has not been exclusive. Blackstone, after observing that fraud, accident and trust were said to be proper and peculiar objects of a court of equity, continues: "But every kind of fraud is equally cognizable in a court of law, and some frauds are cognizable only there, as fraud in obtaining a devise of lands." 3 Black. Com. * 431. And in Bright v. Eynon, 1 Burr. 396, Lord Mansfield says: "Courts of equity and courts of law have a concurrent jurisdiction to suppress and relieve against fraud." (3) Lord Loughborough said in Balis v. Graves, 2 Ves. Jr. 295: "Where the court of chancery has decreed a deed to be set aside for fraud and imposition, I must suppose that it would be equally set aside at law, upon pleading it. For courts of law relieve by making void the instrument obtained by fraud." That this is true where the defendant pleads fraud as a defense to an action on the contract is universally admitted. In such cases it has never been necessary for the defendant to have recourse to a proceeding in equity to rescind the contract. If the case was such as would justify a rescission in equity for fraud, the fraud was equally available as a defense in an action at law on the contract. The decisions of this court, before as well as since the adoption of the code system of pleadings, are in harmony with this proposition. Montgomery v. Tipton, 1 Mo. 318; Pemberton v. Staples, 6 Mo. 59; Edgell v. Sigerson, 20 Mo. 494; Briggs v. Ewart, 51 Mo. 245; Martin v. Smylee, 55 Mo. 577; Corby v. Weddle, 57 Mo. 452; Wright v. McPike, 70 Mo. 175; Cole v. Wiedmair, 19 Mo.App. 7. (4) The authorities above cited clearly show it to have been the rule in England at common law; and it has been held to be the law in a number of states in which the common law system of pleading still prevails. Hoit v. Holcomb, 23 N.H. 535; Larrabee v. Sewell, 66 Me. 376; Curley v. Harris, 11 Allen (Mass.) 121; Mullen v. Railroad, 127 Mass. 86; O'Donnell v. Clinton, 145 Mass. 461; Railroad v. Welch, 52 Ill. 187; Railroad v. Lewis, 109 Ill. 120. (5) In Michigan it is held that where the defendant in an action at law, introduces a release under the general issue, the plaintiff may avoid the bar by proving fraud in obtaining it. O'Neil v. Iron Co., 63 Mich. 690; Avcrill v. Wood, 44 N.W. 381. (6) It is the established doctrine of this court that a defense of fraud to an action at law does not convert the action into an equitable one, but that that issue is to be tried by jury. Kitchen v. Railroad, 59 Mo. 514; Earl v. Hart, 89 Mo. 263. (7) It must follow that if the plaintiff in an action to recover money seeks to avoid the force of an anticipated defense for fraud, the entire issue would be triable by jury. In such case the burden of proving the fraud would be upon the plaintiff. If the fraud is set up by the reply, the burden of proof would still be upon the plaintiff -- not upon the defendant, as appellant contends. 20 Am. and Eng. Encyclopedia of Law, title, Release, 767; Railroad v. Brazzil, 10 S.W. 403; Pipe & Steel Co. v. Copple, 22 S.W. 323. (8) In the following cases this method of raising the issue of fraud to a plea of release at law, has been allowed under systems of code pleading. Peterson Railroad, 36 Minn. 389; Peterson v. Railroad, 38 Minn. 511; Sobieski v. Railroad, 41 Minn. 169; Railroad v. Doyle, 18 Kan. 58; Pipe & Steel Co. v. Copple, 22 S.W. 323; Railroad v. Brazzil, 78 Tex. 314. (9) The issue being one at law, the issue as to the quantum of evidence is to be tried precisely like other law cases. (10) This rule has been impliedly approved in a number of cases in which the plaintiffs were permitted to recover without having returned what they had received. Railroad v. Crow, 22 S.W. 928; Bean v. Railroad, 107 N.C. 731; Smith v. Steamship Co., 34 P. 84; Schultz v. Railroad, 44 Wis. 638. The reply also alleges, and there was evidence tending to prove, that at the time plaintiff signed the release he was not of contracting mind and was unable, through his bodily and mental condition, to comprehend or understand the contents of said agreement and did never assent to the terms thereof. The following cases amply support said plea. Bishop on Contracts, secs. 956 and 640; Railroad v. Lewis, 109 Ill. 120; Railroad v. Crow, 22 S.W. 928.

Barclay, J. Black, C. J., and Brace and Macfarlane, JJ., concur in that result, and express their own views in an opinion filed along with this. Judges Gantt, Sherwood and Burgess dissent, and file a separate opinion.

OPINION

In Banc

Barclay J.

The petition states a case for damages on account of personal injuries suffered by plaintiff while in the employ of the defendant company.

It charges as the cause negligence in respect of the operation of certain hoisting machinery, under the direction of defendant's superintendent, at its shops in St. Louis; and alleges that, in consequence of that negligence (the particulars of which are not important at this stage of the proceedings), a heavy timber fell upon plaintiff, disabling him from labor, etc.

The answer denies the charge of negligence, and sets up, as a bar to plaintiff's action, a written instrument, signed by plaintiff and by one of defendant's officers, in which (after reciting the fact of plaintiff's injury) the following stipulations appear:

"The said...