Hayes v. Atlanta & C. Air-line R. R

• Court: North Carolina Supreme Court
• Writing for the Court: CONNOR
• Citation: Hayes v. Atlanta & C. Air-line R. R, 10 Ann.Cas. 737, 55 S.E. 437, 143 N.C. 125 (N.C. 1906)
• Decision Date: 21 November 1906
• Parties: HAYES . v. ATLANTA & C. AIR-LINE R. R.

55 S.E. 437

143 N.C. 125

HAYES .

v.ATLANTA & C. AIR-LINE R. R.

Supreme Court of North Carolina.

Nov. 21, 1906.

1. Accord and Satisfaction — Executort Consideration.

Where there is an agreement to settle a controverted demand for a consideration, all or a portion of which is executory, the defendant may plead it as a defense, by making proper averments in regard to performance, as an accord and satisfaction of the original demand.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 1, Accord and Satisfaction, § 155.]

2. Release—Execution—Fraud.

Plaintiff, who was illiterate, was induced to settle a cause of action against defendant railroad company for injuries for cash and defendant's obligation to give him employment for life. Defendant's agent, however, produced a release, which contained no reference to such employment, which plaintiff was induced to sign on the misrepresentation and believing that it contained the contract of employment agreed on. after which defendant refused to give plaintiff employment. Held, that the release was void for fraud, and constituted no defense to plaintiff's cause of action for his injuries.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 42, Release, § 32.]

3. Same—Defenses—Return of Consideration.

Where, in an action for injuries, defendant pleaded a release as an accord and satisfaction, which was void for fraud, plaintiff was not bound to return the money received as a part of the consideration for the release as a condition of his right to plead the fraud in avoidance of the release.

TEd. Note.—For cases in point, see Cent. Dig. vol. 42, Release, f 45.]

Appeal from Superior Court, Mecklenburg County; Bryan, Judge.

Action by Samuel Hayes against the Atlanta & Charlotte Air-Line Railroad. From a judgment dismissing the cause, plaintiff appeals. Reversed. New trial ordered.

See 52 S. E. 416.

This was an action for the recovery of damages for personal injury. The defendant denied plaintiff's right to recover, and, by way of defense and accord and satisfaction, alleged that plaintiff on October 2, 1902, in consideration of the sum of $125 paid him, and an amount agreed upon, paid his counsel, executed a release in full and final settlement and satisfaction of any and all injuries, damages, etc., caused from the accident. The plaintiff, by way of reply, alleged that, some time after the injury, the agent of defendant company proposed to settle with him, and offered to give plaintiff a position with the Southern Railway Company, which would afford a living to him and his family during his life, and in addition pay him $125 to live on until he should be able to go to work. That plaintiff accepted said proposition; that thereupon said agent tendered to plaintiff a paper writing to be executed, which he represented to plaintiff as containing the terms and provisions of said proposition, and plaintiff, being unable to read for himself and relying upon the truth of said proposition, executed said paper writing by making his mark, and thereupon received the sum of $125 in money; that he thereafter requested defendant to give him the position promised, which it failed, and now refuses, to do; that if defendant holds a release, or what purports to be a release, from the plaintiff, as alleged, the same was procured by the false and fraudulent representations 'of defendant's agent Plaintiff testified that, after the injury had been sustained and suit was brought therefor in Atlanta, in which he had submitted to a nonsuit, that he executed a paper writing presented to him by the agent of defendant corporation. In respect to this he said: "I signed a release to the company. Mr. Stracham saw me about it. He was working for the railroad. He came over to Gastonia two or three times after I was hurt. It was a good while after I was hurt before he spoke about the release. He said he would give me $125 and a lifetime job watching railroad crossings some where. This was in the waiting room at Gastonia. The next time I saw him he came over there on 39 and brought me over here with him on 30; asked me if I had made up my mind to sign the release. He said he was going to Salisbury. I was going up the main street in Charlotte, met Mr. Torrenee, policeman, who told me Mr. Stracham was looking for me. We went to the depot, found Mr. Stracham; he wrote my name and told me to touch the pen, and had Mr. Torrenee to sign; Walter Dick also signed it as a witness. When I signed it I asked Mr. Stracham to read it over; he said it was no use to read it, but read a part of it to me. He read this: 'Sam Hayes was to have a lifetime job on the Southern that will pay him $25 a month —a lifetime job.' He gave me a pass and I went back home. He paid me the $125. I went to Atlanta before I signed any paper, went on a pass furnished by the company. I went down there four times. I went down there to withdraw a case I had against the Southern." Upon cross-examination, he said: "Mr. Stracham told me that he would pay me $125 and give me a lifetime job watching crossings. He paid me. I kept the money; never returned it. I signed the paper. Part of paper was read to me—that Sam Hayes is to have a lifetime job. I agreed with Mr. Stracham that if they would give me $125 and give me a lifetime job this was to be a compromise for the loss of my leg. He was representing the Southern Railroad. He told me to report to Mr. Baker when I got ready to work. I had employed Mr. Mangum to represent me and talked to him aboutrepresenting me. Erwin went with me to Arnold & Arnold in Atlanta. He is a brother of Robert Erwin, who lives in Gastouia. I did agree to compromise this matter for $125, signed a paper to that effect and a lifetime job. I got the money and have never given it back." There was evidence in regard to the alleged negligence and the injury sustained by plaintiff. Upon the conclusion of the plaintiff's evidence, his honor, upon motion of defendant, directed judgment of nonsuit. Plaintiff excepted, and appealed.

Pharr & Bell and A. G....