McCaby v. MonongaHela Valley Traction Co.

• Decision Date: 07 October 1924
• Docket Number: No. 4920.,4920.
• Citation: 97 W.Va. 306
• Parties: Frank McCaby v. MonongaHela Valley Traction Company
• Court: West Virginia Supreme Court

97 W.Va. 306

Frank McCaby

v.MonongaHela Valley Traction Company

No. 4920.

Supreme Court of Appeals of West Virginia.

Submitted September 23, 1924.

Decided October 7, 1924.

1. Contracts Valuable Consideration, However Small or Nominal, Will Sustain Contract.

When given or stipulated for in good faith, a valuable consideration, however small or nominal, is sufficient to sustain a contract. (p. 308). \

2. Release Written Release of Claim for Personal Injuries Cannot be Repudiated, Without Placing or Offering to Place Other Party in Status Quo.

In an action for damages for personal injuries, plaintiff cannot repudiate a written release of all claims arising out of his injuries, on the ground of fraud or mental.incompetency to contract, without returning everything of value received by him in consideration for the release, or offering to do so. (p. 308).

3. Evidence Nonexpert May Give Opinion as to Party's Mental Capacity to Contract, Where Preceded by Witness' Observations.

A non-expert witness may give in evidence his opinion in regard to the mental capacity of a party to a contract at the time the contract in question was made, where he has had opportunity to observe such party and precedes his opinion by detailing to the jury the facts upon which his opinion is based. (p. 312).

4. Trial Plaintiff Having Burden on Any Issue, May Open and Close to Jury.

Where the burden of proof.is on the plaintiff on any of the issues, he has the right to open and close the case before the jury. (p. 312).

Error to Circuit Court, Marion County.

Suit by Frank McCary against the Monongahela Valley Traction Company. Judgment for plaintiff, and defendant brings error.

Reversed, verdict set aside; new trial awarded.

Tusca Morris and A. J. Colborn, for plaintiff in error.

Harry Shaw and Frank C. Haymond, for defendant in error.

Miller, Judge:

This suit was brought to recover damages for personal injuries.) received by plaintiff while a passenger on a, street car owned and operated by defendant. Defendant interposed a plea of accord and satisfaction, setting up a release under seal, executed by plaintiff, which purported to be in discharge of all claims or demands arising out of his injuries sustained by reason of the accident of which he complained. To this plea plaintiff replied generally, and filed three special replications. The first special replication alleged that the release mentioned in defendant's special plea was obtained by fraud and misrepresentation on the part of the defendant, and that the supposed sum mentioned therein was in fact a donation or gift; the second, that plaintiff was, at the time of the execution of the release, incapable of understanding the nature and comprehending the meaning and effect of said purported paper writing, and that he was still suffering from the effects of the injuries inflicted upon him bydefendant, and was wholly incapable of transacting business or of entering into a contract of release; the third, that the release was obtained from him without adequate consideration. Issue was joined on defendant's special plea and the replications thereto. There was no plea to the general issue.

Defendant demurred to each of the special replications and moved to strike them from the record. The first question presented is, did the trial court err in overruling defendant's demurrer to the three special replications, and in refusing to strike them out?

Clearly, replication number three was no defense to the special plea. If the parties were competent to contract, mere inadequacy of consideration would not render their contract void. A valuable consideration, however small and nominal, if given or stipulated for in good faith, in the absence of fraud, is sufficient to sustain a contract. Rhoades v. Railway Company, 49 W. Va. 494; Lowther Oil Company v. Guffey, 52 W. Va. 91; Lovett v. Oil Company, 68 W. Va. 670. No fraud is charged in this plea.

The second special replication charges mental incapacity on the part of plaintiff to contract at the time the alleged release was executed. There was no tender or offer to return the money received by plaintiff as a consideration for the release pleaded, nor is it alleged that the amount received by plaintiff Was ever tendered to defendant at any time. The weight of authority seems to be, that if one seeks to rescind a settlement on the ground of fraud, mental incompetency or mistake, he must, after discovering the fraud or mistake, place the other party in statu quo, or offer to do so. Worthington v., Collins, 39 W. Va. 406; Myers v. Cook, 87 W. Va. 265; Niederhousen v. Railway Company, 131 Mich. 550; Brainard v. Van Dyke, 71 Vt. 359; Cress v. Ivens, 163 Iowa 659; South Bend and Mishawaka Gas Co. v. Jensen, 182 Ind.

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557; Brown v. Ins. Company, 117 Mass. 479; 2 Bates Plead. & Pract. 908, and eases cited; 12 C. J. 355; 23 R. C. L. 411-413: 3 Williston on Contracts, sec. 1529. The cases cited, for the most part, are where a, compromise was sought to be set aside for fraud; and they hold also that such contracts are voidable only, not absolutely void. In Myers v. Cook, supra, the action was in assumpsit on two negotiable notes, and the defense set up by special pleas was that defendant, had been injured by plaintiff's misrepresentation and the loss of a substantial part of the consideration, a logging contract breached by plaintiff. It was held that to effect a rescission cognizable and enforceable in a court of law, the rescinding party must return everything of value he has received by virtue of the contract, See, also, Morris v. Hall, 89 W. Va. 460.

Fraud is not alleged in this replication. So far as the replication itself shows, defendant's agents were ignorant of plaintiff's mental condition. It is not charged that they knew he was at the time incompetent to contract, Plaintiff seeks to avoid the contract of release simply because of his own disability, not because of misconduct on the part of the defendant. In view of the authorities cited above, we do not think he can do so and at the same time retain the benefits received by him as a consideration for the release.

There are cases holding that it is unnecessary to return or tender the consideration in repudiating a release of damages for personal injury, where the release is alleged to have been secured by fraud. Some text writers attempt to reconcile the conflict in the decisions; by dividing them into two classes those in which the fraud is in the treaty, and those in which the fraud is in the factum. In the second class are placed the cases where the plaintiff denies making the release, where he was misled as to its contents, or where his signature was secured by fraud; and it is said that in such case there is no contract, and the party is not required to return the consideration as a prerequisite to maintaining a defense to the instrument, where he sues on his original cause of action. 23 R, C. L. 411-413; 25 Ann. Cas. note p. 1084.

By his special replication number one, plaintiff alleges that the release in question "was obtained from said plaintiff by fraud and misrepresentation on the part of said defendant, through its servants and agents, they then and there at the time of the date of said paper writing representing to the plaintiff that said supposed sum of $325.00 in said paper writing mentioned was a donation or gift." We do not find any appreciable evidence to support the proposition that the money paid plaintiff was a donation or gift, and none that plaintiff understood it to be such. The evidence show's, that immediately after the accident in which plaintiff was injured, he was removed to the state miners' hospital at Fairmont, a few miles from the scene of the accident. The hospital records show that plaintiff was under treatment there for seventeen or eighteen days. Three days after his dismissal from the hospital the release was executed at the offices of the defendant company. The only evidence to sustain the theory that the sum named in the release was a donation or gift, is the testimony of plaintiff's wife. She was not in the room with plaintiff and defendant...