McDonald v. Cent. R. Co. of N.J.

• Decision Date: 19 June 1916
• Docket Number: No. 59.,59.
• Citation: 98 A. 391
• Parties: McDONALD v. CENTRAL R. CO. OF NEW JERSEY.
• Court: New Jersey Supreme Court

98 A. 391

McDONALD

v. CENTRAL R. CO. OF NEW JERSEY.

No. 59.

Court of Errors and Appeals of New Jersey.

June 19, 1916.

(Syllabus by the Court.)

Appeal from Supreme Court.

Action by Charles F. McDonald against the Central Railroad Company of New Jersey. From judgment for defendant, plaintiff appeals. Reversed, and record remitted for new trial.

See, also, 95 Atl. 734.

Charles M. Egan, of Jersey City, for appellant. George Holmes, of New York City (Edwards & Smith, of Jersey City, on the the brief), for appellee.

SWAYZE, J. This is an action for personal injuries under the federal Employers' Liability Act. The defendant relied upon a release under seal. The plaintiff replied that the release was procured by fraud. The defense of fraud is available where one is induced thereby to sign a written instrument, even though he has ability and opportunity to read it. Alexander v. Brogley, 63 N. J. Law, 307, 43 Atl. 888; Aldrich v. Peckham, 74 N. J. Law, 711, 716, 68 Atl. 345; Dunston Litho Co. v. Borgo, 84 N. J. Law, 623, 87 Atl. 334. The exception where the situation imposes upon the signer a duty toward third persons (Williams v. Leisen, 72 N. J. Law, 410, 60 Atl. 1096) had no application to the present case, where only the plaintiff and defendant are concerned. Dunston Litho Co. v. Borgo, is sufficient authority for holding the defendant liable for the fraud of its agent where it seeks to avail itself of his acts. The only charge of fraud that we think important is that the agent of the defendant represented that the paper to be signed provided for the plaintiff's future employment. This was not the fact, and, since the trial judge directed a verdict for the defendant, we must determine whether the evidence to that effect made it necessary to submit the question to the jury. This depends upon whether the evidence tended to prove fraud in the execution of the release or fraud in the consideration. The importance of the question arises from the fact that the action is not brought upon the release, and the case does not therefore fall within the language of the statute permitting fraud in the consideration of the contract to be set up in an action at law. C. S. p. 2225, § 15; Connor v. Dundee Chemical Works, 50 N. J. Law, 257, 12 Atl. 713. It is then necessary to have clearly before us what the real consideration was, aside from the presumption afforded by the seal. According to the plaintiff, it was the promise of the defendant to pay the compensation provided for by the Workmen's Compensation Act and give him future employment. According to the defendant, it was merely a promise to pay the compensation provided by the act. Both contend that the consideration was a promise. The distinction between cases where the consideration is the promise and cases where the consideration is the performance of the promise is well pointed out by Chancellor Pitney in U. & G. Rubber Mfg. Co. v. Conard, 80 N. J. Law, 286, 78 Atl. 203, Ann. Cas. 1912A, 412. He was there dealing with a case of failure of consideration, not of fraud in the consideration, but where as in the pending case, the consideration is a promise, there can hardly be fraud, unless, perhaps, if there is no present intention to perform. No such allegation is made in this case. The case differs entirely from Stryker v. Vanderbilt, 25 N. J. Law, 482. The plea there demurred to and held bad set up fraud by puffing at a public sale. The effect was to make the defendant pay more than he otherwise would, so that the consideration to be paid was fraudulently enhanced. It differs also from ...