Olston v. Oregon Water Power & Ry. Co.

• Decision Date: 11 August 1908
• Citation: 52 Or. 343,96 P. 1095
• Parties: OLSTON v. OREGON WATER POWER & RY. CO.
• Court: Oregon Supreme Court

96 P. 1095

52 Or. 343

OLSTON v. OREGON WATER POWER & RY. CO.

Supreme Court of Oregon

August 11, 1908

Appeal from Circuit Court, Multnomah County; John B. Cleland, Judge.

Action by James H. Olston, administrator of the estate of William H Olston, deceased, against the Oregon Water Power & Railway Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Plaintiff alleges, in his complaint, that W.H. Olston, a passenger, was killed on November 4, 1905, by being crowded from an overloaded street car during a panic, occasioned by the explosion of the jack or fuse on the car, and plaintiff, the administrator of his estate, brings this action for damages for his death. Among other defenses set up by defendant is that on the 8th day of November, 1905, plaintiff, as administrator of the estate of decedent, duly executed to the defendant a release under a seal for the consideration of $500 and all funeral expenses of the decedent. Plaintiff, for reply to this answer, denies execution of the release as alleged, but states affirmatively that, being induced thereto by the false, fraudulent, and unlawful misrepresentations made by defendant with intent to defraud and deceive him, he signed the release in his individual capacity, and not as administrator of the estate of decedent, and that thereafter he rescinded said settlement and tendered the return of all money, checks, and deposits, given by the defendant for said release. And for a second and separate reply plaintiff alleges that said settlement is not binding upon the estate of the decedent or his personal representatives, for the reason that the same was made without an order of the county court authorizing the same. Defendant demurred to the second reply, on the ground that it constitutes no defense to the allegations of the answer, and the demurrer was sustained by the court. On the trial the defendant offered in evidence the said release, which is in words as follows: "Know all men by these presents that I, John H. Olston, administrator of the estate of William H. Olston, deceased, of Portland, in the county of Multnomah, state of Oregon, for and in consideration of the sum of five hundred and no one-hundredths dollars ($500.00) and funeral expenses of said deceased, to me in hand paid by the Oregon Water Power &amp Railway Company, a corporation duly incorporated and organized under the laws of the state of Oregon, the receipt of which is hereby acknowledged, for myself, my heirs executors, and administrators hereby release and forever discharge the said Oregon Water Power & Railway Company, its successors and assigns, its officers, agents, and employés of and from all actions, causes of action, suits, controversies, claims, damages, and demands of every name and nature, for and by reason of any matter, things, or thing from the beginning of the world to this 8th day of November, 1905, and especially from all claims, damages, and demands, accrued or hereafter to accrue arising out of an accident or injury resulting in the death of said deceased occurring by virtue of a panic resulting from a flash occasioned by the blowing out of the jack or fuse on car No. 32 of said company, in which panic of the passengers on said car, the deceased was thrown from said car to the curb at the side of the street, suffering an injury to his head resulting in his death, which accident occurred on said car while north bound at the corner of East Eleventh and Caruthers streets in the city of Portland, Or., on November 4, 1905, at 7:40 o'clock p.m. In witness whereof, I have hereunto set my hand and seal the day and date last above written. Executed in the presence of: Charles Olston. G.F. Martin. John H. Olston, As Administrator of the Estate of William H. Olston, Deceased. [ [Seal.]" Plaintiff thereupon offered to prove that said release was procured by fraudulent misrepresentations of the defendant, by which he was deceived and misled, and induced to sign the same, to which offer defendant objected, on the ground that "the release which was introduced in testimony here cannot be contradicted in a proceeding at law for any reason other than some manner which affected the execution of it, and for the second reason that the equity court being the proper court for a suit for cancellation for any matters which do not concern the execution of the paper itself, and that any representations which preceded it which might bring about the execution of it are only matters which can be heard in a court of equity, and consequently all these statements are immaterial." The court sustained the objection and excluded evidence of all representations or statements made in behalf of the defendant leading up to the settlement, and at the close of the trial the court, upon the motion of defendant, directed a verdict for defendant for the reason that the evidence was insufficient to be submitted to the jury, and judgment was rendered for the defendant upon the verdict, and plaintiff appeals.

J.L. Taugher, for appellant.

W.T. Muir, for respondent.

EAKIN J. (after stating the facts as above).

The second reply to the answer, namely, that the administrator cannot settle an unliquidated claim for damages without an order of the county court, involves the effect of our statute upon the common-law powers of the administrator. It is settled by Weider v. Osborn, 20 Or. 307, 25 P. 715, that B. & C. Comp. § 1168, prohibiting the sale of personal property by an administrator, except upon an order of the county court or judge thereof, applies only to tangible property and has no application to choses in action. At common law the executor and administrator has an absolute power of disposal over the whole of the personal effects of decedent (1 Williams, Exec. pp. 485, 545), with full power to compromise or accept any composition or otherwise settle any debt, claim, or thing whatsoever ( Id. p. 713), and B. & C. Comp. § 1211, authorizing certain debts to be compounded, applies only to those of insolvent debtors, and does not include the adjustment or settlement of an unliquidated claim for damages ( Washington v. L. & N.R. Co., 34 Ill.App. 658; Id., 136 Ill. 49, 26 N.E. 653; Moulton v. Holmes, 57 Cal. 337; Parker v. Providence & S.S. Co., 17 R.I. 376, 22 A. 284, 23 A. 102, 14 L.R.A. 414, 33 Am.St.Rep. 869). Therefore, as to an unliquidated claim for damages, the powers of an administrator remain in this state as at common law, and he may liquidate and accept settlement of such a claim without special authority from the county court.

Plaintiff objected to the introduction of the release in evidence, for the reason that it is only his individual release and does not bind the estate. Although it states that "for myself, my heirs, executors, and administrators, hereby release," etc., yet the circumstances under which it was given show that the payment which it acknowledges was to cover the whole liability of the defendant, not only in his own interests, but in the interest of his mother, brother, and sisters, and that he was appointed administrator of the estate because he could not individually receipt for it. It is a claim in which the individual heirs have no direct interest. The fund is the property of the estate. By B. & C. Comp. §§ 379, 381, the heirs have no remedy for damages occasioned by an injury to the person of the decedent. The release is signed by "John H. Olston, as administrator of the estate of William H. Olston, deceased," which shows an intention to bind the estate, especially as it alone was entitled to receive the money. However, if the intention is ambiguous or doubtful, it is a question of fact for the jury to determine, and the court was not in error in refusing to exclude the release on that ground.

Defendant contends that the release cannot be attacked at law for fraud in procuring the settlement upon which the release was executed. The general rule is that courts of equity and courts of law have concurrent jurisdiction of fraud. There are exceptions to this rule, however, based upon whether or not there is a remedy at law, and whether it is adequate. If there is a remedy at law, the fraud may be established in that jurisdiction; but, if that remedy is not adequate resort may be had to a court of equity. It is said that, where a court of law can get hold of the whole matter, it is as competent to try questions of fraud as a court of equity. Rust v. Larue, 3 Litt. (Ky.) 411, 14 Am.Dec. 172. The law relieves against fraud negatively by preventing either a recovery or a defense founded upon an instrument induced by fraud. Lamborn v. Watson, 6 Har. & John. (Md.) 252, 255, 14 Am.Dec. 275. Fraud may be pleaded at law when the relief sought in a particular case is such as can be effected by a judgment. Ankrim v. Woodworth, Har. (Mich.) 355; Wheeler v. Clinton C. Bank, Id. 449; Wing v. Sherrer, 77 Ill. 200; Slack v. McLagan, 15 Ill. 242; 14 Am. & Eng.Ency.Law, 172, 174. At common law there is an exception to this rule, in the case of sealed instruments; but it is general as to all contracts not under seal. 1 Bigelow, Law of Fraud, 174, 175; Sanford v. Royal Ins. Co., 11 Wash. 653, 40 P. 609; Railway Co. v. Hayes, 83 Ga. 558, 10 S.E. 350; Hoitt v. Holcomb, 23 N.H. 535. A release at common law is required to be under seal, and therefore is a specialty in which a consideration is conclusively presumed. Leake, Cont. 653. And therefore it cannot be questioned in a law action except for fraud or deceit affecting its execution--that is, upon a plea of non est. factum--but for fraudulent representations inducing the settlement--that is, affecting the consideration--equity alone can relieve. Bigelow, Fraud, 326, says: "At common law, it has generally been held incompetent to a defendant sued at law...