4

for personal injuries has been understandingly executed by the injured person, it constitutes a complete bar to an action for such injuries. And if an unliquidated claim arising out of negligence is compromised by an agreement to pay a certain sum to the injured party in full consideration of his damages, the contract will be upheld. Under a statute avoiding a contract which attempts to waive the right of an employé of a railroad company to sue for injury caused by a defective appliance, the employé is only prohibited from contracting away a right of action for damages before it accrues, but after he has received. an injury he may settle his claim without suit. Public policy will not avoid a release executed by the widow of a decedent to a railroad. company for damages for his death, to enable the decedent's mother to obtain the payment of a life-insurance policy from a relief association, the payment of which was conditioned on a release by all persons entitled to sue the railroad company. But if a release for personal injuries be executed to a guaranty and accident company, it will not discharge the defendant from liability where it is not shown that there was any connection between the guaranty company and the plaintiff's injuries, or in the absence of any duty or relation between such company and the plaintiff; and the guaranty company is not a joint tortfeasor with the defendant." It is a wholesome doctrine that, after counsel has been employed and an action begun, a release obtained from the plaintiff without the knowledge and consent of his counsel should not be upheld in the absence of a showing of the utmost good faith. Where a servant was injured while pursuing his employment, and executed a release to his employer in part consideration that he be retained in his employment, and the servant again entered such employment, but afterwards voluntarily accepted other less remunerative work from the same employer, retaining the other consideration paid for the release, it was held that the employé had no right to quit the employment and maintain an action for such injuries. So, if an

settlement after injury is invalid: Fleming v. Southern R. Co., supra.

Maryland v. Baltimore &c. R. Co., 36 Fed. Rep. 655.

'Momence Stone Co. v. Turrell, 106 Ill. App. 160; s. c. aff'd, 205 Ill. 515; 68 N. E. Rep. 1078.

8 Bussian v. Milwaukee &c. R. Co., 56 Wis. 325; s. c. 14 N. W. Rep. 452.

Missouri &c. R. Co. v. Chumlae (Tex. Civ. App.), 61 S. W. Rep. 524 (no off. rep.). Where the plaintiff and the defendant had entered into a written agreement of release, in which the defendant was to employ

injured person accepts money and other benefits under a valid contract of release, the contract is binding, although the defendant has not made a full tender of all the payments due under the contract of release.10

11

$7369. Who May Execute Releases.-The capacity and power to execute releases are governed by the same legal rules that obtain in contracts generally, with a few modifications and exceptions. A person in whose favor a right of action for damages has accrued may compromise the same with the party liable therefor. Thus, under a statute giving a right of action to a widow and children for the death. of the husband and father, or to his personal representatives for their benefit, the widow may compromise such right of action, or bring suit thereon. But if suit for damages for the negligent killing of a deceased husband has been brought by his administrator for the benefit of the widow and children, without objection by the widow, she has no power to compromise the suit.12 Substantially the same rule prevails in Indiana, under a statute giving a right of action to the legal representative of the deceased for the exclusive benefit of the widow and children, since the damages recoverable are chargeable with the administrator's services, attorney's fees and the expenses of administration.18 But an action by an administrator for the death of a minor son is barred by a release by the father of all damages arising out of such death, where the father, in case of recovery, would be entitled to the whole amount recovered.1 14

§ 7370. Consideration for Release of Damages.-As in other contracts, so the contract of release, to be valid, must be based upon a legal and valuable consideration.15 And courts of equity will permit an inquiry into the actual consideration for a release,16 even though

the plaintiff for such time as he saw fit, but before delivery thereof the plaintiff went to work for the defendant under an oral agreement by which the defendant agreed to employ him for life, but the defendant afterward delivered to the plaintiff the written release, the written agreement superseded the oral one, and the plaintiff had no rights under the oral agreement: Boggs v. Pacific Steam Laundry Co., 171 Mo. 282; s. c. 70 S. W. Rep. 818.

10 Johnson v. Charleston &c. R. Co., 58 S. C. 488; s. c. 36 S. E. Rep. 851.

"Holder v. Nashville &c. R. Co.

(Tenn.), 20 S. W. Rep. 537 (no off. rep.); Mella v. Northern S. S. Co., 127 Fed. Rep. 416.

12 Knoxville &c. R. Co. v. Acuff (Tenn.), 20 S. W. Rep. 348 (no off. rep.).

13 Yelton v. Evansville &c. R. Co., 134 Ind. 414; s. c. 21 L. R. A. 158; 33 N. E. Rep. 629; 54 Am. & Eng. R. Cas. 69.

14 Stuebing v. Marshall, 10 Daly (N. Y.) 406.

15 Hawkins v. Collins, 61 S. C. 537; s. c. 39 S. E. Rep. 768.

16 Winter v. Kansas City Cable R. Co., 160 Mo. 159; s. c. 61 S. W. Rep. 606; aff'g s. c. 73 Mo. App. 173.

it be under seal. Especially is this true in a suit in equity to impeach a settlement on the ground of fraud, where the amount for which the claim was settled was grossly and shockingly inadequate.18 But, contrary to this rule, the Illinois Court of Appeals has held an instruction of the following purport to be a correct statement of the law: The jury had no right to disregard the release on the ground of any inadequacy of the consideration named therein, nor because of any unfair conduct on the part of the defendant or its agents, which relates solely to the consideration for the release.19 There can be no doubt, however, but that, if an injured person understandingly executes a release of his right of action for a trifling sum, it will be binding upon him.20 It is held that the fact that a release is under seal does not conclusively import a consideration,—as where one executing a release of damages for personal injuries against a railroad company places a scroll after his name;21 or where a curator, by authority of the probate court, released a judgment of record against a railroad company for less than the amount due, and unnecessarily attached his seal,22 but the consideration may be inquired into. But a release under seal, if standing alone and unexplained, constitutes a bar to an action by the releasor for the damages which are the subject-matter of the release.23 In the case of an injury to a servant in the course of his employment, whereby a claim for damages accrues against the employer, an agreement for reëmployment is a sufficient consideration for the release of such damages. 24 But where the contract for reëmployment is for an indefinite time, or for such time as may be satisfactory to the employer, it is no consideration for the release; yet if, after such release, actual employment is given the releasor under the contract, it will be a sufficient consideration for the release.25 It has

17 Winter v. Kansas City Cable R. Co., 160 Mo. 159; s. c. 61 S. W. Rep. 606; aff'g s. c. 73 Mo. App. 173.

18 Featherstone v. Betlejewski, 75 Ill. App. 59; Russell v. Dayton Coal &c. Co., 109 Tenn. 43; s. c. 70 S. W. Rep. 1.

19 Chicago Union Traction Co. v. Mommsen, 107 Ill. App. 353.

20 Missouri Pac. R. Co. v. Goodholm, 61 Kan. 758; s. c. 60 Pac. Rep. 1066.

21 Boutten v. Wellington &c. R. Co., 128 N. C. 337; s. c. 38 S. E. Rep. 920.

22 Winter v. Kansas City Cable R. Co., 160 Mo. 159; s. c. 61 S. W. Rep. 606; aff'g s. c. 73 Mo. App. 173.

23 Gourley v. West Chicago St. R. Co., 96 Ill. App. 68.

Co., 75 Mich. 550; s. c. 42 N. W. Rep. 965; Quebe v. Gulf &c. R. Co., Tex. Civ. App. ; s. c. 77 S. W. Rep. 442; s. c. aff'd, Tex. ; 81 S. W. Rep. 20; Texas &c. R. Co. v. Sullivan, 20 Tex. Civ. App. 572; s. c. 48 S. W. Rep. 598. See also, Missouri &c. R. Co. v. Chumlae (Tex. Civ. 'App.), 61 S. W. Rep. 524 (no off. rep.); Boggs v. Pacific Steam Laundry Co., 171 Mo. 282; s. c. 70 S. W. Rep. 818.

25 Carroll v. Missouri &c. R. Co., 30 Tex. Civ. App. 1; s. c. 69 S. W. Rep. 1004. A mere allusion to future employment by the agent of the employer, in negotiating the release of a right of action for damages, is not a contract for such employment; and a failure to furnish such

24 Hobbs v. Brush Electric Light employment, which the releasor re

been held that a contract of release is without consideration as to the damages, where an employé received of his employer, in full satisfaction of both wages and damages, only the wages to which he was indisputably entitled ;26 and the same may be said of an agreement for the discontinuance of a lawsuit brought to delay the collection of a judgment against a railroad company, in consideration of the acceptance of a less sum than the amount due.27

§ 7371. Scope of Release.-A release of a claim for damages for personal injuries and for loss of personal property will not, in the absence of fraud or mistake, be set aside on the ground that it was intended to cover the loss of personal property only, where the injured party had the means of ascertaining the true state of facts, but neglected to do so.28 But where an injured party executed a sealed release in full of all claims for the sum of fifty dollars, while he was sick in bed as a result of his injuries and unable to read the release, and the personal property destroyed exceeded in value that amount, nothing being said about the claim for personal injuries, the ignorance of the plaintiff as to the contents of the release was not negligence on his part, and the plaintiff may maintain an action for such personal injuries.29 And a receipt in full of damages resulting from an original excavation is not a bar to an action for damages from a fault in the design of a wall subsequently built in the excavation to protect the plaintiff's premises.30 An illiterate man whose land had been taken for a road, attached his mark to a receipt which purported to be

lied upon in executing the release, is not sufficient to avoid the contract of release: Atchison &c. R. Co. V. Vanordstrand, 67 Kan. 386; s. c. 73 Pac. Rep. 113; Rose v. West Philadelphia R. Co. (Pa.), 12 Atl. Rep. 78 (no off. rep.).

Carlton v. Western &c. R. Co., 81 Ga. 531; s. c. 7 S. E. Rep. 623; Winter v. Kansas City Cable R. Co., 160 Mo. 159; s. c. 61 S. W. Rep. 606; aff'g s. c. 73 Mo. App. 173. So, an agreement to accept one month's wages in full satisfaction of all damages, is no consideration for the release, where, under a contract, the measure of damages for the injuries is the regular wages of the employé until he is able to work, if the period be not longer than six months; and the employé may recover for the remainder of the period of disability: Carlton v. Western &c. R. Co., 81 Ga. 531; s. c. 7 S. E. Rep. 623.

"Winter v. Kansas City Cable R.

Co., 160 Mo. 159; s. c. 61 S. W. Rep. 606; aff'g s. c. 73 Mo. App. 173.

28 Barker v. Northern Pac. R. Co., 65 Fed. Rep. 460. So, an instruction that a receipt which appears from its face to be a receipt in full, must be taken to be a receipt in full of all matters which were claimed, unless it appears from a preponderance of the evidence that some item or matter of claim was omitted by mistake of the parties or by the fraud of the person taking a receipt, was held to be misleading, where there was no claim or evidence of mistake or fraud in the transaction: Adams v. Neu, 108 Ill. App. 50.

29 Lusted v. Chicago &c. R. Co., 71 Wis. 391; s. c. 36 N. W. Rep. 857.

30 Paterson Extension R. Co. v. Church of Holy Communion, 68 N. J. L. 399; s. c. 53 Atl. Rep. 449; Church of Holy Communion v. Paterson Extension R. Co., 68 N. J. L. 399; s. c. 53 Atl. Rep. 1079.

in full of all damages, upon the understanding that it was for damages to the land alone, of which understanding the road commissioners had knowledge; and it was held that the damages for injury to his house were not barred.31

§ 7372. Mental Capacity and Non-Consent of Releasor.-A release executed by an injured passenger while non compos mentis from the effects of an injury, and not thereafter ratified by him, is not binding upon him; and whether he was, at the time of executing it, in such mental condition as to be incapable of making a valid contract is a question for the jury.32 Thus, a release was held void in the case of a railroad passenger whose leg was broken and skull fractured, and who was otherwise bruised and injured, rendering him unconscious for a considerable time, where the release was obtained four days after the injury for the sum of seventy-five dollars and hospital care, while the plaintiff was in a helpless condition and had no thought of his damages.33 So, where the plaintiff, at the time of the execution of the release, was so under the influence of narcotics and pain that he could not understand the nature and effect of the release, the release is void. Nor is a release binding on the releasor where, at the time it was executed, he was sick from the effects of his injury, and from the day of the accident suffered much mental and physical pain, and has not since been in his normal mental condition.35 Such releases, it has been held, are not absolutely null and void and incapable of ratification; and it is therefore erroneous to instruct the jury that if they believe from the evidence that the plaintiff's mind was in a state of derangement when he signed the release, or that in consequence of the injury he was not of sound mind, they should find for him; because this withdraws from the jury the question of acquiescence and ratification after becoming sane, there being appropriate evidence upon which the jury may consider such questions.36 On the other hand, even if

S1 O'Donnell v. Clinton, 145 Mass. 461.

32 George v. St. Louis &c. R. Co., 34 Ark. 613, 623; Pawnee Coal Co. v. Royce, 79 Ill. App. 469; Abrahams v. Los Angeles Traction Co., 124 Cal. 411; s. c. 57 Pac. Rep. 216; Ryan v. Gross, 68 Md. 377; s. c. 12 Atl. Rep. 115. In such a case it is proper to instruct the jury that, in case they should find for the plaintiff, they should credit the defendant with the amounts paid by it for the plaintiff's care: Colorado City v. Liafe, 28 Colo. 468; s. c. 65 Pac. Rep. 630.

33 Atchison &c. R. Co. v. Cunning

ham, 59 Kan. 722; s. c. 54 Pac. Rep. 1055.

34 Colorado City v. Liafe, 28 Colo. 468; s. c. 65 Pac. Rep. 630; Chicago Union Traction Co. v. Ludlow, 108 Ill. App. 357.

35 Missouri &c. R. Co. v. Brantley, 26 Tex. Civ. App. 11; s. c. 62 S. W. Rep. 94; Lusted v. Chicago &c. R. Co., 71 Wis. 391; s. c. 36 N. W. Rep. 857; Galloway v. San Antonio &c. R. Co., Tex.; s. c. 78 S. W. Rep. 32.

30 George v. St. Louis &c. R. Co., 34 Ark. 613, 625. See Allis v. Billings, 6 Metc. (Mass.) 417; Bishop on Contracts, § 296.