one whose negligence was not the proximate cause of the injury will not bar an action against the wrong-doer whose negligence caused the injury." Where the plaintiff had sued two joint tort-feasors, and agreed with one of them that if he recovered judgment against them he would enforce it against the other alone, his agreement did not amount to a release, since it was not a satisfaction of the claim.100 So, a release executed by a foreign administrator to an alleged joint wrong-doer, without satisfaction, will not bar an action by an administrator in another jurisdiction ;101 and a mere agreement not to sue one of two joint wrong-doers will not bar an action against the other, in the absence of proof of accord and satisfaction or release.102 Where the owners of different factories contaminated water flowing over the plaintiff's premises, the injury was not the result of an act of joint wrong-doers, and a settlement with one will not bar an action against the other. 103 §7382. Ratification of Release.-It may be stated as a general proposition that if a releasor retains the consideration received for the release an unreasonable time after discovering the fraud or mistake, or, if received while non compos mentis, he retains it an unreasonable time after regaining his faculties and having knowledge of the transaction, he thereby ratifies the release. Thus, where a person executed a release of a claim for damages upon a money consideration, and spent part of the money on his family and the remainder in the purchase of a lot, and made no effort to return the money, he cannot maintain an action for the damages;104 and where a release is attacked for mental incapacity of the releasor, ratification of the release is, shown where the releasor, after restoration of his faculties, retained the money paid for the release and accepted payment of his bill at a hospital by the defendant, knowing from whence the money came.105 There is a holding to the same effect, where the plaintiff was able to understand the settlement within ten days after it was made, but waited two years before offering to return the consideration, having in the meantime used the money paid her.108 But the retention 104 Diskin v. Greenwood Coal Co. (Pa.), 6 Lack. Leg. N. 54. 105 Gibson v. New York &c. R. Co., 164 Pa. St. 142; s. c. 30 Atl. Rep. 308; 35 W. N. C. (Pa.) 381; 44 Am. St. Rep. 586; Missouri Pac. R. Co. v. Brazzil, 72 Tex. 233; s. c. 10 S. W. Rep. 403. 100 Chicago &c. R. Co. v. Pierce, 64 Fed. Rep. 293; s. c. 12 C. C. A. 110; 24 U. S. App. 331. of money paid in settlement for damages for personal injuries does nót amount to a ratification if the releasor had no knowledge of how the money was obtained.1 107 What is a reasonable time in which to repudiate a release, is a question for the jury.108 111 § 7383. Pleadings Relating to Releases.-In jurisdictions where law and equity powers are vested in the same court, and the distinction between law and equity proceedings has been abolished, and the release is such as to require it to be corrected or cancelled, the plaintiff may anticipate the defense by asking, in a separate account, to have the release corrected or cancelled, or, by reply to the answer setting up the release, raise the issue of fraud, mistake or surprise.109 And in an action to have a release set aside for fraud, the complaint. is not rendered insufficient by reason of the failure to allege a return of the amount received as consideration for the release or an offer to return it, where a tender of the consideration received is not required before bringing suit;110 but the amount received must be deducted from the amount recovered, if any. Where the complaint in an action for personal injuries alleged that the release executed by the plaintiff was induced by fraud, and asked that it be cancelled and set aside, it was held that the allegation should be treated as. surplusage, since it was a matter of defense.112 In the absence of an exception for want of mutuality, an allegation, in the answer, that the release was given for "good and valuable consideration," has been held a sufficient allegation of consideration.113 Another court has held that, by joining issues on a plea, the plaintiff waives an objection to the plea for failure to set out the body of the release, or in haec verba.114 If, in an action for personal injuries, the defendant obtains a release of the damages from the plaintiff after issue joined, it is not necessary to plead it puis darrein continuance, as the release may be shown in evidence under the general issue without such plea.115 If a 107 Abrahams v. Los Angeles Traction Co., 124 Cal. 411; s. c. 57 Pac. Rep. 216. 108 Chicago &c. R. Co. v. Pierce, 64 Fed. Rep. 293; s. c. 12 C. C. A. 110; 24 U. S. App. 331; Missouri R. Co. v. Brazzil, 72 Tex. 233; s. c. 10 S. W. Rep. 403; Brainard v. Van Dyke, 71 Vt. 359; s. c. 45 Atl. Rep. 758. 109 Cardwell v. Stuart, 92 Mo. App. 110 As to which see ante, § 7379. Co., 16 S. Dak. 261; s. c. 92 N. W. 113 Warren v. Gentry, 21 Tex. Civ. App. 151; s. c. 50 S. W. Rep. 1025. 114 Wright v. Wilmington City R. Co., 2 Marv. (Del.) 141; s. c. 42 Atl. Rep. 440. 115 Papke v. G. H. Hammond Co., 192 Ill. 631; s. c. 61 N. E. Rep. 910; aff'g s. c. sub nom. G. H. Hammond Co. v. Papke, 91 Ill. App. 563; Chicago v. Babcock, 143 Ill. 358; s. c. 32 N. E. Rep. 271; rev'g s. c. 41 Ill. App. 238 [distinguishing Amt v. Scholes, 120 Ill. 394; s. c. 11 N. E. 112 Hedlun v. Holy Terror Min. Rep. 401, contra]; Ryan v. Balti more &c. R. Co., 60 Ill. App. 612. plea setting up a release is held bad on demurrer it is discretionary with the court to grant a repleader on such terms as it may deem proper. 118 Where the plaintiff entered into a contract with the defendant for life employment, and afterward executed a release of damages for his personal injuries; and, in reply to an answer setting up the release in an action for breach of the life employment contract, the plaintiff alleged that the release "was given on the understanding and agreement that it was not to extend to, and did not extend to, the distinct contract of life employment, aforesaid, and if of meaning in law to the contrary, it was so expressed unintentionally and by mistake," the court held that, as the reply simply alleged that the release was executed by mistake, without alleging that the mistake was mutual, the plaintiff was not entitled to relief, in the absence of allegation and proof, in connection therewith, of surprise, undue influence, misapprehension, imposition, fraud or deceit giving rise to and occasioning such mistake.117 But a reply to a plea setting up a release, that, "if defendant has in his possession any such release, it was obtained by fraudulent representations," is good as against a general demurrer, and is not too defective and uncertain to raise the question of fraud.118 In attacking a release for fraud, duress, or non est factum, the replication to the plea must be special;119 but in such case. the plaintiff cannot set up both fraud and non est factum.120 To avoid a release pleaded in an action at law, the plaintiff may show fraud in its execution, but he cannot, in jurisdictions where the distinction between law and equity is observed, show fraud inducing him to enter into such contract, as that is an equitable defense.121 But where this distinction has been abolished, it is held that, in an action at law, the plaintiff may meet a plea of release by a reply that the release was obtained by fraud, either in its execution or by misrepresentation inducing its execution.122 In order to show that a release pleaded as a defense was executed through fraud or mistake, it is not necessary for the plaintiff to deny its execution under oath, if the release is pleaded generally without alleging that it was in writing.123 In an action for personal injuries, the fact that the plaintiff serves an affidavit and 116 Augusta v. Moulton, 75 Me. 551; Field v. Cappers, 81 Me. 36; s. c. 16 Atl. Rep. 328; 10 Am. St. Rep. 237. 117 White v. Richmond &c. R. Co., 110 N. C. 400; s. c. 15 S. E. Rep. 197. 118 International &c. R. Co. v. Harris (Tex. Civ. App.), 65 S. W. Rep. 885; s. c. aff'd, 95 Tex. 346; 67 S. W. Rep. 315. 119 'Wright v. Wilmington City R. Co., 2 Marv. (Del.) 141; s. c. 42 120 Wright v. Wilmington City R. Co., 2 Marv. (Del.) 141; s. c. 42 Atl. Rep. 440. 121 Kosztelnik v. Bethlehem Iron Co., 91 Fed. Rep. 606. 122 Wagner v. National Life Ins. Co., 90 Fed. Rep. 395. 123 O'Maley v. Garriott (Tex. Civ. App.), 49 S. W. Rep. 108 (no off. rep.). notice alleging the existence of a complete defense to a release, will not prevent him from relying on another defense, where he is not required to reply." 124 § 7384. Evidence Relating to Releases.-A release in an action on the case for personal injuries, executed after plea filed, is admissible in evidence under the general issue, though not specially pleaded;12 and in actions for tort, a release or other evidence which tends to show that there is no cause of action is admissible under the general issue,126 or under a plea of not guilty;127 but to render a release admissible there must be an averment of payment or discharge.128 If, however, the release is to take effect at a time subsequent to the trial, it is not admissible in evidence.129 Where the plaintiff set up fraud as a defense to a release, and testified that the defendant's agent, after giving the plaintiff an order on a physician, requested her to sign a slip of paper to show, as he stated, that he had sent the plaintiff to a doctor, which she signed without knowing that it was a release, she could also testify that, after she had signed the slip, the agent told her to come to his office after she had got well and he would settle all of her claims, as it had some bearing on the question of fraud;180 and, as bearing on the question of fraud, inadequacy of consideration is admissible, though not alone sufficient to set aside the release.131 The mere fact that after an injured employé was able to go about, the employer, in accordance with his custom, gave him a light job at a dollar and fifty cents a day, is not admissible to show an oral agreement to give the plaintiff such wages for life, made contemporaneously with a written agreement whereby the plaintiff released the defendant from liability in consideration of certain payments. 182 A proposal by an injured person to accept a stated sum in full of all damages is not admissible in evidence in an action for the damages, as bearing on the amount of recovery.133 Testimony of the plaintiff in an action for personal injuries in which a release is set up in defense, that, at the time 124 O'Meara v. Brooklyn City R. Co., 16 App. Div. (N. Y.) 204; s. c. 44 N. Y. Supp. 721. 125 Papke v. G. H. Hammond Co., 192 Ill. 631; s. c. 61 N. E. Rep. 910; aff'g s. c. sub nom. G. H. Hammond Co. v. Papke, 91 Ill. App. 563. 126 Mattoon Gas Light &c. Co. v. Dolan, 105 Ill. App. 1. 127 Johnson v. Philadelphia &c. R. Co., 163 Pa. St. 127; s. c. 29 Atl. Rep. 854; 35 W. N. C. (Pa.) 375. 128 Rosenthal v. Rudnick, 84 App. Div. (N. Y.) 611; s. c. 82 N. Y. Supp. 1004. 129 Rosenthal v. Rudnick, 84 App. Div. (N. Y.) 611; s. c. 82 N. Y. Supp. 1004. 130 Keefe v. Norfolk Suburban St. R. Co., 185 Mass. 247; s. c. 70 N. E. Rep. 46. 131 Dorsett v. Clement-Ross Man. Co., 131 N. C. 254; s. c. 42 S. E. Rep. 612. 182 Ogden v. Philadelphia &c. Traction Co., 202 Pa. St. 480; s. c. 52 Atl. Rep. 9. 133 Peru v. French, 5 Ill. 317. the release was executed, it was raining and sleeting, is competent to corroborate the plaintiff's other testimony that she was coerced into making the release by the defendant's threats to eject her if she failed to do so.134 If the plaintiff seeks to avoid the release on the ground that he was induced to execute it by fraud, misrepresentation, or undue influence, the burden is on him to show such fact; .135 but a mere preponderance of the evidence is not sufficient to establish such fraud or mistake as will avoid a written release, as it can only be avoided by clear, unequivocal and convincing proof.188 So, a finding that the plaintiff did not execute a release is sustained by the testimony of the plaintiff that he did not sign the alleged release, where the attesting witness testified that he did not remember whether or not the plaintiff signed the release.137 134 The Oriental v. Barclay, 16 Tex. Civ. App. 193; s. c. 41 S. W. Rep. 117. 18 Ferris v. Ferris, 34 App. Div. (N. Y.) 144; s. c. 54 N. Y. Supp. 523; Houston &c. R. Co. v. Milam (Tex. Civ. App.), 58 S. W. Rep. 735; s. c. rev'd (Tex.), 60 S. W. Rep. 591, but on other grounds. Chicago &c. R. Co. v. Mills, 91 Ill. 39) plaintiff must show mental incapacity where he seeks to avoid a release on that ground). 136 Chicago &c. R. Co. v. Wilcox, 116 Fed. Rep. 913; s. c. 54 C. C. A. 147. 187 Buckley v. Earle &c. Exp. Co., 22 R. I. 358; s. c. 48 Atl. Rep. 7. |