Retzer v. Jacob Dold Packing Co.

Smith, P. J. This is an action which was brought to recover damages for personal injuries received by the plaintiff while in the employ of the defendant in consequence of the negligence of the latter. The answer, amongst other things, pleaded in bar of plaintiff’s action, a written release executed by him to defendant which recited that plaintiff had received the sum of $350 in full satisfaction and discharge of all claims accrued or to accrue in respect 'of all injuries, results, direct or indirect, arising, or to arise, from the accident sustained by plaintiff while in the employment of defendant. The plaintiff, by his replication, sought to avoid the effect of the bar of the defendant’s answer by pleading that though he had executed the release it had been obtained from him by defendant by fraud, deception and misrepresentation, in that the terms of the compromise between plaintiff and defendant were that the [269] defendant was to pay the plaintiff $350 in money and give him a contract by which it would bind itself to employ him in defendant’s business for such length of time as plaintiff should wish, at $1.75 per day, and that defendant had only paid plaintiff $250 instead of the sum agreed upon, and had, in addition to that, neglected to enter into the stipulated contract for plaintiff’s employment and thus had refused to carry out the compromise agreement. On this state of the pleadings there was a trial before a jury where the defendant objected to the introduction' of any evidence by the plaintiff under the pleadings on the ground that the petition and reply did not show a cause of action. It may be inferred from the admissions of plaintiff’s counsel before the court, that defendant had paid in addition to the $250, the sum of $100 for plaintiff on account of the latter’s doctor’s bills, and so had paid the $350 required by the terms of the compromise agreement, but whether this is so or not is immaterial since it was expressly admitted by the plaintiff’s counsel that plaintiff had not returned or offered to return the amount of money he had received of defendant under the terms of that agreement. The court sustained defendant’s objections to the introduction of any evidence by the plaintiff and thereupon plaintiff took a nonsuit with the usual leave to file a motion to set the same aside. The motion to set aside the nonsuit being overruled, judgment was given accordingly to reverse which plaintiff brings the case here by writ of error. It appears from the concessions of counsel that it is not claimed for plaintiff that the release was procured by fraud, deception or artifice, nor that plaintiff was not in the full possession of all his faculties when it was executed, but it is claimed by plaintiff that the [270] release was given on condition that defendant pay plaintiff $350 and give him the stipulated contract of •employment, and that until tlje performance of these conditions precedent the release was not operative. It is admitted by the plaintiff’s counsel that the contract in pursuance of the provisions of which the release was ■executed was fairly and honestly entered into. It seems to us that there is logically involved in these contentions and admissions of the plaintiff the •concession that the release pleaded is valid and binding •on the plaintiff. It is certainly not without ample consideration for its support. It must inevitably follow that the release is an absolute bar to any right of action .growing out of the injury complained of unless avoided for fraud or other cause. White v. Railroad, 110 N. C. 456; Pennsylvania Co. v. Dolan, 32 N. E. Rep. (Ind.) 802; 20 Am. and Eng. Encyclopedia of Law, 762, note 1. If the plaintiff would repudiate the compromise ¡settlement he must put the defendant in the same condition he was before it was made. He can not appropriate its benefits and deny its obligation. It is well ¡settled that if a party would rescind a contract for fraud or other cause he. must as far as is in his power put the other party in the condition he would have been had the contract not been made. The return or offer to return the money or thing received as the consideration of the compromise settlement is an indispensable condition precedent — a sine qua non to the right to repudiate such settlement and sue oh the original cause of action. Alexander v. Railroad, 54 Mo. App. 66; Cahn v. Reid, 18 Mo. App. 115; Jarrett v. Morton, 44 Mo. 245; Estes v. Reynolds, 75 Mo. 563; McClean v. Clapp, 141 U. S. 429; Johnson v. Granite Co., 53 Fed. Rep. 569; Mullin v. Railroad, 117 Mass. 86; Brown v. Railroad, 117 Mass. 479. [271] If the contract was voidable for any cause the plaintiff had the right to elect, to affirm or disaffirm it. If he affirmed and the defendant, failed to perform it in any particular his remedy would be on the agreement, but if he chose to disaffirm it and prosecute his original ■cause of action he must first make restitution of the consideration received under the repudiated contract. If it be true, which we are not to be understood as deciding the one way or the other (Pennsylvania Co. v. Dolan, supra; Hill v. Jameson, 16 Ind. 125; Railroad v. Scearce, 23 Ind. 223; Day v. Railroad, 23 Hun, 412; Baydell v. Drummond, 11 East. 142) as contended by plaintiff that the compromise contract was within the statute of frauds and therefore nonenforceable, • still we can not see that, even if it were assailed on this ground, the plaintiff would be relieved from compliance with the requirement of the just rule of restitution which has just been stated, for this statute is designed to be a shield rather than a sword. And we think the rule is alike applicable whether the plaintiff agreed to accept the defendant’s promise to pay the money and furnish •employment or to accept the performance of such promises, in satisfaction, since the money was paid under such agreement, which ever way it was. The replication in this case does not, as in Vautrain v. Railroad, 78 Mo. 44, deny the execution of the release and allege that the payments made to plaintiff were on account. No reason was alleged, or offered to be shown by evidence, why the plaintiff should be permitted to overthrow the release executed under a contract which he admits was fairly and honestly entered into without making restitution of the consideration received under it. Evidence was admissible under the pleadings to show the release pleaded was procured by fraud, deceit and misrepresentation, but since the plaintiff abandoned [272] Ms plea in avoidance based on these grounds, the evidence offered to sustain his cause of action was inadmissible, and the ruling of the court to that effect was not error. Judgment affirmed. All concur.