Reed v. John Gill & Sons Co.

BLAND, J. — Plaintiff brought this suit alleging in his petition that while working upon the new State [458] Capitol at Jefferson City, Missouri* and in the employ of the defendant, he was injured by the carelessness and negligence of defendant’s servants and employees. The answer among other things alleges that after plaintiff’s injury he executed to defendant for a consideration of $452.45, which was paid to plaintiff, a full release or acquittance from the cause of action set out in his petition. In his reply plaintiff ■ alleges that said release was procured through fraud. The reply further states that the consideration for the release was paid by the Aetna Insurance Company and not by the defendant, but whether the same was paid for the account of the defendant plaintiff had no knowledge, and “in taking said release and paying the consideration therefor, said insurance company was acting under under and by virtue of some contract between it and the defendant, the terms of which are unknown to plaintiff.” Plaintiff further states that acting upon the belief that defendant was entitled to the consideration for the release, plaintiff’s counsel offered to tender the defendant such consideration with interest but defendant failed and refused to accept the same and that any tender to defendant before the institution of the action would have been an “idle and useless ceremony.” There was a verdict and judgment in favor of the plaintiff in the sum of four thousand and seventy-five dollars ($4075) and defendant has appealed. There is no evidence whatever that plaintiff tendered to anyone at any time the consideration for the release. While the release itself recites that the consideration was paid by the defendant, there is no evidence that it was so paid but defendant itself proved that the consideration was paid by the Aetna Ins. Co. The release' recites that it discharges defendant from liability. There is no evidence whatever of the relationship between the Aetna Ins. Co. and the defendant. The agent of the Aetna Ins. Co., who negotiated and settled the case, stated that he had charge of the lia [459] bility department of tbe insurance company, but whether the defendant had liability insurance with the insurance company is not shown. The case was tried and submitted to the jury by plaintiff on the theory that the release discharged defendant unless it was procured by fraud. The pleadings, evidence and the theory upon which this case was tried, presents a situation where the Aetna Insurance Company acted in a capacity of something more than a mere volunteer or stranger for. the reason that plaintiff in his reply stated that the insurance company was acting under and by virtue of some contract between it and the defendant, the terms of which were unknown to plaintiff. But assuming that the insurance company was acting only as a volunteer or stranger to plaintiff and defendant, nevertheless, plaintiff and defendant are bound by the terms of said release for the reason that the contract was made for the benefit of the defendant, and in its answer defendant adopts said release. By such adoption, in contemplation of the law, it made the release its own (Howsmon v. Trenton Water Co., 119 Mo. 304; City of St. Louis v. Von Puhl, 133 Mo. 561; St. Louis v. Wright Construction Co., 202 Mo. 451), and after the contract or release was adopted by the defendant it could not be. rescinded by the plaintiff and the insurance company. [Davis v. Calloway, 30 Ind. 112; Ransdel v. Moore, 153 Ind. 393; Gilbert v. Sanderson, 56 Iowa, 349.] As the release was made for the benefit of the defendant and the^ latter adopted it as its own by the allegations contained in its answer, and as plaintiff and the insurance company could not thereafter rescind the release, .the defendant after having adopted the release was in a position to insist upon its terms and is entitled ito all of the benefits growing out of it. If the release was not procured by fraud then it was binding upon plaintiff and could be used as effectually by defendant in any suit attempted to be prosecuted by plaintiff as if the release had been originally negotiated and executed by and between plaintiff and defendant. [460] This being a fact, it seems apparent to ns that if plaintiff desired to rescind the release on account of fraud it was his duty to tender to this defendant, after he had become aware of the fact that defendant had adopted the release, the consideration paid therefor. Plaintiff not having tendered the consideration of the release within a reasonable time or, in fact, at all, but having gone to trial without making any tender or showing that a tender was useless because if made it would have been refused, after he knew that this defendant was the one to whom tender was to be made, is not entitled to a rescission of the release but, by his conduct, has ratified the release including the fraud. [Long v. International Vending Machine Co., 158 Mo. App. 662; Taylor v. Short, 107 Mo. 384; Althoff v. St. Louis Transit Co., 204 Mo. 166; Moss v. King, 212 Mo. 587; Robinson v. Siple, 129 Mo. 208; Buyer v. Milan, 199 S. W. 712.] This is a law case and it is not sufficient that an offer of the money be made in the pleadings. [Hancock v. Blackwell, 139 Mo. l. c. 453; Whelan v. Reilly, 61 Mo. l. c. 569.] The judgment is reversed. All concur.