Allen, J.
1. The objection to the question to Dr. Walton is placed on the ground that the question ought to have been limited to the probable effect of the injury upon the plaintiff, and that the question which was allowed to be put went too far in asking as to its possible effect. As bearing upon the alleged fraud of the defendant’s agent in procuring the release and receipt, it is obvious that the mental condition of the plaintiff was important to be considered. If his mind was clear and strong, he was more likely to understand what he was doing, and less likely to be imposed upon. He had himself testified that he was “ rattled, dazed,” at the time. A witness for the defendant had testified that the plaintiff did not appear to be so; and there was other evidence in defence tending in the same way. There being this conflict of evidence as to his actual condition, it was certainly competent for the court, in its discretion, to admit the testimony of an expert that his mind might be dazed or confused as the result of such an accident as he had described, even though the testimony did not go so far as to show that this result was probable.
2. The defendant contends that there was no sufficient evidence to be submitted to the jury of fraud on the part of its agent in procuring the release and receipt. The evidence in favor of the plaintiff on this point was, in substance, that in the accident he had received a shock which had finally resulted in serious damage to him; that he bore marks of the direct injury upon his face; that his mind was rattled and dazed at the time; that while he was in this condition, about an hour and a half after the accident, in the office of the defendant’s superintendent, the defendant’s agent prepared the two papers for him to sign, and [454]*454passed the release to him, saying, “ This is merely a form,” and said that the second paper was merely a receipt for the trousers and hat; that both of these statements were false; and that he signed both papers without reading them, or knowing their contents. The witnesses for the defence gave a fuller account of what took place at this interview, with particulars which the plaintiff denied to be true, or denied having any remembrance of. The defendant’s agent testified that nothing was allowed by way of payment for personal injuries, and that no claim was made for such injuries. Upon this evidence it might be argued in behalf of the plaintiff that he supposed he was receiving payment merely for the injuries to his clothing, but did not understand that he was cutting himself off from a claim for personal injuries; that if he was in fact rattled and dazed in mind, the defendant’s agent would probably have observed it; and that the insertion of the words “ also injury to person,” in the receipt for the damages to his clothing, and the taking of the release of all claims whatever in consideration of the payment of seventeen dollars, and in view of the declarations of the defendant’s agent to the plaintiff, tended to show fraud. The weight of argument and evidence was for the jury. All that we need say is that the conclusion of the jury was warranted. Freedley v. French, 154 Mass. 339. Peaslee v. Peaslee, 147 Mass. 171, 180. O'Donnell v. Clinton, 145 Mass. 461. Trambly v. Ricard, 130 Mass. 259.
3. The defendant further contends that the plaintiff cannot maintain this action, because, before bringing it, he failed to restore to the defendant the money which the defendant had paid to him for the damage to his hat and trousers. It is plain that the plaintiff’s release and receipt do not of themselves stand in the way of his maintaining the action, because, so far as they relate to his personal injury, they must now be assumed to have been obtained from him by fraud. Rosenberg v. Doe, 148 Mass. 560; S. C. 146 Mass. 191. O'Donnell v. Clinton, 145 Mass. 461. Squires v. Amherst, 145 Mass. 192. Mullen v. Old Colony Railroad, 127 Mass. 86. Smith v. Holyoke, 112 Mass. 517. The release and receipt are to be read as if they did not purport to discharge any claim he might have for personal injury, and by reason of the fraud the case is free from any question of the admissibility of paroi evidence to vary or control the writing. But [455]*455the objection is that the retention of the money precludes him. It is true, under our decisions, that the injury to the plaintiff’s person and to his clothing furnished but one cause of action, and that a recovery of judgment by him for the injury to his clothing would have barred a subsequent action for his personal injury. Doran v. Cohen, 147 Mass. 342. Knowlton v. New York & New England Railroad, 147 Mass. 606. Sullivan v. Baxter, 150 Mass. 261. McCaffrey v. Carter, 125 Mass. 330. Folsom v. Clemence, 119 Mass. 473. Goodrich v. Yale, 8 Allen, 454. Trask v. Hartford & New Haven Railroad, 2 Allen, 331. Bennett v. Hood, 1 Allen, 47. In this respect the law as established here differs from that of England, upon which the plaintiff relied in argument. Brunsden v. Humphrey, 14 Q. B. D. 141. Darley Main Colliery Co. v. Mitchell, 11 App. Cas. 127, 144, per Lord Bramwell. Macdougall v. Knight, 25 Q. B. D. 1, 8. In the present case, however, the plaintiff has recovered no judgment, and has brought no prior action for the injury to his clothing, and the question which we have to determine is whether before bringing this action he was bound to return the seventeen dollars received for the injury to his clothing, and whether the action is defeated by the omission so to return it. The defendant contends that accepting payment for a part of the injury which he sustained, and retaining the money, debars the plaintiff from maintaining an action for the other part of the injury, just as the recovery of a judgment for one part of the injury would debar him. But there are good reasons for holding the contrary doctrine. If one sues to recover for an injury, he may well be held to include in his action all that he is entitled to sue for, in respect to that cause of action. But if one is "making a settlement, the same reasons do not apply, and if he cannot make a full settlement he may make a partial one, and thus eliminate one element out of the controversy. If, for example, there is an insurance on real and personal property, and a fire occurs destroying all of the property insured, or if a fire set by sparks from a locomotive engine, or other wrongful act, spreads and causes damage to real and personal property, or to different buildings of the same owner, the parties undoubtedly may settle the claim as to one piece of property, leaving it open as to the others, and in such case a payment for so much as has been agreed on cer[456]*456tainly would not debar the owner from recovering what he is entitled to in respect to the rest. Now, if such was the oral agreement of settlement as to a part of the loss, and the owner was by fraud led to sign a receipt for his whole claim, and if he afterwards sues for that part of his loss which has not been paid for, and is able to set aside and avoid the terms of his receipt by reason of the fraud, there is no good reason why the payment for his loss upon one piece of his property should debar him from recovering for the loss upon the rest, even though he retains the money so paid to him.
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Allen, J.
1. The objection to the question to Dr. Walton is placed on the ground that the question ought to have been limited to the probable effect of the injury upon the plaintiff, and that the question which was allowed to be put went too far in asking as to its possible effect. As bearing upon the alleged fraud of the defendant’s agent in procuring the release and receipt, it is obvious that the mental condition of the plaintiff was important to be considered. If his mind was clear and strong, he was more likely to understand what he was doing, and less likely to be imposed upon. He had himself testified that he was “ rattled, dazed,” at the time. A witness for the defendant had testified that the plaintiff did not appear to be so; and there was other evidence in defence tending in the same way. There being this conflict of evidence as to his actual condition, it was certainly competent for the court, in its discretion, to admit the testimony of an expert that his mind might be dazed or confused as the result of such an accident as he had described, even though the testimony did not go so far as to show that this result was probable.
2. The defendant contends that there was no sufficient evidence to be submitted to the jury of fraud on the part of its agent in procuring the release and receipt. The evidence in favor of the plaintiff on this point was, in substance, that in the accident he had received a shock which had finally resulted in serious damage to him; that he bore marks of the direct injury upon his face; that his mind was rattled and dazed at the time; that while he was in this condition, about an hour and a half after the accident, in the office of the defendant’s superintendent, the defendant’s agent prepared the two papers for him to sign, and [454]*454passed the release to him, saying, “ This is merely a form,” and said that the second paper was merely a receipt for the trousers and hat; that both of these statements were false; and that he signed both papers without reading them, or knowing their contents. The witnesses for the defence gave a fuller account of what took place at this interview, with particulars which the plaintiff denied to be true, or denied having any remembrance of. The defendant’s agent testified that nothing was allowed by way of payment for personal injuries, and that no claim was made for such injuries. Upon this evidence it might be argued in behalf of the plaintiff that he supposed he was receiving payment merely for the injuries to his clothing, but did not understand that he was cutting himself off from a claim for personal injuries; that if he was in fact rattled and dazed in mind, the defendant’s agent would probably have observed it; and that the insertion of the words “ also injury to person,” in the receipt for the damages to his clothing, and the taking of the release of all claims whatever in consideration of the payment of seventeen dollars, and in view of the declarations of the defendant’s agent to the plaintiff, tended to show fraud. The weight of argument and evidence was for the jury. All that we need say is that the conclusion of the jury was warranted. Freedley v. French, 154 Mass. 339. Peaslee v. Peaslee, 147 Mass. 171, 180. O'Donnell v. Clinton, 145 Mass. 461. Trambly v. Ricard, 130 Mass. 259.
3. The defendant further contends that the plaintiff cannot maintain this action, because, before bringing it, he failed to restore to the defendant the money which the defendant had paid to him for the damage to his hat and trousers. It is plain that the plaintiff’s release and receipt do not of themselves stand in the way of his maintaining the action, because, so far as they relate to his personal injury, they must now be assumed to have been obtained from him by fraud. Rosenberg v. Doe, 148 Mass. 560; S. C. 146 Mass. 191. O'Donnell v. Clinton, 145 Mass. 461. Squires v. Amherst, 145 Mass. 192. Mullen v. Old Colony Railroad, 127 Mass. 86. Smith v. Holyoke, 112 Mass. 517. The release and receipt are to be read as if they did not purport to discharge any claim he might have for personal injury, and by reason of the fraud the case is free from any question of the admissibility of paroi evidence to vary or control the writing. But [455]*455the objection is that the retention of the money precludes him. It is true, under our decisions, that the injury to the plaintiff’s person and to his clothing furnished but one cause of action, and that a recovery of judgment by him for the injury to his clothing would have barred a subsequent action for his personal injury. Doran v. Cohen, 147 Mass. 342. Knowlton v. New York & New England Railroad, 147 Mass. 606. Sullivan v. Baxter, 150 Mass. 261. McCaffrey v. Carter, 125 Mass. 330. Folsom v. Clemence, 119 Mass. 473. Goodrich v. Yale, 8 Allen, 454. Trask v. Hartford & New Haven Railroad, 2 Allen, 331. Bennett v. Hood, 1 Allen, 47. In this respect the law as established here differs from that of England, upon which the plaintiff relied in argument. Brunsden v. Humphrey, 14 Q. B. D. 141. Darley Main Colliery Co. v. Mitchell, 11 App. Cas. 127, 144, per Lord Bramwell. Macdougall v. Knight, 25 Q. B. D. 1, 8. In the present case, however, the plaintiff has recovered no judgment, and has brought no prior action for the injury to his clothing, and the question which we have to determine is whether before bringing this action he was bound to return the seventeen dollars received for the injury to his clothing, and whether the action is defeated by the omission so to return it. The defendant contends that accepting payment for a part of the injury which he sustained, and retaining the money, debars the plaintiff from maintaining an action for the other part of the injury, just as the recovery of a judgment for one part of the injury would debar him. But there are good reasons for holding the contrary doctrine. If one sues to recover for an injury, he may well be held to include in his action all that he is entitled to sue for, in respect to that cause of action. But if one is "making a settlement, the same reasons do not apply, and if he cannot make a full settlement he may make a partial one, and thus eliminate one element out of the controversy. If, for example, there is an insurance on real and personal property, and a fire occurs destroying all of the property insured, or if a fire set by sparks from a locomotive engine, or other wrongful act, spreads and causes damage to real and personal property, or to different buildings of the same owner, the parties undoubtedly may settle the claim as to one piece of property, leaving it open as to the others, and in such case a payment for so much as has been agreed on cer[456]*456tainly would not debar the owner from recovering what he is entitled to in respect to the rest. Now, if such was the oral agreement of settlement as to a part of the loss, and the owner was by fraud led to sign a receipt for his whole claim, and if he afterwards sues for that part of his loss which has not been paid for, and is able to set aside and avoid the terms of his receipt by reason of the fraud, there is no good reason why the payment for his loss upon one piece of his property should debar him from recovering for the loss upon the rest, even though he retains the money so paid to him. Why should he pay it back, when it represents only the sum agreed on for his compensation for that portion of his loss which he no longer seeks to recover for ? So here. The plaintiff must now be deemed to have received the seventeen dollars for the injury to his clothing alone. Thus much was adjusted between the parties and paid for. The plaintiff, although he included a claim for damage to clothing in his declaration, does not now seek to recover for that loss, or to avoid the settlement which he says he actually made with the defendant’s agent. On the other hand, he stands to and affirms all that was included in the settlement actually made. If it was understood at the time that the payment was received only for the injury to his clothing, and that no claim for personal injury was settled for or released, and if the release and receipt were by fraud so phrased as to cover that claim also, and if they are avoidable by reason of the fraud so far as the claim for personal injury is concerned, the plaintiff was under no obligation to return the money received by him for the injury to his clothing before bringing his action for the personal injury. Mullen v. Old Colony Railroad, 127 Mass. 86. Smith v. Holyoke, 112 Mass. 517. Bartlett v. Drake, 100 Mass. 174. Walker v. Swasey, 2 Allen, 812. Roberts v. Eastern Counties Railway, 1 F. & F. 460, cited with approval in Lee v. Lancashire & Yorkshire Railway, L. R. 6 Ch. 527, 537.
Exceptions overruled.