Conrad v. Keller Brick Co.

Summit Circuit Court

Conrad v. Keller Brick Co.

12 Ohio C.C. (n.s.) 126, 1907 Ohio Misc. LEXIS 354

DecidedOctober 12, 1907

StatusPublished

This text of 12 Ohio C.C. (n.s.) 126 (Conrad v. Keller Brick Co.) is published on Counsel Stack Legal Research, covering Summit Circuit Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Conrad v. Keller Brick Co., 12 Ohio C.C. (n.s.) 126, 1907 Ohio Misc. LEXIS 354 (Ohio Super. Ct. 1907).

Pincite

Opinion

This is a personal injury damage case wherein judgment on the pleadings was entered for defendant. The answer pleads a written release, by plaintiff, of his alleged cause of action, for a money consideration paid to him. The reply admits that [127]*127plaintiff signed said release and received said money; but avers that the money was paid to him not by defendant but by an insurance company and not for a release of the cause of action asserted in his petition, but by way of insurance benefits to which he was then informed his injury entitled him. He further alleges that he was unable to read said release, but does not allege that he made any effort to have it read to him. Neither docs he tender back the money paid him. On this state- of the pleadings the court below applied the rule of Manhattan Life Insurance Co. v. Burke, 69 Ohio St., 294, that a reply alleging á repayment or tender of the amount received is not responsive to the answer and is insufficient in law. True, that case was founded on contract whereas this sounds in tort. But we can not see that this distinction is material. There are undoubtedly eases where the plaintiff is permitted to ignore in his petition the fact of a pretended release of the liability on which he counts, and to withhold repayment of the consideration received therefor. But in Ohio, at least, and with but few exceptions elsewhere, such cases upon analysis are seen to involve contracts that are not merely voidable for fraud, but contracts which are absolutely void, for total failure of consideration, as in Dayton Insurance Co. v. Kelly, 24 Ohio St., 345; illegality of consideration, as in Insurance Co. v. Hull, 51 Ohio St., 270; or other like infirmity rendering such agreement invalid, ab initio.

Where, however, as in this case the contract of release is not void, but merely "voidable for fraud, it is incumbent upon the plaintiff, before asserting his cause of action, to which the contract of release so long as it remains in force is a bar, to rid himself of that obstacle by appropriate measures for its avoidance. Tender back of the consideration received is in this ease a prerequisite to such avoidance. Until’ such tender is made, the contraed of settlement, being voidable merely, can not be treated as a nullity, nor can its terms be contradicted by parol. Cassilly v. Cassilly, 51 Ohio St., 582.

Judgment affirmed.

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This is a personal injury damage case wherein judgment on the pleadings was entered for defendant. The answer pleads a written release, by plaintiff, of his alleged cause of action, for a money consideration paid to him. The reply admits that [127]*127plaintiff signed said release and received said money; but avers that the money was paid to him not by defendant but by an insurance company and not for a release of the cause of action asserted in his petition, but by way of insurance benefits to which he was then informed his injury entitled him. He further alleges that he was unable to read said release, but does not allege that he made any effort to have it read to him. Neither docs he tender back the money paid him. On this state- of the pleadings the court below applied the rule of Manhattan Life Insurance Co. v. Burke, 69 Ohio St., 294, that a reply alleging á repayment or tender of the amount received is not responsive to the answer and is insufficient in law. True, that case was founded on contract whereas this sounds in tort. But we can not see that this distinction is material. There are undoubtedly eases where the plaintiff is permitted to ignore in his petition the fact of a pretended release of the liability on which he counts, and to withhold repayment of the consideration received therefor. But in Ohio, at least, and with but few exceptions elsewhere, such cases upon analysis are seen to involve contracts that are not merely voidable for fraud, but contracts which are absolutely void, for total failure of consideration, as in Dayton Insurance Co. v. Kelly, 24 Ohio St., 345; illegality of consideration, as in Insurance Co. v. Hull, 51 Ohio St., 270; or other like infirmity rendering such agreement invalid, ab initio.

Where, however, as in this case the contract of release is not void, but merely "voidable for fraud, it is incumbent upon the plaintiff, before asserting his cause of action, to which the contract of release so long as it remains in force is a bar, to rid himself of that obstacle by appropriate measures for its avoidance. Tender back of the consideration received is in this ease a prerequisite to such avoidance. Until’ such tender is made, the contraed of settlement, being voidable merely, can not be treated as a nullity, nor can its terms be contradicted by parol. Cassilly v. Cassilly, 51 Ohio St., 582.

Judgment affirmed.

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Bluebook (online)

12 Ohio C.C. (n.s.) 126, 1907 Ohio Misc. LEXIS 354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/conrad-v-keller-brick-co-ohcirctsummit-1907.