Barclay, J.
— The petition states a case for damages on account of personal injuries suffered by plaintiff while in the employ of the defendant company.
It charges as the cause negligence in respect of the operation of certain hoisting machinery, under the direction of defendant’s superintendent, at its shops in St. Louis; and alleges that, in consequence of that negligence (the particulars of which are not important at this stage of the proceedings), a heavy timber fell upon plaintiff, disabling him from labor, etc.
The answer denies the charge of negligence, and sets up, as a bar to plaintiff’s action, a written instrument, signed by plaintiff and by. one of defendant’s officers, in which (after reciting the fact of plaintiff’s injury) the following stipulations appear:
“Tho said Car Wheel Co., on their part, pro[364]*364poses to furnish and pay for all the medical attendance, necessary for his recovery from said injuries sustained hy said accident, and to keep his name on its pay roll at the uniform wages per day, for all working days, which he has been up to this time credited, and in any other way in their power assist in his recovery, until he is physically sufficiently recovered from said accident, evidenced by physician’s certificate, to resume work.
“And that on his part, beyond the above obligation of the St. Louis Car Wheel Co., he relinquishes all other claims whatsoever as to them, and that he agrees to this deliberately, and of his own free will, and without any undue influence from any one.
“The said parties, in evidence of which and in good faith, sign this, the date first herein written.”
Defendant alleged compliance with the above agreement, so far as plaintiff had permitted such compliance, and prayed judgment.
Plaintiff, by a reply, charged that the said agreement had been obtained from him by gross fraud and misrepresentations of defendant and its agents; that, at the time it was made, he was in the deepest distress and bodily pain, and was unable, through his bodily and mental condition, to understand or comprehend the contents of said agreement, and never did assent to the terms thereof.
These allegations of fraud and incapacity are repeated in several forms with considerable particularity of detail; but the above outline will be sufficient for present purposes.
■ The cause came to trial before Judge Dillon and a jury.
It is not necessary to go into the evidence as to the plaintiff’s original right of recovery, since no point is made in this court on that branch of the case.
[365]*365The only questions of any difficulty now submitted,, concern the rules of law to be applied in view of the so-called release or settlement.
The plaintiff’s testimony tended to prove that his-injury occurred, September 13, 1889, and the agreement (which we will for convenience call a release), was signed the next day, about noon.
The timber which struck plaintiff was about eighteen feet long and six by nine inches thick. It hit, him in the back. He was knocked to the ground,, senseless. His arm was broken. Blood oozed from his forehead, and his face was scratched. He could not stand. He had to be carried away from the shop. He was put into an ambulance and taken to the city-hospital. The next day he was removed to his boarding house.
He testified that he had no recollection of signing the release; that at that time he was unable to read or comprehend anything; if he attempted to read he could merely “see a gleam” in front of him; “that for four- or five weeks he was not in his proper mind or able to understand things; that during the first week he did not easily recognize people who called on him.”
He suffered intense pain, which did not begin to. abate for two months. His face and jaws were badly swollen, his eyes, discolored and almost closed. He had a lump on the back of his head for some time after the mishap.
Six or eight days later he found a copy of the-release on the floor of his room. He gave it to his. attorney soon afterward, and then brought this action, in October, 1891.
Several of his fellow workmen, who called to see him on the day the release was signed and on the following day, gave various descriptions of his condition-; for instance:
[366]*366“He was excited and bewildered.”
‘ 'His mind was not clear. ’ ’
“He was more jovial than was usual with him.” “He did not seem rational.”
“He didn’t seem to me to act or talk at the time as I saw him do before.”
The defendant’s testimony contradicted that above quoted, and tended to prove that plaintiff understood the release, assented to its terms, executed it freely, and that no fraud was practiced upon him. Under the terms of the release, defendant employed a physician to treat plaintiff, at a cost of $50, until the time plaintiff discharged him, shortly before bringing this suit. The defendant further paid $10 to another physician who had been called to plaintiff’s aid at the shop in the emergency when he was first injured.
Defendant also kept plaintiff’s ‘name on the pay roll, and was ready and willing to pay him wages according to the agreement in the release; but he would not, or did not, accept those wages.
The trial court submitted the issue of release upon instructions, under which the jury found that plaintiff signed that paper at the instance of defendant’s agents without knowing its contents, and that he never did assent to its terms.
They also found that the release was signed when plaintiff was in such a mental condition that he could not comprehend its contents; and that defendant’s agents took advantage of that condition- to induce him to sign the paper without understanding it, intending thereby to defraud plaintiff of his cause of action set forth in the petition.
On that issue the court gave the following instructions at the instance of defendant, viz.:
“4. The jury are instructed, even though you should believe from the evidence the release pleaded by [367]*367defendant to have been unfair to the plaintiff and not a sufficient recompense for plaintiff’s injuries, still, this will not relieve plaintiff from its force and effect as a bar to his recovery in this action. The only way in which plaintiff can affect the conclusiveness of this bar is to satisfy you by a preponderance of evidence that plaintiff, when he signed the release, had not sufficient mental power to know the nature of the instrument he was signing.”
“7. The court instructs the jury that the paper read in evidence, signed by the plaintiff and termed a release, is on its face a release and discharge of the cause of action sued on in this case. It is. a presumption of law that the plaintiff understood and agreed to the terms and contents of said paper when he signed it, and the burden is on the plaintiff to show, by a preponderance of evidence, that he was not acquainted with the contents of the paper, and that he did not voluntarily agree to release his claim for damages growing out of his injury upon the terms stated in said petition, or that defendánt fraudulently procured the execution thereof by him, and, unless the plaintiff has affirmatively so proved these facts to the satisfaction of the jury by a preponderance of proof, they should find for the defendant.”
”12. The court instructs the jury that in determining the question whether the paper offered in evidence, and termed a release, was freely and voluntarily signed by the plaintiff, they are not at liberty to consider whether the terms of said release were reasonable, nor whether the undertakings of the defendant therein constituted a full and adequate compensation for his injury.”
The bill of' exceptions also shows that ”the cause being submitted to the jury, they found a verdict in favor of plaintiff, such verdict being an award of dam[368]*368ages in favor o,f plaintiff in the sum of $1,562, less the sum of $62, paid by the defendant under the terms of the release given in evidence, leaving the amount of damages $1,500.”
The jury also found for the plaintiff on the issues of negligence, under appropriate instructions, which need not be examined, as this appeal does not call in question any rulings on that part of the case.
After the usual motions and exceptions, defendant appealed to the St. Louis court of appeals; but, as the judges of that court were divided in opinion ( Girard v. St. Louis Car Wheel Co., 46 Mo. App. 81), the case was transferred.to the supreme court under the provisions of the constitution (Const. Amendment, 1884, sec. 6).
1. Defendant’s first proposition is that this action for damages is not maintainable, because the release has not been set aside by a decree in equity. In other words, it is claimed that the paper in question is a complete defense at law to the cause of action to which it relates, no matter how the paper may > have been obtained. This position has been defended with much ability; but no resources .of counsel are sufficient to conceal its inherent weakness.
The testimony for plaintiff tends strongly to prove that he was incapable of understanding the release when he signed it, and that he did not comprehend, or intend to assent to, its terms. The jury so found in response to instructions.
Those facts, when established, destroyed the substance of the agreement which the release in form expressed. They took from the apparent contract what was essential to its legal force and validity, namely, the element of assent by the plaintiff. That element is a necessary part of every contract.
[369]*369Without it, a mere writing, expressing some formula of words, imposes no obligation.
The signature of plaintiff, obtained to such a paper, without the assent of his mind to the act, deprived him of no legal right. He might, indeed, affirm such a signature, or make it'his lawful act by his subsequent conduct, the effect of which would be to give to the agreement that assent which was necessary to originate an obligation on his part. But in the absence of such acts as amounted to*an approval of it, he might proceed to enforce his rights, irrespective of such a paper. Brewster v. Brewster (1875), 38 N. J. L. 119.
In circumstances such as are here exhibited, a writing, in the form of a release, which‘never acquired original validity as a contract for want of competent assent to its terms, may be disregarded by a court of law in the administration- of justice, without the intervention of a court of equity.
The paper in question is, in contemplation of law, nothing more than the form of a contract; and on finding that the substance, which should give life to an obligation, is wanting, the court may cast aside the form and proceed to judgment, notwithstanding the fraud which may have brought the verisimilitude of an obligation into existence. Hartshorn v. Day, (1856), 19 How. 211. Vandervelden v. Railroad, (1894), 61 Fed. Rep. 54.
A court of law, upon ascertaining such a fraud, may properly pass over it to the conclusion which it considers just; thus, in effect, discarding the fraud as an obstacle to the exercise of its jurisdiction.
It is not thought necessary at this day, to further argue the correctness^ this preposition.
It has been repeatedly asserted in earlier decisions in this state, both before and since the adoption of the [370]*370reformed code of procedure in 1849. Burrows v. Alter (1842), 7 Mo. 424, Wright v. McPike (1879), 70 Mo. 175.
They conform to a multitude of precedents elsewhere, many of which are cited in the briefs of counsel, to which may be added, Thompson v. Faussat (1815), Peters C. C,, 182; Bliss v. Railroad (1894), 160 Mass. 447 (36 N. E. Rep. 65).
The case of Blair v. Railroad (1886), 89 Mo. 383, which is cited as* having some tendency to the contrary, goes no further in that direction than to approve the practice of proceeding to first cancel the release for fraud upon allegations stating a cause of action in equity, before trying the other cause of action at law on the merits of the plaintiff’s original claim. While that course may be adopted, it is not essential where the alleged fraud goes to the integrity of the release as .a legal agreement, which is the case in the present action. The Blair decision does not declare it necessary to go into equity to get rid of a paper executed in such circumstances as here appear.
2. It is next contended that the release must stand because plaintiff did not, before action brought, offer to refund the amount paid by defendant for medical services to plaintiff under the terms of that paper.
The verdict gave defendant the benefit of that credit upon the plaintiff’s claim, by reducing his damages to that extent ($62); but it is urged that that mode of refunding the fruits of the agreement for a release does not satisfy the requirements of law.
The substance of defendant’s contention is that a tender of the benefits received under the release -was essential to plaintiff’s case;- and that without it his action can not be maintained.
Assuming [as this court is now bound to do in view of the evidence and the findings of the jury] that [371]*371tlie release was not the valid act or contract of the plaintiff, then it was, at best, voidable at his option. That is to say, he was at liberty to ignore it in the assertion of his legal rights. His act in bringing the preseat suit was a plain and unmistakable repudiation of it, and a distinct notice that he discarded and denied the obligation which it apparently imposed. Ward v. Day (1863), 33 L. J. Q. B. 3; Clough v. Railroad (1871), L. R. 7 Exch. 26; Dawes v. Harness (1875), L. R. 10 C. P. 166.
He had done nothing to ratify it or adopt it as his act.
Was he required, in such a case, to seek the defendant’s officers and tender back the value of the medical services rendered to him, before beginning his action?
He has, before judgment, accounted for everything of value received by him by .virtue of the supposed release; and the defendant has had' credit therefor, as the verdict of the jury on its face shows.
But the attitude of the defendant, throughout, as well as before, the litigation, its plea of release, its setting aside in an envelope the wages of plaintiff each week, all indicate that any tender by plaintiff, of repayment for the medical services, would have been useless.
Since the execution of that paper, defendant has continuously asserted and relied upon its validity,, and still asserts it.
It has been decisively held in other cases that no preliminary tender can be insisted upon, as a bar to legal action, where the facts show that the tender would have been rejected. Deichmann v. Deichmann (1871), 49 Mo. 107; Westlake v. St. Louis (1882), 77 Mo. 47.
In such a state of the facts a tender would be what Mr. Bigelow calls, air idle ceremony. Bigelow on Fraud (1888), p. 424.
[372]*372No distinction should be made, and in my opinion none exists in principle, between actions fox* personal injuries and other actions at law in respect of the right now under consideration, or in respect of the amount of testimony required to sustain a judgment.
A preponderance of evidence is necessary to support an allegation of fraud in a court of law; and it is for the trial judge, in the first instance, to determine whether or not the testimony offered upon that allegation is reasonably sufficient to justify an inference of the fraud charged.
It has been often held in other jurisdictions, that a tender of money [received by virtue of a release of similar tenor to that in question here] need not be made before bringing suit, where the release was obtained by fraud; but that it is sufficient to offer its return, and to account for it by the judgment. Duvall Mowry (1860), 6 R. I. 479; Smith v. Salomon (1877), 7 Daly, 216; Butler v. Railroad (1891), 88 Ga. 594; Kley v. Healy (1891), 127 N. Y. 555; Sheanon v. Ins. Co. (1892), 83 Wis. 507; Kirchner v. Sewing Machine Co. (1892), 135 N. Y. 182; Railroad v. Acuff (1892) 92 Tenn. 26 (20 S. W. Rep. 348).
That certainly is the rule in equity in reference to rescission (Martin v. Martin, 1860, 35 Ala. 560; Railroad v. Railroad, 1884, 14 Abb. N. C. 224; Lusted v. Railroad, 1888, 71 Wis. 391), and in equity as a general rule, a better showing is required of a plaintiff, conditional to granting relief, than is exacted by the practice in courts of law.
It has, moreover, been ruled that where a release is found to have been obtained by fraud practiced upon one incapable, because of mental weakness, to validly enter into such a contract, no necessity exists for-refunding the fruits of the release before action brought. O’Brien v. Railroad (1894, Iowa), 57 N. W. [373]*373Rep. 425; Johnson v. Granite Co. (1892) 53 Fed. Rep. 569.
Whether these rulings correctly declare the law applicable to releases of the kind now in question, we think it unnecessary to decide, in view of the condition of the record before the court.
3. If it be conceded for the sake of aigument, that a tender was necessary to sustain plaintiff’s right to recover upon his original cause of action, let us see whether the judgment actually reached in the trial court can be supported, upon the pleadings, evidence and findings of the jury, irrespective of the question of a tender.
No objection to the sufficiency of the plaintiff’s case, for the want of such tender, was, at any time, interposed in the trial court, unless it may be implied in the request for an instruction that, under the pleadings and evidence, plaintiff was not entitled to recover
But, at that stage of the case, the testimony tend ing to prove fraud in obtaining from the plaintiff the execution of the release, had been admitted under the allegations of the reply.
Upon the facts before the court, at that time, plaintiff would have been entitled to recover at law, upon the footing of the fraud, a measure of damages at least as great as that which the judgment shows was actually meted out to him.
Plaintiff, at the outset of the proceeding, might have set up his original cause of action and the fraud by which he was induced to execute the release for it, and on showing these -facts have lawfully claimed a recovery of the difference between what he received by reason of the release and the damages justly due him upon his former cause of action.
[374]*374That theory would have involved acquiescence in the release which he might have given without waiving his right to recover for the fraud in obtaining it. His right of action for fraud, on such a showing, could be maintained without any offer to return the fruits of the release.
These positions are sustained by abundant precedents. 1 Wharton’s Contracts, sec. 282; Wabash, etc., Union v. James (1893), 35 N. E. Rep. (Ind.) 919.
The only difference between a recovery on that basis and the judgment reached on the trial under review is one of form. The essential facts to sustain both appear in the plaintiff’s pleadings and were found by the jury. Part of those facts are first stated in the reply; but the only objection made at any time to the reply in the circuit court was on the ground that it admitted the existence of a release, uncanceled when the action was brought. That objection we have held to be untenable for the reasons given in the first paragraph of this opinion.
No objection was made to any o'f plaintiff’s pleadings on the ground that a tender of the fruits of the release was essential to plaintiff’s right of recovery, nor was that proposition advanced in the trial court by defendant in any request for instructions.
By positive law in this state the trial courts are expressly authorized, where defendant has appeared and answered, as in this record, to “grant any relief consistent with the case made by the plaintiff and embraced within the issues.” R. S. 1889, sec. 2216;
By the code of procedure this court is directed, in every stage of the action, to “disregard any error or defect in the pleadings or proceedings which shall not ’ affect the substantial rights of the adverse party” (R. S. 1889, sec, 2100); and, further, not to “reverse the [375]*375judgment of any court, unless it shall believe that error was committed by such court against the appellant or plaintiff in error, and materially affecting the merits of the action” (E. S. 1889, sec. 2303).
In addition to these very plain and practical rules of decision, the statute declares, furthermore, that it is the duty of the courts to so construe the provisions of the code of pleading and practice as “to distinguish between form and substance” (E. S. 1889, sec. 2117).
In this state of the record, and of the law, would it not be the sheerest technicality, a complete surrender of substance to barren form, to hold that the judgment should be reversed for want of a tender, when the facts alleged, proved and found, show a solid foundation for the result reached, irrespective of the question of a tender?
Viewing the ease at bar broadly on its merits, the judgment of the trial court seems abundantly supported by the facts, and by the law applicable thereto.
The court would depart 'from the precepts contained in the statutes referred to, should it reverse the judgment for any of the objections which have been urged to it here. It should not be done. In my opinion the judgment ought to-be affirmed. Black, C. J., and Brace and M'acearlane, JJ., concur in that result, and express their own views in an opinion filed along with this. Judges Gantt, Sherwood and Burgess dissent, and file a separate opinion.