Mr. Justice Gbben
delivered the opinion of the court January 18th, 1886.
The controlling question of this case is the correctness of the order' granting a compulsory nonsuit. Such an order necessarily concedes the truth of the plaintiff’s testimony and such inferences of fact as a jury may lawfully draw from facts proved: Maynes v. Atwater, 7 Norris, 497 ; Miller v. Bealer, 4 Out., 583. The plaintiff h’aving proved his contract and the work done by him, was confronted with a receipt in full of all demands of every kind for or on account of the construction of the railroad which was the subject of the contract. This receipt was given in evidence in the course of the plaintiff’s testimonjq and contained in addition to the receipt for the money and securities which were paid to the plaintiff, a delivery and surrender of the road to the defendant, and an acceptance by the latter, of the railroad as completed in accordance with the contract. To avoid the effect of this receipt, which was signed by both parties, the plaintiff alleged and testified that it was procured from him by means of a falsehood, asserted as a truth, by one or more members of the board of directors of the company, at a meeting between him and them when the plaintiff’s claim was settled and the receipt given. The plaintiff testified that he believed the fact asserted to be true, and on the faith of it executed the receipt in question by which he abandoned his claim for extra work, which was the chief contention between the parties, and constitutes the subject of the present action. The plaintiff’s testimony on this subject was direct, positive, clear, precise, and as it was not contradicted must be regarded as indubitable. [184]*184There was corroborating testimony by one witness as to the assertion by the board of directors of the fact alleged to be false, and as the defendant’s testimony was not heard, there was no evidence contradicting the testimony of the plaintiff, and his corroborating witness on this subject. As a question of fraud in fact was thus raised, against the validity of the receipt in question, it would apparently be within the function of the jury and not of the court to determine it. Unless, therefore, there are sufficient reasons justifying the court in taking the case from the jury, there was error in granting the nonsuit. It cannot be said that there was no evidence, or only a scintilla of evidence of fraud since the testimony as above stated was direct, positive, clear, precise and indubitable as to the fact of the utterance. As to its falsity the testimony is quite clear by independent witnesses, at least three, and no testimony in contradiction. As to its materiality the plaintiff testifies he signed the receipt because he believed the false assertion to be true. So far as this aspect of the case is concerned the contention in support of the nonsuit does not dispute the fact of the alleged false assertion, nor aver its truthfulness. It proceeds upon other grounds. One of them, much pressed, is that the plaintiff must restore, or offer to restore to the defendant all that he obtained by the settlement before he can maintain his action. We think it unnecessary to review the authorities cited on either side of this question. In point of fact the plaintiff received precisely what he was entitled to under the contract regarding the road, either as actually completed or as being accepted as completed. This is all that is specified in the receipt. Nothing is there said about any unfinished work yet to be done which was thereby released, nor about relieving the plaintiff from any duty of maintaining the road. Whatever of evidence there may be upon those subjects is in parol, is outside of the receipt, and is properly for the determination of the jury upon a consideration of all the facts which can or may affect their decision. We do not think it was competent for the court to absolutely assume as matter incontestably proved either that there was $70,000 worth of work yet to be done by the plaintiff in order to complete his contract, or that he was under, a fixed and positive obligation to maintain the road for a further time, and that he was released from his obligations in these respects by the receipt in question. The receipt is silent on these subjects. Possibly they may have an important effect upon the plaintiff’s right of recovery. We express no opinion either way. But before any effect can be assigned to them the facts affecting them must be found by the jury under proper instructions. As the face of the receipt proves merely that the plaintiff [185]*185received only what he was entitled to under the contract which was treated as completed by both parties, the effect of the impeaching fact of fraud cannot be taken away by the theory that the plaintiff must first restore something which was not given him by the terms of the receipt, and which possibly may, or possibly may not, have been given him by force of facts occurring outside of the receipt.
It is also urged in support of the nonsuit that the plaintiff could not have been deceived by the alleged false assertion, because he knew, or had the means, of knowing its falsehood at the time it was made. It is true he did have in his pocket the engineer’s certificate that he was entitled to compensation for extra work. But the assertion of the directors was that after that certificate was given, the engineer had declared to the directors that he was not entitled to any extras. It was also urged that he could easily have verified the truth of the assertion by applying to the engineer in person. It is certainly somewhat singular that he did not do so before acting finally in a matter of so much importance. But it is most manifest that this consideration is matter for the jury and not for the court. It is a fact affecting the good faith of his action, but clearly it is not the basis for a positive conclusion of law against him. So also the delay of more than four years in bringing the suit is a grave circumstance which ought to be explained, but it surely is not a bar to the suit, and its proper effect upon the integrity of the action is entirely for the jury.
It was also argued that there was no power in the engineer to allow compensation for extras, and therefore there could be no recovery upon such allowance. Of course it may be that the mere allowance by the engineer for extra work does not confer a cause of action where the contract of the parties does not clothe the engineer with authority to make such allowance. But how can the absence of such authority in the original contract deprive the contractor of a right to compensation for such extra work, if in point of fact such work was done either by the express or implied authority of the company subsequently given ?
It is alleged by the plaintiff that some or all of his extra work was done by virtue of such subsequent authority, and evidence was given on that subject. That evidence may or may not be sufficient to support the claim, but the determination of its sufficiency is for the jury and not for the court. Had there been no evidence or only a scintilla on this subject, it would have been for the court to pronounce upon it, but the testimony was much more than a scintilla, at least as to some parts of the claim, and therefore was within the province of [186]*186the jury. As the case must be tried again it would not be proper for us to select portions of the testimony and comment upon them in this or any other connection, and we therefore abstain from doing so.
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Mr. Justice Gbben
delivered the opinion of the court January 18th, 1886.
The controlling question of this case is the correctness of the order' granting a compulsory nonsuit. Such an order necessarily concedes the truth of the plaintiff’s testimony and such inferences of fact as a jury may lawfully draw from facts proved: Maynes v. Atwater, 7 Norris, 497 ; Miller v. Bealer, 4 Out., 583. The plaintiff h’aving proved his contract and the work done by him, was confronted with a receipt in full of all demands of every kind for or on account of the construction of the railroad which was the subject of the contract. This receipt was given in evidence in the course of the plaintiff’s testimonjq and contained in addition to the receipt for the money and securities which were paid to the plaintiff, a delivery and surrender of the road to the defendant, and an acceptance by the latter, of the railroad as completed in accordance with the contract. To avoid the effect of this receipt, which was signed by both parties, the plaintiff alleged and testified that it was procured from him by means of a falsehood, asserted as a truth, by one or more members of the board of directors of the company, at a meeting between him and them when the plaintiff’s claim was settled and the receipt given. The plaintiff testified that he believed the fact asserted to be true, and on the faith of it executed the receipt in question by which he abandoned his claim for extra work, which was the chief contention between the parties, and constitutes the subject of the present action. The plaintiff’s testimony on this subject was direct, positive, clear, precise, and as it was not contradicted must be regarded as indubitable. [184]*184There was corroborating testimony by one witness as to the assertion by the board of directors of the fact alleged to be false, and as the defendant’s testimony was not heard, there was no evidence contradicting the testimony of the plaintiff, and his corroborating witness on this subject. As a question of fraud in fact was thus raised, against the validity of the receipt in question, it would apparently be within the function of the jury and not of the court to determine it. Unless, therefore, there are sufficient reasons justifying the court in taking the case from the jury, there was error in granting the nonsuit. It cannot be said that there was no evidence, or only a scintilla of evidence of fraud since the testimony as above stated was direct, positive, clear, precise and indubitable as to the fact of the utterance. As to its falsity the testimony is quite clear by independent witnesses, at least three, and no testimony in contradiction. As to its materiality the plaintiff testifies he signed the receipt because he believed the false assertion to be true. So far as this aspect of the case is concerned the contention in support of the nonsuit does not dispute the fact of the alleged false assertion, nor aver its truthfulness. It proceeds upon other grounds. One of them, much pressed, is that the plaintiff must restore, or offer to restore to the defendant all that he obtained by the settlement before he can maintain his action. We think it unnecessary to review the authorities cited on either side of this question. In point of fact the plaintiff received precisely what he was entitled to under the contract regarding the road, either as actually completed or as being accepted as completed. This is all that is specified in the receipt. Nothing is there said about any unfinished work yet to be done which was thereby released, nor about relieving the plaintiff from any duty of maintaining the road. Whatever of evidence there may be upon those subjects is in parol, is outside of the receipt, and is properly for the determination of the jury upon a consideration of all the facts which can or may affect their decision. We do not think it was competent for the court to absolutely assume as matter incontestably proved either that there was $70,000 worth of work yet to be done by the plaintiff in order to complete his contract, or that he was under, a fixed and positive obligation to maintain the road for a further time, and that he was released from his obligations in these respects by the receipt in question. The receipt is silent on these subjects. Possibly they may have an important effect upon the plaintiff’s right of recovery. We express no opinion either way. But before any effect can be assigned to them the facts affecting them must be found by the jury under proper instructions. As the face of the receipt proves merely that the plaintiff [185]*185received only what he was entitled to under the contract which was treated as completed by both parties, the effect of the impeaching fact of fraud cannot be taken away by the theory that the plaintiff must first restore something which was not given him by the terms of the receipt, and which possibly may, or possibly may not, have been given him by force of facts occurring outside of the receipt.
It is also urged in support of the nonsuit that the plaintiff could not have been deceived by the alleged false assertion, because he knew, or had the means, of knowing its falsehood at the time it was made. It is true he did have in his pocket the engineer’s certificate that he was entitled to compensation for extra work. But the assertion of the directors was that after that certificate was given, the engineer had declared to the directors that he was not entitled to any extras. It was also urged that he could easily have verified the truth of the assertion by applying to the engineer in person. It is certainly somewhat singular that he did not do so before acting finally in a matter of so much importance. But it is most manifest that this consideration is matter for the jury and not for the court. It is a fact affecting the good faith of his action, but clearly it is not the basis for a positive conclusion of law against him. So also the delay of more than four years in bringing the suit is a grave circumstance which ought to be explained, but it surely is not a bar to the suit, and its proper effect upon the integrity of the action is entirely for the jury.
It was also argued that there was no power in the engineer to allow compensation for extras, and therefore there could be no recovery upon such allowance. Of course it may be that the mere allowance by the engineer for extra work does not confer a cause of action where the contract of the parties does not clothe the engineer with authority to make such allowance. But how can the absence of such authority in the original contract deprive the contractor of a right to compensation for such extra work, if in point of fact such work was done either by the express or implied authority of the company subsequently given ?
It is alleged by the plaintiff that some or all of his extra work was done by virtue of such subsequent authority, and evidence was given on that subject. That evidence may or may not be sufficient to support the claim, but the determination of its sufficiency is for the jury and not for the court. Had there been no evidence or only a scintilla on this subject, it would have been for the court to pronounce upon it, but the testimony was much more than a scintilla, at least as to some parts of the claim, and therefore was within the province of [186]*186the jury. As the case must be tried again it would not be proper for us to select portions of the testimony and comment upon them in this or any other connection, and we therefore abstain from doing so. There is certainly great force in many of the matters presented against the plaintiff’s claim, but we think they are all of a character to be determined by the jury, some of them under special instructions from the court.
Among other things it was strongly urged by defendant’s counsel that the plaintiff must have known that the engineer had no right to allow extras, and therefore he could not have been deceived by the assertion that the engineer had told the directors that the plaintiff was not entitled to any. Several very forcible points are presented derived from various matters in evidence to prove this proposition. But it is too plain for argument, that the proposition itself is one of fact and not of law, and that the reasons urged in support of it are based upon'matters of fact. Those may be very persuasive with the jury who are the proper persons to decide them, but they have no place in an argument to the court. Upon the whole case we think the court was not justified in entering the non-suit, and for that reason the case must be reversed.
There are several assignments which' relate to questions of evidence. The first; second and fourth we think are without merit. . The third is not pressed. We think the matters contained in the fifth clause of the fifth assignment, except that which relates to the professional advice received from Mr. Gowan to the effect that the plaintiff was bound-by the decision of the engineer, were competent and should have been received, and to that extent this assignment is sustained. The other matters covered by this assignment were properly rejected.
The same ruling sustains the sixth assignment, and requires the evidence there offered, other than that which relates to the professional advice, to be admitted.
It is not the case of a mere offer to prove an unexpressed mental purpose, without which a contract would not have been made, and authorities on that subject are not controlling. The question at issue was whether the plaintiff was induced-to sign an important paper by means of a falsehood actually asserted by the opposite party, and which, if believed to be true, might, or did, influence him to execute the paper in question. In such a case the belief of the plaintiff in the truth of the assertion is itself a fact material to the inquiry. He had a right to believe the truth of the assertion, and if he did believe it, and acted upon that belief to his own detriment, he is certainly entitled to prove his belief as he would prove any other fact material to the determination of the [187]*187question whether he was imposed upon or not. Without such belief the false assertion would not have deceived him. So far as the professional advice is concerned it would merely constitute a reason for his conviction that he was bound by the decision of the engineer, but it is the fact of such conviction, and not the reason for it, that is of importance. It is therefore not material to prove that the professional advice was given.
We do not think the state of the plaintiff’s finances was material to the question of imposition, and do not sustain the eighth assignment. We do not regard the evidence stricken out as adequate proof of duress. The ninth assignment is sustained for the reasons already stated.
Judgment reversed, and venire de novo awarded.