Rockwell v. Capital Traction Co.

25 App. D.C. 98, 1905 U.S. App. LEXIS 5251

• Court: Court of Appeals for the D.C. Circuit
• Decided: March 7, 1905
• Docket: No. 1433
• Status: Published

Opinion

Mr. Chief Justice Shepard

delivered the opinion of the Court:

1. A preliminary question arises on the objection of the defendant to the consideration of the error assigned on the action of the court in directing the verdict, on the ground that the bill of exceptions does not purport to set out all of the evidence. It is well established that, in order to warrant an appellate court in determining whether there was error in giving or refusing an instruction to return a verdict, the bill of exceptions must show that all of the evidence has been set forth. United States v. Copper Queen Consol. Min. Co. 185 U. S. 495, 497, 46 L. ed. 1008, 1010, 22 Sup. Ct. Rep. 761. In otir opinion the bill of exceptions in this case substantially complies with that requirement. It purports to recite the evidence in the order of its introduction, giving the name of each witness. This evidence is given at length in each instance, and frequently recites both the questions and answers, — a practice which, in this last respect, has been disapproved. District of Columbia v. Frazer, 21 App. D. C. 154, 159. As shown in the statement of the case, the recital of the action of the court in directing the verdict is. that it was founded “on all of the evidence as above set forth on behalf of the plaintiff.” There is a later recital in the bill of' exceptions as follows: “Be it further remembered that each of the several and separate exceptions taken by the counsel for the plaintiff to the rulings of the court during the progress of the-trial, and tire exceptions by the counsel for the plaintiff to the-instructions of the court to the jury upon the whole evidence, the substance of which whole evidence is included in the bill of exceptions.”

Moreover, the bill of exceptions presented by the plaintiff was; objected to by the defendant, and the one signed was presented by the latter, as shown in the following note signed by the trial justice, and made a part of the same:

“Note. — Counsel for plaintiff submitted a briefer bill of exceptions, but counsel for defendant objected to said bill of exceptions as not setting forth the whole record, and submitted another bill of exceptions, which said other bill of exceptions plaintiff admitted was an accurate record of the proceedings, but protested that the same was set forth at unnecessary length,, and was objectionable under the rules of the court of appeals, as embodying to too great an extent a literal transcript of the-proceedings at the trial; whereupon, in view of the admission of counsel for plaintiff of the accuracy of this bill of exception,, and deeming it proper the record should be set forth with fullness, I settled and signed the above bill of exceptions.”

We do not regard this note as making the bill of exceptions, that of the defendant, thereby precluding it from objecting to its sufficiency, and it has been recited merely as tending to-strengthen the conclusion that none of the evidence material to-the determination of the error assigned has been omitted.

The second recital of the bill of exceptions, before quoted,, was an unnecessary one, but whether so or not, in view of the-fact recited in the note aforesaid, and the first recital that the instruction was given “on all the evidence as above set forth and given,” it cannot be regarded as controlling the first one.

2. Several questions are involved in the determination of the error assigned on the action of the court in directing the return of the verdict for the defendant, and these will be considered in their order.

(1) Is the release of the cause of action to be regarded as executed by the plaintiff under seal ? It will be remembered that the plaintiff’s husband first signed the instrument, and that a seal is affixed to his signature; that none follows the signature of the plaintiff. Were this all, it might well be considered a sealed instrument in so far as the husband is concerned, without being one as regards the wife. But the instrument contains the recital, “given under our hands and seals,” from which the presumption may be indulged that the seal affixed to his signature was adopted by her also. Northumberland v. Cobleigh, 59 N. II. 250, 252; Burnett v. McCluey, 78 Mo. 676, 688; 25 Am. & Eng. Enc. Law, p. 79. See also Brown v. Commercial F. Ins. Co. 21 App. D. C. 325, 336.

(2) Can the plaintiff defeat the operation of the sealed release pleaded in bar of her action at law by showing fraud in its procurement ? We are of the opinion that she can. At a time, even, when the observance of the technical distinctions between sealed and unsealed instruments was more rigidly adhered to than now, it was permissible to avoid the obligation of a sealed instrument by showing that fraud or imposition had been practised in procuring the signature and seal. “The fraud in this aspect goes to the question whether or not the instrument ever had any legal existence.” Hartshorn v. Day, 19 How. 211, 223, 15 L. ed. 605, 612.

While it may be that the present case does not fall entirely within the exception stated in Hartshorn v. Day, 19 How. 211, 15 L. ed. 605, because there was no actual misrepresentation of the character and purport of the instrument executed, we see no reason whatever for the maintenance of the distinction in the case of instruments of the kind under consideration.

The operation of the release was as completely effective at law wiuiout as with execution under seal, and the affixture of the seal was a superfluous act. The decided tendency of modern •decisions is to minimize the old distinctions between sealed and unsealed instruments, where they have not been entirely abrogated by legislation. Lyons v. Allen, 11 App. D. C. 543, 549. In that case it was said by Chief Justice Alvey: “Formerly this right of avoiding a release under seal, on the ground of fraud, in an action at law, * * * -was generally denied, and the party was referred to a court of equity in jurisdictions where the remedies at common law and equity are separate. But it is now generally held by a great preponderance of authority that a release so set up as a defense may be avoided at law.”

(3) Was it necessary, to entitle the plaintiff to avoid the release on the ground of fraud, that she should have offered to return the consideration received, before bringing her action for the injury ? We have heretofore held that a return, or an offer to return, must be made in order to avoid such a release. Lyons v. Allen, 11 App. D. C. 543, 549, 552. But in that case no offer to return -was made either before or after the beginning of the action, and the amount received on the execution of the release was permitted to be set off in the verdict.

In another case it was held that the tender of the return of the consideration, made during the trial of the case, was sufficient. Chesapeake & O. R. Co. v. Howard, 14 App. D. C. 262, 297; 178 U. S. 153, 167, 44 L. ed. 1015, 1020, 20 Sup. Ct. Rep. 880. In that case, as in this, the release was obtained from a woman suffering great pain from a recent injury, and the plaintiff’s evidence tended to show that she did not understand the instrument to be a release of her cause of action, but a mere receipt for money given to help her. It is sought to distinguish that case from this, because here there was no misrepresentation of the nature of the instrument, and the alleged fraud consists solely in the manner in which its execution was obtained. As intimated in that case, though not considered necessary to its determination, we are not satisfied with the soundness of any such distinction as affecting the time of the offer to return the consideration.

If, in case of a contract procured in either way, the signer should bring an action of deceit or a suit to cancel, she would be compelled to return, or offer to return, whatever she had received as the condition of its maintenance. In the one case the signer might not reasonably be expected to tender the return of money and bring a suit to rescind, because of the belief that she had received the money as a gift and had executed nothing more than a receipt for the same, at least, until informed that the instrument was in fact a release and held as such. If informed of this fact in advance, what would be the substantial difference between her situation and that of the plaintiff in this case? Each instrument is operative to the same extent if untainted by fraud, and equally inoperative if so tainted. If procured through fraud, neither party is required to sue for cancelation, but may impeach its validity when offered in defense to an action at law. And we see no good reason why one party more than the other should be required to anticipate a defense founded on the instrument, and offer to return the consideration as the condition of bringing the action. We are of the opinion that it is time enough to malee the tender in either case after the release shall have been pleaded in bar. Tender or offer to return then accomplishes all the purposes for which it is required at all.

Some of the cases to which our attention has been called, . where the doctrine has been declared that tender or offer to return is a condition precedent to the institution of the suit, were either suits to rescind, or suits in courts of blended jurisdiction where cancelation was part of the remedy sought. Lumley v. Wabash R. Co. 71 Fed. 21; Strodder v. Southern Granite Co. 94 Ga. 626; Herman v. Haffenegger, 54 Cal. 161. In others no tender had been made at any stage of the proceedings. Norwich Union F. Ins. Soc. v. Girton, 124 Ind. 217, 24 N. E. 984; Potter v. Monmouth Mut. F. Ins. Co. 63 Me. 440; Pangborn v. Continental Ins. Co. 67 Mich. 683, 35 N. W. 814; East Tennessee, V. & G. R. Co. v. Hayes, 83 Ga. 558, 10 S. E. 350; Drohan v. Lake Shore & M. S. R. Co. 162 Mass. 435, 38 N. E. 1116; Brown v. Hartford F. Ins. Co. 117 Mass. 479 ; Louisville & N. R. Co. v. McElroy, 100 Ky. 153, 159, 37 S. W. 844; Hill v. Northern P. R. Co. 51 C. C. A. 544, 113 Fed. 914, 916; Och v. Missouri, K. & T. R. Co. 130 Mo. 27, 36 L. R. A. 442, 31 S. W. 962. In the case last cited there was a replication of fraud in the release pleaded by defendant, but no offer to return the consideration. The majority of the court expressed the opinion that in the action at law, unless the execution of the release was obtained by fraud, a tender should have been made. It was further said, however, that the “petition might have been amended, before or at the trial, upon proper terms, by adding a count in equity to set aside the settlement.” Gould v. Cayuga County Nat. Bank, 86 N. Y. 75, was a case very unlike the present one, and the tender therein made during the trial was a qualified and conditional one. Substantially it was nothing more than an offer of credit upon the recovery sought.

On the other hand, many cases, some of which are cited, expressly decide that the offer to return may be made after the institution of the suit and while it is pending. O'Brien v. Chicago, M. & St. P. R. Co. 89 Iowa, 644, 57 N. W. 425; Chicago, R. I. & P. R. Co. v. Lewis, 109 Ill. 120; Chicago, R. I. & P. R. Co. v. Doyle, 18 Kan. 58. See also Union P. R. Co. v. Harris, 158 U. S. 326, 331, 333, 39 L. ed. 1003, 1005, 15 Sup. Ct. Rep. 843. In that case the release pleaded by the defendant was attacked for fraud in its execution. A meager statement of the evidence tends to show that there was a claim of misrepresentation of the contents of the instrument, and also that the plaintiff was not in a condition to fully understand what he was doing. The defendant moved the court to instruct the jury that the release was a complete bar to the action. This was denied and the qiiestion of fraud was submitted to the jury. No tender of return, of the consideration was made at any time, but the jury were permitted to deduct it from the amount allowed plaintiff for his- damages. The question of tender was not expressly, but impliedly, passed on in approving the charge to the jury.

(4) It is unnecessary to review the evidence offered by the plaintiff in support of the charge of fraud in obtaining her signature to the release, all of which appears in the statement of the case heretofore made. In our opinion it was sufficient to require the submission of tbe issue to tbe jury. "Whether the witnesses were credible, and whether their evidence had been overcome by the contradictory evidence of the defendant, were questions for the exclusive determination of the jury.

The evidence, regarded in the aspect most favorable to the plaintiff, tended to show that at the time of touching the pen she was in bed suffering considerable pain, and that she was weak, nervous, and weeping under the strain. If, however, the validity of the release turned solely upon her incapacity to understand what it was represented to be, namely, a release of her right of action, this evidence, standing alone, would not be sufficient; but it was entitled to weight in determining whether she signed the release under the false impression that its execution by her husband made it operative to destroy any right of action she may have had. If in her weakened and nervous condition she was induced to sign under that belief, produced by the declaration of her husband in the presence of defendant’s agent, who neither contradicted nor explained it, her action cannot be governed by the general rule that applies in the case of a mistake of law, and it is unnecessary to consider the distinction between ignorance of a general rule of law and ignorance of law relating to a mere private right of property. A misrepresentation of the law, especially under such circumstances, does not differ in effect from the misrepresentation of a material fact.

(5) The fact that plaintiff used the money and cashed the check shortly after their receipt did not show a ratification of the release, as matter of law. If when this was done plaintiff remained under the same impression that she had when she signed, or authorized her signature to be attached to, the release, then there was no ratification. “One cannot waive or acquiesce in a wrong while ignorant that it has been committed.” Pence v. Langdon, 99 U. S. 578, 581, 25 L. ed. 420, 421.

3. One other question remains to be considered, as it may .arise on the new trial if not now determined. A champ ertous contract.that may have been made by plaintiff with some third person for the maintenance of the action is no bar tó her recovery. Burnes v. Scott, 117 U. S. 582, 589, 29 L. ed. 991, 993, 6 Sup. Ct. Rep. 865. Evidence, therefore, tending to show that the plaintiff had. not furnished the deposit for costs, or the money tendered to defendant to repay that received at the time of the execution of the release, was irrelevant, and ought not to have been admitted over her objection.

For the errors pointed out the judgment must be reversed, with costs, and the cause remanded, with direction to vacate the verdict and grant a new trial. It is so ordered. Reversed.