#### J. W. WRIGHT, JR., v. NORTHAMPTON AND HERTFORD RAILROAD CO.

(Decided October 10, 1899.)

Damages — Release—Judge’s Charge.

1. A release of damages for injury sustained given by the plaintiff to the defendant operates as a satisfaction of plaintiff’s claim and precludes a recovery, unless invalidated by fraud alleged and proved.

2. Where fraud is alleged without scintilla of proof, an instruction : from the judge, submitting the question of fraud to be passed on by the jury, is erroneous.

Civil ActioN to recover damages for personal injury to the plaintiff caused by alleged negligence of the defendant, tried before Norwood Jat August Term, 1898, of Nobth-ampton Superior, Court. The issues relating to the cause of action were found in favor of the plaintiff.

As a further defense to the action the defendant relied upon' a written release signed by the plaintiff, dated December 1*8, 1894. 1 '

*2To which the plaintiff replied, that if he ever signed such paper, there was no consideration, and that his signature to same was obtained by deceit and fraud, and that the same is not valid. An issue relating thereto, was submitted to the jury as follows:

4. Is the paper writing dated December 18, 1894, relied on by defendants as a release or accord and satisfaction, the contract of plaintiff?

The following testimony bearing on the fourth issue was offered :

J. W. Wright, the plaintiff, testified: (Receipt is shown to the witness, marked Exhibit 1.) This is my signature; I did not know what it was when I signed it. (Statement of account, marked Exhibit 2, is shown -witness. He says he has seen this paper or one like it.) I never read the receipt until I came back from Arkansas. I never looked over the account. Mr. Missel had been keeping my money and my account with the company, and I considered him' honest, and I had great confidence in him, and I signed the paper that he brought. He brought some money and gave it to me, but I did not count it. When I came back from Arkansas, in consequence of a conversation I had with Grant, I went to Missel and asked to see the receipt, Exhibit 1, and he showed it to me. I don’t remember what I said to him, except that I told him that I did not know I was signing a release.

Plaintiff rests.

Defendants offered in evidence Exhibit 1, which is in the following words and figures, to-wit:

$62.61. Gumberry, N. C., December 18, 1894.

Received of the Northampton and Hertford Railroad Company, through the hands of E. Kell, as per his statement ren*3dered, sixty-two and 67-100 dollars, in full of any and all claims to date, including tbe sustaining of injury received by accident October 26, 1894, by tbe breakage of leg, they agreeing to pay Dr. A. J. Ellis at their own cost tbe amount of bis medical service rendered. . J. W. Weight, Je.

Defendants then offered in evidence Exhibit 2, which is in the following words and figures, to-wit:

December 18, 1894.

Me. John W. Weight, In account with F. Kell.

Dr. Or.

Nov. 1. By balance due you per acct, rendered... §18.87

10. To cash paid Eugene Samuels. $6.00

94. By 8 days checked off McArther’s time. _ 6.00

To mdse, from store .. 1.83

23. To cash, Wm. $1; cash, Chesly 10 cents; cash, Geo., $3.50. 3.60

Dec. 4. To cash, Dr. Green $5; cash, license §3; cash, crutches §2. 10.00

6. To cash sent you by Friday §1; cash, W.D. Smith $1. 2.00

To cash, dispatch 75c.; cash, pass Brooks 75 cents. 1.50

14. To ladies’ shoes and postage $2.20 ; 17 tels. and for W. W. W. 50 cents. 2.70

17. To cash, Spivey. .85

18. To board, Mrs. Joyner of wife 15 days_ 6.00

By 25 days in Nov. on acct N. & H. R. R. By 15 days in December. By 40 days $50... 76.92

By erroneously charged crutch $2; paid Friday $2.50. 4.50

To mdse, from store. 9.14

To cash handed you in full to date of any and all claims, including the sustaining of injury received. 62.67

100.29 106.29

F. Keli,, (Signed)

P. M„ Je.

*4Phil Missel, Jr., a witness for defendants, testifies: On tbe day tbat Wright went to Arkansas, about two months after the accident, I went in his room. He asked me what the Railroad Company ivas going to do about paying him. I told him that I did not know. He said that he ought to have pay for his time and have his doctor’s bill paid. I told him I thought so too, and that I would see Mr. Kell for him, and see what he would do. I went and saw Kell, and he said that he would pay him from the time that he got hurt until he got well, if he would stay there, in order that his physician might attend him, but if he would not do so, that he would pay him up to the present time and pay Dr. Ellis, and leave the rest to Messrs. Clark and Shephard (the President of the defendant companies). I went back to see Wright, and finding company in his room, called him out and told him what Kell offered to do, and Wright agreed to accept Kell’s offer. I then went back to my office and made out Wright’s account, and then went back to Wright’s room and paid him the money due him, and gave him a statement of his account, of which this (Exhibit 2) is a copy, and read the receipt (Exhibit 1) to him, and he signed the receipt and gave it back to me. He kept the money and statement of account. He said that he ivas going to Arkansas to see his mother. He had walked around on crutches before this time. I next saw Wright when he returned from. Arkansas. He asked to see the. receipt, and I showed it to him. He said that he did not know that it read that way. I made no reply. He after-wards asked me about the propriety of his staying with Kell, if he would look like an object of charity ? I told him no, that I thought it was dire him from Kell. I told him that I would have to swear, if I was put on the witness stand, that I read.the receipt to him, and that he had said nothing. I was Kell’s bookkeeper and secretary, and bookkeeper for the *5Gr. & <T. E. E. & L. Co., and secretary and treasurer of N. & TI. E. E. Co. The two companies bad no connection in a sense except a money transaction. I am now in tbe lumber company business. I am secretary of a lumber company not connected with the defendants. I live in Eich-mond, Ya., and came here to testify. Kell paid Wright’s board and doctor’s bill.

Defendants close.

Mrs. Wright, wife of plaintiff, testifies: I am a niece of Mrs. Kell’s. Missel came twice on the day that Wright, signed the receipt. Wright was on the bed. Neither paper was read to Wright. Missel told Wright there was an itemized statement of your account and a receipt, and gave him the money and statement of the account, and I put them away without counting the money. Missel had in the evening called Wright out, and talked to him about a sleeper, and I went and settled the matter about the sleeper. Eeceipt was not lead to Wright.

Dr. A. <T. Ellis testified: Kell paid Wright’s doctor’s bill.

At the close of the evidence, the defendants moved the Court to dismiss the action upon the ground that there was no evidence to go to the jury showing fraud in the execution of the réceipt (Exhibit 1).

Motion overruled, and defendants excepted.

His Honor charged the jury on the 4th issue as follows:

“If the jury find that the plaintiff signed the receipt (Exhibit 1) for the purposes therein set forth without any fraud or misrepresentation on the part of the defendants, or their agent, Missel, then they should answer the fourth issue, Yes.”

Defendants excepted.

His Honor further charged the jury on the 4th issue:

*6“If the jury should find that the plaintiff was induced to sign the paper by the fraud of the defendant’s agent, Missel, and'that plaintiff did not know the contents of the paper when he signed it, and that he had no opportunity to ascertain its contents, and could not by reasonable diligence have learned what the paper was, then the jury should answer the first issue, No.”

Defendants excepted.

At request of plaintiff, his Honor further charged the jury:

“If the jury find from the evidence that plaintiff had great confidence in the witness, Missel, and had trusted him to keep his money and his accounts with the defendant company, and further that said Missel told him that the paper dated December 18, 1894, was a receipt for his wages up to date, and that he signed said receipt without reading it, trusting in what Missel had told him, then the plaintiff would not be estopped thereby, and the fourth issue should be answered, No.”

Defendants excepted.

The jury responded to the 4th issue, No, and assessed the plaintiff’s damages at $1,000, less $142.92, leaving $851.08, and his Honor rendered judgment in favor of plain-7 tiff for $851.08, from which judgment the defendant appealed to Supreme Court.

Messrs. W. H. Bay and 8. II. MacBae, for defendant (appellant).

Mr. B. B. Peebles, for plaintiff.

MONTGOMERY, J.

This action was commenced for the recovery of damages for an injury to the person of the plaintiff caused by the alleged negligence of the defendant com*7pany; and tbe jury found all tbe issues favorably to tbe plaintiff.

One of tbe defenses set up in tbe answer was tbe release of tbe defendant and tbe satisfaction of tbe plaintiff’s claim. Tbe plaintiff filed a replication to that defense and averred that tbe paper writing which contained tbe release was procured through tbe fraud of the defendant. Epon that phase of tbe case tbe fourth issue: “Is tbe paper writing dated December 18, 1894, relied on by defendants as a release or accord and satisfaction, tbe contract of plaintiff ?” was submitted to tbe jury. Tbe defendant’s appeal contains exceptions only to the charge of. bis Honor on that issue. Tbe Court’s instruction was this: “If the jury find that tbe plaintiff signed tbe receipt (Exhibit 1) for tbe purposes therein set forth without any fraud or misrepresentations on tbe part of tbe defendants or their agent, Missel, that they should answer the fourth issue, Tes.” Hpon a most careful examination of the whole evidence we fail to find a scintilla as to any fraudulent conduct on tbe part of Missel, the agent of tbe defendant company. Tbe plaintiff himself as a witness did not make any charge or intimation that Missel practiced any deceit or fraud upon him in tbe execution of tbe release, or in its consideration. It is true be said that be did not know what tbe paper was when be signed it, that Mr. Missel bad been keeping bis money and bis account with tbe defendant, that be bad great confidence in Missel, that Missel brought tbe paper to him to sign and be signed it, but be did not testify that tbe paper writing did not contain the contract and agreement between him and the company, or that be wished even then to repudiate it. Nor did the plaintiff testify that he was not informed of the agreement and release set out in the paper writing before be executed it. Missel testified that tbe terms of the settlement were fully *8gone into between him and the plaintiff just immediately before the plaintiff signed the receipt, and the plaintiff did not contradict the statement. The testimony of the plaintiff’s wife added nothing to the strength of his case. She said that Missel brought the account and receipt to the plaintiff, saying, “There was an itemized statement of your account and a receipt, and gave him the money and statement of the account.” And she said further that neither paper was read by the plaintiff. But certainly on the face of that statement there was no fraud on the part of Missel, and nothing tending to show that the plaintiff had not been informed by Missel of the contents of the paper writing before he signed it.

The instruction of his Honor was erroneous, for there was no evidence tending to prove fraud on the part of the defendant in the execution of the release.

New trial.