EFFECT OF FRAUD IN PROCURING RELEASE.

Court of Appeals for Hamilton County.

#### John P. Jones v. Walter Pickle.

Decided, February 14, 1916.

*Release—Character of Evidence Required to Impeach—Is Void and Not Merely Voidable, When—Where Fraudulently Obtained an Averment or Proof of a Tender Bade is Not Necessary.*

1. Tbe validity of a written release of a cause of action can only be impeached when the invalidity is established by evidence which is clear and convincing in character.

*4142. A release of a cause of. action obtained by fraudulent representing that the instrument is a receipt only, is void and not merely voidable, and the plaintiff may ignore the same in his petition and is not required, in such case, to allege or prove that he tendere^ back the amount received before action brought. ''' '

*D. W. Rogers*and *Michael Miñges,*for plaintiff-in error. .

' *J. G. O’Connell*and *Robert O’Connell,*contra.

Richards, J.

Error to the court of common pleas.

The original action was brought in the court of common pleas by Walter Pickle to recover for personal injuries claimed to have been suffered by him. He was employed in the construction of a trench adjacent to Bethesda Hospital in the city of Cineim nati, and was injured by the banks of the trench caving in. The case has been three- times tried in the court of/common pleas, the first two juries failing to agree on a-verdict, and the last jury returning a verdict in favor of the plaintiff for $500, on which verdict judgment'has been entered.

In the court of common pleas the defendant in his answer set up a release of the cause of action, claimed to have been given by the plaintiff to him before' suit was brought, and under which release he had paid the plaintiff the sum of $45 and had paid the hospital bill amounting-to $66.20. The plaintiff in his reply sets up facts which, if true, show that the alleged release was void because of the fraudulent representations of the defendant in inducing him to believe that the instrument which he signed was simply a receipt for some money which was being paid to him.

We have given careful consideration to all the assignments of error shown by the record, -but it will not be necessary to discuss them all in detail.

Among other things, it is contended that the judgment should be reversed because of misconduct of plaintiff’s counsel in argument to the jury. The language used in the argument was. not entirely justifiable, but was not so prejudicial as to require a reversal of the judgment. These remarks are undertaken .to be *415introduced into the bill of exceptions by affidavit and, in view of what was said by the Supreme Court in *State of Ohio*v. *Young,*77 O. S., 529, some doubt may well exist as to whether these remarks are properly a part of the record.

Many exceptions are scattered through those portions of the bill of exceptions which -contain the oral testimony of witnesses. These exceptions are toó numerous to have separate- mention. We are of opinión that the trial judge was in error in rulings made-by him excluding evidence as-to the opinions of witnesses concerning-the mental condition of Walter Pickle at the time he executed'the alleged release. These witnesses detailed in their testimony-the conversation they had with him on that occasion, and what he did and how he aetéd, and should have been permitted, after giving the details of what there occurred, to give their opinions as to his mental condition on' that occasion when it is said that he executed the release. - • - ■ ■

The trial court charged the jury that the burden of proof rested on the plaintiff tó prove by clear and convincing'evidence that the release, as set forth in the amended answer, was void and of no effect in law as a release. If the contention of the plaintiff were true that the instrument- was no more than a receipt, and thht he was fraudulently induced to believe that he was signing a receipt and so misled into signing a release, then the instrument would be absolutely void. The quantum of evidence stated by the trial judge as necessary in order to invalidate a release claimed to have been obtained by fraud, is in accordance with the rule announced in the case of *Edwards Manufacturing Company*v. *Perry,*22 C.C.(N.S.), 422, where it is said that such release can only be overcome by clear and convincing evidence. This rule appears to be laid down also in the following authorities: *11 Encyclopaedia of Evidence,*167; *2 The Modern Law of Evidence,*by Chamberlayne, Section 1011; *Steffen*v. *Supreme Assembly of the Defenders,*130 Wis., 485; *Demark*v. *Milwaukee Electric Railway & Light Company,*142 Wis., 624, 126 N. W., 13.

All of the members of this court are not prepared to agree that this is the proper rule as to the amount of evidence re*416quired in such eases, but all are agreed, in view of the decision in 22 C.C. (N.S.), cited *supra,*that the rule as announced should be followed.

It is claimed that the plaintiff could' not maintain this action because of his failure to allege and prove a tender before beginning the action. The existence of the release and the fact that some money was paid to the plaintiff were not mentioned in the petition, but first appeared in the pleading filed by the defendant. The facts alleged in the reply would, if true, render the instrument void as a release, and not merely voidable. Under these circumstances, and in view of the holding of the Supreme Court in *Perry*v. *O’Neil & Company,*78 O. S., 200, that such a release does not need to be set up in the petition, but that the issue can be made by filing a reply when the same shall have been pleaded in the answer, we hold that no tender was necessary. Surely, if the plaintiff was not required to plead or even mention the execution of the release, he should not be required to aver a tender back to the defendant of any amount received pursuant to such release. See *Robinson, et al*v. *Easton,*14 C.C.(N.S.), 87.

From an examination of the evidence contained in the bill of exceptions, we are satisfied that the verdict is not sustained by the evidence, in so far as it involves a finding that the release should be set aside for fraud.

In view of the fact that this action must be remanded to the court of common pleas for a new trial, we follow our usual practice and refrain from commenting on the evidence; and this we do for the reason that such comment might be unfairly used on a retrial of the action.

. For the reasons given, the judgment will be reversed and the cause remanded for a new trial.

Chittenden, J., and Kinkade, J., concur.