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they expected to continue business with him as well as Kolp's testimony, in several placfrom their Wichita office and expressed the es, shows that he knew Brazer was making hope for a nice business. At any rate, the the sales. The jury accepted the testimony jury believed Brazer, Jones, and Sullivan and offered by appellee and rejected Kolp's tesaccepted their testimony and disregarded timony. We do not think we have treated that of E. R. Kolp.

appellants unfairly in the record, but have Counsel contends that the original letters gone over it carefully several times. We and telegrams were attached to the deposi- think we have correctly quoted the record tions of Brazer as Exhibit 5. This is a or its effect and those facts which support statement by attorneys, but the record in the findings of the jury, and, but for the this case does not disclose that fact. The seeming disposition on the part of counsel record shows in this case that copies of to attribute to us oversight in examining the confirmations of the sales are set out in Ex- record, we would not have filed this addihibit 3 to the deposition, and Exhibit 3 covers tional finding. 16 pages of the statement of facts and the The motion of the appellants is overruled. confirmation of the sales purport to be addressed to the respective purchasers to whom Brazer says he sold, confirming the sale. If Jones is to be believed, he sent these con

WESTERN UNION TELEGRAPH CO. v. firmations to the purchasers—a copy to Braz

WALCK et ux. er and a copy to appellants at Oklahoma (Court of Civil Appeals of Texas. Amarillo. City, and a copy to them at Ft. Worth.

Nov. 29, 1913. Rehearing De

nied Dec. 20, 1913.) Brazer testified these are the copies he received. Kolp says he never got any such 1. RELEASE ($ 58*) – FBAUD - QUESTION FOR

JURY. reports of confirmations. The jury accepted In an action against a telegraph company the testimony of Jones, Brazer, and Sulli- for injuries to a wife falling over a guy wire We think therefore the evidence suffi- and stob in a public street, defended on the

ground that the wife and her husband had recient to show Jones was the agent of appel- leased all claims, evidence held to justify the lants, and that he, in acting for appellants, submission to the jury of the issue whether the confirmed the sales; also, notifying appellee release in form including the company, was pro

cured by fraud. that the sale was confirmed. This was the

[Ed. Note.-For other cases, see Release, act of appellants, and as such was admissi- Cent. Dig. 88 109-114; Dec. Dig. $ 58.*] ble as the acts and declarations made by 2. RELEASE ($ 17*)–FRAUD-EFFECT. them and substantially admitting the sale. A telegraph company, when sued for inju

We have been severely taken to task for ries to a pedestrian falling over a guy wire in stating that E. R. Kolp excused himself from the pedestrian' and her husband released from

a public street, relied on a release reciting that searching through his letters and correspond- liability a railroad company and all persons or ence in question on the ground that the companies. The preliminary negotiations for a mass and bulk was so great that it would settlement were had between a claim agent of take considerable time to find them.

the railroad company and the husband and wife,

In who believed that the claim agent represented speaking of the correspondence between the only the railroad company. The claim agent, appellants and Jones, E. R. Kolp says: "I with knowledge of that fact, failed to disclose do not know where some of that correspond-well

, and the husband and wife in reliance on

the stipulation releasing other companies as ence is. I did not have any occasion to look his representations signed the instrument withfor it. * * I read the depositions in out reading it. Held, that the claim agent was which he said he sent us copies of the cor- guilty of fraud excusing the husband and wife

from their failure to read the instrument, and respondence. I have not looked for copies the telegraph company could not rely, thereon of that correspondence. The reason I did to defeat an action by them for the injuries. not was that it was not necessary. I did

[Ed. Note.-For other cases, see Release, not think it was needed. There is a mass

Cent. Dig. § 32; Dec. Dig. § 17.*] of stuff that comes there.

You Appeal from District Court, Potter Councould not have a building large enough to ty; J. N. Browning, Judge. keep all these copies from four or five offices. Action by George F. Walck and wife Whenever he made a sale of bran, he was against the Western Union Telegraph Comsupposed to send us an account of it.” The pany. From a judgment for plaintiffs, detrial court qualified the bill of exceptions fendant appeals. Affirmed. taken to the admission of this evidence, that Veale & Davidson, of Amarillo, for appelappellants were given notice to produce all | lant. E T. Miller and Barrett & Jones, all letters, papers, and correspondence in rela- of Amarillo, for appellees. tion to the transaction. Jones testifies the notices of sales were sent appellants and were HENDRICKS, J. The appellees, Geo. F. sent through June and July. Brazer tes- Walck and wife, Ellen Walck, sued the tifies that these were notices of confirmation Western Union Telegraph Company for inof the sales received by him from appel-juries alleged to have been sustained by the lants. The record does not show any other wife at Des Moines, N. M., on account of sales made by Brazer. The correspondence, | falling over a guy wire attached to one of

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

ness.

appellant's telegraph poles and a "stob" in "The above account has been examined, a public road or street, while traveling from found correct and is hereby approved for her home at night to said town. The result payment. (Signed] J. H. Bradbury, General of the fall, on account of pregnancy, pro- | Auditor. duced a miscarriage and premature birth of a "Witnesses to signatures: J. M. Kimmel, child, and consequent suffering and weak- address, Des Moines, N. M.; C. J. Niehous,

The matter of the injury, the negli address, gence of the telegraph company and its "Received February 3rd, 1912, from the original liability, aside from the matter of a Colorado & Southern Railway Company, in release, are not seriously at issue upon this full payment of above account. Two bunappeal. The question principally involved dred and fifty and no/100 dollars. $250.00. arises upon the following release, executed Note: The receipt to this voucher must be by the appellees, as a determination of their dated. rights, and we omit certain notations and

"Voucher is made, or when signed by statements upon the release which we do not another.” think are germane to the discussion. “In consideration of the sum of two hun

It is noted that in literal language the dred fifty and no/100 dollars ($250.00) to me Western Union Telegraph Company is not in hand paid by the Colorado & Southern a party to the instrument, but claims to be Railway Company, receipt whereof is hereby embraced in the following language: "Any acknowledged, I, do hereby fully and forever and all persons or companies of every decompromise and settle with and release and scription, who, or which, may have contribdischarge said railway company and all rail- uted in any manner by any act or omisway companies whose lines are operated by sion"—which, connected with the releasing or in connection with the said the Colorado and discharging clause of the instrument, & Southern Railway Company, or which are provide for its exoneration from damages. a part of the system of the said company, and This release was attacked by the appellees on any and all persons or companies of every the ground of fraud, alleging that the same description, who, or which, may have con was void: "Because at the time of and betributed in any manner by any act or omis- fore same was signed, the Colorado & Southsion, from any and all claims, demands or ern agents and servants who procured such causes of action which now exist, or may instrument as was signed procured same hereafter arise, by reason of any and all by representing that the said railway had personal injuries, of whatever character or nothing to do with the said wire or telegraph description, sustained by me on or about the line; that they were not liable in any way 9th day of December, 1911, at or near Des to him; that the railway had sold its inMoines, state of New Mexico, while walking terest in the said telegraph line, and that along street or road I struck a guy wire to they would give him $250 as a donation or a telegraph pole and fell to ground. At the gift, and that same would not interfere in time of said accident I was pregnant and any way with his real claim against the the blow resulted in premature birth of child Western Union Telegraph Company (against) which lived about two hours. Also for all whom said servants said he could recover; expenses incurred by reason of the said ac

that the said paper was signed late cident and also for loss of services and at night while said wife was in bed sick, and companionship of my said wife, Nora Ellen in no condition to, and when she did not and Walck.

could not, read or understand said release, “Bill for Voucher.

and plaintiff himself had no glasses, and “Meaning and intending hereby to dis-was unable to read at night, and did not read charge and hereby discharging said com- and could not read said instrument but re panies and persons and each of them from lied on said servant's and agent's representaany and all demands and claims as fully as tions;

* and that said instrument if said injuries, whether present or future, was signed with the specific understanding were all described herein in detail.

and assurance that it would not interfere “I have read and fully understand the with, said plaintiff's cause of action." Apforegoing instrument and agree to same and pellees further alleged that "the parties who hereto affix my hand at Des Moines, N. M., procured said instrument undertook to tell this third day of February, A. D., 1912, as plaintiff the substance and form of same, my free and voluntary act and deed. Nora and assured him that it was as above set Ellen Walck. [Seal.) George F. Walck.out," and with the further allegation that [Seal.)

plaintiff and his wife believed the representa"Correct. Calculations correct. (Signed] tions made and relied upon same when the W. F. Dobecki. [Signed] R. H. Doolittle, instrument was executed. Claim Agent. [Signed] J. H. Bradbury. The fifth assignment of error, which we

“Approved: (Signed] J. D. Welsh, General think is the first one material in this record Superintendent.

which we should notice, is that the court “Approved: [Signed] S. G. Arscott, for erred on account of the submission of the Vice Presidente

eighth paragraph of his main charge to the

jury, complained of by three propositions as tiations with reference to settlement had follows:

been made between the parties, the claim (1) That the charge "directs the jury that agent Niehous having been in Des Moines they may find for the plaintiffs on a state three or four days prior to the execution of facts not proven on the trial of the case." of the release, for the purpose of investigat

"(2) The failure of the claim agent Niehous ing the matter, that upon his last visit, imto acquaint appellees with the fact that the mediately prior to the execution of the re effect of the release was to discharge the ap- lease, appellees, Walck and wife, had ofpellant, and the fact that appellees signed fered to accept $400 in settlement of their the release in question without knowledge claim against the Colorado & Southern Railof its true contents, effect, and import would way Company, and that at this time said not be sufficient to avoid the release.

claim agent representing the said railway “(3) In the absence of proof that plaintiff company, offered the sum of $250, which was prevented from reading the release, or was rejected. We conclude that at no time that it was misread to him, it was error for during the negotiations did appellees Walck the court, in the eighth paragraph to allow know that the claim agent Niehous was in the jury to find against the release; it being any manner representing the Western Union on its face a full and complete satisfaction Telegraph pany, but believed that he of plaintiff's damages and a release of all

was representing solely and exclusively the persons and corporations."

Colorado & Southern Railway Company. We The following is the paragraph of the find that the appellees inquired of this claim charge complained of: “On the other hand, agent, at the time of the last visit that the if you believe from the evidence that C. J. latter made to Des Moines for the purpose Niehous, the claim agent of the Colorado & of settling the claim prior to the execution of Southern Railway Company, represented to the instrument, if the Western Union Teleplaintiffs that the said railway company was graph Company was concerned in the matter not liable to them, but that any claim they of settlement, and that said Niehous anmight have was against the defendant, West. swered that he did not know. We find that ern Union Telegraph Co., and that the said receipt and release contract, signed by them, of the true contents, effect, and import of

the appellees did not have any knowledge would not interfere in any way with their cause of action, if any, against defendant tele. Niehous says: “They asked me whether the

said instrument at the time of its execution. graph company; and you believe further that Western Union was concerned. I told them the $250 mentioned in said contract of re lease was a mere gratuity or gift from said I did not know, and I did not at that time," railway company and said Niehous, and not but “before I went to Des Moines [the last a settlement of the case; and you further be time when he made the settlement] I learnlieve from the evidence that the plaintiffs be ed that the Western Union was concerned." lieved said representations to be true, and Again he said: “I never said anything about that they in good faith received and accept the Western Union being concerned in the ed said sum as a gift or gratuity and not as

release. They were once talking about the a settlement and satisfaction of any dam- Western Union, and I told them I did not ages or losses which they may have sustain know about it." He further says, meaning ed by reason of the accident in question; and at the time of the settlement: "It was not you further believe that said Niehous paid necessary for me to mention the Western over to plaintiff's the money, and procured Union. I did not purposely leave out the from them the said release, and that in so

Western Union. It just happened that nothdoing he represented to them that said re-ing was said about it.” He claims that the lease was merely a receipt for the money; night the release was made he said nothing and you further believe that they accepted to the appellees, except that he informed said money and signed said receipt and re

them that the release was a full release for lease without knowledge, on their part, of the accident and the injury. He also says the true contents, effect, and import of the that appellees understood the release, and same, and that said Niehous purposely with we presume and find that this is the manner held and concealed from plaintiffs that said this witness claims they understood it: “I instrument purported and had the effect of did not say 'against all companies' (meanreleasing any claim for damages they may | ing, of course, that he did not inform them have had against the Western Union Tele- | that it was a release against all companies). graph Company—then, if you so find and I said, 'Do you understand that you are believe from the evidence, the said release through with this matter, and that this rewill not operate as an acquittance to said leases for this accident entirely?'” Of telegraph company, and would not deprive course the question is naturally suggested, plaintiffs of the right to recover in this case, with whom and with what companies the if you believe they are entitled to recover appellees had finished their negotiations? under the evidence and the law given you As stated, these people had been dealing elsewhere in this charge.”

with him as the agent of the Colorado & The evidence discloses that prior to the Southern, and not as a representative of execution of the release, preliminary nego-| the Western Union. They had asked him if

the Western Union was concerned in set- | “Des Moines, N. M. Feb. 1, 1912. Mr. C. J. tlement, and he had informed them that they Niehous, 827 Cooper Building, Denver, Colo. were not. Unless they had some other -Kind Sir: As I am not getting my health knowledge from another source, not appar- here as fast as I ought to and I will have ent in this record, we do not understand to be taken away from here at once to a how it could be urged that this witness im- lower altitude, and have to be treated there parted any information, especially with ref- by a good doctor for my hips as I am getting erence to the Western Union Telegraph Com- weaker and the circulation is not right in my pany, and we find that the communications lower limbs; I have come to think that I which he claims he actually made are in the will better take the $250.00. Now this is nature of suppression and deceit. He knew small for my suffering and the loss of my that they were dealing with him as the baby, and it will take nearly all of it to pay agent of the railway; even according to his our debts here for we must pay our doctor. own testimony he had acquired information I have been since the night of the 9th of Debefore the night of the settlement that the cember, 1911, until now not able to do anyWestern Union was directly interested, and thing, and have been in pain most of the upon paying them cash in the sum of $250 time. Please let us know just when you will upon that particular occasion, he immediate be here. I think the C. & S. R. R. Co. ought ly drew upon the Western Union for the full to furnish us tickets to Shattuck, Okla. I amount, evidently for reimbursement. We am, Very Respectfully, Mrs. Nora Ellen think this witness was mistaken when he Walck, Des Moines, N. M.” That the agent says that it was not necessary for him to Niehous received said letter on the mornmention the Western Union when this re

ing of the 3d of February, arriving at Des lease was executed, and that "it just hap-Moines, N. M., at 11 o'clock at night, said setpened" that nothing was said about the mat- tlement having been effectuated between 11 ter, and that a consistent course to exclude and 12—about 30 minutes being consumed for information with reference to the real bene- that purpose—and that upon the particular ficiary of this release and of this settlement, occasion Mrs. Walck, who in this record was for the purpose of obtaining a settlement of at least acting as the agent of her husband, this character from these people, was in with reference to some of the negotiations reality practiced by this claim agent. We and the writing of said letter, was in bed

and in a weakened condition. find that he informed the appellees he was a lawyer, and that he informed them that leveled at the charge of the court, quoted

[1, 2] The appellant's first proposition he knew that the Colorado & Southern was not liable for any damages with reference to sion to find for the plaintiff on a state of

by us, complaining that it was a submisthe guy wire over which the woman stumbled, facts not proven on the trial of the cause, and further informed them that their ground is not sustained by the record; and the of action was against the Western Union, second proposition, that the failure of the and that he understood the situation because claim agent to acquaint appellees with the he was an attorney. On the night of the true contents of the release would not be execution of the release, a smoky lantern sufficient to avoid said release, is a singling was the light afforded for that purpose. In out by appellant of one particular phase of accordance with the verdict of the jury and the evidence, which, with other evidence the testimony of the appellees, by which we in the case, we think is sufficient to sustain are bound, we find that the appellees did not the verdict of the jury as to the voidability read this release upon this occasion, and that of said instrument; and, as to the third neither Walck nor his wife knew that the proposition, that in the absence of proof language purporting to release their claim that plaintiff was prevented from reading for damages "against all companies” was the release, or that it was misread to him, contained in said instrument. We also con- the court erred in its submission of said clude: That upon this particular night this charge to the jury, we think that the line claim agent improperly suppressed the fact of authorities apply that (although to these people that the Western Union Tele- should assume that the most of the acts gruph Company was interested in said set- and representations were made just a few tlement, and further find that they would not days prior to the execution of the release) have signed the same if they believed that the appellees had the right to rely upon it purported to settle their claim against the statements of the claim agent, and if that company. The 30th of January, at the they did not read the release, were thrown time the appellees demanded $400 and $250 off their guard, believing that it was solely was offered, was the date of the principal a settlement with the Colorado & Southern negotiations between the agent and the ap- Railway Company, and that the Western pellees, and on February 1, 1912, immediately Union was not concerned in it. Even if following, Mrs. Walck dictated the follow- most of the representations were made on ing letter, written by her husband, however the 30th of January, upon which appellees signed in her name, and which was an at- relied, the appellant's agent knew at the tempted offer of acceptance of the $250, the time he received the letter on the 3d of Febproposition previously rejected by them: ruary, accepting the $250 proposition, that

we

these people believed that they were accept-j a person has been induced to enter into a ing a proposition with the Colorado & contract, it is no answer to his claim to Southern Railway Company, and with no be relieved from it to tell him that he might other company, and his conduct, at the time have known the truth by proper inquiry. the release was executed, relative to the He has a right to retort upon his objector, suppression of material facts, connected 'You, at least, who have stated that which is with the statements made by him and the untrue

for the purpose of driving negotiations which had transpired between me into a contract, cannot accuse me of them prior to that time, indicate a case of want of caution, because I relied implicitly fraud, which, we are inclined to think, even upon your fairness and honesty.'" The apif there were some opportunity afforded to pellees, Walck and wife, said that they rethe appellee to read the release at the time lied on the statements made by Mr. Niehous, it was executed, was calculated to throw and the husband said that Niehous "acted the appellee off his guard, and it does not very friendly with him." Justice Stayton lie in the mouth of appellant to say, “You concluded that such a charge, under the should have read the release, and if you did evidence in that case, to the effect that if a not do so, you are bound by its contents.” man receiving the sheep could have known

The case of Labbe v. Corbett, 69 Tex. 503, of their diseased condition by the use of 6 S. W. 809, decided by the Supreme Court ordinary care, in view of the fraud and misof this state, speaking through Justice Stay- representation, was error, and upon that ton, was one involving a transaction where and another ground reversed the cause. In by Corbett agreed that Labbe should have this case the jury having found the frauduthe use of 1,000 “picked" ewes for the pe- lent representations, and the fact that the riod of three years, and under this agree- appellees relied upon the same, we are inment 1,000 ewes were delivered. The trial clined to think and so hold that appellant is court instructed the jury as follows: "The not in a position to complain of the verdict jury are further instructed that if the de- of this jury, and believe that a clear cause fendant Labbe knew of the diseased con- of fraud was made out against appellant. dition of said sheep when he received them, In this connection, the ninth assignment under said contract, or by the use of ordi- of error is a complaint because the court nary care and diligence could have known refused to give in charge to the jury a reof their diseased condition, then they are quested instruction, to the effect that if the further instructed that such diseased con- jury find that the witness Niehous presented dition of said animals, or subsequent loss to plaintiff and his wife the release in evitherefrom, is no defense in this action to dence, and they had the opportunity to read the plaintiff's demand, and you will find for the provisions of said release and knew or the plaintiff.” The appellant assigned this could have known by the exercise of ordicharge as error. The Supreme Court, in nary care the contents of said instrument, commenting on this charge complained of and knew or could have known by the exerand given by the trial court, used the fol- cise of such care that they were releasing lowing language: "This charge is assigned all other companies and persons who might as error, in that it makes the appellant lia- have been connected with the placing of the ble, although the jury may have believed guy wire in question, and further believed that the appellee made the misrepresenta- that no deception was practiced by Niehous tions alleged to have been made by him, if against plaintiffs to find for the defendant by the exercise of ordinary care and dill- company. If no deception was practiced by gence the appellant might have ascertain Niehous against the man and his wife, of ed that the representations were not true. course they could not recover in any event,

In this case the real diseased and the question of fraud, we take it, was condition of the sheep was known by ap- amply submitted to the jury, at least as pellee when the same were delivered, and against the objections we find in this brief the appellant, with his agents, in person re- 'leveled at the charge of the court. If there ceived the sheep, and it seems that some were fraud in the transaction, which the jury of the agents who were with him at that found, we believe that a sufficient analogy time knew of the diseased condition, but exists between this case and the Labbe Corthat appellant did not. The Supreme Court bett Case for its application to this record, said, “The misrepresentation alleged to have and in holding that the other elements of the been made one material in charac- special charge submitted by appellant, with ter, and, if made, calculated to prevent an reference to the opportunity to read the reexamination by the appellant for himself to lease and the matter of appellees' negligence ascertain the true condition of the sheep, in not reading the same, were inappropriate and it related to a matter of which the ap- to this case. That part of the special charge pellee, from his own statement, had actual is, in substance, the same as the court gave, knowledge,” and quoting from the English discussed in the Labbe-Corbett Case, and case of Railway Company v. Kisch, L. R. 2, which Justice Stayton condemned as imH. L. 120, Justice Stayton continues: “When proper. Again, the Supreme Court has said: once it is established that there has been “The defendant in error claims that Mrs. any fraudulent misrepresentation by which Conn was guilty of negligence in signing the

was

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