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Action for damages. Before Judge Guess. DeKalb Superior Court. October 14, 1952.
One seeking to avoid the effects of a release and a plea of accord and satisfaction based thereon on the ground of fraud must show either a rescission and tender back to the other party of the fruits of that contract before commencing the suit, or an excuse for the failure to so rescind and tender back such fruits. The petition in this case as amended failed to allege such facts and was subject to the demurrer interposed thereto.
(a) This case is distinguishable from those cases wherein the allegations or facts show that the payment made to the plaintiff under the purported agreement was in fact made in satisfaction of another and entirely distinct obligation which was owing the plaintiff by the defendant and was in no way connected with the occurrence complained of in the petition.
Mrs. J. C. Lyle brought suit against J. B. Drew for damages for personal injuries alleged to have been sustained as the result of an automobile collision. The defendant demurred to the petition and filed a plea in bar, which alleged that the plaintiff's action was barred by reason of the fact that she had executed a release of all claims growing out of the alleged collision, in consideration of the payment of $100. A copy of the alleged release was attached to the plea and appears in the record as follows:
"Release and Settlement of All Claims. Jack Lyle and Rosemary C. Lyle against J. B. Drew and Melva Jean Drew.
"Know All Men by These Presents: That we for and in consideration of One Hundred and no/100 dollars ($100.00) to us paid, the receipt whereof is hereby acknowledged, do hereby for ourselves and for our heirs, executors, administrators, and assigns, fully and forever release and discharge the said J. B. Drew and Melva Jean Drew and all others directly or indirectly liable, from any and all claims and demands, actions and causes of action, damages, claims for injuries, both known and unknown, including future developments thereof, costs, loss of service and companionship, consortium expense and compensation on account of, or in any way growing out of, any and all known and unknown personal injuries and property damage resulting or to result from that certain accident on or about the 9th day of September, 1951, at or near Oakdale Road, Atlanta, Georgia. We agree that this settlement is in full compromise of a doubtful and disputed claim both as to the question of liability and as to the nature, extent, and permanency of such injuries and damages and that the payment is not to be construed as an admission of liability.
"We have read this and understand it settles everything. Witness our hand and seals 10-12-51 at Atlanta, Georgia. (Caution: Read before signing)
In the presence of /sgd/ Jack C. Lyle, Sr. Seal Claimant. /sgd/ Thomas F. Allgood /sgd/ Rosemary C. Lyle Seal Name Claimant."
Thereafter the plaintiff filed an amendment to her petition, in which she admitted that she had executed the "said purported release dated October 12th, 1951," along with her husband, but that her signature thereon was procured by fraud of one Allgood acting as the defendant's agent, in that she thought and was informed and believed that she was signing a receipt for $100 in payment of damages to the automobile of her husband which was damaged in the said collision, for which damages her husband had been reimbursed in full, except for $100, by his own collision insurance carrier, and that the said Allgood acting as the agent of the defendant agreed to pay the $100 which her husband had had to pay out as a result of the collision, and that, when she signed the purported release, she thought she was merely signing a receipt for the said $100, "that petitioner entered into no agreement with the defendant through the said Allgood and accepted no money in satisfaction of her claim for damages, but agreed to accept and did accept the said $100 only in payment of the damages sustained by her husband in connection with his automobile." There was no plea showing a return or tender back of the $100. The defendant demurred to the petition as amended, and the trial court overruled the demurrer. The exception here is to that order.
"Where a plaintiff amends her original petition, admitting the execution of a release pleaded by the defendant as an accord and satisfaction, and seeks to avoid it on the ground of fraud, the court, in passing on a general demurrer, will consider the petition as amended, including the admission of the contract with the attack made on it." Roberts v. Southern Ry. Co., 73 Ga. App. 759 (2) (38 S. E. 2d 48).
It is the contention of the defendant in error that the petition as amended shows that she did not enter into any contract of accord and satisfaction with the defendant respecting her claim for personal injuries, but that what she thought she was signing was merely a receipt for a payment of a sum claimed against the defendant for damages to her husband's automobile. It is not contended, however, that this claim arose out of another transaction, or that she had any claim against the defendant other than one growing out of the collision which is the subject matter of her suit. The contract she signed speaks for itself. She alleges no reason why she did not read the instrument before she signed it. One who can read must read or show a legal excuse for not doing so in order to avoid the effects of contracts signed by him. Lewis v. Foy, 189 Ga. 596, 598 (6 S. E. 2d 788). The instrument before this court shows clearly that what the plaintiff signed was a release of all her claims against the defendant growing out of the very occurrence which she seeks to set up in this action as grounds for a recovery. As pointed out above, the allegations of the petition fail to show that the plaintiff had any claim against this defendant other than the one growing out of this occurrence. Such being the facts, the case is clearly distinguishable from Butler v. Richmond & Danville Ry. Co., 88 Ga. 594 (15 S. E. 668), Mackle Construction Co. v. Wyatt, 29 Ga. App. 617 (116 S. E. 877), and Gable v. Central of Ga. Ry. Co., 39 Ga. App. 350 (147 S. E. 135), relied on by the defendant in error. In each of those cases it appears that the plaintiff had another and distinct claim against the defendant, which he thought was being paid and for which he thought he was receipting when he signed the purported release. Likewise, in each of those the pleadings or the facts showed reasonable grounds for excusing the plaintiff from reading the instrument at the time he signed it.
In the instant case none of these facts obtain. As was said in W. & A. R. Co. v. Burke, 97 Ga. 560 (25 S. E. 498): "There is a very clear distinction between this case and that of Butler v. R. & D. R. R. Co., 88 Ga. 594. In the opinion therein delivered by Chief Justice Bleckley, the doctrine which governs the present case, and which was recognized and applied in Hayes' case, supra [ East Tennessee &c. Ry. Co. v. Hayes, 83 Ga. 558 (10 S. E. 350)], is thus distinctly stated: 'It is quite true that if the plaintiff had made any settlement or entered into any accord touching the injury complained of in his declaration, and now sought to open the same on the ground of fraud, he would have to tender back any money which had been paid to him in consequence or by way of execution of the settlement or accord.' Page 598. Butler contended that the money he received was for wages and for nothing else, and that he was induced to believe the paper he signed was simply an ordinary pay-roll acknowledging the receipt of money paid him as wages actually due, independently of any claim for damages he might have against the company. Dealing with the case from his standpoint, this court very properly held that if the company entered into a settlement with him touching a matter unconnected with his claim for damages, and as to which they were in any event liable, but fraudulently procured him to sign a paper which purported to be a settlement of his claim for damages, no duty devolved upon him of tendering back the money he received and which he was entitled to keep as the fruits of the claim which was really the subject-matter of the settlement.
"In the present case there is not a word in the plaintiff's evidence indicating that he held against the company any claim for wages owing to him for services already rendered or by reason of any special contract as to his employment . . . whether he worked or not . . . Therefore, it cannot be seriously contended that the settlement had no reference to the plaintiff's claim for personal injuries inflicted upon him, but was in regard to another and entirely distinct claim which Burke held against the company and which it, in any event was bound to pay." See also, in this connection, Petty v. Brunswick Ry. Co., 109 Ga. 666, 675 (5) (35 S. E. 82), and W. & A. R. Co. v. Atkins, 141 Ga. 743, 746 (82 S. E. 139). In accordance with these authorities, and in view of the allegations of the petition as amended, which show that the plaintiff had no claim against the defendant other than the one growing out of the occurrence complained of in the petition, the plaintiff cannot seriously contend that the settlement and payment, referred to in the instrument referred to by her in her amendment, had reference to anything other than her claim for personal injuries inflicted upon her in the occurrence in question. That instrument constituted a full and complete accord and satisfaction of all her claims against the defendant growing out of the collision, and her failure to allege a return or tender back to the defendant of the benefits received under that contract subjected her petition to demurrer on that ground. Code 20-906; East Tennessee &c. Ry. Co. v. Hayes, 83 Ga. 558 (10 S. E. 350); Roberts v. Southern Ry. Co., 73 Ga. App. 759 (1) (38 S. E. 2d 48).
It follows that the trial court erred in overruling the general demurrer to the petition as amended.
Judgment reversed. Sutton, C. J., and Felton, J., concur.
Fraser & Shelfer, contra.
Haas, Hurt & Peek, for plaintiff in error.
DECIDED MAY 2, 1953.
Saturday May 23 04:07 EDT

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