I find no error of law which justifies the reversal of the judgment; and the issues of fact are of such a nature that we should acquiesce when the same verdict has been rendered by two juries and two trial justices have refused to interfere.
It may be that if the court had charged the eleventh request the jury would not have been misled. But that is not the question. The question is, whether the request was so accurate and material that the refusal was error which should destroy the judgment. The request was not read to the jury; and as they were ignorant of it, the refusal to charge it could have no influence on them. A refusal to charge a request is not capital error unless the request is accurate in law, plain, unambiguous, and essential to guide the jury in their deliberations.
The request fails in all these requirements. It is not technically accurate, for it recites that plaintiff admitted the execution of the release. The word “ execution ” presupposes all the elements of a valid release. The plaintiff did not admit the execution; she admitted the signature only. It is not plain and unambiguous, for the jury were left to choose between the disjunctive “ or ” and the conjunctive “ and,” both twice repeated. It is also uncertain in its whole scope and meaning. A release is a contract. It involves *99the meeting of the minds or the assent of both parties. Without this assent there is no contract. A signature on a writing expressing a contract is strong evidence of assent. Therefore, when defendant produced a writing, in form a release, bearing the plaintiff’s admitted signature, he might rest his case. If no other evidence is produced by the plaintiff, legal effect must be given to the writing, and judgment to the defendant. But the plaintiff may show fraud, either in the execution, or in the negotiation or treaty which led to the execution. Fraud in the execution renders the release void. It is cognizable at law as a denial of the assent. Fraud in the negotiation renders the release voidable. It is cognizable in equity only by rescission, accompanied by a return of the consideration. If the signature was obtained by false representations as to the character of the instrument, there was no assent — no contract — no release. If the plaintiff intended to execute the release, and was induced to do so by fraud in the negotiations, the release is valid until set aside. In this case the plaintiff claims that through fraud of the defendant she signed the paper, intending to sign a receipt for $500 given to her to pay bills. She does not confess the release and seek to avoid it by rescission, tendering back the $500. Her claim is, that she never assented to a release. The issue then was, whether there was a contract of release. Upon this issue, presented by his pleadings, the defendant had the burden of proof. When the paper was introduced in evidence from the defendant’s custody, bearing plaintiff’s admitted signature, it was presumptively valid, as the trial judge correctly charged. The burden of going further with the evidence thereupon passed to the plaintiff, to meet, not overpass, the evidence which the paper furnished. Upon the whole evidence the burden of proof on the issue of the release rested where the pleadings placed it, on the defendant.
The law on the point was not presented with accuracy and precision by the eleventh request. Although I cannot concur in certain statements in the elaborate and learned opinion of my brother Jay cox, yet I think that the difference between us is not ' so much in the law (for his quotations from Griffith v. American Bridge Co., 157 App. Div. 264, appear to support my view), but rather in the question of the formal accuracy of the eleventh request. (See Cleary v. Municipal Electric Light Co., 19 N. Y. Supp. 951, opinion by Cullen, J.; affd., by the Court of Appeals on such opinion, 139 N. Y. 643.)
Neither do I think that any inference hostile to the plaintiff can be drawn from the refusal to testify, of a witness called by the defendant. In this respect the charge of the court was not error. Nor was it error to hold the defendant to his bill of particulars in *100.respect to misconduct of the plaintiff prior to the alleged promise. At the most, this was a question of administration resting in discretion.
The judgment should be affirmed.
Rich, J., concurs.
Judgment and order reversed and new trial granted, costs to abide the event.