Dissenting Opinion by
Mb. Chief Justice Sterrett :While a passenger on defendant’s road, the plaintiff was very seriously and permanently injured in consequence of defendant’s negligence, and without any fault of his own. His shoulder was broken and dislocated, and other injuries were suffered by him, from the shock of which he was rendered unconscious for several hours. He received no surgical or medical attention until the next morning when the company’s surgeons called on him and, at about eleven o’clock in the forenoon, in a small bedroom without any outside windows for ventilation, administered an anesthetic, and, as far as possible, reduced the fracture. For forty minutes of the time the operation was in *156progress plaintiff was completely anaesthetized. Between four and five o’clock of same day, a special agent of the defendant, in company with its solictor, called and gave plaintiff $240, on' 'behalf of the company, and took from him a release of any claim or demand he had against the company for damages. That release was interposed as a bar to plaintiff’s recovery in this action. In response to that, plaintiff alleged and testified that he was not aware he had executed the release, and was not conscious of anything that transpired from the time the anesthetic was administered until he awakened in the evening. In this, he was strongly corroborated by several facts and circumstances referred to in the testimony. On the trial, the defendant virtually admitted its original liability to plaintiff for the injuries he had suffered. Its sole defence was that his claim had been settled by compromise, and that the $240, paid by defendant, was received by him in full satisfaction.
The controlling question presented by the record, for the consideration of this court, is embraced in defendant’s second specification of error, complaining of the court’s refusal to affirm its third point, viz: “ The undisputed testimony being that the release was executed by the plaintiff under his hand and seal, and for the sum of $240, as therein acknowledged, the plaintiff assailing the validity of the release on the ground of his unconsciousness and mental incapacity at the time of its execution, must establish such unconsciousness and incapacity by evidence so clear and conclusive as to satisfy the court, sitting as a chancellor, of such incapacity.”
The principle is well settled that parol evidence to amend, alter or rescind a written instrument under seal, on the ground of fraud, must be clear, precise and indubitable, otherwise it should be withdrawn from the juiy. But the case at bar is not of that character, and it would be an utter perversion of the sound and salutary principle, referred to, to apply it to the undisputed facts of this case. No attempt was made by the plaintiff to amend, alter or rescind the release in question. He alleged in substance that there was no release ; that, if he signed the paper at all, he did so while he was under the influence of an anaesthetic, and was • non compos mentis. His own testimony, with strong corroborating facts and circumstances, was to that effect.
*157The execution of a written instrument, to be legally binding upon the person executing it, requires more than his mere signature. It is necessary that both mind and will shall co-.operate in the execution and delivery of the instrument. Tbe testimony on behalf of plaintiff, direct as well as circumstantial, tends strongly to prove that there was no such co-operation in this case. If there was not, then, in contemplation of law, there was no execution and delivery of the alleged release. A substantial question of fact was thus presented which it was the exclusive province of the jury to determine in the ordinary way. The case is much the same as if the plaintiff had alleged the release was a forgery and had introduced testimony tending to prove that fact. Surely in such case the court would be bound to submit to the jury, even on plaintiff’s unsupported testimony, the question of the genuineness of his signature! If authority for so plain a proposition be required, there is an abundance of it to be found. In Dixon v. Brooklyn City, etc. Ry. Co., 100 N. Y. 170, the defendant set up a release, executed by plaintiff, of all claim for damages. There was testimony tending to show that at the time the release was executed, plaintiff was in a condition of mind that rendered him incompetent to appreciate the character of the instrument which he signed. The court held that it was for the jury to determine whether it was his free act, done with full knowledge, at the time, of the facts, and with a full appreciation of what he was doing. To the same effect are George v. Railroad Co., 1 Am. & Eng. R. R. Cases, 297, and Railroad v. Lewis, 109 Ill. 120. The same principle is also recognized by Mr. Chief Justice Paxson in Ettinger v. Jones, 139 Pa. 218, 223. Referring to the release that was set up as a bar in that case, he says : “ It is to be further observed that there was no attempt to reform or contradict the release. The paper was admitted, but the allegation was that it had been procured by fraud, which is quite another matter.” So in this case, there was no attempt to reform or contradict the release. The plaintiff merely sought to show, by his' own and other testimony, that such was the condition of his mind at the time that he was wholly incompetent to execute the release,—that he was unconscious of what he was doing at the time.
The learned judge was clearly right in qualif3ring his answer *158to defendant’s sixth point, recited in the fourth specification of error. If the release was obtained at a time when plaintiff was incapacitated to contract, it was void ab initio, as between the parties, and could not stand in the way of plaintiff’s right to recover. An absolutely void instrument cannot affect the successful assertion of a legal right which it purports to release. The release never had any binding force, and hence there could not be anything to rescind. A contract, void on account of fraud or for any other reason, is, in law, as though it had never been executed; and plaintiff, in the circumstances, was not bound to return the money to defendant before bringing suit. At most, it was entitled, if at all, to nothing more than a credit, on account of plaintiff’s demand, for the amount paid to and expended for him.
A careful examination of all the testimony has convinced me that there was an abundance of competent testimony, which the court was bound to submit to the jury, to justify them in finding as they did, and that their verdict cannot be set aside without doing violence to the well settled principle that as a general rule the determination of questions of fact is exclusively for the jury. Upon them, in this case, rested the responsibility of determining whether, at the time the release was procured, the plaintiff was incapacitated to execute the same and thus settle his claim for damages; and upon thmn that responsibility should be permitted to rest.
It is also contended that there was evidence of subsequent ratification of the release by the plaintiff, such as his retaining the money that was given him by defendant’s agents, etc., and that, upon that evidence, the learned judge should have held, as matter of law, that, haviug thus ratified the release, he could not recover. Conceding, for the sake of argument, that there was some testimony bearing on the question of ratification, the court surety would have had no right to invade the province of the jury and undertake to determine whether plaintiff did or did not ratify the release. If the testimony was sufficient to raise that question, it was clearly one of fact for the exclusive determination of the jury, and not one of law for the court.
In view of the evidence as to the serious nature of plaintiff’s injuries, the verdict was not excessive. The case was twice *159submitted to and passed upon by a jury. The verdict of the first jury was $5,000; that of the second, upon which this judgment was entered, was $134.08 more. If the facts and circumstances of the more than questionable transaction, in which the pittance of $240 was thrust upon the then unconscious plaintiff, as full compensation for the serious and permanent injuries he received, are withheld from the consideration of the constitutional triers of fact, and the so-called release pronounced valid and binding, the defendant, in my opinion, will be the unjust gainer and the plaintiff the unfortunate loser of nearly $5,000. I am unable to discover any error in the judgment or in the proceedings leading up thereto, and would therefore affirm it.