The defendant conceded at the trial, that the plaintiff’s injuries, which upon the evidence the jury could find proved to be serious and of a permanent character, had been caused through Ms negligence wMle driving oyer a country road, by Ms carriage coming into collision with the carriage in wMch she was riding. But if ordinarily notMng would remain except the assessment of damages, the defendant has pleaded in bar a written instrument executed nearly a year after the accident whereby the plaintiff acknowledged the receipt of a certain sum “in full of all *251demands to date and for full payment for all injuries and the result of injuries received.” It was also stipulated as part of the consideration, that the plaintiff should receive medical treatment until she recovered. The instrument is free from ambiguity and, having been given in adjustment of a claim for unliquidated damages, the plaintiff, unless induced to make the settlement through the fraud of the defendant, has relinquished the right to further compensation.
During the period elapsing between the accident and the date of the agreement the defendant had been the plaintiff’s attending physician upon whom she depended for medical advice. By training a school teacher, relying upon her calling for a livelihood, she testified, and the jury could have found, that upon partial recovery the defendant solicited a compromise and release of his liability, but was informed, that, having been re-elected, she desired to resume teaching in the fall. The amount at first offered and refused, was accompanied with the statement, that if not accepted, he would take the poor debtor’s oath, and although her sufferings had been alleviated, the plaintiff had not been restored to health. It was only after his positive assurance that she would be able to return to the school, and in reliance upon it, that the agreement was then perfected, and the amount increased. A recovery to the extent assured did not follow, and the course of events has since shown, that the plaintiff is seriously crippled for life.
The defendant maintains, that the representation was merely an encouraging statement not intended as anything more than the expression of a hopeful expectation, which does not constitute actionable deceit. But the relation of a physician to his patient is necessarily one of trust and confidence, and commercial transactions between them where fraud or undue influence is charged, are viewed by the courts with some jealousy, and are carefully scrutinized. Woodbury v. Woodbury, 141 Mass. 329, 331, 332. Old Colony Trust Co. v. Bailey, 202 Mass. 283. Dent v. Bennett, 4 Myl. & Cr. 269. Allen v. Davis, 4 DeG. & Sm. 133. If he solicits and procures a conveyance to himself of the property of his patient, whether by way of gift or of purchase, the burden, where the good faith of the transaction is attacked, rests upon him to show, that the patient’s confidence has not been abused, and that undue influence has not been exerted. It is not sufficient that the patient *252•knew what he was doing, but the question is how the intention was .produced. Woodbury v. Woodbury, 141 Mass. 329. Zeigler v. Illinois Trust & Savings Bank, 245 Ill. 180. Cadwallader v. West, 48 Mo. 483. Huguenin v. Baseley, 14 Ves. 273. Dent v. Bennett, 4 Myl. & Cr. 269. Lyon v. Home, L. R. 6 Eq. 655.
The plaintiff’s right of action existed at common law, and was a valuable and enforceable demand. It would be a complete negation of the confidential relations between the parties, if at the moment of decision when urged by the defendant to enter into a contract comprising matters relating to her physical welfare and restoration to normal health, the plaintiff, without the slightest intimation from him that for the time being they were negotiating on the footing of bargainors, must rely on her own judgment and could not place any dependence on his medical opinion or permit herself to be influenced by his unqualified assurance and representation of a recovery which would enable her again to take up her occupation. The ultimate purpose of the defendant and the means used by him for its accomplishment were questions of fact. The jury were warranted upon the evidence in finding, that the defendant made the statement to persuade and induce the plaintiff to do an act which he wished to have done in order to avoid the payment of adequate compensation for the wrong which he had inflicted, and that it was not intended as an honest expression of his belief or opinion as a physician.
••, It also was a question of fact, even if the evidence apparently warranted but one conclusion, whether the plaintiff to her damage acted upon her belief in the truth of the representation. A self serving and false representation having been made for his own pecuniary advantage with the intention that it should be believed and acted upon by the plaintiff, to whom he stood in a confidential relation, and the plaintiff because of her belief in him having been misled and induced to act against her own interests, the judge could not have ruled as matter of law, that the release or acquittance was conclusive and unimpeachable. Litchfield v. Hutchinson, 117 Mass. 195. Kurinsky v. Lynch, 201 Mass. 28, 33, and cases cited. Huntress v. Blodgett, 206 Mass. 318. Trayne v. Boardman, 207 Mass. 581. Comstock v. Livingston, 210 Mass. 581. Kean v. New York Central & Hudson River Railroad, 210 Mass. 449. Ginn v. Almy, 212 Mass. 486.
*253It is further urged in argument, that the attempted rescisión by a tender of the consideration in money was not within a reasonable time, and that with knowledge'of the defendant’s fraud, the plaintiff having used the money, there has been a reaffirmance of the settlement. The defendant did not ask for any specific instructions on these points, or at the close of the charge, which is fully reported, call them to the attention of the trial judge. But while open under the first request, that “on all the evidence the plaintiff cannot recover,” they are without merit. It was a question of fact in view of her prolonged and fluctuating illness which ensued, and the trust reposed in the defendant as her medical adviser who continued to attend her, whether she acted with reasonable promptness. It is only where the facts are not in dispute, and are susceptible of but a single inference, that the question of what is a reasonable time in which a party must act or be barred of his rights, can be determined as matter of law. Barrie v. Quinby, 206 Mass. 259, 264. Spoor v. Spooner, 12 Met. 281, 285. Hill v. Hobart, 16 Maine, 164. Wingate v. King, 23 Maine, 35. The expenditure of the money, the jury also could say, was before she fully realized the hopelessness of a full recovery, or had comprehended the defendant’s deception. If waiver is the relinquishment of a known right, then, where the party if aware of his rights would not be bound to performance, affirmance of a contract by his conduct must be shown to have been with knowledge of those rights, or he is not precluded from reliance on the conditions existing when the alleged contract was made. Whiteside v. Brawley, 152 Mass. 133. Earnshaw v. Whittemore, 194 Mass. 187. Anvil Mining Co. v. Humble, 153 U. S. 540.
It is contended lastly, that the action must fail because no tender was made at Ihe trial. But, if the enforcement of the plaintiff’s cause of action depended upon an offer to return the consideration as far as possible, this had been done prior to bringing suit, and the defendant refused acceptance of the money. The refusal, and the nature of the defense as presented and insisted upon, were sufficient to enable the jury to have found, that he had taken a position where a further tender would have been but a vain and idle ceremony. Gilman v. Cary, 198 Mass. 318, 319. It is true, that, notwithstanding the defendant’s declination, the plaintiff should not be permitted to recover double damages to the extent *254of the money received, or of the value of the defendant’s services subsequently rendered. The jury, however, were properly instructed, that in the assessment of damages they were to credit the defendant with, not only the money paid, but the fair value of his medical attendance, and it is to be assumed that the verdict represented the amount remaining after making these deductions.
We are of opinion for the reasons stated, that the rulings requested could not have been given, and no error appears in the instructions in so far as they were excepted to and have been argued.
Exceptions overruled.