This action was commenced for the recovery of damages for an injury to the person of the plaintiff caused by the alleged negligence of the defendant com*7pany; and tbe jury found all tbe issues favorably to tbe plaintiff.
One of tbe defenses set up in tbe answer was tbe release of tbe defendant and tbe satisfaction of tbe plaintiff’s claim. Tbe plaintiff filed a replication to that defense and averred that tbe paper writing which contained tbe release was procured through tbe fraud of the defendant. Epon that phase of tbe case tbe fourth issue: “Is tbe paper writing dated December 18, 1894, relied on by defendants as a release or accord and satisfaction, tbe contract of plaintiff ?” was submitted to tbe jury. Tbe defendant’s appeal contains exceptions only to the charge of. bis Honor on that issue. Tbe Court’s instruction was this: “If the jury find that tbe plaintiff signed tbe receipt (Exhibit 1) for tbe purposes therein set forth without any fraud or misrepresentations on tbe part of tbe defendants or their agent, Missel, that they should answer the fourth issue, Tes.” Hpon a most careful examination of the whole evidence we fail to find a scintilla as to any fraudulent conduct on tbe part of Missel, the agent of tbe defendant company. Tbe plaintiff himself as a witness did not make any charge or intimation that Missel practiced any deceit or fraud upon him in tbe execution of tbe release, or in its consideration. It is true be said that be did not know what tbe paper was when be signed it, that Mr. Missel bad been keeping bis money and bis account with tbe defendant, that be bad great confidence in Missel, that Missel brought tbe paper to him to sign and be signed it, but be did not testify that tbe paper writing did not contain the contract and agreement between him and the company, or that be wished even then to repudiate it. Nor did the plaintiff testify that he was not informed of the agreement and release set out in the paper writing before be executed it. Missel testified that tbe terms of the settlement were fully *8gone into between him and the plaintiff just immediately before the plaintiff signed the receipt, and the plaintiff did not contradict the statement. The testimony of the plaintiff’s wife added nothing to the strength of his case. She said that Missel brought the account and receipt to the plaintiff, saying, “There was an itemized statement of your account and a receipt, and gave him the money and statement of the account.” And she said further that neither paper was read by the plaintiff. But certainly on the face of that statement there was no fraud on the part of Missel, and nothing tending to show that the plaintiff had not been informed by Missel of the contents of the paper writing before he signed it.
The instruction of his Honor was erroneous, for there was no evidence tending to prove fraud on the part of the defendant in the execution of the release.
New trial.