CHICAGO, ST. P., M. & O. RY. CO. V. BELLIWITH, 83 F. 437

SANBORN, Circuit Judge, after stating the case as above, deli vertid the opinion of the court. A written contract of release cannot be annulled or avoided by proof that one of the par this to it, who was sound in mind and able in body, could not read or write, did not know the terms of the agreement, and neglected to ask any one to read it to him when he signed it. A written contract is the highest evidence of the terms of an agreement between the parties to it, and it is the duty of every contracting party to learn and know its contents before he signs and delivers it.

He owes this duty to the other party to the contract, because the latter may. and probably will, pay his money and shape his action in reliance upon the agreement. He owes it to the public, which, as a matter of public policy, treats the written contract as a conclusive answer to the question, what was the agreement? If one can read his contract, his failure to do so is such gross negligence that it will estop him from denying it, unless he has been dissuaded from reading it by some trick or artifice practiced by the opposite party.

If he cannot read it, it is as much his duty to procure some reliable person to read and explain it to him, before he signs it, as it would be to read it before he signed it if he were able to do so; and his failure to obtain a reading and explanation of it is such gross negligence as will estop him from avoiding it on the ground that he was ignorant of its contents.

This is a just and salutary yule, because the other contracting party universally acts and changes his position on the faith of the contract; and it would be a gross fraud upon him to permit one, who has received the benefits of the agreement in silence, to escape from its burdens by proof that he did not know and did not inquire what these burdens were, when he assumed them. Upton v. Tribilcock, 91 U. S. 45, 50; Fuller v. Insurance Co., 36 Wis. 599, 603; Sanger v. Dun, 47 Wis. 615, 620, 3 N. W. 388; Albrecht v. Railroad Co., 87 Wis. 105, 109, 58 N. W. 72; Wheaton v. Fay, 62 N. Y. 275, 283; Germania Fire Ins.

Co. v. Memphis & C. R. Co., 72 N. Y. 90, 93; Hill v. Railroad Co., 73 N. Y. 351-353; authorities cited in Insurance Co. v. Norwood, 32 U. S. App. 490, 507, 16 C. C. A. 136, 145, and 69 Fed. 71, 80.

A case in which the excessive zeal of a claim agent leads him to force his way into the sick room of an injured employé, where he lies alone, confined to his bed, and to procure a release from him by false representations, when his senses have been so stupefied ,by the use of opiates administered to relieve the tortures of excruciating physical pain that he cannot read it, and does not know its contents, or what course he ought to pursue to learn them, as in Railway Co. v. Harris, 158 U. S. 326, 15 Sup. Ct. 843; Id., 27 U. S. App. 450, 455, 12 C. C.

A. 598, 601, and 63 Fed. 800, 803, — constitutes a rare exception to this general rule, which must not be permitted to interfere with its steady and uniform application to the cases which fall within it. Notice to and knowledge of the agent or attorney, acquired and present in his mind while he is exercising the powers and discharging the duties of his agency, are notice to and the knowledge of his principal. Smith v. Ayer, 101 U. S. 320, 325. A written instrument cannot be avoided for fraud or mistake unless the evidence of the fraud or mistake is clear, unequivocal, and convincing. Insurance Co. v.

Nelson, 103 U. S. 544, 548, 549; Maxwell Land-Grant Case, 121 U. S. 325, 381, 7 Sup. Ct. 1015; Howland v. Blake, 97 U. S. 624, 626; Insurance Co. v. Henderson, 32 U. S. App. 536, 541, 542, 16 C. C. A. 390, and 69 Fed. 762.

The judges of the national courts are not required to submit a question to a jury merely because there is some evidence in support of the case of the party who has the burden of proof; but, at the close of the evidence, it is their duty to direct a verdict for the party who is clearly entitled to it, when it would be their duty to set aside a verdict in favor of his opponent, if one were rendered.

At the close of the evidence there is always a preaiminary question for the judge, before the case can properly be submitted to tbe jury; and that question is not whether there is literally no evidence, but whether there is any substantial evidence, upon which the jury can properly render a verdict in favor of the party who produces it. Commissioners of Marion Co. v. Clark, 94 U. S. 278, 284; North Pennsylvania R. Co. v. Commercial Nat. Bank of Chicago, 123 U. S. 727, 733, 8 Sup. Ct. 266; Delaware, L. & W. R. Co. v. Converse, 139 U. S. 409, 11 Sup. Ct. 565; Laclede Fire-Brick Manuf’g Co. v.

Hartford Steam-Boiler Inspection & Ins. Co., 19 U. S. App. 510, 515, 9 C. C. A. 1, 4, and 60 Fed. 351, 354; Gowen v. Harley, 12 U. S. App. 574, 585, 6 C. C. A. 190, 197, and 56 Fed. 973, 980; Motey v. Granite Co., 36 U. S. App. 682, 686, 20 C. C. A. 366, 368, and 74 Fed. 155, 157. These are unquestioned rules of law and practice. In the case at bar, the wriften contract of release was on its face a complete bar to this action.

The most important question in this case is, did the defendant in error produce such clear, convincing, and unequivocal evidence that his signature to this release was procured by artifice, deceit, or mistake, that the jury could properly find that fact? There was certainly no evidence which, under the iaw, would warrant the avoidance of this contract on the ground of mistake.

If, as Belliwith testifies, he could not read or write; if, as he says, the contract was not read to him, and he did not know its contents, — that was the result of his own gross negligence; for he testified himself that he did not ask anyone to read it to him, and he said that he signed it under the supposition that it was the release; of his claim for $4.13 for the loss of a package.

Fifty pages of his printed testimony demonstrate the fact that he knew perfectly well the difference between his claim for- personal injurie® and his claim for the lost package, and that, if the release had been read to him, he could nest have failed to understand its effect. He was willing to receive, and did receive, the $300 for this release, without reading it or hearing it read; and he cannot be, and ought not to he, now heard, while he retains its benefits, to say that his own ignorance and negligence exempt him from its obligations.

If, on the other hand, the release was read to him, as his attorney and the attorney of the company testify, he signed it with full knowledge of its contents, and is, of course, bound by it.

Moreover, whether it was read to him or not, he was charged with knowledge of its contents when he signed it, because the testimony is clear and uncontradicted that his attorney, whom he had authorized by a written power of attorney to compromise this claim for him, read the release, understood its contents, signed Belliwith’s name to it while the latter touched the pen, received the $300, and divided it between himself and his client. Under the law, the knowledge of this attorney was the knowledge of the defendant in error.

Nor was there any evidence upon which a fouling that this release was procured by artifice or deceit can be lawfully sustained for a moment. The fact that, as we have seen, the plain tiff was charged under the law with full knowledge of the contents of this agreement, is itself fatal to this claim, for there could, be no deceit where there was no ignorance and no concealment. It is true that Belliwith testified that he was told by his attorney that the release evidenced a settlement of his claim for $4.11, only, and that he supposed this to be true when he signed the contract.

But the solemn, written agreements of men cannot be whistled down the wind by the testimony of one of the parties to them to such a story as this, in the teeth of the power of attorney he executed, and his own testimony that he had employed his lawyer to prosecute and settle this claim impersonal injuries; that his attorney had reported to him the day before his settlement that Mr. Wilson offered him $300 for the release of this claim, and that he replied that he did not want it, because they told him that its receipt would settle his demand; that Mr.

Wilson made him the same offer the next day, and he then knew that, if he took it, its acceptance would constitute a settlement, and told Mr. Wilson that he did not want it; that he knew when the money was paid to his attorney that there was more than $4.11; that he knew when he got home on that day that he had received $200; and that this $200 was a present to him from the company, and so he kept it, and used it at his home.

In view of this testimony, and the facts that this settlement was made in the presence of the defendant in error, by his chosen attorney, after a negotiation which continued through several days; that he was charged, under the law, with knoAvledge of the contents of the release he signed; that he took and used the proceeds of the settlement, and has never offered to return them, ■ — the evidence in this case comes far short of that, clear, convincing, and unequivocal proof Avhich would warrant either a jury or a court in finding either mistake, fraud, or deceit in the execution of this contract, and the court below was in error A\dien it refused to instruct the jury to return a verdict for the company.

In the consideration of the sufficiency of the evidence to warrant the verdict, we have not referred to the testimony of Kort and others that Poole told him six months after this release was executed that the company had never made any general settlement with Bell ¡with, but had given him a little money — a few hundred dollars — to help him out, because, in our opinion, that testimony Avas incompetent, and should not have been received by the court or considered by the jury.

This statement of Poole was not admissible in eAÚdence as an admission of the company, because, although Poole was its claim agent, and may have been empowered to settle claims against it, there is no evidence in this record that he had any authority to abrogate settlements which the general counsel of the company had made, or to admit on behalf of the company that such settlements had not been made. He was not present on the day when Mr.

Wilson closed the negotiations, made the settlement, and obtained the release of this claim of the defendant in error, and he could Lave known what was said and done on that day by hearsav only. The company, so far as this record shows, had never delegated to him the poAver to admit that the settlement which Mr. Wilson had made had not been made, and it required a special delegation of such a power to authorize the destruction of the contract of release by any such admission. The testimony of Kort and others was therefore not competent as evidence ©f an admission of the company.

Nor was it admissible as proof of a verbal act, which was a part of the res gestse. The statement of Poole was not made at or near the time when the act to which it refers was done. It was not made until about six months after the event which it describes had happened, and it was a mere narration of this past event, founded, not on what Poole saw or heard at the time, but on wbat some one else had told him that he saw or heard. This statement was entirely detached from any material act that is pertinent to the issue in this case, and was itself nothing but hearsay. Insurance Co. v.

Mosley, 8 Wall. 397, 405, 416; Vicksburg & M. R. Co. v. O’Brien, 119 U. S. 99, 104, 105, 7 Sup. Ct. 118; Association v. Shyrock, 86 U. S. App. 658, 667, 20 C. C. A. 3, 8, and 73 Fed. 774, 778. The testimony of Kort was therefore hearsay repeating hearsay, and it should have been rejected.

It is assigned as error that the court refused to give to, the jury the following instruction: “It you find that the plaintiff, after going round to the east gap, where lie understood he was to wait for the incoming train, from motives of curiosity, or for his own pleasure, wait much nearer the burning tank, and was injured by reason of so doing, he cannot recover; and you are to consider, in that connection, whether the reason which he now gives for going back is truthful, or whether it is a mere subterfuge to excuse Ms conduct.” With the except ion of that part which relates to the reason which Belliwith gave for going back, this is substantially the same instruction which wTe held in Chicago, St.

P., M. & O. Ry. Co. v. Myers, 25 C. C. A. 486, 80 Fed. 361, — a case arising out of the same accident, — - should have been given. Our reasons for this view, and some of the authorities which support it, will be found in Judge Thayer’s opinion in that case, and will not be repeated here. Belliwith testified that he went back towards the burning tank to get a package that lie liad left in the passenger car which he had occupied on his way from Minneapolis.

Several witnesses, however, testified that he had told them at various times that he went back to find his handkerchief, which he discovered he had lost from his pocket. In view of the testimony of these witnesses, and the general character of the evidence given by Belliwith, we think the latter part of this request was not objectionable,-and are of the opinion that the entire request should have been given, if the case was to be submitted to the jury at all.

There are other assignments of error in this record, but the questions which they present are not likely to arise again in the ease, and no good purpose would be served by discussing them. The judgment below must be reversed, with costs, and the case must be remanded to the court below, with directions to grant a new trial; and it is so ordered.