The opinion
Mr. Justice Burnett
delivered the following dissenting opinion:
The plaintiff instituted this action to recover damages from the defendant for injuries suffered by him in its mill on account of the alleged negligence of the defendant in not providing for him a safe place in which to work. Admitting that the plaintiff was injured, the defendant denied all liability therefor and affirmatively pleaded, with other defenses, that the plaintiff, in consideration of the payment to him of $200, released the defendant from all liability on account of the accident described in the complaint. The release was in writing, and the plaintiff admitted in his testimony that he executed the same, which is as follows:
. “Portland, Oregon, November 19,1910.
“In consideration of two hundred ($200.00) dollars, the receipt of which is hereby acknowledged, paid to me by the University Lumber & Shingle Company, I do hereby release the said University Lumber & Shingle Co. from and on account of all or any claim for damages that I may have against it for any reason whatsoever, and particularly on account of an accident which happened to me on the eleventh day of Novem *68 ber, 1910, at tbe shingle mill of the said company near University Park, Portland, Oregon, at which time I lost all of the fingers and a portion of my thumb on my left hand, and im consideration of said sum I do hereby release said company from any claim for damages as is hereinabove set forth.
“[Signed] Chas. L. Poster. [Seal]
“Witnesses: [Signed] Irene Crary.
“C. E. Morton,”
Concerning this writing, the reply alleges as follows:
“The plaintiff, further replying to the said second and separate defense herein, alleges that on or about the 19th day of November, 1910, the employees in and about the mill of the said defendant, by and on account of the injury to the plaintiff, subscribed a sum of money for the plaintiff and placed the same in the hands of J. Kroenert, who is and was at said time the president and general manager of the defendant. That the said Kroenert promised and agreed that he would assist this plaintiff personally to the same extent as did the employees, and that while this plaintiff was suffering from the injuries to his left hand as set out in the complaint herein, and while he was suffering from the effects of the anesthetic administered to him at the time of the amputation of the fingers from his left hand, this plaintiff was ordered and directed to go to the said J. Kroenert to receive the money so subscribed. That plaintiff went to the office of said Kroenert. That thereupon the said Kroenert requested him to sign a paper, and falsely and fraudulently and unlawfully, and with intent to deceive and defraud this plaintiff, represented that the said paper was a receipt for the money so subscribed by the employees and by himself, and that the same was not intended and would not release the company from the damages sustained by this plaintiff, and that the defendant would continually employ the plaintiff in and about the mill and premises and pay to him the sum of seventy-five ($75) dollars each and every month as long as the mill continued to stand. That relying upon *69 the representation so made, and being sick and ill as aforesaid, this plaintiff signed the pretended release. ’ ’
In respect to this pleading, it will be noticed that, although the plaintiff claims that he was sick and suffering from the effect of the anesthetic nine days after the happening of the accident, he does not intimate that his mental faculties were in any way impaired or suspended. For aught that appears in the reply, the plaintiff had full control of his mind and memory, and, if he would defeat the release for want of understanding, he must plead either that he was non compos mentis or laboring under such mental distress at the time that he could not and did not comprehend the nature and consequences of the act he was performing in the execution of the release. Brown v. Feldwert, 46 Or. 363 ( 80 Pac. 414 ), was a case somewhat like this in that the writing sought to be impeached by the makers thereof was said to have been procured by fraud, and this court there held that: “It is absolutely essential in pleading that a signer of a paper was fraudulently misled as to what was being signed, to show that the signer was free from negligence in the matter.” No such allegation appears in the reply here. That pleading also does not state facts sufficient to constitute a rescission of the contract of release in that it is not averred that the plaintiff has restored to the defendant the money paid as a consideration for the release. In Scott v. Walton, 32 Or. 460, 464 ( 52 Pac. 180, 181 ), Mr. Justice Bean lays down the rule in this language:
“A party who has been induced to enter into a contract by fraud has upon its discovery an election of remedies. He may either affirm the contract and sue for damages or disaffirm it and be reinstated in the position in which he was before it was consummated. These remedies, however, are not concurrent but wholly inconsistent. The .adoption of one is the exclusion of the other. If he desires to rescind, he must *70 act promptly and return, or offer to return, what he has received under the contract'. He cannot retain the fruits of the contract-awaiting future developments to determine whether it is more profitable for him to affirm or disaffirm it. Any delay on his part, and especially his remaining in possession of the property received by him under the contract and dealing with it as his own, will be evidence of his intention to abide by the contract.”
In our own state, authorities to the same effect are these: Wells v. Neff, 14 Or. 66 ( 12 Pac. 84, 88 ); Crossen v. Murphy, 31 Or. 114 ( 49 Pac. 859 ); State v. Blize, 37 Or. 404 ( 61 Pac. 735 ); Dundee Mortgage Co. v. Goodman, 36 Or. 453 ( 60 Pac. 3 ); Van de Wiele v. Garbade Co., 60 Or. 585 ( 120 Pac. 752 ). The following authorities and many more which might be cited teach the same doctrine: Rabitte v. Alabama Great S. Ry. Co., 158 Ala. 431 ( 47 South. 573 ); Norwich Union F. Ins. Soc. v. Girton, 124 Ind. 217 ( 24 N. E. 984); Valley v. Boston R. Co., 103 Me. 106 ( 68 Atl. 635 ); Drohan v. Lake Shore Ry., 162 Mass. 435 ( 38 N. E. 1116 ); Pangborn v. Continental Ins. Co., 67 Mich. 683 ( 35 N. W. 814 ); Crippen v. Hope, 38 Mich. 344 ; Morris v. Great Northern Ry. Co., 67 Minn. 74 ( 69 N. W. 628 ); Lane v. Dayton Coal Co., 101 Tenn. 581 ( 48 S. W. 1094 ); Brainard v. Van Dyke, 71 Vt. 359 ( 45 Atl. 758 ); Town’s Admr. v. Waldo, 62 Vt. 118 ( 20 Atl. 325 ); Louisville etc. Ry. v. McElroy, 100 Ky. 153 ( 37 S. W. 844 ); East Tenn. Ry. Co. v. Hayes, 83 Ga. 558 ( 10 S. E. 350 ); Vandervelden v. Chicago Ry. Co. (C. C.), 61 Fed. 54 ; Barker v. Northern P. Ry. Co. (C. C.), 65 Fed. 460 .
An apparent exception to this rule requiring the return of what has been received of benefit from a contract before rescission is allowed is found in cases where the amount due on the contract to the person executing the release has been fixed and determined so that the sum paid is really a part of a greater indebted *71 ness. In such, a case part payment of an acknowledged larger snm constitutes no consideration for a release of the entire indebtedness, and hence the plaintiff in such case is entitled to prosecute such an action, and that, too, without returning the amount paid, because that was rightfully his own in the first instance. It is analogous to bringing an action for a balance of account giving credit for a payment already made. Where, however, the amount is unliquidated, as in the case of a claim for damages, the rule is uniform that, before a release alleged to have been obtained by fraud can be disregarded or rescinded, the party alleging the fraud must return the amount paid for the release.
The case in hand is distinguishable in that respect from Olston v. Oregon Water Power Co., 52 Or. 343 ( 96 Pac. 1095 , 20 L. R. A. (N. S.) 915). This was an action to recover damages for death of the plaintiff’s intestate caused by the negligence of the defendant. A release under seal was pleaded as a defense, but the plaintiff alleged not only false and fraudulent misrepresentations made by the defendant with intent to defraud and deceive the plaintiff, but also that he had returned all the money and other things received as a condition for the release, .thus bringing himself within the doctrine of the precedents of this state already quoted. Opposed to this rule requiring the return of the consideration in order to overturn the release of an unliquidated claim is the case of Girard v. St. Louis Car Wheel Co., 46 Mo. App. 79 . That case, however, stands practically alone on the question directly involved, and it.bases its reasoning on cases where the claim was fully liquidated and the amount actually determined before the release was signed.
Passing the insufficiency of the reply in the respects mentioned, it is proper to examine the testimony in connection with the fraud charged. There are three elements of deception imputed to the president and *72 manager of the defendant, who induced the plaintiff to sign the release in question: (1) That he “represented that said paper was a receipt for the money so subscribed by the employees and himself.” (2) “That the same was not intended to and would not release the company from the damages sustained by the plaintiff. ’ ’ (3) That the defendant would continually employ the plaintiff in and about the mill and premises and pay to him the sum of $75 each and every month as long as the mill continued to stand. ” The first two of these specifications are representations of the legal effect of the paper in question, and the third is a promise of what the defendant would do in the future. The plaintiff is the only witness who testified in his behalf respecting the execution of the contract of release. He narrates in his direct examination that he went to the office of the company for the purpose of getting a check for the amount subscribed for his benefit by his fellow employees. After some conversation with the manager as to how the accident occurred, the witness proceeds thus:
“And he asked me if I would stay there for two or three minutes until he went out. I says, ‘Yes.’ He went out and I did not have the time; I did not look at the time when he went out or when he came in, but it was not very long, and he came in with a tall dark-complexioned man I have never seen before, never seen since, and don’t know who he was. And he sat down at this table. ‘Now,’ he says, ‘look over that and sign it, and I will have Mrs. Somebody [I don’t recollect her name] write you out a check for $200’; and he says, ‘I will give you a job as long as that mill runs, and I will see that you and your family will never want for nothing; if you are ever in want, I want you to come and tell me.’ So I looked at the paper; I did not read much of it; I started in; and I turned round to bim and I says, ‘Is that in the paper?’ He says, ‘No, but you can take it for granted from me that it *73 will be just as I am telling you that it will; you sign that and I will give you $200 more, and you will never want for nothing. ’ I signed the paper and he had that man sign it, and he had the woman sign it; the woman stenographer at his place sign it; and that was all and I took the money and left. ’ ’
On cross-examination he testified as follows:
“Q. And did not Mr. Kroenert hand you at this time this paper, which I now present to you, and which I will ask to have marked defendant’s Exhibit 0?
“A. That is my signature.
“Q. And this defendant’s Exhibit C is the paper, is it not, that you signed at that time?
“A. That is my signature on it.
“Q. Well, that is the paper you signed at that time ?
“A. Must be.
“Q. Now, as a matter of fact, you took that and read it, did you not?
“A. I did not.
“Q. At that time?
“A. I took it, but I did not read it.
“Q. You say, then, you did not read it?
“A. No, sir; I tried to read it; I glanced it over; and he says, ‘You go ahead and sign that, and I will have Mrs. Crary [or whatever her name is] make out a check for $200.’
“Q. You had it in your hands?
“A. I had it in my hands.
“Q. And glanced it over?
“A. I glanced at it; I am not much of a reader; and it would take me some time to read it; and I am suffering pain, I was sick at the time; I could not content myself to stay there so long.
“Q. You say you did not glance over it?
“A. I just glanced at it, yes, and I asked him if the job was on that; that he said that I and my family would never want for nothing; I asked him if that was on it, and he says, ‘No, but I will guarantee- it is all right; you go ahead and sign it.’
*74 “Q. You say he told you the question of this job was not in the paper ?
“A'. Yes, he told me that was not in the paper. I asked him if it was in the paper, and he said, ‘No.’
“Q. He told you it was not?
“A. Yes, I asked him, ‘Is that down in the paper?’ and he said, ‘No.’
“Q. Did Mr. Kroenert read that release to you?
“A. No, sir; he did not.
“ Q. Do you claim now that Mr. Kroenert misstated to you.the contents of what that release was?
“A. He did not state what it was. He says, ‘Sign this and I will have Mrs. Crary write you out a check for $200, and that will make yon a nice little bunch of money. ’ That is what he said.
“ Q. Then, as I understand, he did not tell you what was in that paper?
“A. No, sir; he did not; never mentioned what was in it whatever.
“Q. That was the only talk you had with him about the paper, which you signed, was whether or not the kind of job was in that and he told you it was not?
“A. That was the only question that came up.
“Q. So that, as a matter of fact, Mr. Kroenert did not deceive you when you signed that paper, did he ?
“A. He did not.
“Q. He did not say anything to you what was in it, did he ?
“A. He did not say what was in it, no.
“Q. So that, as I understand you to say, he did not represent to you what that paper was at all?
“A. He did not.”
The plaintiff evidently understood that he was about to execute some obligatory writing; for when, as he says, the manager promised verbally to give him a job as long as the mill run, etc., he demanded to know if that was in the paper, but the manager says, “No, but you may take it for granted from me that it will be just *75 as I am telling you that it will. ’ ’ Out of his own mouth he says that he had the paper in his hand with the opportunity of reading it and was told by the manager to look it over and sign it. Although he had the opportunity to and was urged to read the paper, he repeatedly says the manager did not read it to him; that the latter did not state what it was; and that “he never mentioned what was in it whatever,” etc. Instead of proving the allegation that the manager represented that the paper “was a receipt for the money subscribed, and that the same was not intended and would not release the company from the damages sustained by the plaintiff,” the testimony of the plaintiff himself directly contradicts and disproves the allegations of his reply.
To make statements fraudulent, they must be representations of past or present material facts. Fraud cannot be predicated upon a statement or mere opinion or bare promises of something to be performed in the future. If the promise is a part of the contract, the person complaining must rest his action upon a breach of that promise. Moreover, neither the defendant nor its manager is being sued for a breach of a contract to furnish employment to the plaintiff for an indefinite period. Disproving as he does, by his own testimony, the allegations of fraud contained in the reply, the plaintiff presents a case where, having every opportunity to inform himself of the nature of the instrument he was signing, he acted upon his own judgment and signed the release. In the well-considered case of Wimer v. Smith, 22 Or. 469, 486 ( 30 Pac. 416, 421 ), Mr. Justice Lord lays down the rule thus:
“Even where misrepresentations are made, if a person relies upon his own judgment when he has full means of knowledge, he cannot complain of such misrepresentations. On a charge of fraud, the burden of proof is on the party alleging it.' The defendants *76 must clearly and distinctly prove the fraud or false representations they allege. The law in no case presumes fraud. The presumption is always in favor of innocence and not guilt. Fraud must be proved, but it must be proved by circumstances from which no other inference but that of fraud can be drawn. The rule is that, when proven by circumstances, they must afford a strong presumption. Circumstances of mere suspicion will not warrant the conclusion of fraud. ‘The evidence of it,’ Chancellor Kent said, ‘must be clear, strong, and satisfactory.’ And so likewise said the learned and eminent Dillon. In no doubtful matter does the court lean to the conclusion of fraud; it is not to be assumed on doubtful evidence. If the fraud is not clearly and strictly proved as alleged, relief cannot be had, although the party against whom the relief is sought may not have been perfectly fair in his dealings. The facts constituting fraud must be clearly and conclusively established by the court in finding it; but it may be proved by a preponderance of the testimony.”
Here is a skilled mechanic, able to read, with the opportunity of reading and the reading urged upon him, whose perfect command of the English language,' as disclosed by the testimony, shows him to be a man of more than ordinary intelligence. Under such circumstances, the releasor, having the opportunity to read, is bound by the terms of the instrument if he does not read it: Spitze v. B. & O. R. R. Co., 75 Md. 162 ( 28 Atl. 307 , 32 Am. St. Rep. 378 ); Hoeger v. Citizens’ St. Ry. Co., 36 Ind. App. 662 ( 76 N. E. 328 ); Atchison, T. & S. F. v. Vanordstrand, 67 Kan. 386 ( 73 Pac. 113 ); McNamara v. Boston Elev. Ry. Co., 197 Mass. 383 ( 83 N. E. 878 ); Leddy v. Barney, 139 Mass. 394 ( 2 N. E. 107 ); Mateer v. Missouri Pac. Ry. Co., 105 Mo. 320 ; Williams v. Wilson, 18 Misc. Rep. 42 ( 40 N. Y. Supp. 1132 ); Missouri, K. & T. Ry. v. Craig, 44 Tex. Civ. App. 583 ( 98 S. W. 907 ); Watson v. Planters’ Bank, *77 22 La. Ann. 14 ; Eldridge v. Dexter R. Co., 88 Me. 191 ( 33 Atl. 974 ); Leslie v. Merrick, 99 Ind. 180 ; Hawkins v. Hawkins, 50 Cal. 558 ; Starr v. Bennett, 5 Hill (N. Y.), 303; Gibson v. Brown (Tex. Civ. App.), 24 S. W. 574 ; Powers v. Powers, 46 Or. 479 ( 80 Pac. 1058 ).
It would have been an act of benevolent paternalism for the manager to have more thoroughly explained the nature of the writing which he presented for the plaintiff’s signature, to have called in the plaintiff’s friends and held a prolonged discussion concerning the advisability of making such a contract, but the defendant was under no obligations to do any of those things. The parties were adversary to each other. Having every opportunity to consider the matter, plaintiff was bound to take care of his own concerns and the manager could not assume to act as his guardian. Here was at least a debatable claim against the company in respect to which the defendant had a right to buy its peace. The law encourages settlement of disputes. Controversies once adjusted ought not to be reopened, except for very cogent reasons; and where, out of the mouth of the plaintiff himself, the alleged fraud is completely disproven, the court ought not to overturn the agreement which the parties themselves made. The reply is defective in that it does not show that the plaintiff was free from negligence in the execution of the release within the meaning of Brown v. Feldwert, supra; also in not alleging that he had returned the money received as a consideration for executing the contract of release. On the merits, the plaintiff should fail as against the contract, because out of his own mouth he shows that the allegations of his reply are completely disproven. It is not a case of there being some evidence to take the case to the jury. It is a total failure of proof. The release may have been Improvidently made, if we consider only the misfortune of the plaintiff’s injury without reference to whether he him *78 self might have avoided it; but courts cannot make contracts for parties and ought not to overturn their agreements, except upon proper pleadings and sufficient testimony. To allow the defeat of the release on the allegations of the reply and the evidence of the plaintiff in support thereof would destroy the value of written contracts and invite perjury in litigation to avoid them.
The judgment should be reversed and nonsuit directed.