
    No. 503
    AURAND v. TOL. & OHIO CENT. RY. CO.
    Ohio Appeals, 6th Dist., Lucas Co.
    No. 1652.
    Decided March 8, 1926
    1167. TENDER — When release of settlement is sought by injured party and it is alleged that tender back was made; but where subsequently the party states that she will not complete tender and refuses payment, trial court is warranted in dismissing the action.
    Attorneys — C. A. Thatcher and C. A. Meek for Aurand; Doyle & Lewis and Robt, New-begin for Company; all of Toledo.
   RICHARDS, J.

This action was brought by Lucy Aurand in the Lucas Common Pleas for the purpose of setting aside a settlement of a former action to recover for personal injuries suffered by her on the claim that the settlement was brought about by fraud. The Common Pleas dismissed the petition.

Aurand it seems was injured while a passenger on one of the Company’s trains, in 1914. In 1917 a settlement was made for $6000 of which $4,000 was paid to Aurand and the balance to her attorneys. This settlement it was claimed was obtained by fraud. It was alleged that a tender of the amount of the settlement was made to the Company together with interest.

Counsel for the Company stated that it was willing to accept said tender but counsel for plaintiff stated that they would not complete the tender and refused to make payment. On error proceedings, the Court of Appeals held:

1. The action of the trial judge in dismissing the suit without hearing further testimony than that of Aurand was required by law.
2. When counsel for Aurand stated in open court that the amount tendered would not be paid, the effect was to leave the case as if no tender had ever been made.
3. No offer was ever made by Aurand to pay any amount which the court might name as a condition of setting aside the release, either in the pleadings or on trial; so that it could hardly be expected that equity would set aside the release without, at the same time, providing for payment of the amount which had been received as a consideration for its execution.
4.It would be futile for the court to proceed with the trial to determine whether the release should be cancelled and set aside under the circumstances.

Judgment affirmed.  