
    Aurand v. The Toledo & Ohio Central Ry. Co.
    
      Release — Action to set aside settlement — Dismissed for refusal to complete tender — Negligence.
    1. Effect of refusal in open court to complete tender and make payment is to leave case as though no tender had been made.
    2. Action by injured passenger to set aside settlement with railroad company held properly dismissed, where defendant was ready to accept plaintiff’s tender of amount paid her to effect such settlement, and her counsel refused to complete tender and make payment.
    (Decided March 8, 1926.)
    Error: Court of Appeals for Lucas county.
    
      Mr. G. A. Thatcher and Mr. G. A. Meek, for plaintiff in error.
    
      Messrs. Doyle S Lewis and Mr. Robert Newbegin, for defendant in error.
   Richards, J.

The action out of which this proceeding in error grows was brought for the purpose of setting aside a settlement of a former action to recover for personal injuries suffered by the plaintiff, Lucy B. Aurand, on the claim that the settlement was brought about by fraud. The trial court dismissed the petition, and this proceeding is brought to secure a reversal of that judgment.

The litigation between these parties has something of a history. The plaintiff, while a passenger on one of the company’s -trains, was injured on May 4, 1914. She effected a settlement with the company for that claim by receiving $55 and executing a release. Thereafter she brought an action to have the release set aside because it was entered into under misrepresentations and a mistake as to the extent of her injuries. That case was decided by this court on April 28, 1917, and the release set aside.

In September, 1917, the plaintiff made another settlement with the company for the sum of $6,000, of which $4,000 was paid to her, and $2,000 to her attorneys, and an entry was made on the docket in the court of common pleas showing that the case was settled, and the defendant to pay the costs. The present action was brought on February 4, 1922, to set aside this last settlement on the ground that the same was brought about by fraud of representatives of the defendant company. While the present action was brought more than four years after the settlement was effected, the petition avers that the fraud was not discovered until shortly before the action was brought. Some considerable time after the action was commenced the plaintiff made, or claims to have made, a tender of $7,900 to the company, being the amount of $6,000, paid to effect the settlement, together with interest thereon. The record discloses that only $4,000 of the amount of the settlement was paid to the, plaintiff, the remaining $2,000 being paid to her attorneys some 30 days after the settlement was effected, and it is claimed that much of the $4,000 paid to her was afterwards obtained from her by one of the persons who had been instrumental in effecting the settlement, who she did not know was a representative of the company.

The plaintiff was the first witness called in her own behalf, and while she was on the stand a question was raised as to the tender and whether it had been kept good. Counsel for the railroad company stated that they were ready and willing to accept the tender which had been made, but counsel for the plaintiff stated that they would not complete the tender, and refused to make the payment. The trial judge dismissed the action without hearing any further testimony than that of the plaintiff, and before her testimony had been finished.

We think this action of the trial court was re-, quired by the law. When counsel for plaintiff 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. If it be contended that, this being an equity action, it was sufficient for plaintiff to have offered to pay any amount which the court might name as a condition of setting aside the release, a sufficient answer to that is that no such offer was made either in the pleadings or at the trial. It could hardly be expected that equity would set aside the release without at the same time providing for the payment of the amount which had been received as a consideration for its execution. It would be a futile thing for the court to proceed with the trial and determine whether the release should be canceled and set aside, when the tender which had been made was withdrawn, and no offer was made to comply with any order which the court might make as a condition of ordering the cancellation of the release.

Finding no error, the judgment should be affirmed.

Judgment affirmed.

Williams and Young, JJ., concur.  