
    No. 586
    AURAND v. RAILWAY
    No. 19826.
    Supreme Court
    On motion to certify.
    Dock. May 19, 1926.
    1167. TENDER — Where a release of liability has been secured by fraud and misrepresentation and the party so defrauded desires to revoke the release is one tender of the money received for consideration of the release sufficient or must the tender be a continuing one?
    Attorneys — Charles A. Thatcher, Toledo, for Aurand; Doyle & Lewis, Toledo, for Company.
   Lucy B. Aurand brought this action originally in the Summit Common Pleas against the Toledo & Ohio Central Railroad Company for damages arising from personal injury caused by the alleged negligence of the Company.

Aurand was severally injured and after the commencement of the original action three detectives in the employ of the company, it is alleged, secured a release of liability, from Aurand by deceit, fraud, and misrepresentation.

The company thereupon secured the dismissal of the action by virtue of the release and Aurand upon learning that she had been defrauded brought an action to set aside the dismissal. A demurrer to the petition was sustained on the ground that a tender of the amount received was not alleged. A demurrer was also sustained to the amended petition on the ground that an allegation that a tender was made was not sufficient but that it was necessary to keep the tender alive, which judgment was affirmed by the Appeals.

Aurand in the Supreme Court contends:

1. That the ruling wholly ignored the fact that a fraud had been committed by the Company.

2. That the averment of mental and physical incapability of carrying on business abrogated the rule requiring tender.

3. That the release is absolutely void.

4. That if a tender has been made and refused it is not necessary to keep such tender open.  