For other illustrations of the doctrine in other states, see cases cited in footnote.8

It was held by the supreme court of Kansas that when a servant, at the time of executing such a contract, was so much under the influence of drugs and opiates, taken to alleviate his pains caused by a broken thigh, as to be mentally incapacitated to contract, such a release was voidable, and not a defense to his cause of action; that in such case it was not necessary for him to pay back, or offer to pay back, the money received at the time of signing such paper, as a condition precedent to his right to sue on his claim for damages; that the jury had the right to give the master credit for the money paid at the time the release was signed.9

The supreme court of Wisconsin 10 held that the plaintiff's ignorance of the contents of a release under seal, signed by him, was excused, when the circumstances were that he was, at the time of signing it, sick in bed from the effects of his injuries, and was unable, by reason of dizziness, to read it, and the subject of a release for the injuries was not talked of, nor understood by the plaintiff or the agent of the defendant to cover such injuries; it being understood that the release covered merely the loss of the plaintiff's property by the accident. It was urged that, notwithstanding the facts recited, the release was still binding upon the plaintiff;

Byerson, 11 Iowa, 233; McCormack v. Molburg, 43 Iowa, 561; McKinney v. Herrick, 66 Iowa, 414, 23 N. W. 767.

8

Squires v. Amherst, 145 Mass. 192, 13 N. E. 609; Brown v. Cambridge, 3 Allen, 474; Pratt v. Castle, 91 Mich. 484, 487, 52 N. W. 52; Cummings v. Baars, 36 Minn. 350, 31 N. W. 449; Fuller v. Buice, 80 Ga. 395, 6 S. E. 17; Wheaton v. Fay, 62 N. Y. 275; Germania F. Ins. Co. v. Memphis, etc., R. Co., 72 N. Y. 90.

D

Chicago, etc., R. Co. v. Doyle, 18 Kan. 58.

10 Lusted v. Railway Co., 71 Wis. 391, 36 N. W. 857.

that it could only be avoided on the ground of fraud in procuring it to be executed. The court held: "Courts relieve against mistakes, as well as fraud, in written instruments. When there is a material mistake in the written instrument, either through the error of the draughtsman in reducing the agreement to writing, or by the omission or insertion of a stipulation contrary to the intention of the parties, courts relieve against and correct the mistake." This language must be taken with the qualification that the mistake or ignorance must not be attributable to the negligence of the party seeking to avoid it.

It has often been urged that releases executed under such circumstances, or circumstances somewhat similar, could only be impeached in a court of equity. Yet the courts. quite generally hold that they may be investigated and barred as a defense in an action at law.11

The Wisconsin court agrees with the supreme court of Kansas that a return of the consideration paid is not a con dition precedent to the commencement and prosecution of the action; that it may be deducted by the jury from the amount of the damages.12 This proposition is in conflict

with the rule as declared in many states.13

The courts jealously guard the rights of parties to such contracts, and scrutinize very closely the conduct of the par

"Bussian v. Railway Co., 56 Wis. 333, 14 N. W. 452; Lusted v. Railway Co., 71 Wis. 391, 36 N. W. 857; Chicago, etc., R. Co. v. Doyle, 18 Kan. 58; Wallace v. Railway Co., 67 Iowa, 547, 25 N. W. 772.

12 Sheanon v. Insurance Co., 83 Wis. 527, 53 N. W. 878.

1 Kreuzen v. Railroad Co. (City Ct. N. Y.) 13 N. Y. Supp. 588; Gould v. Bank, 86 N. Y. 75; International & G. N. Ry. Co. v. Brazzil, 78 Tex. 314, 14 S. W. 609; Norwich Union Fire Ins. Soc. v. Girton, 124 Ind. 217, 24 N. E. 984; Pangborn v. Insurance Co., 67 Mich. 683, 35 N. W. 814.

ties in proceedings where the terms of the contract are urged as a defense. The party must not be unduly influenced against his interests, and the transaction must be free from fraud or misrepresentation.

It was said by the supreme court of Wisconsin: 14 "We think that no release obtained from the plaintiff, after an action has been commenced and counsel employed, in the absence of plaintiff's counsel, and without his consent or knowledge, should bind the party, unless the utmost good faith is shown on the part of the defendant in obtaining the same. When a party has employed an attorney to prosecute an action, such attorney ought to be consulted if a compromise of such action is sought; and, ordinarily, it would be an act of bad faith on the part of the client and the opposite party to compromise the action without the consent of, or without consulting, such attorney." 15

"Bussian v. Railway Co., 56 Wis. 335, 14 N. W. 452.

15 Watkins v. Brant, 46 Wis. 419, 1 N. W. 82; Eagle Packet Co. v. Defries, 94 Ill. 598; Chicago, etc., R. Co. v. Doyle, 18 Kan. 58.

CHAPTER XXV.

LAW GOVERNING RIGHTS AND REMEDY.

General rule, p. 488.

Decisions of sister state, province of court and jury, p. 488.

Decision, only, can be read, not dissenting opinion, p. 488.

Proof of foreign law, p. 488.

Construction of foreign law, p. 489.

When an action is brought in one state to recover for a personal injury suffered in another state, the law of the latter governs as to the rights of the litigants, and the former as to the remedy.

When the authoritatively published decisions of another state are in evidence in a given case, the question of what those decisions decide is one of law for the court, and not one of fact for the jury.

Nothing but the decision can be read. A dissenting opinfon is not a decision. Where the written law of a foreign state is before the court, parol evidence as to its contents or its construction is ordinarily admissible.1

The common law of a foreign state may be proved by parol evidence. The usual course is to make such proof by the testimony of competent witnesses, instructed in the law, under oath. As a general rule, the decisions of courts of justice are the evidence of what is common law.2

'Chicago & N. W. Ry. Co. v. Tuite, 44 Ill. App. 535; Hooper v. Moore, 40 N. C. 130; Chicago & N. W. Ry. Co. v. Johnson, 27 Ill. App. 351.

'McDeed v. McDeed, 67 Ill. 546.

The principle that the best testimony which the nature of the case admits of shall be required applies to foreign laws.3 When it is shown by the witnesses themselves that the knowledge they are testifying to is derived from the identical reported decisions in evidence in the case, their construction of what the law is, as announced by those decisions, be comes immaterial. The decisions themselves are the best

evidence of what they contain.*

Church v. Hubbart, 2 Cranch, 237.

'Chicago & N. W. Ry. Co. v. Tuite, 44 Ill. App. 535.