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Twaits v. Pennsylvania Railroad Company.

to sue the company or accept the benefits accruing to him by reason of his membership in the relief department.

Such is the construction placed upon this contract by our own and many other courts: Beck v. Pennsylvania Railroad Co. (Court of Errors and Appeals, 1899), 63 N. J. Law (34 Vr.), 232; Owens v. Baltimore and Ohio Railroad Co., 35 Fed. Rep. 715; 1 L. R. A. 75; Otis v. Pennsylvania Railroad Co., 71 Fed. Rep. 136; Shaver v. Pennsylvania Railroad Co., 71 Fed. Rep. 931; Johnson v. Philadelphia and Reading Railroad Co., 163 Pa. 127; 29 Atl. Rep. 854; Ringle v. Pennsylrania Railroad Co., 16.4 Pa. 529; 30 Atl. Rep. 492; Donald v. Chicago, &c. (Iowa Sup. Ct.), 33 L. R. A. 492; Pittsburg, C. C. & St. L. R. R. Co. v. Moore (Ind. Sup. Ct.), 44 L. R. A. 638; Johnson v. C. & S. R. R. Co., 55 S. C. 152; 44. L. R. A. 645; Cox v. Pittsburg, C.C. & St. L. R. R. Co. (Ohio Sup. Ct.), 35 L. R. A. 510.

The complainant thereupon continues that, since the thing which saves the contract from being invalid is the election left to the employe, he is not bound by the acceptance of benefits and the signature to the receipt, if he proves that he did not make an election ; that the mere acceptance of the benefits is not to be taken as evidence of an election. He cites cases-most, if not all, of them arising out of testamentary dispositions in which the acceptance by a beneficiary of money or property was not held to conclusively bar such beneficiary from surrendering the same and taking what he was otherwise entitled to, in cases where he was entitled to one of such things but not to both-the doctrine of election being involved in such cases, and the courts having held that the mere acceptance will not be held to conclusively evidence election in such instances as they find that the party did not actually elect. Young v. Young (Vice-Chancellor Pitney, 1893), 51 N. J. Eq. (6 Dick.) 491; Parker v. Seeley (Vice-Chancellor Pitney, 1897), 56 N. J. Eq. (11 Dick.) 110; Hill v. Hill (Court of Errors and Appeals, 1898), 62 V. J. Law (33 Vr.) 442.

This doctrine is the doctrine of election in equity, and by reference to its definitions and the cases under it, it will be found inapplicable to the case in hand, See Bour. L. Dict. Twaits v. Pennsylvania Railroad Company.

77 Eq.

(Rawle's ed.) vol. 1 p. 647; 1 Am. & Eng. Encycl. L. (2d ed.) 56, tit. Equity Election."

There is, however, a doctrine of election at law in respect to contracts which, either by definition or the extension of the doctrine, may be properly said to apply. See Bouv. L. Dict., supra, p. 646; Smith v. Sanborn, 11 Johns. Rep. 59; 5 L. Ed. 60; Dinsmore v. Duncan, 57 N. Y. 573 (at p. 579 et seq.) ; 12 L. Ed. 361 (at p. 363).

Broadly stated, the law in respect to alternative rights or provisions under contracts is that the party having the right of choice, when he has once elected, is concluded thereby. (See authorities just cited.)

The complainant's claim here is that he did not actually elect. He bases the claim upon his oath that he forgot the terms of the contract. There is no allegation, charge or proof that anything was concealed, misrepresented or withheld from him. At the time that he became a member of the relief department the contract became effective and binding upon the parties, and the complainant over his own signature agreed that if he accepted the benefits due him by reason of an accident it should operate as a release of any other claim for damages against the company on account of such accident. He does not now contend that the acceptance of the benefits does not so operate as to bar his claim for damages. But he does contend that he has the right to avoid the consequences of acceptance by rescinding his own action in that respect, and giving back the amount received for benefits, and thus be left free to proceed upon a claim for damages.

He, of course, does not stand upon any charge of mutual mistake; and, although he argues that he has the right to rescind by reason of a mistake upon his part, I cannot see that there is any allegation, charge or proof of what should properly be termed a mistake upon his part. He contends that the unilateral mistake was with respect to the effect of accepting the benefits, but I think this cannot properly be termed a mistake upon his part in the sense in which the word “mistake” is used in equity. If he remembered the terms of the contract, or had them before him at the time he received the benefits, it does not seem possible that it would be correct to say that his conduct

7 Buch.

Twaits v. Pennsylvania Railroad Company.

was the result of any mistake upon his part. He must be dealt with as a rational human being, and the language of the contract is so utterly unambiguous that no rational human being could mistake the effect upon his claim for damages if he accepted the benefits, the provision of the contract in this respect being entirely clear and unmistakable. The only possible use of the word “mistake” in respect to the complainant's conduct would be to say that he made a mistake in not re-reading his contract before acting under it.

The real question, therefore, as I view it, is whether a man who is a party to a perfectly clear and unambiguous contract, can act under it and afterwards claim the right to rescind his action and not be bound by it, because there were two alternatives open to him at the time of his action and he now regrets that he did not choose the other one. To this question it seems to me there can be but one answer, and that is that he may

not. Every principle which goes to make up the totality which we call the law of contracts would be violated if the contrary were held. I need hardly repeat what I have above pointed out, that there is not in this case the slightest suggestion of any fraud, misrepresentation or imposition of any sort. The complainant, by the terms of his contract, was left absolutely free to exercise every right that he possessed. The contract left him free either to accept the benefits and thereby release the railroad company, or not to apply for benefits and be unrestrained in suing for and recovering any damages to which he might be entitled. The only reason why he cannot pursue the latter course now is because at a time when he was entirely free to choose, and had all the facts at his disposal, he chose to accept the benefits.

The way in which the complainant seeks to avoid the effect of the contract and of his conduct is by alleging and testifying that he forgot what the contract was, and, therefore, when he made application for and accepted the benefits he did not know what the effect would be.

It has been held that, where a man unrestrainedly enters into a contract in writing, he is bound by its terms even if he did not read it or cause it to be read to him. Fivey v. Pennsylvania Railroad Co. (Court of Errors and Appeals, 1902), 67 N. J.

Twaits v. Pennsylvania Railroad Company.

77 Eq.

Law (38 Vr.) 627; Zdancewicz v. Burlington County Traction Co. (New Jersey Supreme Court, 1908), 71 Atl. Rep. 123; V'ellekoup v. Fullerton Co. (New Jersey Supreme Court, 1909), 74 Atl. Rep. 793.

This complainant is not even in so favorable a position as one who ineffectually alleges and proves that he did not read or have read to him a contract that he signed, because this complainant did read the contract and certified that he had read it, and at all times had it in his power to obtain and re-read it.

Unless, therefore, this court is prepared to decide that a man is not bound by a perfectly clear and unambiguous contract which he has read and signed, if he will swear that he has forgotten its terms, it cannot properly decide with the complainant in this suit.

I am not prepared to find that such is the law.

Assuming, therefore, in favor of the complainant that the doctrine of election of rights applies to his case, I do not find that he has proven that he did not make his election, and that he should be relieved from the effects thereof. The contract was written, was clear, and without the slightest ambiguity. The complainant had read it and signed it and acted under it. He had made his application for benefits and received them, and he cannot now avoid the effect of such conduct and of his contract by testifying that he had forgotten what his contract

was.

I will advise a decree dismissing the bill, with costs.

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Under chancery rule 71, providing that when a complainant shall amend his bill, which has been sworn to, no alteration shall be made in the original bill on file, but the amended bill shall be engrossed anew, sworn to, filed, and annexed to the original bill unless the court shall otherwise order, complainant having filed a sworn bill for an injunction, and a temporary injunction having been denied because of an alleged defect in the bill and proof, with the suggestion that the bill be amended, complainant was not entitled to leave to alter the character of the bill by making unsworn additions thereto.

On motion for leave to amend the bill.

Jessrs. Edwards & Smith, Jr. Jarimilian T. Rosenberg (and Mr. A. C. Pette, of the New York bar), for the motion.

Mr. Chauncey G. Parker (and Vessrs. Ilornblower, Miller & Potter, of the New York bar), contra.

GARRISON, V.C.

The original bill in this case was filed on the 20th of May, 1909. It was a bill for an injunction and relief and was sworn to. Upon the filing of the bill an order to show cause why a temporary injunction should not issue was made, which order was returnable on the 1st of June, 1909.

Upon the argument upon the return of that order the court refused to grant a preliminary injunction because, as it conceived the situation, the complainant's right to relief was based upon the allegation and proof respecting the value of the property conveyed to the defendant corporation. At that time the court not only pointed out this weakness of allegation and proof

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