The plaintiff says, when he counted the money on the evening of the second day at the hotel, there was $250 in the pocketbook, and he had no knowledge from whence it came; that he gave the money to the nurse at the hospital; then follows this question and answer: "Q. You said nothing to her about where you got the money? A. Not that I know of; the question was not asked me." When asked if the conversation occurred as testified to by Drs. Benninghoff and Straight, he answered: "Not that I know of." When asked if the conversation narrated by Daniel Smith had been had, he answered: "Not that I know of," but, further on, said he told him there was $240 left there, but he did not know who left it. Then is this question: "State how you thought that $240 got into your pocketbook. A. I don't understand the question." Then, on the question being repeated, he said: "I don't know how I thought it got in there. I can't remember my thoughts at that time; I didn't write them down.” He further testified that he never saw Mrs. Lee that he knew of. He admitted that at the first trial he had said "he did n't know, but supposed" the company had given it, for he had more money than he had before. 154 He further. stated, at the close of his testimony, that he had never said to any one he had settled with the railroad company; that what he did say was, that the railroad company claimed they had settled with him, but that he had n't settled with the railroad company, to his knowledge.

From the testimony of these witnesses, called by defendant, and the plaintiff's own statement in answer to it, there can be no dispute that after he entered the hospital he knew, in some way, that a settlement had been made, and the principal terms of it. He knew he had the money, and where it came from, and that the company had agreed to pay his bills; and, while not undisputed, there is little doubt that, as part of the consideration, he expected, up until he left the hospital, to get from the company employment. Whatever may have been the condition of his mind four or five hours after the operation, when the paper was signed, there is no pretense that it was not in a normal condition all the months he was at the hospital.

The evidence, then, shows, without contradiction, that the fact of a settlement, if not binding when first executed, was, at this time, known to him; with this knowledge he retained the money, and has it to this day; never returned it, or offered

to return it; permitted the company to pay all the bills for his surgical attention, support, and comfort at the hospital, and then solicited the employment that was conditionally promised him.

This is undisputed evidence of ratification of a contract by distinct and unequivocal conduct and declarations when compos mentis; and of a contract, too, which could be ratified without a new consideration, because it was only void if he chose to so treat it. It was his duty, when he first learned of the existence of the release, to disavow it, and, at least, before suit was brought, return, or offer to return, the money received under it; for it is not pretended any fraud was practiced upon him in obtaining the release; in its worst aspect, that was executed when those acting for the company were wholly ignorant of the incapacity which is now alleged to have existed. Every day that he retained the money and continued to accept benefits, after a knowledge of the settlement, without regard to how he gained such knowledge, was in affirmance of it. One of the very points made by his counsel at the trial, requesting 155 that the jury should allow defendant a credit for the $240, and render a verdict for the balance, was wholly inconsistent with their claim that no such contract existed.

Where there is a disaffirmance of the contract because of fraud, the injured party may, in some cases, bring his action without repaying, or offering to repay, the money received on the fraudulent contract. In such case the money is retained, not as part of the consideration of a contract he denies, but as part indemnity for the fraud perpetrated on him. As he was deceived into accepting it by a falsehood or fraud, there is no admission that it was a consideration for a contract, and there is, consequently, no obligation on him to return it. But the case is wholly different when he seeks to avoid a contract solely because of a temporary incapacity when he made it; an incapacity of which he gave no sign, and which was unknown to the other party to the contract. His conduct in keeping the money, in accepting payment of all his bills at the hospital, after restoration to complete mental health, with the undoubted knowledge as to where the money came from, and as to who paid his bills, and why, is only consistent with an intention to affirm the contract. It is conclusive evidence of affirmance.

He cannot both affirm and disaffirm; cannot affirm for

what he got, and disaffirm for the difference between that and what he hoped to get.

The defendant was entitled to an unqualified affirmation of its sixth and seventh points; therefore the judgment is reversed at costs of appellee.

FROM this judgment of reversal Chief Justice STERRITT dissented. He manifestly regarded the evidence for the plaintiff in a more favorable light than did his associate justices, and deemed the question whether the release was procured from plaintiff while his mental condition was such as not to permit of his intelligible action as one peculiarly within the province of the jury.

The chief justice was also of the opinion that, if the release was obtained while plaintiff was incompetent to grant it, it was of no greater effect than a forged or other void instrument, and, therefore, never had any binding force, and did not constitute any thing to rescind. That “ a contract, void n account of fraud or for any other reason, is, in law, as though it had never been executed; and plaintiff, in the circumstances, was not bound to return the money to the defendant before bringing suit. At most, it was entitled, if at all, to nothing more than a credit, on account of plaintiff's demand, for the amount paid to and expended for him"; and that, if it be conceded that the testimony as to the acts of the plaintiff after his undoubted restoration to competency tended to show a ratification of the release, still, whether there had been such ratification was a question of fact for the exclusive determination of the jury, and not of law for the court.

The question of the effect of retaining moneys paid for a release, obtained under such circumstances "as would have entitled plaintiff to avoid the same," was also considered and decided in Drohan v. Lake Shore etc. Ry., 162 Mass. 435, and a conclusion reached, without dissent, in harmony with that announced by the majority of the court in the principal case. Deliv ing the opinion of the court, Judge Lathrop, on this point, said: "As, however, the ruling of the court proceeded upon the ground that the action could not be maintained without first tendering back the money received, we proceed to consider this point.

"The general rule is well settled that, if a person enters into a contract, and afterward seeks to avoid the effect of the contract on any ground that will entitle him to rescind it, he must first restore what he has received: Coolidge v. Brigham, 1 Met. 547; Estabrook v. Swett, 116 Mass. 303; Brown v. Hartford Ins. Co., 117 Mass. 479; Burton v. Stewart, 3 Wend. 236; 20 Am. Dec. 692; Bain v. Wilson, 1 J. J. Marsh. 202.

"In Mullen v. Old Colony R. R., 127 Mass. 86, 34 Am. Rep. 349, which was an action for personal injuries, the defense was a settlement of the case for four hundred and fifty dollars, by an instrument in writing signed by the plaintiff by his mark. The plaintiff's evidence tended to show that he was blind and illiterate, and that he was induced to affix his mark to the paper by fraudulent representations that the money was given to him as a gratuity, and to support him until the trial, and without prejudice to his claim against the defendant. The court held that, if the jury believed this evidence, it was not necessary for the plaintiff to pay the money back. In other words, the decision was, that if the payment was a gratuity, or related to a part only of the cause of action, it was not necessary to return the money, so far as the rest of the cause of action was concerned: See, also,

O'Donnell v. Clinton, 145 Mass. 461; Bliss v. New York etc. R. R., 160 Mass. 447; 39 Am. St. Rep. 504.

"In the case at bar there is nothing to show that the plaintiff was fraudulently induced to believe that the money which she agreed to receive, and which she did receive, was payment for a part of her cause of action. The case, therefore, falls within the general rule, and the ruling was right.”

INSANE PERSONS-RESCISSION OF CONTRACT BY.—NECESSITY for Return OF CONSIDERATION: See the extended notes to Jackson v. King, 15 Am. Deo. 367, and Lancaster County Bank v. Moore, 21 Am. Rep. 33.

HUGHES V. BALTIMORE AND OHIO RAILROAD.

[164 PENNSYLVANIA STATE, 178.]

MASTER AND SERVANT.-ONE SERVANT MAY RECOVER OF THE MASTER IF INJURED BY THE NEGLIGENCE OF ANOTHER SERVANT when the former was without fault and the latter was habitually careless, and his unfitness for his position was known to the master so that he might have been replaced by a competent servant before his negligence inflicted the injury sued for.

Robert E. Umbel, for the appellant.

D. W. McDonald, R. H. Lindsey, and George B. Jeffries, for the appellee.

180 FELL, J. The plaintiff was a freight conductor on the defendant's road, and was injured in a collision alleged to have been caused by the negligence of a flagman who was habitually careless, and of whose incompetence the defendant had notice. The flagman whose conduct was complained of was one of the crew of the plaintiff's train, under his charge and subject to his orders, and notice of his incompetence had been given to the defendant but a short time before the accident. The plaintiff's road to a verdict was therefore a very narrow one, and its lines were clearly defined in a charge which fully and accurately stated the law, not in mere abstract propositions, but with reference to the testimony so that it could be understood by the jury.

The only question now to be considered is whether the case should have been taken from the jury, and we are of opinion that the learned judge was right in submitting it with the instructions which were given.

There was testimony from which the jury might have found that the plaintiff was injured without fault on his part, and wholly because of the neglect of the flagman; that

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the flagman was habitually careless, and his unfitness for the position was known to the defendant long enough before the accident to enable it to procure some one else to take his place. The jury may not have reached the proper conclusion, but the case could not have been withdrawn from them, and if the verdict was wrong on the weight of the testimony the remedy was with the learned judge who conducted the trial. He was not asked to grant a new trial, as the rule for that purpose, doubtless for prudential reasons because of the smallness of the verdict, was withdrawn.

The judgment is affirmed.

MASTER AND SERVANT-LIABILITY OF MASTER TO SERVANT FOR NEGLIGENCE OF INCOMpetent Fellow-SERVANT.—This question is fully discussed in Western Stone Co. v. Whalen, 151 Ill. 472; 42 Am. St. Rep. 244, and note, and Campbell v. Cook, 86 Tex. 630; 40 Am. St. Rep. 878, and note.

ENDERS V. ENDERS.

[164 PENNSYLVANIA STATE, 266.]

PARENT AND Child.—An AgrEEMENT TO PAY a Mother a Designated SUM IF SHE WILL PERMIT HER SON UNTIL HE ARRIVES AT AGE TO LIVE with and be educated by his grandfather is valid, and may be enforced by her. Such a contract is not against public policy if the interest of the child is intended to be furthered thereby and parental solicitude and affection are not extinguished.

Robert Snodgrass, S. J. McCarrell, and Ermentrout & Ruhl, for the appellant.

Casper S. Bigler and Frederick M. Ott, for the appellees.

270 BEAN, J. About the year 1868 Annie Enders, the plaintiff, was married to Emanuel Enders, son of William Enders. Two years after their marriage a son, William J. Enders, was born to them. At that time they lived at Cornwall, Lebanon county. Two years after the birth of the son, on account of her husband's ill treatment and neglect to support her, the wife left him, and, with her child, took up her home with her father at Berkley, in Berks county. Some months after leaving her husband, and while living with her father, on November 7, 1872, William Enders, the father of her husband, visited her. Her boy was his only grandson, and he was desirous that he should have a better education than his mother could afford him. The subject of the boy's future

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