0. —Action for injuries to the person. Defendants appeal from a judgment in plaintiff’s favor for fifteen hundred dollars and from an order denying a new trial.

The plaintiff fell into an insufficiently guarded elevator shaft which was maintained by defendants near the middle of the sidewalk immediately in front of their place of business in the city of Los Angeles. The result of his fall was three or four broken ribs and internal injuries apparently of a nature to permanently disqualify him for the performance of hard work, such as he had previously been accustomed to. The defense principally relied on at the trial was a settlement and discharge of appellant from all claim for damages. The plaintiff was a German and spoke and understood the English language imperfectly, and could not read it at all. The defendants employed Carl Kurtz as a physician to treat plaintiff’s injuries. This physician also acted as the agent of appellants in the settlement relied on as a defense. The evidence shows that on their behalf he paid plaintiff twenty-five dollars and secured his signature to a receipt prepared by appellants, which receipt is as follows:

In addition to their general verdict in plaintiff’s favor for fifteen hundred dollars, the jury, in response to questions proposed by appellants, specially found as follows:

It will be seen from these special findings of the jury, considered in connection with their general verdict, that the jury were of the opinion that plaintiff executed the alleged release under a mistake as to its contents, that he believed he was receiving the twenty-five dollars and giving the receipt in discharge of any claim he might have for loss of time merely, and that he was led into this error by the artifice and deception of Kurtz as to the contents of the instrument, Kurtz acting as the agent of defendants and being in their employ, and at the same time pretending to act for plaintiff. The case is not without evidence to support such conclusions. That portion of the contract, therefore, purporting to release and satisfy the claim upon which the action is based is, on the findings of the jury, absolutely void for the reason that the mind of plaintiff never consented to any such a release, and the plaintiff should be bound only to the release and satisfaction of his claim for loss of time. This view of the case makes it clearly distinguishable from most of the cases cited by appellant. In those cases generally the parties sought to avoid or rescind contracts, the nature and contents of which they understood correctly, but they had been led to execute them by fraud or deception as to ■something other than the contents of the contract; and in such a case the contract would not be void but only voidable, and the rule requiring a return of everything received on the faith ■of the contract before it could be rescinded or avoided would apply; but this rule as to a return of everything received does not apply where a party is tricked or deceived into signing a contract different in its terms and objects from the contract which he has made and which he understands that he is executing. The contract under such circumstances will be held to be what the maker of it intended it should be, and not what it was made to appear to be by the deception practiced. The twenty-five dollars paid plaintiff may, therefore, properly be said to have been received in payment for the loss of time during his illness, and not in satisfaction of anything that his mind never consented that it should satisfy. The claim sued upon does not include this loss of time, and the court instructed the jury that they could find nothing against defendants for loss of time. No offer to return the money was necessary, for the reason that the plaintiff in this case “is not attempting to avoid a contract which he has made, but is showing that he did not make the contract which he apparently made.” (Mullen v. Old Colony R. R., 127 Mass. 86 ; 34 Am. Rep. 349 ; Chicago etc. Ry. Co. v. Lewis, 109 Ill. 120 ; Senter v. Senter, 70 Cal. 619 ; Wilson . v. Moriarty, 77 Cal. 596 ; 88 Cal. 207 ; Cultivan v. Moorhead, 99 Cal. 157 .)

Appellants in their reply brief cite Hawkins v. Hawkins, 50 Cal. 558, and Loan Assn. v. Esche, 75 Cal. 513 . In neither of these cases was there any relation of trust or confidence between the parties, and the means of knowing the contents of the contract executed was open alike to both parties; but in this case-the agent of appellants was also acting as the agent of respondent, and respondent trusted in him and relied upon his representation that the instrument was "a receipt for the lost time.”' Here, too, the contract was in a language that respondent could not read, and so the means of knowledge as to its contents was-not equally open to each of the parties to it. The disposition of this case in the trial court is, therefore, not in conflict with the two cases last referred to.

The point is made that the special findings of the jury fail' to show that the release was obtained by misrepresentation or fraud. That might well be and still the implied finding of misrepresentation and fraud would attach .to the general verdict returned by the jury. Certainly, the special findings are not inconsistent with respondent’s theory of misrepresentation, but. in so far as they relate to the subject at all they tend to support' that theory.

The contention of appellant that “it is not alleged in the-complaint that plaintiff’s injuries were caused by defendants’ negligence,” and for that reason the demurrer to the complaint should have been sustained, is evidently based oh a misapprehension of the contents of the complaint. The complaint states facts showing that the injuries to plaintiff were caused by defendants’ negligence.

The court did not err in refusing instructions 1 and 2 requested by defendants, and instruction Ho. 2 given by the court of its own motion is not erroneous in the respect contended for by appellant.

We advise that the judgment and order denying a new trial be affirmed.

Haynes, C., and Cooper, C., concurred.

For the reasons given in the foregoing opinion the judgment and order denying a new trial are affirmed.

Temple, J., McFarland, J., Henshaw, J.

Hearing in Bank denied.