concurrence"> Mr. Justice Gage,

concurring in the result. I concur in the conclusion announced by the Court. But I reach that conclusion by so different a way that I am induced to set it down.

I think the “stipulation” must speak for itself, and that the affidavit of Mr. Lee was incompetent to at all modify it. I, therefore, leave the affidavit out of consideration, and *36 look exclusively at the stipulation, and the narrow issue, made by it and the other record of the case, is this: This Court, having held that the release was valid to bar plaintiff’s action, is the plaintiff concluded by the stipulation to question the genuineness of the release? I am clearly of the opinion that the plaintiff is not so concluded.

The following is a chronological history of the progress of the action: The plaintiff sued for the wrongful death of her intestate. The defendant pleaded in bar a release given by the deceased in his lifetime, but did not recite the release. Within four days the defendant moved for an order requiring the plaintiff to reply to the allegation of the release, and concurrently therewith made and served a copy of the release. In the same month, counsel for the parties made the stipulation. That instrument is made up of a recital and an arrangement. The recital is composed of two clauses, to wit:

Recital: “(1) The defendant * * * having amended the second defense * * * SO' as to set forth the release * * * according to the terms thereof, (2) and the plaintiff having demurred to the said defense thereby raising the legal question of the validity of the said release as a bar to the * * * action.” (The italics are supplied.)

Agreement: “ (1) That the defendant abandons . its * * * motion * * * to require the plaintiff to reply to its second defense.

“(2) And plaintiff agrees to raise no question of fact concerning the release therein alleged, so far as this case goes.

• “(3) That in the event the Circuit Judge shall * * * rule the release to be invalid as a bar to the cause of action alleged in the complaint, then the defendant agrees not to immediately appeal * * * from such order, but to await the final judgment in the cause before appealing.”

Immaterial words have been omitted.

*37 It is manifest that the. parties were stipulating about the release as it appeared on its face. The question at issue was the legal effect of the release as it was pleaded, its validity as a bar to the action. The “question of fact concerning the release” was the fact of its execution, not of its genuineness. Hitherto there had been no suggestion of a question of fact arising out of ungenuineness of the release. The parties did not forecast in the stipulation what would be done in the event the Court should hold that the release was valid. That stipulation was not provided for, and the parties have hot stipulated about it. Therefore, the plaintiff is not cut off to contend now that the release is not genuine; he is only concluded to deny the fact that the release was executed, and the law that it was effective, as it then appeared, to bar the plaintiff’s action.

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