Baltes v. Bass Foundry & Mach.-Works

• Decision Date: 19 September 1891
• Parties: Baltes et al. v. Bass Foundry & Machine-Works et al.
• Court: Indiana Supreme Court

129 Ind. 185

28 N.E. 319

Baltes et al.

v.Bass Foundry & Machine-Works et al.

Supreme Court of Indiana.

Sept. 19, 1891.

Appeal from superior court, Allen county; James L. Worden, Judge.

Action by Michael Baltes and another against the Bass Foundry & Machine-Works, John H. Bass, and Hans M. Lund, for damages. Plaintiffs demur to the answers, which demurrers being overruled, they appeal. Affirmed.L. M. Ninde and Allen Zollars, for appellants. Mr. Coombs, R. C. Bell, and Mr. Morris, for appellees.

MILLER, J.

This was an action by the appellants against the appellees, the Bass Foundry & Machine-Works, John H. Bass, and Hans M. Lund, jointly, for damages occasioned by their alleged fraud and misrepresentation in relation to the estimates of material and the cost of construction of a penitentiary in the state of Illinois, by which the plaintiffs, who relied upon the estimates and representation and contracts for the construction of the building, were damaged in a large sum of money. The defendants answered jointly the general denial. They also severally filed answers substantially alike, and in substance as follows: That before the commencement of this suit said Bass Foundry & Machine-Works had commenced a suit against the said plaintiffs for work and labor done and performed, materials furnished, and money laid out and expended in the construction of said building under and pursuant to a contract with the plaintiffs, aggregating the sum of $50,000; that said Baltes and Nelson appeared to said action, and pleaded, among other things, a counter-claim, alleging and setting up the identical same causes of action and matters alleged in the complaint in this action, and claiming damages in the sum of $55,000; that such proceedings were had in said action as that the parties to said suit agreed to arbitrate all matters in dispute therein, and by their written submission, after reciting the pendency of said action and the pleadings therein, it was agreed between them that all said difference, and all matters involved in said suit, and all the causes of action, matters of defense, counter-claims, payments, set-offs, and all other grounds of defense and causes of action and claims of every kind and nature, legal and equitable, set forth in defendant's answer, counter-claim, etc., were referred and submitted to Stephen B. Bond, Frederick Beach, and Charles McCullock for trial, decision, and determination as arbitrators, who, or a majority of them, were to make a written report, finding, and award upon all matters submitted to them; that the parties would severally stand to, perform, and abide by their award; that said arbitrators took upon themselves the burden of said arbitration, met, heard all the evidence adduced, and, having considered all the subject-matter referred and submitted to them, the said Bond and McCullock, two of the arbitrators, did at the proper time make their award in writing of the matters submitted to them, by which they found that said Bass Foundry & Machine-Works should pay to said Baltes and Nelson the sum of $223.74 in full settlement of all the matters so referred and submitted to them; that duplicate copies were on said day delivered to said Baltes and Nelson and to the said corporation; that immediately thereafter the amount of said award was tendered to Baltes and Nelson, which they refused to receive, and that the tender has been kept good ever since, and is now brought into court for them. The answers contain some other allegations of a negative character that need not be referred to or set out. Demurrers were overruled to each of these paragraphs of answer, and these rulings are assigned as error. The appellants, in their brief, point out no objections to the sufficiency of the separate answer of the corporation; but earnestly contend that the answers of Bass and Lund are fatally defective, for the reason that they were not parties to the arbitration or the suit in which the arbitration was had. The appellees, on the other hand, contend that the arbitration and award pleaded by them constitute a complete bar to the appellant's right of action- First, because they operate to release the Bass Foundry & Machine-Works, one of the alleged joint tort-feasors, and thereby release the others; second, because appellants have thereby received full satisfaction of the several claims sued for in this action.

The law is well settled that the joint act of several trespassers forms but one injury, and that injury requires but one compensation, and each of the joint trespassers is liable for the whole wrong committed, and, if the injured party receives satisfaction from one, it absolves all the others; also one accord and satisfaction with one, or a release to one, discharges all the others. Allen v. Wheatley, 3 Blackf. 332;Johnson v. Vutrick, 14 Ind. 216;Fleming v. McDonald, 50 Ind. 278;Everroad v. Gabbert, 83 Ind. 489. The liability of tort-feasors is several, and an action may be had against all, or any or each may be sued separately, and the actions prosecuted to final judgment; but then the plaintiff must elect against whom he will take execution. A final judgment and an execution or an order for an execution against one of several joint trespassers is a discharge of all the others. Allen v. Wheatley, supra; Fleming v. McDonald, supra; Express Co. v. Patterson, 73 Ind. 430. In Cooley on Torts, pp. 137, 138, it is said: “The second, or even a subsequent, suit may proceed until a stage has been reached in some one of them at which the plaintiff is deemed in law to have received satisfaction, or to have elected to rely upon one proceeding for his remedy to the abandonment of the others. * * * It is to be observed in respect to the point above considered, where the bar accrues in favor of some of the wrong-doers by reason of what has been received from or done in respect to one or more...