Baltes v. The Bass Foundry And Machine Works

• Decision Date: 19 September 1891
• Docket Number: 11,342
• Citation: 28 N.E. 319,129 Ind. 185
• Parties: Baltes et al. v. The Bass Foundry and Machine Works et al
• Court: Indiana Supreme Court

28 N.E. 319

129 Ind. 185

Baltes et al. v. The Bass Foundry and Machine Works et al

No. 11,342

Supreme Court of Indiana

September 19, 1891

From the Allen Superior Court.

Judgment affirmed.

L. M Ninde, for appellants.

Mr Coombs, R. C. Bell and S. L. Morris, for appellees.

OPINION

Miller, J.

This was an action by the appellants against the appellees, the Bass Foundry and Machine Works, John H. Bass and Harris 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, contracted for the construction of the building, and 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 and Machine Works had commenced a suit against the said plaintiffs for work and labor done and performed, material 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 differences, and all matters involved in said suit, and all the causes of action, matters of defence, counter-claims, payments, set-offs, and all other grounds of defence and causes of action, and claims of every kind and nature, legal and equitable, set forth in defendants' answer, counter-claim, etc., were referred and submitted to Stephen B. Bond, Frederick Beach, and Charles McCulloch, 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-matters referred and submitted to them, the said Bond and McCulloch, 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 and 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 said Baltes and Nelson, which they refused to receive, and that 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 appellants' right of action:

First. Because they operate to release the Bass Foundry and 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 an 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; American Express Co. v. Patterson, 73 Ind. 430.

In Cooley Torts, pp. 137, 139, 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 others, that the bar arises not from any particular form that the proceeding assumes, but from the fact that the injured party has actually received satisfaction, or what in law is deemed the equivalent." See, also, First Nat'l Bank v. Indianapolis, etc., Co., 45 Ind. 5.

Slight acts are sufficient to indicate an election on the part of an injured party who has obtained several judgments against the tort-feasors to look to one of them for satisfaction, such as obtaining execution, or even entering an order for an execution on one of the judgments. In England the simple act of bringing suit separately against one of the parties is held to be a conclusive election to look to him for satisfaction.

As between the appellants and the Bass Foundry and Machine Works, the submission of the cause of action set up in the counter-claim to arbitration and the award thereon is a complete bar to any subsequent suit, and this without any performance or satisfaction of the award. Terre Haute etc., R. R. Co....