Brown v. Kencheloe

• Decision Date: 30 September 1866
• Citation: 43 Tenn. 192
• Parties: Brown et als. v. John Kencheloe.
• Court: Tennessee Supreme Court

43 Tenn. 192

Brown et als.

v.John Kencheloe.

Supreme Court of Tennessee.

September Term, 1866.

FROM BRADLEY.

This is an action for trespass, and imprisonment of the defendant in error, at the May Term, 1866. There was a verdict and judgment in his favor, for $35,000. Judge WILLIAM L. ADAMS, presiding. Defendants appealed.

WELCKER, BAXTER, GAUT, EDWARDS, and BLIZARD, for Plaintiffs in Error.

HENDERSON, TREWHITT & ELLIOTT, for Defendant in Error.

SHACKELFORD, J., delivered the opinion of the Court.

This suit was brought by the defendant in error, against plaintiffs in error, and a number of others, in the Circuit Court of Bradley, by summons. Ancillary attachments were sued out at the time of the issuance of the summons, and were levied upon the property of plaintiff in error, and other defendants, who were declared against in the defendant's declaration. At the September Term, 1865, the defendant filed his declaration; in which he states that the plaintiff in error and the other defendants in the suit to-wit: Levi C. Hoyt, Russell Lawson, Silas Wayne, Isaac Wayne, John Cruise, Henry Kinser, and Joseph Tucker, willfully, maliciously, and wickedly, without cause, arrested him, or caused him to be arrested and imprisoned, for a long space of time--to-wit: the space of ______ months, whereby he was injured, etc., etc., etc.

At the September Term, 1865, nol. pros's were entered as to all the other defendants not declared against. At the same term, the plaintiff in error, and the other defendants in the declaration, filed their pleas: 1st, plea of “Not guilty;” 2d, plea of “Accord and satisfaction,” which, in substance, states, the defendant in error received from Jacob Deatherow, one hundred dollars in cash, and the promissory note of the said Deatherow, for three hundred dollars, in full satisfaction of the trespass committed, etc. At the January Term, 1866, the plaintiffs in error, by leave of the Court, filed another plea of accord and satisfaction, in which they state the defendant in error, since the commencement of the suit, received from the other defendants, who were sued for the joint trespass alleged to have been committed, the sum of twenty-six hundred dollars, in full discharge for the said several trespasses supposed to have been committed; and this was in satisfaction of the injury done him, costs, etc.; to which plea a replication was filed. At this term, a nol. pros. was entered to all the other defendants in the cause, except plaintiffs in error. At the May Term, 1866, the cause was submitted to a jury. The facts necessary to be stated, are: The defendant in error was arrested, or caused to be arrested, by the plaintiff in error, and the other defendants to the suit, (to which nol. pros's have been entered,) was taken to Mobile and Tuscaloosa, and imprisoned for a length of time, and suffered great privations and wrongs. Upon his release from prison, he returned, and the suit was commenced against the plaintiff in error and the other defendants. Russell Lawson, who was sued with the plaintiffs in error, agreed to give the defendant in error, three hundred dollars, in satisfaction of the damages defendant had sustained. He executed his note to the defendant in error for that sum, which was received and transferred by the defendant in error, and on which he had been sued before a Justice of the Peace, and stayed.

When he sued, there was nothing said about any one else. He received it in satisfaction of the damage done him. He said, in the conversation, there were some he would not take less than one thousand dollars from. Witness was not concerned in his arrest; he paid him for the damages claimed in the suit, alone for himself. Jacob Deatherow, who was sued, paid the defendant in error, one hundred dollars in cash, and gave his note for three hundred, which he afterwards paid, in full satisfaction for the damages claimed by defendant in error, against him. Henry Kinser paid the defendant in error, two hundred dollars, for himself and son, who was sued, in notes, in full satisfaction of the damages of defendant in error, against them. The counsel for the plaintiffs in error, requested the Court to charge the jury: “If the defendant in error, after the commencement of the suit, received one hundred dollars in money, and the note of Russell Lawson for three hundred dollars, in satisfaction for the damages sued for in the declaration, so far as said Lawson was concerned; and if he received from John Deatherow, one of the defendants, originally sued in this action, four hundred dollars, in satisfaction for the damages sued for as to him; and if he received from Henry Kinser, (another of the defendants originally sued in this action,) his note for two hundred dollars, in satisfaction for the injuries sued for in this declaration, as to him and his son, such an accord and satisfaction with any one of the joint trespassers originally sued, would be an accord and satisfaction as to all the trespassers sued in this action, and would bar the suit as to them, whether the plaintiff intended or not, to receive it in satisfaction as to all.”

The Court declined to give the instructions, but charged the jury as follows:

“On this point, it has been insisted on the part of the defendants, that if you should be satisfied that the defendants are jointly liable, as the plaintiff, in declaring, hath alleged against them, you should find for the defendants, because they say they have made full and complete accord and satisfaction. If such a thing has been done, this is a correct assumption. If you are satisfied, from the proof, that such accord and satisfaction has been made, you should find for the defendants; for, in this form of action, the plaintiff can not have but one satisfaction. This, however, you must determine from the proof before you. If an agreement was made between the parties, that a compromise was to be made, and that agreement has been fully carried out and performed, it would be a satisfaction; but, if they met together and agreed to compromise and settle the cause you now have before you, and that agreement was not fully carried out and completed, it would not be a full accord and satisfaction. As to this, you have heard the proof, and must decide for yourselves.”

A verdict and judgment was rendered, against the...