Dulaney v. Buffum

• Citation: 173 Mo. 1,73 S.W. 125
• Parties: DULANEY et al. v. BUFFUM et al.
• Decision Date: 17 March 1903
• Court: United States State Supreme Court of Missouri

73 S.W. 125

173 Mo. 1

DULANEY et al. v. BUFFUM et al.

Supreme Court of Missouri, Division No. 2.

March 17, 1903.

JOINT TORT FEASORS — SATISFACTION — DISCHARGE — RESERVATION OF CAUSE OF ACTION.

1. Where, pending an action against several joint tort feasors, plaintiffs accepted money in satisfaction of the liability of two of them, such satisfaction was a bar to the action against all the others.

2. Pending an action against several joint tort feasors, plaintiffs acknowledged in writing the receipt of a sum of money; "the same being in full settlement of all claims on account of the matters set up in the petition, so far as said two defendants are concerned." Held, that such reservation did not prevent the acknowledgment of satisfaction from operating as a bar to a further prosecution of the suit against the other defendants.

3. Rev. St. 1899, § 897, providing that it shall be lawful for every creditor of two or more debtors, joint or several, to compound with any one or more of his debtors as he may see fit, and to release them from further liability, without impairing his right to collect the balance from the other debtors, applies only to creditors and debtors in the common acceptation of those terms, and does not prevent the acceptance of a satisfaction from one of several joint tort feasors from operating as a bar to a suit against any of the others.

Appeal from Circuit Court, Saline County; Samuel Davis, Judge.

Action by W. P. Dulaney and others against Frank W. Buffum and others. From a judgment for defendants, plaintiffs appeal. Appeal dismissed.

This suit was begun by the appellants in Saline county on December 31, 1897. There was a trial of this cause at the February term, 1899, of the circuit court of Saline county. At the close of the evidence on the part of the plaintiffs the court instructed the jury to find the issues for the defendants. In accordance with such direction by the court, the jury rendered a verdict for the defendants, and judgment was rendered in pursuance of the verdict. The motion for new trial having been overruled, plaintiffs, in due time and form, prosecute their appeal to this court.

At the April term, 1902, of this court, defendants Frank W. Buffum and La Crosse Lumber Company filed their motion to dismiss as to them, to which motion was attached a receipt for $750 in settlement with these two defendants of all claims against them on account of the charges alleged in the petition; also a letter from the plaintiffs to one of the defendants, stating that they had directed the discontinuance or dismissal of this case against these two defendants, which motion and release thereto attached are as follows:

"Now come F. W. Buffum and the La Crosse Lumber Company, two of the above-named defendants [respondents], and move the court to dismiss as to them in said cause, and, for reasons therefor, state that plaintiffs [appellants] and the said defendants [respondents] F. W. Buffum and the La Crosse Lumber Company have fully settled the matter of differences between them, complained of in said cause, as fully shown by the receipt and letters hereto attached; and said plaintiffs, as shown by this said letter, agree to dismiss said cause in this court as to them."

"William P. Dulaney and S. J. Dulaney, Composing the Firm of Dulaney Brothers, Plaintiffs, against Frank W. Buffum, La Crosse Lumber Company, H. C. Taylor, R. J. Hurley, George D. Hope, A. A. White, and Harry Gorsuch, Defendants. Received from Frank W. Buffum and La Crosse Lumber Company, two of the defendants in the above-entitled cause, which was instituted in the circuit court of Saline county, Missouri, and is now pending in the Supreme Court of said state, the sum of seven hundred and fifty ($750.00) dollars, the same being in full settlement and satisfaction of all claims and demands in our favor, or in favor of either of us, on account of the matters and things set up or referred to in the petition in the above-entitled suit, so far as said two defendants are concerned; and we hereby agree to at once discontinue and dismiss said suit so far as said two defendants are concerned. In witness whereof, we have hereunto set our hands this 14th day of December, 1901, at Slater, Saline county, Missouri. W. P. Dulaney. S. J. Dulaney. Dulaney Bros., by S. J. Dulaney."

The motion as above quoted was sustained, and on the same day, at the April term, 1902, the other defendants in this cause filed their motion to dismiss the appeal herein pending, which motion is as follows:

"Now come H. C. Taylor, R. J. Hurley, George D. Hope, A. A. White, and H. A. Gorsuch, a part of the defendants in the above-entitled cause, and show to the court that this is an action for damages for alleged torts on the part of the above-named defendants and other defendants, Frank W. Buffum and La Crosse Lumber Company, charged to have been committed by them jointly; that since the date of the granting of the appeal in this case the said plaintiffs and defendants F. W. Buffum and La Crosse Lumber Company have compromised, adjusted, and settled all matters in controversy in this case, and that the said plaintiffs have received from said Buffum and La Crosse Lumber Company, in full payment and satisfaction of all the matters complained of in their petition in this case, the sum of $750, and in consideration thereof they executed and delivered to said Buffum and said La Crosse Lumber Company a receipt in full payment, satisfaction, and discharge of all liability resulting from any and all things set forth in their petition in this case. Said receipt is attached to another motion filed in this cause. Wherefore the above-named defendants move the court to dismiss the appeal herein."

Burks & Sterrett, Harvey & Gower, and W. M. Williams, for appellants. Elijah Robinson, Stuart Carkener, and Rector & Lyons, for respondents.

FOX, J. (after stating the facts).

It will be observed that the contention urged by the defendants, not included in the receipt or release, is that the settlement by plaintiffs with the La Crosse Lumber Company and F. W. Buffum, as indicated by the receipt filed, operated, in law, a release to all of the defendants. There can be no dispute that this is an action sounding in tort. It is an action for injury to plaintiffs' business by reason — so the petition alleges — of the malicious, wrongful, and unlawful conduct of the defendants. The defendants are charged to have committed the wrongs which resulted in the injury of appellants' business jointly. That we may fully appreciate the nature of this action, and as the vital question involved in this motion depends wholly upon its nature, we here quote the petition, omitting the caption:

"Now at this day come the plaintiffs, and, for their cause of action herein against the defendants, state that at all of the times hereinafter complained of they were, and still are, copartners trading and doing business under the firm name and style of Dulaney Bros.; that their residence and place of business is in the city of Slater, in the county of Saline and state of Missouri, aforesaid; that the defendant the La Crosse Lumber Company during the same time was, and still is, a corporation duly organized and created under the laws of the state of Missouri, and that the said corporation has and usually keeps an office and agent in the county of Saline and state of Missouri for the transaction of business. Plaintiffs state that they have been engaged in the business and trade of retail dealers in lumber and manufactured products of lumber, to wit, doors, sashes, blinds, and such other articles as usually form a part of the stock in trade of retail lumber dealers, and that on the 1st day of January, 1893, they had a cash capital employed in their said business of eight thousand dollars ($8,000), and that in the conduct of their said business they had succeeded at that time in building up and establishing a large and lucrative trade, which had been and was then a source of large profits to the plaintiffs in their said business and employment; that as such retail lumber dealers they were engaged in selling lumber at the said town of Slater, and at other towns along the line of the Chicago & Alton Railroad, to wit, the towns of Marshall, Blackburn, Shackelford, Norton, Gilliam, Glasgow, Mexico, Bowling Green, Vandalia, Laddonia, and other towns along the said Chicago & Alton Railroad, which were of easy access to them in the management and conduct of their said business, also at other points in Saline county and in Montgomery county, Missouri, and that their said business had extended throughout the territory named; that in the prosecution of their said business the plaintiffs had established good credit with the wholesale lumber dealers throughout the country, and were in good repute as retail lumber dealers, with good financial credit as such; that the defendant the La Crosse Lumber Company at the same time was engaged in the lumber business as retail dealers, and that the other defendants above named were at the same time, and still are, engaged in the lumber business as retail dealers at different points in the state of Missouri and Kansas; that on or about the 1st day of January, 1894, the defendants maliciously, wrongfully, and unlawfully entered into a conspiracy for the purpose and malicious intent of injuring the plaintiffs in their said business in which they were then and still are engaged, and with the malicious intent to obstruct, hinder, and prevent plaintiffs from carrying on their said business, and, in order to further carry out the said malicious intent and design of the said defendants, that they, with divers and sundry persons and corporations, formed themselves into a federation or association under the name and style of the Missouri & Kansas Association of Lumber Dealers, and that all of the above-named defendants, together with the Gurdon Lumber Company, a corporation, the ...