Ellis v. Esson

• Decision Date: 21 September 1880
• Citation: 6 N.W. 518,50 Wis. 138
• Parties: ELLIS v. ESSON and another
• Court: Wisconsin Supreme Court

6 N.W. 518

50 Wis. 138

ELLIS v. ESSON and another

Supreme Court of Wisconsin

September 21, 1880

Argued September 2, 1880

APPEAL from the Circuit Court for Oconto County.

The case is thus stated by Mr. Justice TAYLOR:

"This is an action to recover damages for a trespass upon the plaintiff's real estate, and cutting and carrying therefrom a certain quantity of pine saw logs. The evidence shows that the trespass complained of was committed jointly by the defendants and one E. E. Comstock, and that the plaintiff had made an agreement with Comstock, as found by the jury in their special verdict, which was as follows:

"'1. That prior to the commencement of this action it was agreed by and between the plaintiff and E. E. Comstock that the latter would pay to plaintiff the sum of $ 200, and that in consideration thereof plaintiff would not sue said Comstock for the trespass upon, or for the timber taken from, the premises described in the complaint.

"'2. That it was not understood by and between said plaintiff and Comstock, at the time of making said agreement, that said sum of $ 200 compensated or satisfied said plaintiff for said trespass, or for said timber, or that $ 200 was the amount of damages sustained by the plaintiff by reason of the trespass or value of the timber, but simply that for the payment of that amount by Comstock the plaintiff agreed not to look to or prosecute him for the balance of the damages, but to look wholly to other parties therefor.

"'3. That at the time of said agreement it was understood by both said plaintiff and said Comstock that the plaintiff intended to look to other parties connected with said trespass for the balance of his damages, over and above the amount received from Comstock.

"'4. That Comstock paid said sum of $ 200 to the plaintiff, and he received the same, in execution of said contract.

"'5. That at the time of making the above arrangement by plaintiff with Comstock, the extent of the plaintiff's damages by reason of the trespass had not been ascertained, and that said damages remained then unliquidated.'

"The jury also found that 269, 935 feet, board measure, of pine logs had been cut and removed from the plaintiff's premises by the defendants and Comstock, or their servants or employees; and that the value of said logs so cut and removed by defendants was $ 1,079.64.

"Upon these findings both parties moved for judgment; and the court ordered judgment in favor of the plaintiff for the value of the timber so cut and removed, less the sum of $ 200, which the respondent had received from Comstock under said agreement. The defendants appeal; and the only ground of error alleged or argued in this court is, that the agreement made by the plaintiff with Comstock, a joint trespasser with the appellants, and the receipt of the $ 200 under such agreement, is a bar to this action."

Judgment affirmed.

W. H Webster, for the appellants:

A release or discharge of one of several joint trespassers is a release or discharge of the whole trespass. This is the common-law rule, and is not confined to technical releases under seal. The effect is the same if the release be by operation of law. 6 Bac. Abr., p. 625; Co. Litt., 232; Noy 62; 5 Co., 97; Browne, 189; Cro. Jac., 444; Cocke v Jennor, Hob., 66; Wilson v. Reed, 3 Johns., 175. Releases or discharges by accord and satisfaction are by operation of law. 9 Bac. Abr., p. 522. The plea of accord and satisfaction was always a good defense in trespass, and if by one of several wrongdoers, it inured to the benefit of the others by way of discharge. Dufresne v. Hutchinson, 3 Taunt., 117; James v. David, 5 Term, 141; Peytoe's Case, 9 Rep. , 79. And where the claim settled is not a money demand, or, if so, is unliquidated, or, if liquidated, is doubtful in fact or law, any sum, no matter how small, given and received in satisfaction of the demand will legally satisfy it, however large. 6 Wait's Actions and Defenses, 409; Warren v. Skinner, 20 Conn., 559, 562; McDaniels v. Lapham, 21 Vt., 222; Donohue v. Woodbury, 6 Cush., 148; McCall v. Nave, 52 Miss., 494; U. S. v. Child, 12 Wall., 232; Pierce v. Pierce, 25 Barb., 243; Brooks v. Moore, 67 id., 393; Calkins v. State, 13 Wis. 389; Palmer v. Young, 20 id., 91. In this case the extent of the plaintiff's injury was undetermined. The damages were unliquidated, and were a proper matter for judicial investigation. The agreement between plaintiff and Comstock, and payment by the latter of the sum stipulated, plainly amounted to an accord and satisfaction of the plaintiff's demand as between him and Comstock. And, this being so, the discharge of Comstock worked the discharge of the defendants by operation of law. Ellis v. Bitzer, 2 Ohio, 295; Tilton v. Morgaridge, 12 Ohio St., 98; Turner v. Hitchcock, 20 Iowa, 318; Metz v. Soule, 40 id., 236; Ruble v. Turner, 2 Hen. & Mun., 38; Ayer v. Ashmead, 31 Conn., 447; Strang v. Holmes, 7 Cow., 224; Merchants' Bank v. Curtiss, 37 Barb., 317; Bronson v. Fitzhugh, 1 Hill, 185; Gilpatrick v. Hunter, 24 Me., 18; Thurman v. Wilde, 3 Per. & Dav., 289; Eastman v. Grant, 34 Vt., 387; Gunther v. Lee, 45 Md., 60; Hillman v. Uncles, Skinner, 391; Ballard v. Noaks, 2 Ark., 45; Milliken v. Brown, 1 Rawle, 391; Armens v. Price, 2 Penn. L. J., 347; Ackla v. Ackla, 6 Pa. St., 228; Campbell's Estate, 7 id., 100; Kidder v. Kidder, 33 id., 268; Whitehill v. Wilson, 3 Pen. & W., 405; Benjamin v. McConnell, 4 Gilm., 536; Scott v. Bennett, 3 id., 243; Rice v. Webster, 18 Ill., 331; White v. Walker, 31 id., 422; Allison v. Connor, 36 Mich., 283; McGehee v. Shafer, 15 Texas, 198; Brown v. Cambridge, 3 Allen, 474; Stone v. Dickinson, 5 id., 29; Cooley on Torts, 139; 2 Greenl. Ev., § 30; 2 Chitty on Con., 1132; Bromley v. School Dist., 47 Vt., 381; Barrett v. R. R. Co., 45 N. Y., 635; Knickerbacker v. Colver, 8 Cow., 111. Nor could any provision in the agreement between plaintiff and Comstock operate to deprive the defendants of the benefit of this legal discharge. The rule is applied even against the intention of the parties to the settlement. Milliken v. Brown, 1 Rawle, 398; Ellis v. Bitzer, 2 Ohio, 295; Turner v. Hitchcock, 20 Iowa, 321; Ruble v. Turner, 2 Henning & Munf., 38; Brown v. Kencheloe, 3 Cold., 192. The distinctions between the legal effect of a release, of an accord and satisfaction, of a discharge, and of a covenant not to sue, sought to be drawn by the plaintiff, have long since disappeared. Whatever the form or circumstance may be that produces, in law, an actual discharge from all further liability of one of several wrong-doers, the effect is the same. Turner v. Hitchcock, supra; Buchanan v. Curry, 19 Johns., 137; Stebbins v. Niles, 3 Cush. (Miss.), 267; Jones v. Quinnipiack Bank, 29 Conn., 46; Cuyler v. Cuyler, 2 Johns., 186; Phelps v. Johnson, 8 id., 54; Clark v. Bush, 3 Cow., 151; Brown v. Williams, 4 Wend., 360; Farmers' Bank v. Blair 44 Barb., 641; 6 Bac. Abr., 603; Harrison v. Close, 2 Johns., 449. Nor is the theory of divisibility or apportionment of damages among the wrong-doers applicable. The injury is an entirety, a unit, and wholly incapable of apportionment or division until the actual damage is liquidated by agreement or by the result of judicial investigation. Gilpatrick v. Hunter, 24 Me. , 18; Turner v. Hitchcock, 20 Iowa, 316; Calkins v. State, 13 Wis. 394.

For the respondents there was a brief by Hastings & Greene, and oral argument by Mr. Hastings:

1. An injured party is entitled to full compensation for his injury, and to but one compensation. From these principles arises the general rule that a release of one joint wrong-doer or joint contractor releases all. This rule and the technical reasons for it are the same in cases of contract and tort. 1 Parsons on Con. (5th ed.), 28; Turner v. Hitchcock, 20 Iowa, 323; Bronson v Fitzhugh, 1 Hill, 185; Snow v. Chandler, 10 N. H., 94. It rests upon the principle that a party can have but one compensation, and the rule of the common law that a technical release under seal is conclusive evidence of full satisfaction in fact. Brown v. Marsh, 7 Vt., 326; Eastman v. Grant, 34 id., 389; Matthews v. Chicopee Manuf'g Co., 3 Robt., 713. This being the reason for the rule, it follows that where there has not been satisfaction in full for the entire injury, a release to one, in order to discharge another, must be a technical release under seal. Snow v. Chandler, 10 N. H., 92; Irvine v. Milbank, 15 Abb. Pr. (N. S.), 380; Smithwick v. Ward, 7 Jones (N. C. L.), 64; Bloss v. Plymale, 3 W. Va., 393; Bailey v. Berry, 8 Am. Law. Reg. (N. S.), 270; Rowley v. Stoddard, 7 Johns., 207; Shaw v. Pratt, 22 Pick., 307; Greenwald v. Kaster, 86 Pa. St., 47; Spencer v. Williams, 2 Vt., 212; 2 Johns., 448, 186; 2 Salk., 575; 2 Saund., 48; 9 Johns., 310; 8 id., 389; 8 Mass., 480; 9 Cow., 36; 5 Barb., 455; 1 Gray, 630; 38 N. J. L., 358. As the effect of a technical release follows from the conclusive legal presumption arising from the instrument, that effect can be avoided by the instrument itself; and effect will be given to the intention of the parties as evidenced by the instrument. It may be so expressed as not to release all. 1 Parsons on Con. (5th ed.), 28; Matthews v. Chicopee Manuf'g Co., Bronson v. Fitzhugh, Greenwald v. Kaster, Irvine v. Milbank, Bailey v. Berry, supra; Solly v. Forbes, 6 E. C. L., 11; Thompson v. Lack, 54 id., 551; Sloan v. Herrick, 49 Vt., 328. The intention of the parties is alone regarded, where it can be ascertained without violating any rules of evidence or conclusive legal presumptions, and does not result in giving the injured party more than one full compensation. 38 N. J. L., 358; 45 Md., 60. When there is no technical release under seal, full satisfaction in fact must be shown, to work a full discharge. 1...