MacDonald v. Hornblower

• Decision Date: 01 October 1934
• Docket Number: No. 92.,92.
• Citation: 268 Mich. 626,256 N.W. 572
• Court: Michigan Supreme Court
• Parties: MacDONALD v. HENRY HORNBLOWER & WEEKS et al.

268 Mich. 626

256 N.W. 572

MacDONALD

v.HENRY HORNBLOWER & WEEKS et al.

No. 92.

Supreme Court of Michigan.

Oct. 1, 1934.

Appeal from Circuit Court, Wayne County; Arthur Webster, Judge.

Suit by Evelyn M. MacDonald against Henry Hornblower & Weeks and another. From a judgment for defendants on directed verdict, plaintiff appeals.

Affirmed.

Argued before the Entire Bench.

Hugh K. Davidson and David E. Kull, both of Detroit, for appellant.

Monaghan, Crowley, Reilley & Kellogg, of Detroit (Crawford S. Reilley and Edward T. Kelly, both of Detroit, of counsel), for appellees.

FEAD, Justice.

In 1929 plaintiff bought and sold stocks through defendant brokers. Her account was handled by E. F. Lee, a ‘customer's man’ in their employ. Lee made some purchases and sales for plaintiff without her authorization, and sustained a loss of $3,026, which defendants charged against plaintiff's account. About July 1st plaintiff transferred her account to another broker, learned of Lee's unauthorized transactions, and informed defendants, who denied responsibility or liability therefor. Lee admitted his misconduct, figured the loss at $3,000, and offered her his note therefor. She accepted the note, dated July 3. October 3 Lee paid her $500 and gave her a new note for $2,500. A few months thereafter plaintiff sued Lee on the note in attachment, property was seized, the attachment afterward dissolved, and the suit dismissed for want of progress. Later she brought another action on the note, the action pending at the time of trial of the instant case. In the latter suit Lee pleaded there was no consideration for the note, and plaintiff replied that the consideration was ‘waiver of a valid and enforceable tort action,’ which plaintiff had against him.

Plaintiff brought this suit against defendants for conversion as joint tort-feasors with Lee. The court directed a verdict on the ground that plaintiff had released Lee from liability for the tort, and therefore had released his joint tort-feasors.

The law of joint tort-feasors has been the subject of many refinements of reasoning and much conflict of opinion. 27 A. L. R. 805; 50 A. L. R. 1057; 65 A. L. R. 1087; 66 A. L. R. 206; 26 R. C. L. 765. The underlying principle is that the tort is single and the cause of action indivisible and exists against all feasors or none. The English rule was that action against one, pursued to judgment, was a bar to action against the others. The doctrine approved by the weight of authority in this country is that the injured party is entitled to actual satisfaction for the wrong; and, although separate suits may be brought, judgment against one, until satisfied, does not bar suit against others. Such is the rule in this state. Verhoeks v. Gillivan, 244 Mich. 367, 221 N. W. 287, 65 A. L. R. 1083.

However, the injured person has freedom to contract for satisfaction. For such consideration as he pleases he may release one or all of the tort-feasors. Compromise, accord and satisfaction are open to him, and he may waive his cause of action. It is not necessary that he receive satisfaction in money in order that he lose his cause of action by contract. Horgan v. Boston Elevated Ry. Co., 208 Mass. 287, 94 N. E. 386. And, when the cause of action is destroyed as to one tort-feasor, it falls as to the others, even though it is attempted to preserve the liability of the others. So, where one tort-feasor is released from liability on payment of part of the damage, the others are discharged, although the contract expressly reserves right of action against them. McBride v. Scott, 132 Mich. 176, 93 N. W. 243,61 L. R. A. 445, 102 Am. St. Rep. 416,1 Ann. Cas. 61;Sunlin v. Skutt, 133 Mich. 208, 94 N. W. 733;Lindsay v. Acme Plaster Co., 220 Mich. 367, 190 N. W. 275;Moffit v. Endtz, 232 Mich. 2, 204...