McBride v. Scott

• Decision Date: 27 January 1903
• Citation: 132 Mich. 176,93 N.W. 243
• Court: Michigan Supreme Court
• Parties: McBRIDE v. SCOTT et al.

93 N.W. 243

132 Mich. 176

McBRIDE v. SCOTT et al.

Supreme Court of Michigan

January 27, 1903

Error to circuit court, Wayne county; Morse Rohnert, Judge.

Action by Joseph McBride against John Scott and others. Judgment for defendants, and plaintiff brings error. Affirmed.

For opinion on former appeal, see 84 N.W. 1079.

S. E Engle, for appellant.

Brennan Donnelly & Van De Mark, Walker & Spalding, Earl D. Babst, and Otto Kirchner, for appellees.

MONTGOMERY J.

The plaintiff brought this suit against a large number of defendants. The defendants demurred to the declaration. Judgment passed for the defendants. The case was appealed to this court, reversed, and remanded. At this stage of the proceedings two of the defendants, Moore and Wiggins, paid to the plaintiff $1,507.68, and were given a release in the following terms: 'Whereas, the supreme court has held that in the various Wonderland cases all the defendants were liable upon the allegations in the plaintiff's declaration; and whereas, James H. Moore and Enoch W. Wiggins are desirous of settling for their own individual liability, and to be therefore released from any further liability as to themselves personally, and they having paid to me the sum of $1,507.68, to be applied upon my claim for damages in this cause, I do hereby release the said Moore and Wiggins from all further liability, but reserving distinctly and expressly all my rights and claims against each and all of the other defendants for any and all sums in addition to the sum above paid, which I may be found entitled to. In other words, it is distinctly understood that no rights whatever are released as against the other defendants and that the only benefit they may or shall receive by reason hereof is such as allowed by law in giving to them the benefit of the sum above paid by way of reduction pro tanto of the damages for which this suit was brought. The said Moore and Wiggins, in further consideration hereof, agree each to attend and give his testimony when called upon by due legal subpoena, and to furnish such plans, specifications contracts, deeds, or other documents of any description whatever which may be required upon the trial relating to the matter in this suit, should the same be within their possession or control.' The case was thereupon discontinued as to Moore and Wiggins. The other defendants interposed a plea puis darrein continuance, setting up this discharge of Moore and Wiggins as a bar to the action. The replication to this plea set out the agreement above quoted. The defendants demurred to the replication. Judgment passed for defendants on the demurrer, and the plaintiff brings error.

The question is very clearly presented by the record as to whether a discharge of one or more of numerous joint tort feasons is a bar to a further action against the remaining tort feasors in a case where the plaintiff in form reserves the right to proceed against the remaining tort feasors, and where the plaintiff does not acknowledge full satisfaction for the wrong complained of. The question never has been directly determined by this court, and it is not free from doubt. In 8 Bac. Abr., tit. 'Release,' p. 277, it is said: 'If divers commit a trespass though this be joint or several, at the election of him to whom the wrong is done, yet, if he releases to one of them, all are discharged; because his own deed shall be taken most strongly against himself. Also, such release is a satisfaction in law, which is equal to a satisfaction in fact.' That such is the effect of a bare release at the present day, plaintiff's counsel concedes. But it is urged that, as the plaintiff had the right originally to proceed against one or all of the wrongdoers until full satisfaction is obtained, no one of the defendants has a right to complain of any arrangement made with his codefendant for an adjustment of the plaintiff's demand as against such codefendant, unless either by a formal release under seal, which conclusively imports full satisfaction, or full satisfaction in fact. And authorities are not wanting which sustain this contention. On the other hand, it is contended that the discharge of one of several tort feasors amounts in law to a satisfaction of the plaintiff's demand, and this without regard to the question of whether the release be by instrument under seal or by parol agreement. One of the earliest American cases upon the subject is Ruble v. Turner, 2 Hen. & M. 38, in which several had been guilty of an assault. An agreement, not under seal, was made between the plaintiff and one defendant, by which satisfaction was acknowledged for the part which one defendant took, and attempt was made to reserve the right as to the other defendants. The court held this reservation inoperative, Mr. Justice Tucker saying: 'It is a rule of construction that, if there be any clause or condition in a deed which is either contrary to law or repugnant to the nature of the estate created, it is void. Now, here the question is whether, by the first clause in this instrument of writing, Joel Motley was thereby discharged, and the plaintiff barred of his action against him; and I hold that he was, for the reasons already given. What, then, is the effect of this? The law says that, if one joint trespasser be released, or make accord and satisfaction, it shall bar a recovery against all the others. The plaintiff can no more change the law, in this particular, by any subsequent proviso or condition, than he could, after a grant in fee simple by deed, restrain his grantee from selling the lands, or change the course of descents prescribed by law; neither of which, will it be contended, that he could do. The proviso, then, is merely void, and cannot prevent the legal effect of the accord and satisfaction made by one of the defendants.' In 9 Bac. Abr. (Bouv. Ed.) p. 547, appears the following: 'Trespass against five. The plaintiff accepts a note of two, for a sum to be paid at a future day, in satisfaction as to them, but not to operate as a satisfaction as for the other defendants. The right to recover damages is gone as to all.' In Ellis v. Bitzer, 2 Ohio, 89, 15 Am. Dec. 534, it appeared that there were several joint defendants. A note was executed, of which the court said it was executed and received with the intent and for the purpose of discharging Williams and Adkins, the makers, from all further liability on account of their being jointly concerned with the defendants in the trespass, but with the express stipulation that it should not discharge the other co-trespassers. The court said: 'An accord and...