McDonald v. Goddard Grocery Co.

• Decision Date: 23 November 1914
• Docket Number: No. 10797.,10797.
• Citation: 171 S.W. 650
• Parties: McDONALD v. GODDARD GROCERY CO. et al.
• Court: Missouri Court of Appeals

171 S.W. 650

McDONALD v. GODDARD GROCERY CO. et al.

No. 10797.

Kansas City Court of Appeals. Missouri.

November 23, 1914.

Rehearing Denied December 17, 1914.

1. RELEASE (§ 29) — CONSTRUCTION — JOINT WRONGDOERS.

A wrong jointly committed or a debt jointly payable by several makes each liable for the entire wrong or debt, for which there is but one satisfaction, and therefore a release of one is a release of all; and Rev. St. 1909, § 5431, allowing contribution after judgment between wrongdoers, does not change the rule, since, the injured party having the right to omit any wrongdoer from the action, the wrongdoers sued have no right to demand that all be included in the action, so as to increase the contributors to the judgment and thereby lessen their burden.

2. RELEASE (§ 37) — "COVENANT NOT TO SUE" — EFFECT.

Where a sum was received from one or more of several wrongdoers or debtors not in full satisfaction of the wrong or debt, but in consideration of the injured party's agreement not to sue them, it was not a "release" at all, but merely a "covenant not to sue" those paying, especially where the right of action against the other wrongdoers or debtors was expressly reserved, and the injured party might still successfully sue, leaving to those whom he covenanted not to sue their right of action against him for breach of covenant.

3. RELEASE (§ 37) — COVENANT NOT TO SUE — SINGLE WRONGDOER.

A covenant with the only wrongdoer or debtor not to sue him is in effect a discharge, for, if the covenantor then sues, the covenantee can turn about and sue him in damages on the covenant in an identical amount, so that, to avoid circuity of action, the covenant is a discharge of the action, since there is nothing left against any other person.

4. RELEASE (§ 37) — CONSTRUCTION — INTENTION OF PARTIES.

In the construction of a release or covenant not to sue, the purpose is to discover the intention of the parties which should govern.

5. RELEASE (§ 29) — CONSTRUCTION — EFFECT.

Where one, in fact, receives full satisfaction from one of several wrongdoers, he extinguishes his claim, and cannot recover thereon from the others, and in such case his intention to recover from such others could not prevail.

6. MALICIOUS PROSECUTION (§ 12) — GROUNDS OF ACTION — INSTITUTION OF BANKRUPTCY.

Where one maliciously and without probable cause institutes an ordinary suit or bankruptcy proceedings against another, the latter may sue for malicious prosecution, even though there be no seizure of his person or property; bankruptcy proceedings being much more injurious to one than an ordinary civil suit.

7. MALICIOUS PROSECUTION (§ 16) — ELEMENTS — MALICE OF PROBABLE CAUSE.

In an action for malicious prosecution, the evidence must show both malice and a want of probable cause for the prosecution.

8. APPEAL AND ERROR (§ 1064) — INSTRUCTIONS — PROBABLE CAUSE — HARMLESS ERROR.

In an action for the malicious prosecution of a bankruptcy proceeding, an instruction that, if defendant in good faith and "without malice" took the advice of counsel, there was no malice in the prosecution of the bankruptcy proceeding was reversible error, since, if the advice must be taken by one having no malice, there would be no malice for the advice to destroy, and the rule that advice negatives or destroys malice would be rendered useless.

9. MALICIOUS PROSECUTION (§ 16) — PROBABLE CAUSE.

Probable cause will justify the institution of a prosecution against another, however great the malice, since it is the presence of malice and the absence of probable cause that sustains an action for malicious prosecution.

10. MALICIOUS PROSECUTION (§ 25) — MALICE — ADVICE OF COUNSEL.

Advice of counsel taken in good faith in instances where the alleged malicious prosecution is dismissed negatives malice.

Appeal from Circuit Court, Adair County; Nat M. Shelton, Judge.

Action by John J. McDonald against the Goddard Grocery Company and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Eugene S. Wilson and John Brennan, Jr., both of St. Louis, and Higbee & Mills, of Kirksville, for appellants. Thomas F. Gatts, of Kansas City, for respondent.

ELLISON, P. J.

Plaintiff's action is for malicious prosecution of a bankruptcy proceeding against plaintiff by the several defendants herein. The judgment in the trial court was for the plaintiff.

The action was begun in 1910. Before it was tried, on the 2d of October, 1912, plaintiff accepted $50 from two of the defendants (Youle and Bozarth), in consideration of which he agreed to dismiss the action as to them, but reserved the right to continue to prosecute as to the others. The agreement was put in writing and is as follows:

"It is hereby stipulated and agreed that, so far as the defendants J. W. Youle and J. R. Bozarth are concerned, this cause shall be dismissed as to them, and the same will not be further prosecuted as against the said J. W. Youle and J. R. Bozarth, and that the further prosecution of this case shall be against the defendants Goddard Grocery Company and J. Schotten. The plaintiff only hereby agrees to dismiss this action as to J. W. Youle and J. R. Bozarth, and agrees not to further prosecute as to them, reserving the right to further prosecute this case against the Goddard Grocery Company and said J. Schotten, and not acknowledging, which has not been paid, any satisfaction in this cause of action against any of the defendants herein, but simply covenants not to further prosecute this action against J. W. Youle and J. R. Bozarth at any time. This agreement is made in consideration of the sum of $50 paid by J. W. Youle and J. R. Bozarth."

The remaining defendants insist that, as plaintiff's claim is based on a joint wrong, this paper is a release of a part of the wrongdoers, and therefore, in legal effect, became the release of all. The trial court refused to take that view, and adopted that of plaintiff to the effect that the paper was merely a covenant not to sue those defendants, leaving the cause of action intact against the others.

A wrong jointly committed by several makes each liable for the entire injury, for which there is but one satisfaction; and therefore a release of one is a release of all. And where a sum is received from one or more of several wrongdoers, not in full satisfaction, but in consideration of the injured party agreeing not to sue, it is not a release at all; it is merely a covenant not to sue those paying. By so doing he does not release any of them, but only his remedy against those with whom he covenants. He may still successfully sue all, leaving the right to those with whom he made the covenant to sue him thereon. Lacy v. Kinnaston, Holt, 178. That case is several times reported (1 Lord Raymond, 688; 2 Salk. 573, and 3 Salk. 298; 12 Mod. 548), and is adopted by Lord Kenyon in Dean v. Newhall, 8 T. R. 168. If one covenants with a single wrongdoer not to sue, this is in effect his discharge, for, if he then sues him, he can turn around and sue the covenantor in damages on the covenant in identical amount, and therefore, so as to avoid circuity of action, the covenant not to sue a single wrongdoer is a discharge of the action, since there is nothing left against any other person. But not so where there are others left to whom the cause of action applies. The rule is illustrated in this way in 3 Salk. 298, supra: Where W. R. enters into an obligation to H. S., who covenants never to sue W. R., if afterwards he does sue upon it, W. R., to avoid circuity of action, may plead the covenant in bar to the action, for H. S. by his covenant has deprived himself of all remedy he can have upon the bond —

"but if W. R. and R. W. are jointly and severally bound in a bond to H. S., who covenants never to sue W. R. upon that bond, this is no release or defeasance of the bond; neither can it be pleaded in bar if an action should be brought upon it, because it doth not discharge the right, but only the remedy against W. R., for he still hath a right of action against R. W., the other obligor; therefore, if he (the obligee) should bring an action of debt upon this bond against W. R., he is put to his action of covenant against the obligee, which would not lie if this covenant was a release, because a release to one obligee is a release to both."

This rule, coming to us from early times, is recognized with practical unanimity today. Why should an injured person not be allowed to receive a portion of his compensation for an injury from some of the wrongdoers, without discharging the others? There is no more hindrance to freedom of contract in this than in any other instance. The parties to such a contract knew that, if the covenant not to sue was violated, the covenantees could have their action for the breach, in which they would recover the damages flowing from such breach. The other wrongdoers have no cause to complain, for in fact it was a relief to them, since, as there can be but one satisfaction, whatever was paid by the covenantees lessens their liability that much.

But now, since the statute (section 5431, R. S. 1909) allows contribution after judgment between wrongdoers, it may be said that the others have an interest in seeing that no injustice is done them by a settlement with a part at a less sum than would have been their contributory share had they been defendants in the judgment. The answer to this is that the injured party now has a right to omit any wrongdoer from the action. The wrongdoers sued have no right to demand that all be included in the action, so as to increase the contributors to the payment of the judgment, and thereby lessen their burden. If, therefore, the injured party may let a part of the wrongdoers go free and hold the others for his full injury, why should he not be allowed to receive part compensation for his injury from one or more of the wrongdoers without discharging the others, especially when he does not...