Wardell v. McConnell

• Decision Date: 16 January 1889
• Citation: 41 N.W. 548,25 Neb. 558
• Parties: WARDELL ET AL. v. MCCONNELL.
• Court: Nebraska Supreme Court

25 Neb. 558

41 N.W. 548

WARDELL ET AL.

v.MCCONNELL.

Supreme Court of Nebraska.

Jan. 16, 1889.

Syllabus by the Court.

The rule is that where the damages are uncertain, accord and satisfaction before judgment by one of the several joint wrong-doers is satisfaction as to all; but the discharge of a party not shown to be a joint wrong-doer will not operate as a discharge of the other defendants.

Appeal from district court, Richardson county; APPELGET, Judge.Isham Reavis and J. D. Gilman, for appellants.

F. Martin, for appellee.

MAXWELL, J.

This action was brought in the district court of Richardson county to enjoin a judgment recovered by the defendant herein against the plaintiffs in error in that court, the basis of the judgment being for loss of means of support, caused by the sale of intoxicating liquors by the plaintiffs in error to the husband of the defendant. The case is reported in 23 Neb. 152, 36 N. W. Rep. 278. The injunction is sought upon the ground that prior to the recovery of the judgment in that case the defendant herein had received $75 from one Huber, a defendant in that action, and that thereby the plaintiffs herein (defendants in that suit) were released and discharged. There is also an allegation that the plaintiff had no knowledge of such compromise before the final judgment, and Mr. Wardell testifies to that fact. On the trial of the cause in the court below the injunction was denied, and the case dismissed. The plaintiffs appeal.

The testimony tends to show that all the persons engaged in the sale of intoxicating liquor at Falls City were joined as the defendants in the action of Annie B. McConnell v. W. W. Wardell et al., the object apparently being twofold, viz., to recover for loss of means of support, and also to prevent sales of such liquors to the husband of the plaintiff in that action. The testimony fails to show that Huber had ever sold intoxicating liquor to J. B. McConnell, the husband of the plaintiff in that action, and it is expressly proved that Mrs. McConnell had no facts in her possessionat the time of bringing the action to justify her in joining Huber as defendant, and, if the testimony before us is to be believed, a verdict must have been rendered in his favor. The testimony also tends to show that Huber was unwell, and one of the sureties on his bond, fearing a recovery against him, was pressing Huber to effect some arrangement in the matter. The effect was that the attorney for Mrs....