Wenger v. Ziegler

• Decision Date: 04 January 1967
• Citation: 424 Pa. 268,226 A.2d 653
• Parties: John K. WENGER v. Victor K. ZIEGLER, Appellant.
• Court: Pennsylvania Supreme Court

Page 653

226 A.2d 653

424 Pa. 268

John K. WENGER v. Victor K. ZIEGLER, Appellant.

Supreme Court of Pennsylvania.

Jan. 4, 1967.

Rehearing Denied March 4, 1967.

Philip S. Davis, Lebanon, for appellant.

L. E. Meyer, Lebanon, for appellee.

Before BELL, C.J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION OF THE COURT

COHEN, Justice.

On March 12, 1965, appellee confessed judgment against appellant on a certain installment sales contract dated February 1, 1960. Ten days thereafter appellant filed a petition to open judgment, averring Inter alia a previous action in trespass arising out of the same facts brought by appellant against appellee and the discontinuance of that action together with the delivery of a release from appellant to appellee in the amount of ten thousand dollars ($10,000.00). The Superior Court affirmed the order of the court below refusing the petition to open judgment. We granted allocatur.

This matter grows out of a contract whereby appellant agreed to purchase from appellee 11 dairy cows for four thousand eight hundred sixteen dollars ($4,816.00) to be paid in agreed installments. When the unpaid balance had been reduced to one thousand five hundred forty-three dollars ($1,543.00), appellant learned that his dairy herd had been infected with Brucellosis as a result of contact with a Brucellosis reactor cow purchased from appellee. The spread of the disease forced appellant to dispose of most of his dairy herd as beef cattle at a substantial loss. Appellant instituted the aforementioned suit in trespass against appellee.

Appellee argues that having received and retained a monetary consideration in settlement of the trespass action and having executed a release discharging appellee 'from all claims, demands, damages actions, causes of action, or suits at law or in equity, of whatsoever kind or nature' for all tortious acts, appellant is precluded from pleading as a defense to a judgment by confession, Wenger, Bertha Wenger & Wenger's Farm agree.

The right to assert a defense survives the releasor's execution of a release unless that instrument expressly purports to preclude the assertion of defenses. This conclusion is inescapable when one considers the mischief that would occur if every time a tortfeasor were released from liability he could turn matters around and sue the releasor for personal injury or property damage which was caused through no fault of the releasor, who would be precluded from asserting any defenses he might have.

Furthermore, under the rule mandating strict construction of an instrument whereby a party surrenders rights to which he might otherwise be entitled, we reach a similar result. In General Mills, Inc. v. Snavely, 203 Pa.Super. 162, 199 A.2d 540 (1964), the Superior Court held that a release ordinarily covers such matters as may be said fairly to have been within the contemplation of the parties when it was given and that the language of a release will be given its ordinary meaning unless a different meaning was clearly intended. An examination of the written release ¹ reveals that the parties obviously contemplated only the surrender by appellant of his right to pursue a cause of action by complaint or counterclaim, and not of his right to defend an action brought by appellee against him. By so holding, we remain consistent with those cases which allow the maintenance of a suit for property damage following the settlement of a prior claim for personal injuries sustained in the same accident where the written release expressly precludes only a subsequent personal injury claim. Erie Insurance Exchange v. Gouse, 180 Pa.Super. 488, 119 A.2d 672 (1956); Marshall v. American Stores Company, 87 Pa.Super. 498 (1926). It is inconceivable to us that a release otherwise silent may be construed so as to deprive only one party of rights arising from a given transaction. In the instant matter, the settlement of the trespass action was neither an admission by appellee of the truth of appellant's claim, nor a waiver by appellant of his right to assert those matters in defense of a subsequent claim brought by appellee against him.

One who petitions to open a confessed judgment must act promptly and aver a meritorious defense. 7 Standard Pennsylvania Practice 49. In the instant matter, appellant filed his petition ten days after judgment was confessed and averred several meritorious defenses, including the failure of consideration caused by the same...