White v. Beverly Bldg. Ass'n

• Decision Date: 05 April 1915
• Parties: WHITE v. BEVERLY BLDG. ASS'N.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

221 Mass. 15

108 N.E. 921

WHITE v. BEVERLY BLDG. ASS'N.

Supreme Judicial Court of Massachusetts, Essex.

April 5, 1915

SYLLABUS

The rulings requested by defendant and refused were as follows:

(1) Plaintiff cannot recover on the first count of her declaration.

(2) Plaintiff cannot recover on the second count of her declaration.

(3) The plaintiff on the evidence was not in the exercise of due care.

(4) Upon all the evidence the defendant was not negligent.

(9) There is no sufficient evidence but the alleged injury was due to a defect or want of repair of a rail resulting from any negligence from which defendant was liable.

(13) Upon all the evidence the settlement of the plaintiff's suit against the Blake-Allen Company, alleged to be for the same cause of action as the suit against this defendant, and the entry of an agreement for 'Neither party,' and the judgment thereon is a bar to this action against this defendant.

COUNSEL

H. R Mayo, of Lynn, J. J. Connor, of Salem, and R. T. Woodruff, of Lynn, for plaintiff.

E. S Abbott, of Haverhill, and F. H. Magison, of Boston, for defendant.

OPINION

CROSBY J.

The plaintiff was injured by falling down a flight of stairs in a four-story building owned by the defendant and leased by it to various tenants. She was employed by the Blake-Allen Company, one of the defendant's tenants, who occupied the fourth or top floor of the building.

1. The plaintiff brought an action against her employer, the Blake-Allen Company, to recover for the injuries so received by her, and subsequently brought another action against this defendant to recover for the same injuries.

While both actions were pending in the superior court an agreement for the following entry in the case against the Blake-Allen Company was made:

'Neither party; no further suit to be brought for the same cause of action.'

This agreement was duly signed by counsel for the plaintiff and for the defendant, and filed in court. Upon the outside of the agreement was indorsed:

'Agreement for judgment.'

Notwithstanding the indorsement the agreement must be construed in accordance with its terms; plainly it was not an agreement for judgment and cannot be so considered. It is what it purports to be,--an agreement for the entry of 'Neither party,' with the additional agreement that no further suit is to be brought for the same cause of action.

The defendant earnestly contends that this agreement is a bar to the present action on the ground that the defendant and the Blake-Allen Company were joint tort-feasors; that the Blake-Allen Company was released and that such release operated to discharge this defendant. If we assume, without deciding, that the Blake-Allen Company and the defendant were concurrent or joint tort-feasors, still the entry of the agreement did not operate to discharge the defendant. The entry of 'Neither party' in an action does not indicate that the cause has been adjudicated; it means nothing more than that neither party appears to prosecute or defend the action, and is equivalent to a nonsuit and default by consent of the parties, after which no judgment can be rendered by the court. It amounts to an abandonment of the action; it is not a judgment and is no bar to a future action. Marsh v. Hammond, 11 Allen, 483.

The defendant relies upon the language of Lord, J., in Blanchard v. Ferdinand, 132 Mass. 389. He there said (132 Mass. 391):

'The entry of 'Neither party' upon the record is the appropriate final disposition of the action.'

In that case it was held that a judge at a subsequent term had no power to order the entry of 'Neither party' stricken off and the case brought forward. While such an entry is a final disposition of the case, it is not a bar to a subsequent action to recover upon the same cause of action. Marsh v. Hammond, supra.

Nor can the agreement be construed as a release. It merely amounts to an agreement not to sue again for the same cause of action. The distinction between an agreement not to sue and a release of one of two or more joint tort-feasors is clearly pointed out in Matheson v. O'Kane, 211 Mass. 91, 97 N.E. 638, 39 L. R. A. (N. S.) 475, Ann. Cas. 1913B, 267.

The action is not barred upon the ground of accord and satisfaction. The only evidence relative to the disposition of the case against the Blake-Allen Company was the testimony of the plaintiff, and the statement in open court of her counsel that he had agreed to the entry in that case upon the promise of the representative of an insurance company [which had insured the Blake-Allen Company] to pay $250. He further stated that no part of the amount agreed upon in settlement ever had been paid, and there was no evidence of such payment. Under these circumstances it could not be found that there had been an accord and satisfaction. An accord without satisfaction is no defense to an action. Hermann v. Orcutt, 152 Mass. 405, 25 N.E. 735; N. Y., N.H. & H. R. R. v. Martin, 158 Mass. 313, 315, 33 N.E. 578; Anglo-American Land Co. v. Dyer, 181 Mass. 593, 598, 64 N.E. 416, 92 Am. St. Rep. 437; Prest v. Cole, 138 Mass. 283, 67 N.E. 246.

At common law even a judgment against one tort-feasor without satisfaction is not a bar as against other joint wrongdoers who are sued separately. Cameron v. Karnrich, 201 Mass. 451, 87 N.E. 605.

It follows that the writ, pleadings and agreement in the action of the plaintiff against the Blake-Allen Company were inadmissible and the exception to the exclusion of this evidence cannot be sustained. For the same reason the defendant's thirteenth request could not have been given.

2. The plaintiff testified, in substance, that as she came down the stairs she took hold of the handrail on the left side of the stairway, and that as sh...