Allison v. Connor

| Mich. | Apr 18, 1877

Cooley, Ch. J:

The plaintiff, who had purchased of defendants a quantity of railroad ties, paying therefor partly in money belonging to himself and partly in obligations belonging to the Michigan Air Line Railroad Company, has brought this action to recover from defendants for fraudulently selling to him ties they did not own. It appeared in evidence, and was admitted by the plaintiff, that there had been between him and the defendants some sort of a settlement, but there was a dispute as to how much it covered; the plaintiff claiming that it was a settlement only for so much as he purchased with his own money, and defendants claiming that there was a full accord and satisfaction.

The jury returned a verdict for defendants, and the plaintiff complains that the charge of the judge was calculated to mislead them as regards the settlement. Among other things they were instructed that if what the defendants delivered to the plaintiff Avas “then received and accepted by the plaintiff in full satisfaction of his individual claim against the defendants, the plaintiff cannot recover.” And again: “If these parties haAre made an agreement and mutually adjusted the matters of difference between them at that time, by which the plaintiff has released any claim or demand which he then had in his individual name against these defendants, then he is by such release or such agreement forever barred from further pursuing the action which he might then have against them.”

We cannot find any fault in these instructions. The plaintiff had but one claim against the defendants, and if he settled with them at all, it must have been for the whole claim. A fraud cannot be separated into two causes of action, and one settled for and the other left open; it is and- must be an entirety. The evidence did not show distinct transactions between these parties in one of which the purchase aves made with the plaintiff’s own money and in the other Avith obligations of the railroad company, but it showed a purchase in which payment was made Avithout any such discrimination'. It was therefore obviously impossible for the plaintiff to settle for the fraud so far as it applied to a purchase Avith his own money, and leave the controversy as to any thing further still open. His demand was single and incapable of division.

Perhaps, had there been evidence that the parties expressly agreed to leave some portion of the' controversy outside of the arrangement alleged to have been made by them, a question might have arisen which would have been embarrassing; but there was no such express evidence. It was denied by the plaintiff that any attempt was made to settle beyond Avhat he had paid with his individual property; but he does not claim that in such settlement as he did make any rights were expressly reserved by him. And as he could have had no claim against these defendants except an “individual” claim, we think the charge given was strictly correct.

The judgment must be affirmed, with costs.

The other Justices concurred.