Clark v. Dinsmore

5 N.H. 136 | Superior Court of New Hampshire | 1830

By the court.

The plaintiffs complain, that in the trial of this cause in the court below, the jury were misdirected in lliis, that they were told that if they should be of opinion that the sum of four dollars was paid and received as a satisfaction of John Clark’s part of the damages only, the plaintiffs could not recover. To this instruction two exceptions are taken.

1st, It is objected, that a. sum of money received by one plaintiff, in satisfaction of his share of the damages, could not be in its nature in any shape an answer to the action, and ought not to have been submitted to the jury as such-

2d, It is objected, that even if such matter be an answer to the action, the defendant could not legally avail himself of it upon the pleadings in this case.

The whole merits of the defence, so far as they are now disclosed to us seem to be involved in the question whether the fact, that John Clark received a sum of money in satisfaction of his part of the damages was an answer to the action. For if the receipt given by John Clark had purported to be in full of all damages claimed in the action, this would not have precluded the plaintiffs from showing the true nature of the transaction. 5 East, 230, Fitch v. Sutton; 7 Johns. 207, Rowley v. Stoddard; 3 B. & C. 421, Skaife v. Jackson.

But that receipt does not purport to be in full of all the damages claimed in the action. And it is clear, from the defendant’s own testimony, that although the accord may have been extended to the whole action, the satisfaction did not extend beyond John’s part. The tender of the residue demonstrates this. And it is well settled, that a tender in such a case is without legal effect, and cannot supply the place of an actual satisfaction. 9 Coke, 77, H. Peytoe’s case; Cro. Eliz. 305, Roine v. Orton; T. Jones, 6, Shepherd v. Lewis; 1 Rolle’s Ab. 129; Com. Dig. “ Accord,” B, 4; T. Jones, 158 and 168.

We should conclude from the very nature of the thing, that a sum paid and received in satisfaction of part of the damages, could not be deemed in law a satisfaction of the whole. If a sum so received can in any wary be an answer to the action, it must be as an accord and satisfaction. But it is well settled, that an accord, to constitute a bar, must be full, perfect and complete. 9 Coke, 79, Peytoe's case; 2 H. Bl. 317, Lynn v. Bruce; 16 Johns. 86, Cro. Eliz. 304, Balston v. Baxter. In this case, if there was any accord, it was, that twelve dollars should be paid in satisfaction of all the damages. But only four dollars have been paid,' The accord has not been executed-

Even if this can be considered as a full, perfect and complete accord, and satisfaction with respect to John Clark’s part of the damages, it only goes in abatement of the writ, and not in bar. For it is well settled, that in actions in form, ex delicio, a recovery and satisfaction received by one joint owner for his share of the damages is no answer to an action by other joint owners who may still sue for the injury to their undivided shares. 1 Chitty, 53—54 ; 6 D. & E. 766, Addison v. Overend; 7 D. & E. 219, Sedgworth v. Overend ; 5 East, 407, Bloxam v. Hubbard. And surely an accord and satisfaction can be no better answer to an action than a judgment satisfied.

In a personal action, one of several plaintiffs may release the action and such release is a good bar. 3 N. H. Rep. 96, Kimball v. Wilson. But no case is to be found m which it has been held that if one of several plaintiffs release his individual interest in an action, that may be used as a bar in any shape.

In personal actions the nonsuit of one, is the nonsuit of all the plaintiffs. 3 N. H. Rep. 101 ; and perhaps in this case an accord and satisfaction extending only to the interest of John Clark might, if it had been properly pleaded have been sufficient to abate the writ.

In the case of the Countess of Northumberland, 5 Coke, 98; Moore, 455; Cro. Eliz. 518; 2 Rolle’s Ab. 411, the defendants in a quo/re impedit pleaded in abatement puis darrein continuance a release by two of the plaintiffs, but it was held that the release went in bar only against those who made it, and that the writ should stand for the other plaintiffs.

But a quare impedit is a real action, and although in such an action a release of the interest of one plaintiff might not be sufficient to abate the writ, perhaps it might be otherwise in a personal action.

11 is, however, unnecessary to determine, in this case, whether the fact that John Clark received four dollars in satisfaction of his interest in the action, would have been sufficient to abate the writ. The defendant has not seen fit to plead that matter in a way that can enable him to avail himself of it for that purpose, But we are clearly of opinion, that such an accord and satisfaction could neither be pleaded in bar, nor used as an answer to the action upon the general issue, although it might, perhaps, have been used upon the trial to reduce the damages.

We are, therefore, of opinion, that the court below erred ill instructing the jury that if they should be of opinion that John Clark received the four dollars, in satisfaction of bis part of the damages, the plaintiff could not recover, and for this misdirection, the judgment must bo reversed.