217 N.W. 837 | Minn. | 1928
"does covenant and agree that she will never at any future time commence, prosecute or cause or permit to be prosecuted any action *312 at law or in equity, or any proceeding of any description, whatever, in any court, against said Massachusetts Real Estate Company, a corporation, to charge it with any liability for, or to recover any compensation for, or damages sustained by the undersigned as a result of, the injuries received or which she claims to have received as the result of her accidental fall hereinabove described, and that said Massachusetts Real Estate Company, a corporation, shall henceforth and forever be relieved and protected by this covenant from any such action or proceeding, by any person or persons whatsoever."
Thereafter defendants Stromquist Moyer interposed a supplemental answer in which they asserted that plaintiff had released and discharged the real estate company from all liability. At the close of the evidence the court directed a verdict for defendants Stromquist Moyer on the ground that the instrument executed by plaintiff constituted a satisfaction and discharge of the cause of action. Plaintiff appealed from an order denying a new trial.
Plaintiff contends that exhibit No. 2 is merely a covenant not to sue and does not release or discharge the other defendants.
Where a person having a cause of action against two or more joint tortfeasors releases and discharges one of such tortfeasors, it is settled law that he thereby releases and discharges all of them, as he had but a single cause of action and can have only one satisfaction thereof. Hartigan v. Dickson,
Exhibit No. 2 is clearly a covenant not to sue under all the authorities; and the oral testimony is to the effect that the parties intended it as a covenant not to sue and not as a discharge of the cause of action. The trial court remarked that the real estate company had been made a party defendant in the action; that the action had been dismissed as to that company; that the dismissal and the execution of exhibit No. 2 were parts of the same transaction; and that exhibit No. 2 contained no reservation of a right of action against the other tortfeasors, and apparently concluded from these facts that exhibit No. 2 constituted a settlement and satisfaction of the cause of action. We are unable to concur in this view. Plaintiff claimed, and adduced evidence tending to show, that the execution of exhibit No. 2 was subsequent to and entirely independent of the dismissal of the action as against the real estate company. But whether they were separate transactions or parts of the same transaction is immaterial, for the fact that plaintiff made an agreement pursuant to which she executed a covenant not to sue and dismissed a pending action as against the covenantee would not affect her right to continue the action against the other tortfeasors. That was the situation presented in Matheson v. O'Kane,
As a covenant not to sue does not affect or impair the right to sue other joint tortfeasors, a reservation of that right in the covenant is unnecessary. But such a reservation may be of importance in determining the intention of the parties, where the *314 other language of the instrument leaves doubt as to whether they intended a settlement and satisfaction of the claim or merely a covenant not to sue.
Defendants Stromquist Moyer further contend that the evidence fails to show any actionable negligence on their part, but does show contributory negligence on plaintiff's part, and therefore that the action of the court in directing a verdict was correct even if exhibit No. 2 is merely a covenant not to sue.
We think that under the evidence both of these questions were for the jury.
Order reversed.