184 Ind. 702 | Ind. | 1916
Appellant brought this action to recover damages resulting to her from an exchange of a piece of real estate for real estate owned by one Mc-Cleay, which damages were alleged to have been occasioned by the fraud of appellees. It appears from the allegations of the complaint that appellees were real estate agents and that as such they, sold to appellant a piece of property assuring her at the time that in case she desired to dispose of it they would assist her without charge. Appellant afterward consulted appellees with reference to the disposition of the property and was informed that they represented McCleay who owned a desirable rental property, and they advised her to exchange her property for that owned by McCleay. Appellant alleges that she made the exchange upon the advice of appellees, the negotiations being conducted by them, and that during these negotiations they made false and fraudulent representations as to the character, condition and value of the McCleay property, which resulted in damage to appellant, and which form the basis of this action. The sufficiency of the complaint is not questioned oh appeal. Appellees filed an affirmative answer to the complaint, which was held good as against a demurrer for want of facts. To this answer appellant filed an affirmative reply to which a demurrer was addressed by appellees and sustained by the court. The rulings of the court
It seems to be well-settled law in England since the case of Brown v. Wooton (1606), 4 Croke’s Rep. 73, Yelv. 67, that a judgment against one tortfeasor may be pleaded in bar of an action for the same cause brought against another as a joint tortfeasor, without averring satisfaction of the judgment. Buckland v. Johnson (1854), 15 C. B. 145, 80 C. L. Rep. 145; Brimsmead v. Harrison (1872), 7 L. R. C. P. D. 547, 41 L. J. C. P. N. S. 190.
Appellees assert that the doctrine announced in Brown v. Wooton, sufra, was the common law of England at the time of the settlement of Jamestown,
The common law of England was derived from the universal usage and custom of the early English people, and is a system of jurisprudence founded upon principles of justice as it was conceived and admirdstered by the English courts of law, in contradistinction to the methods of administering justice employed by the courts of equity, and that system of jurisprudence which formed the basis of the Roman or civil.law. From this common-law system, and from the usages, customs and maxims upon which it is founded, innumerable rules and principles emanated, as the courts from time to time declared what they understood to be the correct law applicable to the matter before them and such law was determined by a system of reasoning and of administering justice consistent with the universal usages, customs and institutions of the English people. The common law grew to be a system of applying to litigated instances, just, reasonable and con
The principles of the' English common-law system as its theory assumes and its history proves were not applicable or suited to one country or condition of society only, but on the contrary by reason of their properties of expansibility and flexibility their application to many became practicable. The adoption of the common law in the most general terms by the government of any country did not necessarily require or admit of an unqualified application of all its rules, without regard to local cir
We can not believe, then, that our legislature intended to petrify the rules of the common law as declared by judicial decisions at any one time or period, and to set them up in such unflexible form as to make them absolute rules of decision throughout all time. The theory of our adopted system is
The ease of Davis v. Scott, supra, consists of only three lines in which it is stated that a plea of former recovery and execution against a joint tortfeasor is a good plea in bar to an action for assault and battery and false imprisonment. This case seems to have been followed in the other Indiana eases cited above in which the rule is more fully stated. This rule seems to be a kind of a compromise between the English rule and the rule adopted by the weight of authority in this country. It is everywhere recognized that an injury caused by the joint wrong of two or more parties gives rise to but a single cause of action and that, while each of the wrongdoers is severally liable for the whole damage, the plaintiff is entitled to only a single satisfaction. A release to one of several joint tortfeasors or the receipt of satisfaction from one, operates in favor of all, and so if a judgment taken against one is fully satisfied all are released.
The rule adopted by the majority of American courts commends itself to the judgment of this
The court feels constrained to disapprove of the rule announced in the case of Davis v. Scott, supra, and the other cases which follow it; and to adopt the rule which is followed by a majority of the courts of this country. The latter rule seems to be more consistent- with reason and better adapted to meet the ends of justice.
The judgment is reversed with instructions to sustain the demurrer to appellee’s second paragraph of answer.
Note. — Reported in 111 N. E. 423. See, also, under (1) 8 Cyc 369, 371, 377; (2) 23 Cyc 1212. .