184 Mo. App. 432 | Mo. Ct. App. | 1914
Plaintiff’s action is for the malicious prosecution of a bankruptcy proceeding against plaintiff by the several defendants herein. The judgment in the trial court was for the plaintiff.
The action was begun in 1910. Before it was tried, on the 2nd of October, 1912, plaintiff accepted $50 from two of the defendants (Youle and Bozarth) in consideration of which he agreed to dismiss the action as to them, but reserved the right to continue to prosecute as to the others. The agreement was put in writing and is as follows: “It is hereby stipulated and agreed that so far as the defendants J. W. Youle and J. R. Bozarth are concerned, this cause shall be dismissed as to them and the same will not be further prosecuted as against the said J. W. Youle and J. R. Bozarth, and that the further prosecution of this case shall be against the defendants Goddard Grocery Company and J. Schotten. The plaintiff only hereby agrees to dismiss this action as to J. W. Youle and J. R. Bozarth and agrees not to further prosecute as to them, reserving the right to further prosecute this case against the Goddard Grocery Co. and said J. Schotten and not acknowledging, which has not been paid, any satisfaction in this cause of action against any of the defendants herein, but simply covenants not to further prosecute this action against J. W. Youle and J. R. Bozarth at any time. This agreement is made in consideration of the sum of fifty dollars ($50) paid by J. "W. Youle and J. R. Bozarth.”
* The remaining defendants insist that as plaintiff’s claim is based on a joint wrong, this paper is a release of a part of the wrongdoers and therefore, in legal effect, became the release of all. The trial court refused to take that view, and adopted that of plaintiff to the effect that the paper was merely a covenant not to
A wrong jointly committed by several makes each liable for the entire injury, for which there is but one satisfaction; and therefore a release of one is a release of all. And where a sum is received from one or more of several wrongdoers, not in full satisfaction, but in consideration of the injured party agreeing not to sue, it is not a release at all; it is merely a covenant not to sue those paying. By so doing he does not release any of them, but only his remedy against those with whom he covenants. He may still successfully sue all, leaving the right to those with whom he made the covenant to sue him thereon: Lacy v. Kinnaston, Holt, 178. That case is several times reported: 1 Lord Raymond, 688, 2 Salk. 573 and 3 Salk. 298; 12 Mod. 548, and is adopted by Lord Kenyon in Dean v. Newhall, 8 T. R. 168. If one covenants with a single wrongdoer not to sue, this is in effect his discharge, for if he then sues him he can turn around and sue the covenantor in damages on the covenant in identical amount and therefore, so as to avoid circuity of action, the covenant not to sue a single wrongdoer is a discharge of the action, since there is nothing left against any other person. But not so where there are others left to whom the cause of action applies. The rule is illustrated in this way in 3 Salk. 298, supra: Where W. R. enters into an obligation to H. S. who covenants never to sue W. R.; if afterwards he does sue upon it, W. R., to avoid circuity of action, may plead the covenant in bar to the action, for H. S. by his covenant has deprived himself of all remedy he can* have upon the bond; “but if W. R. and R. W. were jointly and severally bound in a bond to H. S., who covenants never to sue W. R. upon that bond, this is no release or defeasance of the bond, neither can it be pleaded in bar if an action should be brought on it, because it doth not discharge the right, but only the
This rule, coming to us from early times, is recognized with practical unanimity today. Why should an injured party not.be allowed to receive a portion of his compensation for an injury from some of the wrongdoers, without discharging the others? There is no more’ hindrance to freedom of contract in this than in any other instance. The parties to such a contract knew that if the covenant not to sue was violated the covenantees could have their action for the breach, in which they would recover the damages flowing from such breach. The other wrongdoers had no cause to complain, for in fact it was a relief to them, since, as there can be but one satisfaction, whatever was paid by the covenantees lessened their liability that much.
But now, since the statute (Sec. 5431, B. S. 1909) allows contribution after judgment between wrongdoers, it may be said the others have an interest in seeing that no injustice is done them by a settlement with a part at a less sum than would have been their contributory share had they been defendants in the judgment. The answer to this- is, that the injured party now has a right to omit any wrongdoer from the action. The wrongdoers sued have no right to demand that all be included in the action, so as to increase the contributors to the payment of the judgment, and thereby lessen their burden. If, therefore, the injured party may let a part of the wrongdoers go free and hold the others for his full injury, why should he not be allowed to receive part compensation for his injury from one or more, of the wrongdoers without
So there being no'legal disability upon the right to deal with a part without releasing the others, and there being no wrong done to those not released, there would seem not to be a semblance of reason in the statement that a covenant not to sue a part will operate as a release of all, when that was not intended.
The cases above cited from the English courts have been consistently followed to.the present time with the exception, so far as we have seen, of Nicholson v. Revill, 4 A. & E. 675, and that was overruled in Thompson v. Lack, 3 C. B. 540, and other cases. In Duck v. Mayeu, 2 L. R. Q. B. Div. (1892) 511, the court recognizes as “clear law, that a release granted to one joint tort-feasor, or to one joint debtor, operates as a discharge of the other joint tort-feasor, or the other joint debtor, the reason being that the cause of action, which is one and indivisible, having been released, all persons otherwise liable thereto are consequently released.” But the court continues: “We have found no case in which it has been held that a covenant not to sue releases a'joint tort-feasor; and in our judgment the principle upon which it has been held that such a covenant does not release a joint debtor applies to the case of a joint tort-feasor.” (Italics ours.) The court then goes on to state that the character of the instrument is determined by the intention which it discloses.
In this country the same rule has been stated in nearly all the States. It is put in these words in Mason v. Jouett, 2 Dana (Ky.) 107: “A covenant never to sue a sole obligor, will, to avoid circuity, be deemed a release of the obligation. But a similar covenant with one of several joint obligors, should not be construed as a release of even the covenantee; because such an interpretation would frustrate the intention of the parties and operate unjustly; for, if one of the joint ob
In Gilbert v. Finch, 173 N. Y. 455, there is found a clear statement of the rule with a full review of the authorities. It is stated as page 463, that “In England, the modern authorities appear to be quite uniform upon the question. They are to the effect that, as between joint debtors and joint tort-feasors, a release given to one releases all, but if the instrument contains a reservation of a right to sue the other joint debtor or tort-feasors, it is not a release, but in effect is a covenant not to sue the person released, and a covenant not to sue does not release a joint debtor-or a joint tort-feasor.”
In Ellis v. Esson, 50 Wis. 152, the same decision is made. We quote: “Certainly the receipt of a partial satisfaction from one of two joint tort-feasors is no injury to the other who is afterwards sued for the trespass. On the other hand, it is to his benefit, as
That view is adopted literally in Louisville & E. Mail Co. v. Barnes, 117 Ky. 860, where like statements are quoted and approved from Snow v. Chandler, 10 N. H. 92, and Lovejoy v. Murray, 3 Wall. 17.
It will be found frequently stated in the foregoing cases, that there is no difference in principle whether the question concerns joint debtors or joint wrongdoers, and in examining the question as applied to the former we find the same unanimity of opinion: Price v. Barker, 4 El. & Bl. 760; Bateson v. Gosling, L. R. 7, C. P. 9 (1871); Green v. Wynn, L. R. 7, Eq. 28 (1868), affirmed on appeal in L. R. 5, Ch. App. Cases 204; Solly v. Forbes, 2 Brod. & B. 38; North v. Wakefield, 13 Q. B. 536. Among many other American cases we cite the following: Rowley v. Stoddard, 7 Johns. 207; Catskill Bk. v. Messenger, 9 Cowan 37; Couch v. Mills, 21 Wend. 424; Northern Ins. Co. v. Potter, 63 Cal. 157; Parmelee v. Lawrence, 44 Ill. 405, 410-414; Hale v. Spaulding, 145 Mass. 482; Bradford v. Prescott, 85 Me. 482, 486, 487; Benton v. Mullen, 61 N. H. 125.
Against this array of authority we have been cited to only three cases of consequence. The first is McBride v. Scott, 132 Mich. 176. That case does support defendant, but it is, itself, without support. It is true
In view of the foregoing authorities, to which could be added many more, did space permit, it may be stated as the rule that if the injured party releases one joint tort-feasor he will discharge all, yet a covenant not to sue is not a release and it could not be pleaded by the covenantee in bar of an action by the injured party against him and the other wrongdoers. He would have to submit to the suit and be remitted to his action on the covenant, as has been pointed out above. Where there is no release or satisfaction, especially where the right of action against the others is reserved, there is no discharge of such others. There
It thus appears that the Michigan .case is not in line with authority and we are brought to a consideration of the question from the standpoint of the decisions in this State. Three are cited by defendant (Dulaney v. Buffum, 173 Mo. 1; Hubbard v. Ry. Co., 173 Mo. 249 and Shippey v. Kansas City, 254 Mo. 1). Three others (Arnett v. Mo. Pac. Ry. Co., 64 Mo. App. 268; Judd v. Walker, 158 Mo. App. 156; Lumber Co. v. Dallas, 165 Mo. App. 49, 53) are cases where the question was considered at length by this court and the St. Louis Court of Appeals. We decided the question again at last term, Hawkins v. Ry. Co.
The cases from the Supreme Court are not applicable. In the first there was a settlement with two defendants and a paper executed as in “full settlement and satisfaction-of all claims and demands set up or referred to in the petition so far as said two defendants are concerned.” The two defendants were concerned in the entire cause of action and each was liable for all. The court held, full satisfaction having
The remaining case from the Supreme Court referred to above concerned the effect of an agreement not to sue, or as expressed by the court, “not to further pursue the other defendants.” That case was against Kansas City for personal injury charged to have resulted to the plaintiff by reason of the city’s negligence. There is a statute (Sec. 9801, R. S. 1909) declaring that where a person is liable with the city and the latter is sued for negligence, it is given the right to require the plaintiff to make such person a party defendant and that when so required the plaintiff shall not further prosecute his suit against the city unless he makes such person a party. Notwithstanding this statute, the plaintiff, after other defendants had been made parties, executed a written agreement with them that in consideration of $200 paid to her by them she would not prosecute the action against them. She reserved the right to continue the prosecution against the city. In these circumstances the city took the position that by reason of the statute disabling the plaintiff from further prosecuting an action until those jointly liable to the action were made parties, the release of those parties was in the face of the statute, and hence the city was not liable. There were other questions decisive of the case but on this point the court per Roy, Commissioner, said: “Without deciding the point, we are inclined to hold that the in
The foregoing considerations made it necessary to rule that defendants were not released by the paper in evidence and the demurrer to the evidence was properly overruled.
We pass to the next question presented. If one with malice and without probable cause institutes an ordinary civil suit against another, the latter may maintain an action for malicious prosecution, and there need not be a seizure of the person or property. [Smith v. Burrus, 106 Mo. 94; Brady v. Ervin, 48 Mo. 553; 19 Am. & Eng. Ency. of Law, 652.] For the greater reason one may maintain an action against another for instituting bankruptcy proceedings against him, maliciously and without probable cause, even though his property is not seized. Proceedings in bankruptcy are drastic and their effect is much more disastrous to the defendant than an' ordinary civil suit. It destroys his «credit and, for the time, ends his business life. [Wilkinson v. Groodfellow Shoe Co., 141 Fed. 218; Stewart v. Sonneborn, 98 U. S. 187, 201; Muller v. Nugent, 184 U. S. 1.]
The evidence must show both malice and a want of probable cause for the prosecution of the proceedings, and we think there was enough in the present case to submit to the jury.
Probable cause will justify the institution of proceedings against another, even thoug’h it is done in malice. If malice and probable cause both esist, the institution of the action is justified, for it takes the presence of the former and the absence of the latter, to sustain an action for malicious prosecution. Hence it is often said that it makes no difference how great the hatred and malice, if there is probable cause, no action lies. [Sharpe v. Johnston, 59 Mo. 557; Sparling v. Conway, 75 Mo. 510; Stubbs v. Mulholland, 168 Mo. 1. c. 74; Warren v. Flood, 72 Mo. App. 199.]
Advice of counsel asked in good faith in instances where the proceedings are dismissed negatives malice. [Sharpe v. Johnston, 76 Mo. 600, 674; Stubbs v. Mulholland, 168 Mo. 1. c. 76, 77; Sparling v. Conway, supra.]
. The great number of instructions given for either side create much confusion. They should be materially lessened on retrial. The great number makes it impracticable, within reasonable limits, to analyze each objection. We can only suggest that the parties go
The judgment is reversed and the cause remanded.