Noble v. . Kelly

40 N.Y. 415 | NY | 1869

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] On the 19th day of September, 1859, an action was pending, brought by the plaintiff against the defendant, for forcibly taking and carrying away certain gold coin of the plaintiff, by a levy thereon of three executions; one in favor of Henry Lyles, Jr., against Henry J. Kerner. That action was single; in it the plaintiff sought to recover not for three injuries, but for one; and if it were conceded that the cause of action could be severed, or even that three separate actions could have been brought for the act of the defendant, there was in form and in fact but one action, and that (whatever else was included in it) was for the taking of the plaintiff's property under the execution in favor of Lyles, Jr., against Kerner.

On the day named, by writing under seal, the plaintiff released and discharged the defendant of and from all manner of action and actions, which the plaintiff "ever had, now has or can have,c., by reason or on account of the defendant's acts and proceedings under the execution in favor of Lyles."

It is not material that the action embraced other things; it certainly included acts done under the execution in favor of Lyles, and is, therefore, within the description in the release.

It would seem to follow that this release put an end to the action.

Nor is anything to the contrary deducible from insisting that the action may be regarded as for three separate wrongs, each of which are susceptible of separate estimate as to amount of damages; for if the action be regarded as single and the trespass entire, then a release of the action is clearly a bar. And if the action be one which includes three causes of action; still a release of the action puts an end to that suit, even if it did not operate as a bar to an action for the causes not released. This action is gone because it was brought to recover for what was done under the Lyles execution, and "all and all manner of action and actions," founded on acts so done are released, whatever else may be included therein.

Had the plaintiff simply released the damages sustained by the levy of the Lyles execution, then it would have been free from the view above stated; but he saw fit to release and discharge the action itself, and therefore whether his whole cause of action was or was not released, he put an end to the pending suit.

If the foregoing view is correct, the reversal of the entire judgment follows; because, on those grounds, a nonsuit should have been ordered when moved for.

2. In any event the judgment is erroneous, for if I am mistaken in the foregoing construction and effect of the release, and it can be read as only operating upon the cause of action, so far forth as that cause was affected by the Lyles execution, still, as to so much damages as legally resulted from the levy of the Lyles execution, the defendant was wholly released. The reasoning by which it is sought to confine the release to the damages resulting from that levy, shows conclusively that, as to those damages, the judgment is erroneous. Thus, the sheriff having made his levy, it was his duty (and presumptively he did his duty) to apply so much of the gold coin as was requisite to the satisfaction of the first execution, which was for $682.07 and fees; and then so much as was necessary to the satisfaction of the Lyles execution, which was for $155.72. And this last named sum with the interest, poundage and fees, were the precise damages sustained by the plaintiff by the levy of that execution upon his property, and those damages the plaintiff has in the fullest manner released and discharged.

Upon what principle the Supreme Court confined the abatement from the verdict to ten dollars, I have not been able to conjecture, unless perhaps, it was assumed that the consideration of a release under seal, was open to inquiry, and if it appeared that such consideration was not equal in amount to the whole demand or thing released, the release only operated pro tanto. This, however, cannot, I think, be seriously claimed; the seal itself imports full consideration, and the release and discharge, under seal, full and complete satisfaction. And this is equally true whether the real or only a nominal consideration is expressed. The idea that an action may be prosecuted for damages for an assault and battery, slander, libel or other tort, and notwithstanding a release and discharge, the party may go to the jury on the question whether the consideration expressed in the release is an adequate compensation would not be entertained for a moment; and I am not aware of any difference in this respect when the action istrover or trespass de bonis aspertatis. In the absence of fraud, it is to be deemed conclusively shown by the release, that upon considerations satisfactory to the releasor he has accepted satisfaction.

Our statute, making a seal presumptive evidence only of a consideration, has no application to such a discharge. SeeStearns v. Tappin (5 Duer., 294), and cases therein cited, and 22 Barb., 97.

On either ground the judgment is erroneous.

MASON, J., concurred in the first proposition of the opinion of WOODRUFF, J., and thought the release a bar.

GROVER, J., thought the release was not a bar, but agreed with WOODRUFF, J., in the second proposition of his opinion. He thought the instrument operated to release the damages to the extent of the Lyles execution, it being in terms confined to the acts of the defendant on account of the issuance and delivery ofthat execution to him. The fact that the seizure was of coin, which is by statute applied instantly to the executions in their priority, without sale, rendered the case plainer, for the reason that upon the seizure, a certain equivalent amount of the money might be regarded as seized by the sheriff, separately, on account of and to satisfy each execution. He did not, and could not if it had been Kerner's money, seize, on account of the Lyles execution, but exactly an equivalent amount of the coin.

HUNT, Ch. J., JAMES, DANIELS and LOTT, JJ., concur with GROVER as to the result.

Judgment reversed unless the plaintiff elect to deduct from the judgment the amount of Lyles execution. In that case affirmed without costs of the appeal.