O'shea v. New York, C. & St. L. R. Co., 105 F. 559

O'shea v. New York, C. & St. L. R. Co.

105 F. 559 | 7th Cir. | 1901

JENKINS, Circuit Judge,

after the foregoing statement of the case, delivered the opinion of the court.

It is well settled that one injured by the act of several joint tort feasors may sue one of them, or any number less than the whole of them, or all of them. It is also settled that as there is but. one injury there can be but one satisfaction. If, therefore, the injured person receives satisfaction from one of the joint tort feasors, or executes a release, that satisfaction and release operate-as a bar to an action against the others, because the cause of the action is satisfied, and no longer exists. With respect to a technical release under seal of one of several joint tort feasors, the law indulges the absolute presumption that the injured person has received full compensation, and is therefore barred of an action against the other wrongdoers. It must therefore be shown in such an action that the injured party has received such full compensation, or what he accepted as full compensation, or that he has released one of the wrongdoers by technical release under seal. The instrument here in question is one under seal, and it may not be denied that some of the language therein contained indicates a complete accord and satisfaction for the injuries received by the plaintiff in error, while, on the other hand, there are expressions contained in it which indicate to the contrary. The first part of the 'document is in the form of an account or bill against the Chicago, Burlington & Quincy Railroad Company for the sum of $1,200 “for amount agreed upon in full settlement of all claim, demand, or causes of action whatever which J. W. O’Shea may have or ever has had against the Chicago, Burlington & Quincy Railroad Company, * * * account of or growing out of an accident which occurred at or near Loomis St. crossing of said railroad company’s tracks, Chicago, Ills., on or about December 29, 1891, at which time, while on duty as switchman on á N. Y.,-C. & St. L. train, said O’Shea was supposed to have been struck and injured by post of gate tower. In full settlement for any and all injuries resulting from said accident.” The remainder of the document consists, first, of a receipt of the sum of money mentioned “in full payment of the above account.” Then follows, “in consideration of the payment of said sum of money,” a covenant never to sue the Chicago, Burlington &, Quincy Railroad Company for any debt, claim, or demand whatever which O’Shea ever had or now has against that company, whether arising upon contract or upon tort. This document is an accord and satisfaction coupled with a covenant never to sue. There are upon the face of the paper certain indicia of an intention of O’Shea not to accept the sum stated in full satisfaction of his injuries. Thus, in the statement that it is for the amount agreed upon in Ml settlement of all claims and causes of action against the Burlington Company, there follows this expression, “but not the New York, Chicago & St. Louis *562Railroad Company.” The agreement is written upon one of the printed blanks of the Burlington & Quincy Company, which contains in print a general release, and the words, “remise, release, and forever discharge,” are erased in red ink, and the words, “covenant never to sue,” substituted, and the words, “of and from all,” are likewise erased, and the words, “for any,” substituted. The inquiry naturally arises, if this document was designed as a full satisfaction for the injury, why should the New York, Chicago & St. Louis Railroad Company be excepted, and why should a covenant not to sue be substituted for a technical release? It may not be denied, we think, that, if this agreement must stand as it was executed, the expression, “but not the New York, Chicago & St. Louis Railroad Company,” must be held to be of no force, being repugnant to the legal effect and operation of the instrument (Gunther v. Lee, 45 Md. 60; Delong v. Curtis, 35 Hun, 94; Seither v. Traction Co., 125 Pa. St. 397, 17 Atl. 338, 4 L. R. A. 54), which declares that O’Shea has received full settlement for all injuries resulting from the accident in question. The oral testimony allowed at the trial, under objection of the defendant in error, clearly establishes that it was not intended by either party to the paper that the sum of $1,200 should be paid to O’Shea in full satisfaction of his injuries, and that it was not intended by either party that the document which O’Shea was to sign should be anything more than a covenant not to sue the Chicago, Burlington & Quincy Railroad Company, that company being willing to give the sum stated in the paper as a consideration for that covenant. In other words, the paper does not express the actual agreement of the parties. The question then arises whether such oral testimony was admissible. We think that it was. The rule that “parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument” was not adopted because the document is under seal. That mode of attesting a written instrument as the deed of a party was employed because, at the time of its adoption, most men, even of the higher classes of society, could not write. There is popularly supposed to be some special sanctity to a seal. It was a solemn and deliberate act of the parties, expressing their assent to the agreement declared in the paper sealed. The seal, now that men can write, has not the sanctity and authority 'formerly given to it. See Lowe v. Morris, 13 Ga. 150. The rule was adopted “because the contract itself is plainly and intelligibly stated in the language of the parties, and is the best possible evidence of the intent and meaning of those who are bound by the contract and of those who are to receive the benefit from it.” Stackpole v. Arnold, 11 Mass. 31. And this rule of exclusion is applied to simple contracts in writing to the same extent and with the same exceptions as to specialties or contracts under seal. Id. But this rule, as stated by Mr. Greenleaf on Evidence (section 279), “is applied only in [suits] between the parties to the instrument, as they alone are to blame if the writing contains what was not intended, or omits that which it should have contained. It cannot affect third persons, who, if it were otherwise, might be prejudiced by, things recited, in *563the writings, contrary to the truth, through the ignorance, carelessness, or fraud of the parties, and who, therefore, ought not to be precluded from proving the truth, however contradictory to the written statements of others.” See, also, Whart. Ev. 923. In a suit between a party and a stranger, neither is concluded by the contract, but either may give evidence differing from it. Lee v. Adsit, 37 N. Y. 78; McMaster v. Insurance Co., 55 N. Y. 222; Lowell Mfg. Co. v. Safeguard Fire Ins. Co., 88 N. Y. 591; Hankinson v. Vantine, 152 N. Y. 20, 46 N. E. 292; Iron Co. v. Greene, 31 C. C. A. 477, 88 Fed. 207; Reynolds v. Magness, 24 N. C. 30; Dunn v. Price, 112 Cal. 46, 44 Pac. 354.

The question then arises whether the defendant in error here was a “stranger” to this agreement in the sense in which the term is employed in the rule. It is trae that the subject-matter upon which the agreement operated was the joint wrong of the two railway companies, and the defendant in error could avail itself of an accord and satisfaction or release between O’Shea and the Chicago, Burlington & Quincy Railroad Company. To this extent it may be said not to be a stranger to the matter, but it was no party to the contract, and was not bound by it. If the writing had been simply a covenant not to sue the Chicago, Burlington & Quincy Railroad Company, would it not have been open to the defendant in error to prove that the paper did not express the truth; that what purported to be merely a covenant not to sue was, in fact, an accord and satisfaction for the injury? The estoppel must be mutual, and both must be bound or neither. If the right of a stranger to, vary a written contract by parol is limited to rights which are independent of the instrument (Wodock v. Robinson, 148 Pa. St. 503, 24 Atl. 73), then it is clear that in the case supposed the defendant in error would be bound by the writing, although it did not express the agreement of the parties to it. It must be admitted that the authorities are not at one, and that the cases of Brown v. City of Cambridge, 3 Allen, 474, Goss v. Ellison, 136 Mass. 503, and Railroad Co. v. Sullivan (Colo. Sup.) 41 Pac. 501, hold to the contrary, overlooking, we think, that the rule of exclusion does not apply between a party to the contract and a stranger, and improperly assuming that a joint tort feasor is a party to the contract. We are of opinion that the plaintiff in error should have been permitted to show the real agreement, and that the question should have been submitted to the jury whether the written paper expressed the actual contract of the parties. The judgment is reversed, and the cause remanded, with directions to award a new trial.