20 Iowa 310 | Iowa | 1866
Lead Opinion
The appellee seeks to sustain the ruling on the ground:
1st. That a previous application on the same day had been made, and overruled and no exception taken.
The record, however, shows that exception was taken.
2d. On the ground that the application states, no facts showing the,prejudice of the judge. This is true, but the statute does not require the facts to be stated.
3d. On the ground that it is a matter of discretion, and no abuse of it is shown..
In civil cases, when applied for in time, and the proper affidavit is filed, it. is not. a matter of discretion. In criminal cases it is, under the statute relating thereto, otherwise. Rev., § 4733.
' II. The trespass sued for was committed July 2d, 18641 The plaintiff was married to Almina Champlin, September 14, 1864. This action was brought October 24, 1864, and the plaintiff’s wife (the said Almina), was not made a defendant. On these facts certain instructions complained of were given. As above stated, one B. W. Johnson was made a party defendant. Just prior to the trial the plaintiff filed the following paper in the case:
“ Charles E. Turner v. Charles Hitchcock et al.
In Butler District Gourt. June Term, 1865.
To B. W. Johnson :
Sir: You are hereby notified that the plaintiff makes no personal claim against you in said cause, and relinquishes all claim for judgment against you or your property.
June 9, 1865.
(Signed) O. E. TURNER,
by Anderson & Wright, his Attorneys.”
Johnson’s deposition was taken on behalf of the plaintiff and read in evidence on the trial. He denied therein that he had any part in the trespass. The notice to Johnson, above given, was read in evidence. (Service whereof on Johnson was accepted by him in writing thereon indorsed.)
In reference to these facts, the court charged the jury as follows:
“ The marriage of the plaintiff to one of the parties to the trespass charged, is an accord and satisfaction to that party and to all the parties associated or connected with her in the trespass.” The plaintiff excepted.
*315 On this point, the plaintiff asked, and the court refused, the following instruction: “If the plaintiff intermarried with one of the trespassers since the trespass, that fact alone is not such an accord and satisfaction as will discharge the other trespassers.”
Upon the same subject the plaintiff asked and the court refused the following instructions: “ 12th. Unless you find that the defendant, B. W. Johnson, was one of the trespassers, his release does not discharge the other defendants.” “ 13th. The plaintiff may discharge a defendant who is not a trespasser without discharging the trespassers.”
It is the opinion of this court that these last two instructions ought to have been given. It was held in Wilson and Gibbs v. Reed, 3 Johns., 175, that a release to a person as a joint trespasser who is not in fact liable to the releasor, will not destroy the right of action against those who are liable. This must be so in the nature of things.
Whether the' written notice to Johnson alone, without more, would be such a release as would discharge his co-trespassers (if he had been one), we need not particularly notice. It probably would if given upon or for a consideration, otherwise not. Nor do we think, as argued by the appellee, that the plaintiff, having sued Johnson as a joint trespasser, was estopped from asking the law contained in the foregoing instructions.
III. Whether the plaintiff’s marriage with one of the joint trespassers destroyed his right of action against the others is a most interesting question, and if decided against him, probably fatal to his recovery.
It has, therefore, received very careful consideration, the
: It must, ■,therefore, -be determined upon general common law .principles.- Some of these, principles bearing more or less directly.upon it, will now be stated in order the better to exhibit the grounds of the- .conclusion which I have reached.
-. Although .the liability is thus separate as well as joint, the, injury sued for is an entirety. .The injury.is single, though the wrongdoers may be numerous.,
Chitty-lays.it down .that they .cannot. 1 Plead., 79, 101.
But the cases all agree' (see on this point those last'cited) that there can-be but one satisfaction, evén though there -be several verdicts-or judgments. ‘ •• 1
Not only does accord and satisfaction by one wrongdoer discharge all, but a partial'satisfaction by one-is,'on the same principle; a discharge, pro'’tanto, to 'the other; Merchants' Bank v. Curtis, 37 Barb.; Snow v. Chandler, 10 N. H., 92. “The reason- of the- rulethat'the--release-of one is the release of all,' “ seems;” sáys Bronson, J., with his accustomed-clearness'and force'(1 Hill, 185, ’supra), “tó be that' the release being taken most strongly against the releasor, is conclusive evidence that he has -been satisfied for the wrong; and after satisfaction,"although it’moved from,
While this doctrine- is frequently limited, especially in a case of joint contracts, to technical releases, still it is always applied, both in tort and contract, where, although there has been no formal release, there has been a satisfaction as to one. This is well exemplified in Ellis v. Bitzer, above cited; see also 1 Dane Abr., 139, § 4; 2 Saunders, 47 t; Clayton v. Kynaston, 2 Salk., 573; Merchants' Bank v. Curtis, supra; Snow v. Chandler, Id., supra; Thurman v. Wilde, 3 Perry & Dav. Rep., 289; S. C., 11 Ad. & E., 453.
If the plaintiff had not married one of the trespassers, it is true that the present defendants could not have objected to her nonjoinder, and if made liable, could have had no redress upon, or contribution from her. As they have not been injured by the marriage, how, it may be asked, can they avail themselves of that fact, to be exonerated from their wrong?
The answer is this: The injury to the plaintiff was a unit, single and entire, for which he is entitled to but oné satisfaction, “ each joint trespasser being,” says Judge Sherman, in Ellis v. Betzer, supra, “ liable to the extent of the injury done by all, it follows as a necessary consequence, that a satisfaction made by one, for his liability, operates as a satisfaction for the whole trespass, and a discharge of all concerned.”
Or, in the language of Judge Bronson, above quoted, “ After satisfaction, although it moved from only one of the tort-feasors, no foundation remains for an action against any one; the whole matter is at an end; it is as though the wrong had never been done.”
A discharge to one wrongdoer is a discharge to all, “for,” says Mansfield, Ch. J. (Dufresne v. Hutchinson, 3 Taunt., 117), “if it were otherwise, the plaintiff might get paid by each defendant, to the whole amount of the injury sustained.” " "
It will be readily seen, therefore, that the rule that a release (which is conclusive evidence that the party injured has been satisfied for the wrong) or' satisfaction from'one' wrongdoer inures to the' benefit' of the whole, is not purely technical; biit founded upon reason. A. and B. jointly do me an injury. My damage is' $100, I may sue both or each. But though I may get two judgments for $100 each, I can get but one satisfaction. I cannot be compelled to look to A. for $50 and B. for $50, for the law allows no severance of a single and indivisible injury. If A., pays me $100, and I acknowledge satisfaction, it is clear that I ought not still to recover another $100 from B. for the same wrong. If I choose to acknowledge myself satisfied for less than $100, the result must be the' same. I ought not to be permitted to recover another or a new satisfaction ; and this" I am prevented from doing by the rule of law under consideration,' and which it is unjust to characterize as being unreasonable or simply technical. It follows from the foregoing authorities and reasoning, that if the plaintiff for any consideration, one dollar or more, which he regarded as sufficient, had' acknowledged satisfaction of the injury as to' Mrs. Champlin, all of her co-wrongdoers would have been discharged, even though this was not intended, and even though a right of action against the others was reserved. This proposition is not denied. Now, as abové ‘ shown, a release or satisfaction ■ or extinguishment of a' cause of action may be' by
Does his subsequent marriage with one of the trespassers satisfy, discharge or extinguish his right of action against her? Of this there can be no doubt. Suppose after the marriage he had commenced suit against her alone for this trespass, would any court have allowed a recovery ? It is not pretended that he could have recovered. His action against her is therefore gone, gone by his voluntary act.
It may be said that the rule in this particular case operates with unreasonable severity. But suppose the trespass had been committed alone by his present wife and one other, and that his wife had instigated and led on the other. It would seem hard in such a case that the plaintiff should omit the woman, now his wife, and recover alone against the others; and yet he could do so, if he would be entitled to recover in the present action.
In other words, the number of trespassers does not affect the principle.
And we cannot say that the satisfaction which the law implies^ from the marriage is not as valuable to the plaintiff, as if Mrs. Ghamplin had, instead of marrying him, paid him the full amount of his loss. It may be urged, and is in the non-concurring opinion of Mr. Justice Wright, that to hold the defendants discharged, effects a result not intended by the plaintiff when he married one of the wrongdoers. This is not material, and is not so regarded by the authorities.
The rule is even applied against the intention. As an illustration of this, take the ease of Ellis v. Bitzer, 2 Ohio, 89, where, in an action of tort (trespass) against five, the plaintiff accepted a note against two for a sum of money to be paid at a future day, in satisfaction as to them, but not to be a satisfaction for the other defendants. It was, nevertheless, held that the action was discharged as to all.
IV. There are other questions in the case of less importance, and which, as they may not again arise, we need not extend the opinion by considering.
Reversed.
Concurrence Opinion
concurring. Inasmuch as the very well considered opinion by Mr. Justice Dillon is questioned by two members of the court, on one point, namely, that the marriage of the plaintiff with one of the joint wrongdoers has the effect in law to discharge the other defendants, I am induced to add a few considerations in order to exhibit the grounds of my concurrence therein.
There are some general principles of law clearly settled, alike applicable to joint torts as well as contracts, from" which may legitimately be deduced the rule which should govern and settle the point in dispute, in my opinion.
We ask next whether releases in law or by necessary implication apply alike to and cover both classes of liabilities referred to, namely, those arising out of contracts, and those out of wrongs.
That they do extend to and embrace contracts is admitted, and the books give many familiar examples. Justice Dillon, in the opinion just read, refers to some of them. Among them thé case where an obligee intermarries with one of several obligors, on the same paper, the effect by operation of law is to release the liability of the others. ■
Story in his work on contracts, §§. 998, 999 and 1000 says, “ releases arise by mere operation of law in several ways:
2. By' taking higher securities, as where a bond is substituted in place of a single contract debt, and has a remedy co-extensive with the original debt.
3. By either party making a material alteration in a specialty or written contract without the consent of the other party.”
These, without mentioning other examples, will sufficiently show the doctrine of implied releases, as it relates to contracts.
But the question still remains, whether this same rule of implied releases does or does not extend also to liabilities incurred by the commission of trespasses.
Why not? We find no such qualifications of the doctrine in the books, nor can we conceive of any good reason why a distinction should be made in the two descriptions of liabilities; one to be sure arises from debt, the other from an injury done, but both are to be discharged in money. Now upon this point Parsons, in his very excellent work on the law of contracts, first vol., p. 28, treating of the subject of joint parties, says: “It may be added, though not strictly within the law of contracts- that the effect of a release of damages to one of two wrongdoers, is the same as a release of debt; and it is in its operation a satisfaction of the whole claim arising out of the tort, and discharges all the parties.”
Again, on the succeeding page of the same volume he remarks: “Only a voluntary release by the party injured, or claimant, has the effect of discharging all, although given but to one; for if one or two who owe jointly either a debt or compensation for a wrong be discharged by operation of law, without the concurrence or consent of the
But, it is said, that if the discharge by operation of law is at the instance of the plaintiff, or be caused by him, then it operates as a discharge of the other debtors.
Prof Parsons unquestionably understands the law to be, that implied releases extend to wrongdoers as well as debtors. They must, however, be voluntary by the injured party, that is, the act which operates as a discharge of other parties implicated, must be done willingly, at the instance of the plaintiff, or caused by him.
■ In this case, the defendants may or may not have suffered prejudice from the marriage of-one of their number with the plaintiff. However this may be, the fact remains that the plaintiff did marry one of the wrongdoers. By this act he has absolutely barred all right of recovery for the alleged injury, as against her, as effectually as if he had executed a written release to her for a valuable consideration. Not only so, but (what a written release would not have done) he has placed her, in virtue of her marital rights, in a position to reap the fruits of her own wrong, by sharing with him whatever compensation may be recovered from her co-trespassers.
I deduce from the foregoing the following conclusions • of law: 1. That the doctrine of implied releases extends to joint and several as well as to joint contracts; and that the reason why the marriage of the plaintiff with one of the co-obligors discharges the others is, not that he has done an act, the effect of which in law disables him from suing a part without suing all, and for that reason they are discharged (for whether joint or several, under' the Code of this State, suit could be maintained against one or more), but rather because he has done an act inconsistent with his relations as a creditor to the other parties, and involves the absurd consequenc^ that if he is
It is true, all of the same reasons cannot be urged for the enforcement of the doctrine in such cases. For instance if compensation for damages be made by a part of the trespassers, they would have no right of contribution against the others.
But the second reason, and others of equivalent strength, apply in their full force, namely, a marriage with one of the wrongdoers, is just as inconsistent with the relations of the injured party and the trespasser, as though they were debtor and creditor; for as between them the right to recover compensation for damages on the one hand, and the liability to pay on the other, are united by the act of marriage in the plaintiff; and thereby works an absolute cancellation of all liability on the part of the wife, for the wrongcertainly as much so as if instead of marrying her he had executed and delivered a written release under seal.
This last act, without more, it is conceded, would, in law, at once discharge all the other co-trespassers. Why not the marriage covenant? It has precisely the same effect in law as the written release.
Both alike extinguish the right of action; nay more, the marriage contract has a much worse consequence, a mischief which public policy will and ought to rebuke, which has already been alluded to, that of introducing a practice whereby one of several joint trespassers obtain
In my opinion the necessity of upholding the doctrine of releases, both in fact and in law, is as urgent now as ever it was, that the principle itself is based upon grounds both adequate and legal, as well as founded in the policy of the law, and if in contravention of these the plaintiff has done an act which bars a right of action he must abide his own folly.
Dissenting Opinion
dissenting. — A cannot concur in the conclusion reached in the foregoing opinion as to the effects of plaintiff’s intermarriage with Almina Champlin, one of the joint tort-feasors. No authority is referred to directly maintaining it, nor have I been able to find any.
And this several liability to the party injured carries with, it the further consequence, as between themselves, that one cannot demand contribution from the other; the rule being that wrongdoers shall not have contribution one from another.
So plaintiff can have but one recompense in damages for the same injury; and whether he receives it from one or all makes no difference as to its effect; and, therefore, the receipt of satisfaction from one or the release of one operates to release all, and this, too, though at the time of the release, it was expressly agreed that it was not to be a satisfaction for the other trespassers.
And yet all these rules being conceded, we are still to inquire whether any and everything which, by mere operation of law, results in the discharge of one, shall bar the action as to all the others, in the absence of any intention to do so, on the part of plaintiff.
Or, to come back to this case, has plaintiff lost all right of action against the others by. his intermarriage with one of the parties originally liable? The rule that accord and satisfaction by one operates as a discharge of others is not founded upon the thought or ground that it is a discharge or release by contract or agreement, but that the acceptance of such satisfaction operates in law to discharge the other defendants.
And this is seen from the fact that the renunciation of the right to sue the others, makes no difference as to the effect of the discharge of one. The reason of this is clear enough, when we remember that there is legal unity in plaintiff’s damages, and he can have but one recompense; he cannot after being recompensed by one, sever a demand which the law makes a unit, and be heard to claim that
In other words, he has been satisfied for the trespass, and to permit him to recover against others, would give him a second satisfaction or recompense for the injury already satisfied. This of course cannot be allowed, any more than to permit the collection of all of several judgments recovered for the same injury against the same wrongdoers. Plaintiff may have several judgments, but only one satisfaction. And yet, if the amount received is understood to be only in part satisfaction, it will not operate to satisfy the whole demand, but any one sued may avail himself pro tmto of the benefit of such partial payment. Snow v. Chandler, 10 N. H., 92.
To apply the rule referred to in this case, we must go one step further. For we must not only hold that the marriage, by operation of law, released or discharged the plaintiff’s wife, but that this, by like operation, released or discharged the otfyer wrongdoers. And thus it occurs that in the absence of any agreement or contract to that effect, an act not intended to release one, but. which does so by legal operation, goes still further, and, as an additional consequence, releases others. And yet I have not found a case in all my investigations, which holds other wrongdoers released by operation of law, except where there was a contract accepting satisfaction of one, or a contract that was made with reference to the particular wrong of which plaintiff complains.
Now, it is said in Snow v. Chandler, supra, that nothing short of payment of damages by one of the joint trespassers, or a release under seal, can operate to discharge the other trespassers. And to the same effect see Solly v. Forbes, 2 Brod. & Bing., 46; Shaw v. Pratt, 22 Pick., 305; Walker v. McCulloch, 4 Greenl., 421; Harrison v. Close, 2 Johns., 449; Rowley v. Stoddard, 7 Id., 209; DeZeng v.
And this rule, as applied to contracts, is even more reasonable in actions ex delicto ; for in such cases the liability is always several.
Of course, if as before explained, it is received as a satisfaction from one, it would be equally so as to all, whatever the rights reserved. And if the payment or release can alone operate to discharge the others; then, as plaintiff has not received payment, we are only to inquire whether, within the meaning of the law, he has released one and discharged all of the wrongdoers. It is said to be a rule as well settled as any in the law, that a personal action once suspended, by the voluntary act of the party entitled to it, is forever gone and discharged. And to be equally well settled that if a creditor appoint his debtor his executor, such appointment, if the debtor takes upon himself the burthen of -the execution of the will, shall operate as a release or extinguishment of the debt. Thomas v. Thompson, 2 Johns., 471. “ But,” says the same case, “ there are many exceptions to the latter rule, and the leaning of courts of justice has of late been in favor of restricting its generality, and it is, perhaps, to be wished, that it never had existed.” Now, what is the reason for this general rule ? The lan
And if cases are found which hold that such constructive release of one, in the case of a joint and several contract, operates to release all, they stand, in my opinion, unsupported in reason or principal. Certain it is that such constructive release, by suspending the cause of action as to one, does not operate, as in the case of joint contracts, to prevent the suing of the others, for one or all may be sued at the election of the creditor. This, reason, then does not obtain. Is it upon the ground that after the intermarriage with one of the joint and several promisors, she cannot be held to contribution, or if so, the creditor (her husband) would be compelled to pay her portion; then I say that under our statute I see no trouble in fully protecting the other debtors, in the action upon the note. Rev., §§ 3121-3123. But even assume that this rule is sustainable on this ground, in the case of joint and several contracts, then I say it
And an action or judgment against any one or more of several persons jointly bound, shall not be a bar to proceedings against the others (§ 2764), and see Sellon & Co., v. Braden, 13 Iowa, 365; Mosier v. Hull, 15 Id., 603, and consult section 2401 as to the duty of the County Court when an executor is interested in a claim against the estate.
Now I ask whether, under this statute, the creditor might not sue any of the joint promisors or contractors; and whether, if one of the debtors should become an executor, he might not, in his representative capacity, sue any or all of the others? Or whether, if the creditor should marry one of the joint obligors, he thereby discharged all the others ? And I ask these questions with the utmost confidence that there can be but one answer and that is, that there is by such acts no such suppression of remedy as operates to release a legal obligation against others. To hold otherwise would continue in force the common law rule, when the statute had destroyed the reason upon which it was based; a rule always more abitrary than reasonable, and makes the husband liable not only for his wife’s debts, but indirectly for the debts of all others with whom she might be jointly bound to liim. And if this is true as to contracts, how much more so as to torts? For if even the marriage would not release the co-obligee, much less would it a co-wrongdoer, for as to the latter, the necessity of a joint action never did obtain. Of course, a release in fact of one joint tort-feasor might have the same effect now as heretofore. But what I claim is, that there must be a release based upon that which is paid or treated as a satisfaction for the injury, and not a release arising constructively or resulting as a legal sequence from an act having
Reversed.
Concurrence Opinion
I concur in the foregoing opinion of Justice Weight.