knowledged receipt from the defendants with whom the settlement was made, of a sum of money, which was stated to be "in full settlement and satisfaction of all claims and demands in our favor, or in favor of either of us, on account of the matters and things set up or referred to in the petition in the above-entitled suit, so far as said two defendants are concerned; and we hereby agree to at once discontinue and dismiss said suit, so far as said two defendants are concerned," discharges the other defendant. In Babcock & W. Co. v. Pioneer Iron Works (1888; C. C.) 34 Fed. 338, in which the injury complained of was a joint infringement of the patent, the injured person had settled with one of the infringers, and acknowledged a receipt of money from him to cover the cost in a suit against him, "and all damages for the infringement by the said [person] of the letters patent sued on, but not to discharge or license any parties who may have used, or may hereafter use, any infringing apparatus heretofore or hereafter made by the Pioneer Iron Works except as herein expressly stated, nor shall it release the Safety Steam Generator Company; all such claims and appliances being expressly reserved.'" In holding that this release released the joint tort-feasor, the court says: "The agreement expressly provides that the Safety Steam Generator Company shall not be released, but, whether released or not, the orator has no unsatisfied claim to recover upon against that company. This case differs in this respect from Chamberlin v. Murphy (1868) 41 Vt. 110, where part satisfaction was received from some of the defendants, and they were discharged without affecting the liability of the others for the residue. There the payment was received for but a part, and the rest of the cause of action was expressly reserved. Here the payment is received for all the damages, and only the liability of the other defendants, so far as this case is concerned, is reserved. That liability was reduced to nothing when all the damages were paid." The court in Dulaney v. Buffum (Mo.) su

pra, says that, when full satisfaction of all the injuries complained of is acknowledged, "any effort to reserve a cause of action against those jointly liable will not prevent the operation of the bar as to those not included in the release." In reliance upon this case a joint tort-feasor was held released by a settlement with another, with whom an agreement was entered into, entitled "a Covenant Not to Sue," reciting that the plaintiff was desirous to compromise and settle the injury in so far as it related to the tort-feasor with whom the agreement was made, reciting a consideration, and containing a provision that the plaintiff thereby compromised the claim, and released and forever discharged the tortfeasor with whom made, "only," from any and all liability for all claims for and on account of the death of the plaintiff's husband, and discharged the tort-feasor from all suits, actions, or causes of action, and expressly refused and declined to release the other tort-feasor from any claims for damages, as an acknowledgment of full satisfaction. Clark v. Union Electric Light & P. Co. (1919) 279 Mo. 69, 213 S. W. 851.

Even where the injured party has reserved his rights against the other joint tort-feasor, the latter is held released. Ruble v. Turner (1808) 2 Hen. & M. (Va.) 38; Mitchell v. Allen (1881) 25 Hun (N. Y.) 543. It is held that, since the party injured can have but one satisfaction, a release of one joint tort-feasor, though expressly reserving a right of action against the others, will operate to discharge all. Seither v. Philadelphia Traction Co. (1889) 125 Pa. 397, 4 L.R.A. 54, 11 Am. St. Rep. 905, 17 Atl. 338; Williams v. Le Bar (1891) 141 Pa. 149, 21 Atl. 525; Smith v. Consolidated Gas Co. (1901) 36 Misc. 131, 72 N. Y. Supp. 1084; Johanson v. New York (1902) 71 App. Div. 561, 76 N. Y. Supp. 119; Abb v. Northern P. R. Co. (1902) 28 Wash. 428, 58 L.R.A. 293, 92 Am. St. Rep. 864, 68 Pac. 954; Stusser v. Mutual Union Ins. Co. (1923) 127 Wash. 449, 221 Pac. 331. Even where the injured person has expressly reserved his rights against the remaining tort

feasors, and has not acknowledged full satisfaction for the tort, it has been held that a release of one tort-feasor releases all. McBride v. Scott (1903) 132 Mich. 176, 61 L.R.A. 445, 102 Am. St. Rep. 416, 93 N. W. 243, 1 Ann. Cas. 61, 13 Am. Neg. Rep. 335; Moffit v. Endtz (1925) 232 Mich. 2, 204 N. W. 764; Sunset Copper Co. v. Black (1923) 125 Wash. 565, 217 Pac. 5. But see infra, III. b.

In Gilbert v. Timms (1905) 28 Ohio C. C. 107, it was held that a settlement with one joint tort-feasor, in making which the plaintiff expressly stipulated that he reserved all rights to prosecute his action against the other and recover such damages as he might be able to show had accrued to him in excess of the amount so received, nevertheless operated as a release of the other joint tort-feasor, where the action was for unliquidated damages, although it was suggested that there may be a distinction where the damages are measurable under fixed rules of law, rather than by the discretion of the jury, so that it may readily be determined whether or not the amount paid by one is full compensation and satisfaction for the injury complained of. It was held in Flynn v. Manson (1912) 19 Cal. App. 400, 126 Pac. 181, that a release of one cotort-feasor operated as a release of all, although the release provided that "it is the plaintiff's intention that the cause of action . against said defendants shall exist and continue with the same force and effect as if the release had never been made." The court stated that, however conflicting may be the current of authority in respect to the proper construction of a release of the kind in question, it is a well-settled principle of law that in actions ex delicto plaintiff can recover compensation but once; that where the demand is unliquidated, as in this case, the court cannot hold that the payment of any sum, however small, in consideration of a release, does not or cannot operate as compensation for the alleged injury.

It is the theory of at least some of these courts that, in case of an unliquidated demand, it cannot be said.

that the payment of any sum, however small, in consideration of a release, does not or cannot operate as compensation for the injuries. Flynn v. Manson (Cal.) and Gilbert v. Timms (Ohio) supra; Eastman v. Grant (1861) 34 Vt. 390.

The court in Gilpatrick v. Hunter (1844) 24 Me. 18, 41 Am. Dec. 370, says: "In a joint trespass or tort each is considered as sanctioning the act of all the others, thereby making them his own. Each is therefore liable for the whole damage as occasioned by himself, and it may be recovered by a suit against him alone. There can be no separate estimate of the injury committed by each and a recovery accordingly... The difficulty in maintaining the suit against the other is that the law considers that the one who has paid for the injury occasioned by him, and has been discharged, committed the whole trespass and occasioned the whole injury, and that he has therefore satisfied the plaintiff for the whole injury which he received." But see McCrillis v. Hawes (1854) 38 Me. 566, infra.

The court in Farmers Sav. Bank v. Aldrich (1911) 153 Iowa, 144, 133 N. W. 383, says: "Where the matter in controversy with one of two or more alleged wrongdoers is as to a liability common to all of them, and the settlement is made on consideration relating to the existence of such liability and its extent, it is not competent for the claimant, by expressly or impliedly reserving the right to recover an additional amount from the others on account of the same liability, to defeat the effect of the release which he gives."

v.

The nature of the action has been held to have some effect upon this question. For instance, in Ellis V. Esson (1880) 50 Wis. 138, 36 Am Rep. 830, 6 N. W. 518, the court said = "A court or jury would more readily infer that a receipt of $200 from a party who had assaulted and beaten another, by the party injured, was intended as a satisfaction for the whole injury done, than if the same sum of money had been received by the injured party of one of two or more persons who had

tortiously converted a thousand bushels of wheat worth $1,000." The court referring to cases which hold that a release of one tort-feasor releases all, in actions for assault and battery, slander, libel, false imprisonment, and other actions of that nature, says it is probable that one reason why the rule was adopted in those cases was that in such cases the real amount of injury which the plaintiff has sustained is so much a matter of uncertainty that it would be very difficult to tell before a verdict was obtained what they were, and any sum received from one of the wrongdoers to buy his peace, might well be considered as full compensation for the injury sustained.

The facts to which this rule have been applied are varied. It is held in Jones v. Chism (1904) 73 Ark. 14, 83 S. W. 315, that a settlement made by a landowner with one of several trespassers, after action had been brought against them for damages for the trespass, by which settlement the owner received a sum of money in full of all claims and demands as damages against the trespasser with whom the settlement was made, and agreed to dismiss, as to him, the suit, released the other trespassers. One who has brought a separate action against joint trespassers, has obtained the final judgment against one of them, and has given to the judgment debtor a release for the purpose of making him a competent witness against the other defendant, has thereby released the other defendant and absolved him from all further liability. Allen v. Wheatley (1834) 3 Blackf. (Ind.) 332.

In Halsey v. Woodruff (1830) 9 Pick. (Mass.) 555, where a joint action was brought against two persons for a trespass done, and the defendant pleaded severally the general issue, the damages were assessed by the jury against the defendants severally, it was held not error to enter judgment against both the defendants for the greater damages and enter a remittitur as for the lesser damages.

The acceptance by the plaintiff after the commencement of the suit, of a note payable at a future but certain day of certain of the defendants, in

satisfaction for the trespass as to them, releases the other defendants. Ellis v. Bitzer (1825) 2 Ohio, 89, 15 Am. Dec. 534, although it was agreed that it was not to be a satisfaction as to the other joint trespassers. The court says that the plaintiff had been satisfied for the trespass committed upon him, and to permit him to recover in this action would be to give him another recompense for an injury already satisfied; that it can make no difference that it was part of the agreement between the plaintiff and the tort-feasors with whom the settlement was made; that the giving and receiving of the note mentioned in the pleas was not to be a satisfaction as to the other trespassers, each joint trespasser being liable to the extent of the injury done by all. It follows as a necessary consequence that satisfaction made by one for his liability operates as a satisfaction for the whole trespass and a discharge of all concerned. But see Adams Exp. Co. v. Beckwith (1919) 100 Ohio St. 348, 126 N. E. 300, infra.

A release given by an employee of a railroad company injured by the joint negligence of the employer and another railroad company, reciting that it is in full settlement and that the injured employee remises, releases, and forever discharges the company from all manner of actions, suits, debts, and sums of money, dues, claims, and demands whatsoever, discharges the company jointly liable with the employer. Denver & R. G. R. Co. v. Sullivan (1895) 21 Colo. 302, 41 Pac. 501. One who has brought one suit against a waterworks company and another against a city for an injury sustained by reason of falling into a trench built by the waterworks company in a public highway, and who has settled the suit against the waterworks company and had it disposed of on the record by the entry of "neither party," giving a receipt for $150 in 'full payment and satisfaction for all claims for damages and costs, thereby releases his cause of action against the city. Brown v. Cambridge (1862) 3 Allen (Mass.) 474. It is held in Carpenter v. W. H. McElwain Co. (1916)

78 N. H. 118, 97 Atl. 560, that a settlement with one joint tort-feasor in which a release was given, headed, "Settlement in full for personal injuries," and containing an acknowledgment of payment "in full settlement of all my claims and causes of action which I now have or hereafter may have against the said . . . [tortfeasor with whom settlement was made], on account of an accident

. . causing injury to me. It is expressly understood and agreed that the said sum is the sole consideration of this release, and is in full settlement of all my claims and causes of action"-is an acknowledgment of full satisfaction for the injury, and discharges the other joint tort-feasor. It is held in Hubbard v. St. Louis & M. River R. Co. (1903) 173 Mo. 249, 72 S. W. 1073, that an instrument acknowledging the receipt of a stated. sum of money, in consideration of which the injured person remised, released, and forever discharged the tort-feasor with whom the settlement was made, from liability, by "reason of any matter, cause, or thing whatever, whether the same arose upon contract or upon tort, and especially from all claim which I now have, or may hereafter have, arising . . . from or on account of personal injuries sustained by me," etc., released the other joint tort-feasor. The release given in Mooney v. Chicago (1909) 239 III. 414, 88 N. E. 194, recited full satisfaction of any and all claims against the releasee on account of the injury sustained, and was held to be a release of another joint tort-feasor. A release by a messenger of an express company, of his employer, from liability for damages for personal injuries caust. by the negligence of the railroad company on whose lines the express company was operating, with the knowledge of a contract, by which the express company undertook to indemnify the railroad company against liability for such injuries, is held, in Robinson v. St. Johnsbury & L. C. R. Co. (1907) 80 Vt. 129, 9 L.R.A. (N.S.) 1249, 66 Atl. 814, 12 Ann. Cas. 1060, to operate in favor of the railroad company. A settlement made by the

administrator of a decedent with the employer of the decedent, for wrongful death, and a release of such employer from any further liability, was held to extinguish the administrator's cause of action under the statute giving a right of action for the wrongful death of a person, so that no suit could thereafter be maintained against a physician for malpractice in the treatment of the decedent after his injury. Almquist v. Wilcox (1911) 115 Minn. 37, 131 N. W. 796.

A release given to an employee of an omnibus company by one who was injured by being struck by an omnibus was held to be a release of the omnibus company, if it was upon a good consideration, in Stevens v. Hathorne (1866) 12 Allen (Mass.) 402. Nothing is said as to the employee and employer being jointly liable.

An agreement entered into by an injured person after he had obtained a judgment against the joint tort-feasors, with one such tort-feasor which was appealing therefrom, which was denominated a "Covenant Not to Sue," and which provided in substance that, in consideration of a stated payment, the complainant agreed to take no action, either in law or equity, or to prosecute any writ of execution to obtain satisfaction of the judgment from the appealing tort-feasor in any form or manner whatsoever, and agreed to be forever precluded "from asserting any rights against the said Chicago Railways Company he may have heretofore had to prosecute and collect his said claim for personal injuries to the undersigned against it," was held to be a release and payment of the judgment against both defendants, notwithstanding such was not the intention of the parties as expressed in the agreement. Petroyeanis Pirola (1917) 205 Ill. App. 310.

V.

A stipulation entered into between the plaintiff in an action for negligent injuries and one of the defendants, reciting a consideration and that the actions were thereby discontinued as far as the defendant with whom the settlement was made is concerned, and releasing the said defendant from all claims of every name and nature

which the plaintiff has against him, but expressly providing that the stipulation was in no wise to affect the other defendants, against whom the plaintiff retained all claims the same as if this stipulation had not been made, was held to discharge the other defendants, in Mitchell v. Allen (1881) 25 Hun (N. Y.) 543. The court said: "When Markham was discharged the action as to them [the other defendants] was barred as matter of law, and no contract between plaintiff and Markham can prevent the legal effect of his satisfaction."

A wife who has executed to a railroad company a release and discharge from all liability for damages of every kind arising from the wrongful death of her husband when intoxicated cannot thereafter maintain an action against the liquor dealer and his bondsman for causing the intoxication. Brown v. Kemp (1919) 71 Ind. App. 281, 124 N. E. 777. A release of one who has contributed to the intoxication of plaintiff's husband, as a result of which intoxication, he met with an injury, releases all who thus contributed, under a statute giving a wife a right of action, severally or jointly, against all persons who, by selling or giving intoxicating liquor to her husband, caused in whole or in part his intoxication, habitual or otherwise. Aldrich v. Parnell (1888) 147 Mass. 409, 18 N. E. 170. But see Jewett v. Wanshura (1876) 43 Iowa, 574, infra, IX. A wife who had given a release in consideration of the payment of a sum of money, to some of several persons whom she had sued for selling liquor to her husband, was held to have discharged the other tort-feasors in Stanley v. Leahy (1900) 87 Ill. App. 465. Nothing is said in this case as to whether the sum received was full compensation for the injury. It is stated to make no difference that the wife only intended to release the persons in whose favor the release ran.

The acceptance of the amount of a judgment against one joint tort-feasor satisfies a larger judgment against another, even though the acceptance was under a stipulation that it should not be considered as a release against

a

the other. Larson v. Anderson (1919) 108 Wash. 157, 6 A.L.R. 621, 182 Pac. 957. But the acceptance from one of part of a judgment recovered against all tort-feasors, and a release to that extent, does not release the others as to the part remaining unsatisfied. Stusser v. Mutual Union Ins. Co. (1923) 127 Wash. 449, 221 Pac. 331.

A settlement and release given to a copartner, who, with another outside the firm, was guilty of fraud upon the partner with whom the settlement was made, is a discharge of the one conspiring with the copartner. Parsons v. Hughes (1842) 9 Paige (N. Y.) 591.

Where a number of creditors acting separately and independently of each other, and without any apparent concert among themselves, sue out writs against their debtor and cause him to be arrested and imprisoned, the writs all being served simultaneously by the same officer acting for all the creditors, and the confinement being enforced on all the processes contemporaneously during the entire period of his imprisonment, a satisfaction and release given to some of the creditors is a release of all. Stone v. Dickinson (1862) 5 Allen (Mass.) 29, 81 Am. Dec. 727.

The owner of a horse which has been jointly converted by two persons cannot maintain an action against one of them, after he has received one half of the amount claimed as damages from the other, giving him a receipt which states the amount to have been received "as full payment as per claim." Goss v. Ellison (1884) 136 Mass. 503.

It was held in Tanner v. Bowen (1906) 34 Mont. 121, 7 L.R.A. (N.S.) 534, 115 Am. St. Rep. 529, 85 Pac. 876, 9 Ann. Cas. 517, holding that the satisfaction by a livery stable keeper of a claim of the owner of a horse, which had been loaned to the livery stable keeper and rented out by him to a patron, through whose negligence the horse was killed, extinguished the claim, so that the livery stable keeper, to whom an assignment of the claim was made, could not recover of the person to whom the horse was loaned. In Long v. Long (1881) 57 Iowa,