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497, 10 N. W. 875, a release given to one of the election officials, by one who had been denied the right to cast a ballot, which the court says the jury were warranted in finding was upon a consideration which was full compensation for the injury, was held to be a release of all the election officials. The court says that the damages were not susceptible of estimation in money, or of a division into parts.

Where an injured person has brought several actions against joint tort-feasors, and subsequently settles one of them in disregard of the rights of her attorney, who had a lien for his fees, and thereafter such attorney accepts from the defendant with whom the settlement was made a payment which is stated to be on account of the attorney's lien, and gives to such party a release from all claims for the lien, in which an attempt is made to reserve all rights to proceed for the balance of the lien as against the other tort-feasor, the other tort-feasor is thereby released. Johanson v. New York (1902) 71 App. Div. 561, 76 N. Y. Supp. 119.

One who has begun several suits against joint tort-feasors and afterwards releases one of the defendants for a consideration, cannot prosecute the suit against the other tort-feasor to judgment for the purpose of recovering costs. Ayer v. Ashmead (1863) 31 Conn. 447, 83 Am. Dec. 154.

An infant who has given a release to one of two joint trespassers for a consideration is not bound thereby so as to prevent his suing the other joint trespasser, but if the compensation so received is found a sufficient compensation for the injury, he is entitled to recover only nominal damages. Baker v. Lovett (1809) 6 Mass. 78, 4 Am. Dec. 88.

b. Theory that effect is governed by intention.

It will be observed that in the preceding subdivision considerable authority was cited to the effect that a release of one joint tort-feasor discharged all, although the injured party expressly reserved his rights against the remaining tort-feasors;

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Texas.

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Oklahoma. See Tulsa v. McIntosh (1923) 90 Okla. 50, 215 Pac. 624. El Paso & S. R. Co. v. Darr (1906) Tex. Civ. App. —, 93 S. W. 166; St. Louis, I. M. & S. R. Co. v. Bass (1911) Tex. Civ. App. 140 S. W. 860; J. Rosenbaum Grain Co. v. Mitchell (1911) Tex. Civ. App. - 142 S. W. 121; Atchison, T. & S. F. R. Co. v. Classin (1911) Tex. Civ. App. -, 134 S. W. 358. West Virginia. - Bloss v. Plymale (1869) 3 W. Va. 393, 100 Am. Dec. 752. Wisconsin. Ellis v. Esson (1880) 50 Wis. 138, 36 Am. Rep. 830, 6 N. W. 518; Kropidlowski v. Pfister & V. Leather Co. (1912) 149 Wis. 421, 39 L.R.A.(N.S.) 509, 135 N. W. 839.

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lease the other tort-feasors. See further as to this case, infra.

Some cases say that a satisfaction from one tort-feasor does not release the others unless the release shows that it was intended to have that effect. Bland v. Lawyer-Cuff Co. (1918) 72 Okla. 128, 178 Pac. 885. (This case was held controlling in Tulsa v. McIntosh (1923) 90 Okla. 50, 215 Pac. 624). Other cases say that an unsealed discharge of one will not operate as a discharge of all, unless it appears that the payment made was received in full satisfaction. Blackmer V. McCabe (1912) 86 Vt. 303, 85 Atl. 113. That settlement with one of several joint wrongdoers and payment of damages is not a defense to an action against others of the wrongdoers, unless it was agreed between the parties to the settlement that such payment was in full satisfaction of all the damage suffered; and oral evidence is competent to show the intention of the parties thereto, in the action against one not a party to the settlement. Fitzgerald v. Union Stock Yards Co. (1911) 89 Neb. 393, 33 L.R.A. (N.S.) 983, 131 N. W. 612; Menking v. Larson (1924) 112 Neb. 479, 199 N. W. 823.

That a release of one tort-feasor does not operate to release a joint tortfeasor, contrary to the intention of the parties, is especially true, where the amount of the losses can be accurately ascertained, and the amount received in settlement with the one tort-feasor is less than the total amount of the loss. Murphy v. Penniman (1907) 105 Md. 452, 121 Am. St. Rep. 583, 66 Atl. 282, holding that a settlement made by the receivers of a bank, who had brought an action against directors for losses to the bank by reason of unlawful loans, by which the directors with whom the settlement was made paid a stated sum and were released, did not discharge the other directors, where the settlement was made on the distinct understanding that the other directors were not to be discharged. A settlement made by the owner of timber with one of two joint trespassers who converted certain of the timber, which was not a settlement for the whole trespass, but was expressly 50 A.L.R.-68.

limited to a compensation for one half of the property taken, and was not a release from the whole trespass, but only from further liability after payment of the one half, does not prevent an action in trover by the owner against the other trespassers to recover the balance of the timber. McCrillis v. Hawes (1854) 38 Me. 566. But see Gilpatrick v. Hunter (1844) 24 Me. 18, 41 Am. Dec. 370. Where a judgment has been obtained against joint tort-feasors, one of whom is desirous of compromising the claim as against himself, and the plaintiff, in consideration of a stated sum of money, about one third of the amount of the judgment recovered, enters into a stipulation with him, reciting his desire to compound and compromise the indebtedness and obtain a personal and individual discharge therefrom without prejudice to the plaintiff's right to proceed against the other tort-feasors, and containing a release of the said defendant from all and every individual liability by reason of the judgment, or incurred by reason of his being one of the joint debtors against whom the same was recovered, but without prejudice to the plaintiff's right to proceed against all the other defendants, the other defendants are not discharged, but are entitled to a credit on the amount of the judgment of the sum thus paid by their codefendants. Irvine v. Millbank (1874) 56 N. Y. 635. Similarly in Stusser v. Mutual Union Ins. Co. (1923) 127 Wash. 449, 221 Pac. 331, where a single judgment was recovered against all joint tort-feasors, it was held that

a

release satisfying the judgment against one of the wrongdoers to the extent of a sum paid the person injured by this wrongdoer, and to that extent only, could not be pleaded as a complete release by the other wrongdoers, but merely released their liability pro tanto, leaving them bound to pay the judgment so far as it remained unsatisfied. But see Chetwood v. California Nat. Bank (1896) 113 Cal. 414, 45 Pac. 704, supra, III. a.

It is stated in Mason v. Stephens (1915) 168 N. C. 370, 84 S. E. 527, that a nonsuit taken as to a lumber com

pany which had purchased a part of the lumber which the seller had wrongfully cut on the plaintiff's land did not have the effect of discharging the person who wrongfully cut the lumber, except pro tanto, to the extent of the demand made against the lumber company.

In Tulsa v. McIntosh (1923) 90 Okla. 50, 215 Pac. 625, the court stated that it believed that the line of authority which held that the release of one joint tort-feasor released all others was predicated upon a confusion of the principles of suretyship with those of damages for wrongdoing; and it was held that a settlement with one tort-feasor, and a discharge of his liability by an injured person, did not discharge other tort-feasors. The court states: "It is the purpose of the law and its very intent that every wrongdoer should be individually liable to see that the party injured by this tort be compensated. There is no common-law rule or statutory enactment which implies a suretyship between joint tort-feasors, or any privity between them and the party injured by their tort. Though a settlement for compensation between one joint tort-feasor judgment debtor and the injured party will in part compensate the injured party, and thus reduce the damages that the other judgment debtor is obligated to pay, such a settlement and the consequent release of one joint tort-feasor judgment debtor do not release others liable at law to see the injured party fully compensated."

It is stated in The Thomas P. Beal (1924; D. C.) 298 Fed. 121, that there is credible authority holding that a receipt in full of the nature of a release for injuries sustained, but not under seal, will not defeat an action at law in a Federal court, where fraud induced the settlement pursuant to which it is given.

Again, the intention of the parties not to release the other joint tort-feasor has been given effect, where there was not full compensation from the one joint tort-feasor with whom the settlement was made, and the release contained an express provision that it

should not affect or impair the claim against the other tort-feasor. Storey v. Breedman (1916) 5 Alaska, 468; Gilbert v. Finch (1903) 173 N. Y. 455, 61 L.R.A. 807, 93 Am. St. Rep. 623, 66 N. E. 133; Walsh v. Hanan (1904) 93 App. Div. 580, 87 N. Y. Supp. 930; Warner v. Brill (1921) 195 App. Div. 64, 185 N. Y. Supp. 586; Hirschfield v. Alsberg (1905) 47 Misc. 141, 93 N. Y. Supp. 617; Morris v. North American Mercantile Agency (1907) 53 Misc. 574, 103 N. Y. Supp. 761; Adams Exp. Co. v. Beckwith (1919) 100 Ohio St. 348, 126 N. E. 300.

In Natrona Power Co. v. Clark (1924) 31 Wyo. 284, 225 Pac. 586, the court said: "The effect of such a reservation in an instrument which would otherwise be a release has frequently been the subject of judicial inquiry, and there are many cases in this country holding that the reservation can be given no effect at all; and that the instrument operates as a release of all persons jointly liable. The idea underlying these cases is that the primary purpose to release is the thing to be carried out, and that the reservation of the right to sue others, being inconsistent with the purpose to release, must be disregarded. Walsh v. New York C. & H. R. R. Co. (1912) 204 N. Y. 58, 37 L.R.A. (N.S.) 1137, 97 N. E. 408. In other words, the injured person cannot release one wrongdoer and at the same time reserve the right to pursue another for the same wrong. While this view may be correct on technical reasons, we think it fails to give a just eff ect to the express intention of the parties. That intention must be gathered from the whole instrument, including the words of release and the words reserving the right to sue others. When the intention be thus ascertained, it should prevail as far as in law it may. If the writing can operate two ways, one consistent with the intent and the other repugnant to it, the court will give it the construction best calculated to carry out the intent. When the writing expresses an intention to release one joint tort-feasor, and also an intention to reserve the right to sue the other, the two inten

tions are repugnant, if the words of release be given their strict technical meaning, but they are not repugnant if the words of release be construed as an agreement not to sue the one with whom the compromise has been made."

In Wiseblood v. Omaha Merchants Exp. & Transfer Co. (1915) 98 Neb. 757, 154 N. W. 539, an action for injuries from a defective appliance used by a transfer company, employed to move a heavy machine from the factory of the injured person's employer, it is stated in the official headnote that a settlement with the employer by the injured person, and a release which expressly reserved his right of action against the transfer company, did not defeat his action against the transfer company.

The decision in Gilbert v. Finch (1903) 173 N. Y. 455, 61 L.R.A. 807, 93 Am. St. Rep. 623, 66 N. E. 133, supra, is based upon the construction that the release in the situation there involved is a covenant not to sue. The court says: "Where the release contains no reservation, it operates to discharge all the joint tort-feasors; but, where the instrument expressly reserves the right to pursue the others, it is not technically a release, but a covenant not to sue, and they are not discharged." Upon the authority of Gilbert v. Finch (N. Y.) supra, the court in Walsh v. Hanan (1904) 93 App. Div. 580, 87 N. Y. Supp. 930, held that a release given to one joint tortfeasor did not release the other, where all rights of action for the injury against the others were reserved, without any reference to the consideration for the release.

In Casey v. Auburn Teleph. Co. (1913) 155 App. Div. 66, 139 N. Y. Supp. 579, a case involving a release under seal, but in which the court does not, apparently, give any effect to the seal, the other tort-feasor was held discharged, because the release contained no reservation of rights against him, on the authority of Gilbert v. Finch (N. Y.) supra.

In Hirschfield v. Alsberg (1905) 47 Misc. 141, 93 N. Y. Supp. 617, a release of one joint tort-feasor was held not

to be a release of the other, where it was given subject to a reservation of right to sue the other tort-feasor, and where it appeared that the amount received in settlement was not full compensation for the injury. The decision in Gilbert v. Finch is relied upon in Warner v. Brill (1921) 195 App. Div. 64, 185 N. Y. Supp. 586, in holding that a release given to the driver of an automobile, which forced off the road another automobile in which the injured person was riding, did not release the driver of the latter car for liability for negligence. Nothing is said as to whether full compensation was paid.

An intention not to release the other joint tort-feasor is, of course, clearly evidenced by an express statement to that effect. Scott v. Kansas State Fair Asso. (1918) 102 Kan. 653, 171 Pac. 634, holding that a reservation of the right to sue the other joint tortfeasor may be made orally. Matthews v. Chicopee Mfg. Co. (1865) 3 Rob. (N. Y.) 711; El Paso & S. W. R. Co. v. Darr (1906) - Tex. Civ. App. —, 93 S. W. 166; St. Louis, I. M. & S. R. Co. v. Bass (1911) Tex. Civ. App. 140 S. W. 860; Carey v. Bilby (1904) 63 C. C. A. 361, 129 Fed. 203; Edens v. Fletcher (1908) 79 Kan. 139, 19 L.R.A. (N.S.) 618, 98 Pac. 784.

The instrument involved in Edens's Case (Kan.) supra, provided for a dismissal as to certain of the defendants in the action which had been begun by the injured party, and acknowledged "full satisfaction and payment for all damages and injuries arising out of or in any manner connected with the causes of action in the petitions in these causes alleged against the defendant's released. The plaintiff hereby reserving, and not in any manner waiving, any rights or causes of action against any of the other defendants."

The instrument involved in Chicago & A. R. Co. v. Averill (1905) 224 Ill. 516, 79 N. E. 654, is not set out in full in the opinion. It is referred to as a release, but not as one within the meaning of the rule that a release of one joint tort-feasor releases both, and is further stated to

have expressly provided that the agreement should not be held or construed to be a release of any damages or right of action arising to the injured person, by reason of any matters at that date existing, and is treated by the court as a covenant not to sue.

In Barnum v. Cochrane (1903) 139 Cal. 494, 73 Pac. 242, a motion for an entry of satisfaction of a joint judgment rendered against two tort-feasors, based on an instrument releasing one of them, in consideration of a certain amount, from such judgment, "so far as the same can be done without releasing or discharging" the other "from the payment of the balance thereof," was held to have been properly denied, since, if the legal effect of a release of one would be to release the other, such agreement, by force of its own limitations, was not a release; and if, on the other hand, the release of one did not in law release the other also, then necessarily such other still remained liable for the balance, and was not entitled to satisfaction of the judgment.

Some cases seemingly give effect to the intention of the parties, only when there is a reservation of the right against the other tort-feasors. See Gilbert v. Finch (1903) 173 N. Y. 455, 61 L.R.A. 807, 93 Am. St. Rep. 623, 66 N. E. 133, supra. It has, however, been held in this state that the settlement of an action against one of two joint tort-feasors does not bar an action against the other, unless it is shown to have been made under circumstances which operate to discharge the other. Walsh v. New York C. & H. R. R. Co. (1912) 204 N. Y. 58, 37 L.R.A. (N.S.) 1137, 97 N. E. 408. The evidence of an intention not to release the other joint tort-feasor is clearer where, in addition to the express statement that no release of the other tort-feasor was intended, it appears that the consideration for the release was received in partial satisfaction, only, for the tort. In Carey v. Bilby (1904) 63 C. C. A. 361, 129 Fed. 203, the court, after declaring its acceptance of the rule that a release wherein the right to proceed against joint tort-feasors is reserved does not

operate to discharge them, as supported by the greater weight of authority and founded upon the better reasons, said: "Besides, we are not aware of any sufficient reason which should preclude a person who has sustained an injury through the wrongful act of several persons from agreeing with one of the wrongdoers, who desires to avoid litigation, to accept such sum by way of partial compensation for the injury as he may be willing to pay, and to discharge him from further liability, without releasing his cause of action as against the other wrongdoers. The law favors compromises generally, and it is not perceived that an arrangement of the kind last mentioned should be regarded with disfavor." Home Teleph. Co. v. Fields (1907) 150 Ala. 306, 43 So. 711, holding the other joint tort-feasor not released by a release discharging the joint tort-feasor with whom the settlement was made from any claims on account of the tort, but containing a provision that it was expressly understood and agreed that the payment was made only on account of any sum that the settlor might be entitled to recover for the death of her intestate, but was not intended as a satisfaction of the entire amount that she might be entitled to on account of said death, nor as a release of any claim that she might have against the other joint tort-feasor on account of the death of her intestate. Feighley v. C. Ho ffman & Son Mill. Co. (1917) 100 Kan. 430, 165 Pac. 276, holding that the dismissal of a railway company, which was a defendant in an action for flooding land, did not release a milling company, which was sued jointly with the railroad company for the same injury, where the instrument by which the railway company was dismissed expressly reserved any and all rights or causes of actions against any of the other defendants, and stated it to be the intention of the plaintiff to reserve his right to continue his suit and claim against all of the other defendants, and to proceed against them. It was understood that only a partial compensation of the damages was made by the railway company.

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