Sloan v. Herrick

49 Vt. 327

• Court: Supreme Court of Vermont
• Decided: January 15, 1877
• Status: Published

Opinion

The opinion of the court was delivered by-

Ross, J.

In actions of tort, nothing less than what in law is regarded a legal satisfaction of the tort by one joint tort-feasor, will operate to discharge the other joint tort-feasor. Neither the recovery of a judgment against one joint tort-feasor that remains unsatisfied in whole or in part, nor the release of one on the receipt of part satisfaction for the tort, when it is expressed in the release that the sum paid is received only in part satisfaction, operates to bar the injured party from pursuing the other joint tort-feasors for so much of the tort as remains unsatisfied. Sanderson v. Caldwell, 2 Aik. 195 ; Spencer v. Williams, 2 Vt. 209 ; Eastman v. Grant, 34 Vt. 387; Chamberlin v. Murphy, 41 Vt. 110.

It is quite probable that the discontinuance of this suit against Hinckley by the plaintiff, on Hinckley’s agreement to waive his claim for costs, under the circumstances, operated, on the doctrine announced in Catlin v. Taylor, 18 Vt. 104, and in Armstrong et ux. v. Colby, 41 Vt. 359, to preclude the plaintiff from further pursuing Hinckley on this cause of action. It is found that the plaintiff received no satisfaction for the tort from Hinckley. The discontinuance of the suit as to Hinckley, taken in connection with the circumstances attending it, does not import a legal satisfaction of this tort. Hence, on the principle first announced, and the authority of the cases cited in its support, Herrick, who is found to have been a joint trespasser with Hinckley, cannot make available the plaintiff’s relinquishment of Hinckley without satisfaction, to bar the plaintiff’s right to prosecute the suit against him. Before such relinquishment, Herrick was liable to the plaintiff for all the damages sustained by him from the tort. The tort has not been satisfied, neither has Uerrick’s liability therefor been enlarged by the plaintiff’s relinquishment of his right to pursue Hinckley, and there is no legal reason why Herrick should be allowed to use that relinquishment to defeat the plaintiff from recovering from him satisfaction for the damages that his tort occasioned to the plaintiff.

Judgment affirmed.