Miller v. F. Beck & Co.

DeemeR, J.

1 — It appears from tbe evidence that F, Beck & Co., and a co-partnership styled Shaber, Peinthal & Co., were creditors of Peter C. Miller. Apprehensive of their claims, they placed them in tbe bands of appellants’ counsel, who brought actions upon tbe separate accounts, each of which was aided by attachment, and directed the sheriff to levy upon certain property belonging to Miller. The writs were issued at the same time, but the sheriff, by direction of counsel, made levy of the Beck & Oo. writ first. The othei writ, in so far as the personal property is concerned, was lev-ied subject to the one issued in the Beck & Oo. case. The personal property was 'sold as perishable for the sum oi five hundred and twenty dollars, all of which, save the sum of thirty-one dollars, applied on rent, was paid into court. Beck & Go-, obtained judgment in their action against Miller, and received in part satisfaction thereof the sum •deposited in the court, as well as some other money obtained through garnishment proceedings, in all the sum of five hun dred and sixty dollars and fifty-three cents. Shaber, Rein-thal & Oo.’s claim was upon notes amounting to five hundred •dollars, which were admitted by Miller. Miller made defense to their action, and pleaded a counterclaim for the wrongful suing out of the writ. The items of damages which he claimed in that case were identical with those sought to be recovered in this. That case went to trial, resulting in a verdict and judgment for defendant, Miller; and it thus appears that he was allowed five hundred dollars for the wrongful suing out of the writ. This •amount he has received in full; for the claim against him, to the amount of five hundred dollars, has been satisfied and •discharged. The costs and attorney fees taxed for the wrongful suing out of the writ have also been paid.

Appellants’ contention on this appeal is (1) that plaintiff has once been paid all damages growing out of the alleged wrongful suing out of the attachment, and therefore cannot recover them a second time'; (&) that the plaintiffs in the two ■attachment suits were joint wrongdoers, and that the judgment in the Shaber, Reinthal & Oo. case was a release and satisfaction of all claims against either.

It is familiar doctrine that a person injured by an act of joint wrongdoers is entitled to but one satisfaction for the ' injury sustained, and tbat, although all the wrongdoers are jointly and severally liable, complete satisfaction by one operates as a discharge of all. Turner v. Hitchcock, 20 Iowa, 310; Seither v. Traction Co., 125 Pa. St. 397 (17 Atl. Rep. 338, 11 Am. St. Rep. 905, and note). This is upon the theory that each is liable for the entire wrong, and that recovery from one is for the full amount, and hence satisfaction as to one is satisfaction or release as to all. Even where this rule prevails, it is generally held that part payment of a claim for damages by one joint wrongdoer, if understood to be in part satisfaction, is not a release in full, but only pro tanto; and that if the apparent intention is not to release or discharge the debt, but to release only that one from liability, it is held to be a covenant not to sue, and the others remain liable. Ellis v. Esson, 50 Wis. 138 (6 N. W. Rep. 518); Chamberlain v. Murphy, 41 Vt. 110; Shaw v. Pratt, 22 Pick. 307; Cooley Torts, p. 139; Couch v. Mills, 21 Wend. 424. It is also well settled that a person injured, whether by the joint or several wrongs of others, is not entitled to receive more than one satisfaction. As said by Miller, J., in Love joy v. Murray, 3 Wall. 1: “When plaintiff has accepted satisfaction in full for the injury done him, from whatever source it may come, he is so far affected, in equity and good conscience, that the law will not permit him to recover again for the same damages.” In accordance with this rule, it has frequently been held that the validity and effect of a release of a cause of action does not depend upon the validity of the cause of action, and that if the claim is made against one, and it is satisfied, all who may be liable are discharged, whether the one released be liable or not. Leddy v. Barney, 139 Mass. 397 (2 N. E. Rep. 107); Tompkins v. Railway Co., 66 Cal. 163 (4 Pac. Rep. 1166).; Brown v. City of Cambridge, 3 Allen 474; Butler v. Ashworth, 110 Cal. 614 (43 Pac. Rep. 386) ; Metz v. Soule, 40 Iowa, 236.

2 It becomes material for us to inquire then, first, whether . plaintiffs in the attachment suits were joint tort feasors; and, if they were not, then, second, whether appellee has received satisfaction for his injuries in the Shaber, Reinthal & Co. case. Now, while it is true that the writs were sued out at the same time, and plaintiffs in attachment were represented by the same counsel, yet .neither creditor was interested in the success of the other, and neither attempted to aid the other in any manner. Each acted independent of the other, and for the purpose of securing his own claim. What each did was designed for his own interest, and the fact that they acted simultaneously, through the same attorneys and for the same reasons, did not make their acts joint. Brewster v. Gauss, 37 Mo. 518. This is not a case in which a single object is accomplished by the simultaneous service of different writs, as was Stone v. Dickinson, 5 Allen 29. We are of opinion that the creditors in this case were not joint wrongdoers, and that a release or satisfaction as to one would not necessarily discharge the other. If there was such release or discharge, it was because plaintiff has received satisfaction for the wrong done him by accepting a verdict and judgment in the Shaber, Reinthal & Co. case; and to this we now turn our attention.

In his counterclaim for damages, as well as in this action, he sued for conversion of his personal property, and for the damages incident thereto; claiming in each pleading that his property had been taken, used, and converted by that particular attaching creditor. If this action was trover or conversion, then it is clear that he cannot have payment for his property twice. The rule is well settled that, upon payment of a judgment for conversion, if not before, the title to the property passes to the judgment defendant and plaintiff cannot again sue for conversion of the identical property, for the plain reason that he cannot give title and has no longer any interest in the property; for his right thereto has passed to the first judgment defendant.

3 But it is said that appellee was asking for damages done his property in each suit, and that he is entitled to damages for what each defendant did. If he had asked in each suit for the damages done by the defendant against whom his action was brought, there would be no doubt of his position. But such is not the fact. The writs were levied upon the ■same property, to-wit, a stock of wall paper, moldings, etc., and the garnishments ran against the same debtor of Miller. They were levied at the same time, and the trespass resulted from but a single act of the sheriff, done under the two writs, it is true, but done at one time, and for the single purpose of turning the property into money, that it might be applied on whatever judgments were obtained. Now, in the Shaber, Beinthal & Oo. case, appellee asked for all the damage done his property. The court instructed that he was entitled to all that was done, and, having accepted the results of that suit, he is presumed to have received all that he is entitled to claim, except it be some items which were peculiar to the second suit. The trial court, in the case at bar, instructed, that appellee was entitled to the same and identical damages which he claimed in the Shaber, Beinthal & Co-, case; butfurther said they should credit appellant with the amount allowed Miller in the former suit. It is of these instructions that appellant complains. It is perfectly plain, we think, that, if appellee was allowed and paid all the damages done his property upon his counterclaim in the Shaber, Beinthal & Co. case, he cannot recover the same items again, in a subsequent suit against appellants. He undoubtedly made claim in that ease to all damages done his property. Shaber, Beinthal & Oo. seemed content to pay all if they paid any, for they did not attempt to shift any part of the responsibility upon another. The court before which the action was pending said to the jury, in its charge, that they should allow all damages done the property, whether direct or consequential, and that ought to satisfy appellee, except as we have said as to certain items which were peculiar to tbis case. These are the costs of levying the writ, which were not paid in the former proceeding; and, second, attorney’s fees for defending against this particular attachment. Attorney’s fees are to be taxed by the court, however, and consequently were not referred to in the instructions in either case. It may be that the costs of levying the attachment were not allowed in the former action, but this we have no occasion to determine, for the reason that the instructions objected to include all other items of damages, done to the property by the levy of the writ.

4 If it be conceded, however, that each attaching creditor was liable simply for the damage done by him, and that appellee' in his counterclaim against Shaber, Reinthal & Co. did not seek to, and did not in fact, -recover more than the damage done by that particular creditor, yet it is manifest the instructions given in the case were wrong, for the reason that the whole matter is made to depend upon the verdict of a jury in an action to which appellant was not a party. The court instructed in each case that appellee was entitled to all the damages done his property, and the elements of damage which the jury were told to consider were precisely the same in each case. In the case at bar, however, the jury was told to credit the amount allowed by the jury in the former case upon the allowance made in this. Surely, this is a very uncertain way by which - to determine the amount of damages done by this appellant. Suppose the jury, in the Shaber, Reinthal & Co-, case, had fixed the damages at half the amount actually done, appellant would, then be compelled to respond for much more than the damages done by it; or, if the jury in the first case had allowed too much, then appellant would not be called upon to pay what it ought. In other words, the whole matter of damages is made to depend upon the verdict of a jury in a case to which appellant was not a party, and which was in no manner binding on it. This thought illustrates the vice of the instructions relating to damages and to tbe plea of payment, interposed by appellant. Had tbe two attaching creditors been guilty of separate acts of trespass, or bad they levied upon different items of property, or bad one done a wrong to tbe property in such a manner as that tbe particular damage inflicted thereby ■could be ascertained, then it is likely that satisfaction as to one would not release tbe other. But where, as in 5 this case, tbe injury is an entirety, and the damages cannot be apportioned, and tbe injured party sues for tbe wrong done, and recovers judgment, which be accepts as compensation for tbe wrong, such recovery will be a bar to any further claim for damage, for tbe plain reason that tbe law will not allow more than one satisfaction for a wrong done or injury inflicted. See cases heretofore cited, and «especially Metz v. Soule, 40 Iowa, 286.

6 As we have seen,11 it is entirely immaterial that tbe ■one from whom satisfaction was demanded and received was not liable for tbe entire damage. Indeed, if be were a stranger, and not responsible for any part ' of it, tbe rule would be tbe same. It is important that we distinguish in this connection between what tbe law denominates a “release” and what is called a “satisfaction.” A release may be given, although no part of the damage has been paid, and a technical release to one who is not a joint wrongdoer will not necessarily release another, who may have bad some connection with tbe wrong. See, as illustrating this rule, Ellis v. Esson, 50 Wis. 138 (6 N. W. Rep. 518) ; City of Chicago v. Babcock, 143 Ill. 358 (32 N. E. Rep. 271) ; Long v. Long, 57 Iowa, 497; Knapp v. Roche, 94 N. Y. 329 ; Turner v. Hitchcook, 20 Iowa, 310. A satisfaction, however, by whomsoever made, if accepted as such, is a bar to further proceedings on tbe same cause of action. Payment is a satisfaction, and, under 'the facts disclosed by this record, the case should have been submitted on the theory that all damages to the property, direct and consequential, were paid by the former judgment, and that appellant’s liability was for costs made upon its writ, independent of those made on the Shaber, Beinthal & Co. attachment, and for attorney’s fees. The judgment of the district court is eeveesed.