Joint Tortfeasors. Covenant, Not to sue. Release. Accord and Satisfaction. Contract, In writing. Evidence, Extrinsic affecting writings.
An instrument under seal, delivered to one of two joint tortfeasors in consideration of a sum of money paid by him to the person who suffered from the tort, whereby such person covenanted "to forever refrain from instituting, pressing or in any way aiding any claim, demand, action or causes of action for damages . . . for or on account or in any way growing out of" the tort, does not operate as a release of the injured person's cause of action against the other tortfeasor.
In an action for personal injuries against one of two joint tortfeasors, the defendant alleged in his answer that the plaintiff "presented to" his co-tortfeasor "a claim for damages" caused by the joint tort "and that thereafter" the co-tortfeasor "paid to the said plaintiff and the said plaintiff accepted" a sum of money "in satisfaction of the damages alleged in the declaration." The defendant offered in evidence, and the presiding judge admitted, an instrument under seal, which the plaintiff, in consideration of money paid by the co-tortfeasor, had delivered to the co-tortfeasor and in which the plaintiff had covenanted with the co-tortfeasor "to forever refrain from instituting, pressing or in any way aiding any claim, demand, action or causes of action for damages" caused by the joint tort. The defendant also offered and the judge excluded evidence tending to show that negotiations which occurred between the plaintiff and the co-tortfeasor previous to the execution of the covenant were for the purpose of a settlement and discharge of the claim for damages alleged in the declaration. Held, that the exclusion of the evidence was wrong, because the defendant, not being a party to the instrument in writing, had a right to show by oral evidence that it did not express the terms of the actual compromise.
BRALEY, J.
The defendants and the railway company upon the record were concurrent tortfeasors, and an unqualified release of the company under seal would have discharged them. Feneff v. Boston Maine Railroad, 196 Mass. 575. Boston Supply Co. v. Rubin, 214 Mass. 217. But the covenant not to sue put in evidence by the defendants did not operate as a discharge of the plaintiff's cause of action; it only barred the remedy against the company for reasons stated in Matheson v. O'Kane, 211 Mass. 91.
The amended answer, however, pleaded in general terms an accord and satisfaction with the company whereby the defendants had been relieved from liability. It is settled that, not having been parties or privies to the instrument, the defendants could show by parol evidence that the instrument did not express the actual compromise. Kellogg v. Tompson, 142 Mass. 76. See Snow v. Alley, 151 Mass. 14.
The correspondence between the various attorneys representing the plaintiff and the company, as well as his personal letter to it, were admissible as evidence of a demand for damages, and as preliminary to the final agreement in so far as the negotiations were authorized by him. Pickert v. Hair, 146 Mass. 1. Loomis v. New York, New Haven, Hartford Railroad, 159 Mass. 39. James v. Boston Elevated Railway, 201 Mass. 263. It is to be noted that previous to September 21, 1912, the correspondence relates only to a claim against the company, or notice to it by the plaintiff of the discharge of former counsel and the retaining of new counsel. No offer to settle without suit appears.
The authority of an attorney under a general retainer to compromise a claim of his client's, which is referred to in Brewer v. Casey, 196 Mass. 384, 388, where the earlier cases are cited, is not presented by the record. See also Gilman v. Cary, 198 Mass. 318.
The plaintiff's instructions in writing to counsel then acting for him, offered in evidence by the defendants but improperly excluded, expressly authorized a settlement upon condition "that my rights be reserved against the Burkhardt Brewing Co.," the name under which the defendants are described in the writ, although the legal form in which the settlement should be expressed is not stated. It was left to his counsel. The conversations between the agent of the company to whom the instructions had been transmitted and the plaintiff's attorney, which took place before the covenant not to sue was executed, also were admissible if limited to the restrictions imposed by the instructions. New York, New Haven, Hartford Railroad v. Martin, 158 Mass. 313, 316, 317. Riley v. Boston Elevated Railway, 195 Mass. 318, 322. Lewis v. Gamage, 1 Pick. 347. The jury should have been permitted to determine on all the evidence whether the covenant not to sue embodied the settlement the plaintiff had authorized, and which had been actually effected. If they found that it did, the defendants had not been discharged. But, if notwithstanding the covenant not to sue, the defendants on whom rested the burden of proof had shown that the plaintiff in fact had compromised his claim without qualification, the action could not be maintained. Boston Supply Co. v. Rubin, 214 Mass. 217.
Exceptions sustained.