Glickman v. Weston , 140 Or. 117 ( 1932 )

Petition for rehearing denied July 12, 1932 ON PETITION FOR REHEARING (12 P.2d 1005) Counsel for respondent, who make their first appearance in this cause in a brief in support of the petition for rehearing, have filed a very insistent brief in support of the petition, in which they claim that the court erred in holding that the release executed by respondent does not cover the matters alleged in the complaint.

The point is made that there was no consideration for the release. The slanderous words grew out of certain business dealings between the parties, in which appellant claimed that respondent was indebted to him in the sum of $2,970, and respondent admitted an indebtedness in the sum of $1,500. Respondent now claims that he and appellant compromised this dispute for $1,500, and the release given to him by appellant covered only the actual money accounts. In other words, according to his assertion, it was a sort of a "Min and Andy Gump" compromise. When Min desired to go to Florida and Andy wanted to go to California, they compromised by going to Florida.

The slanderous words grew out of the transactions they were compromising. Granting that appellant knew nothing of respondent's intentions to sue, respondent knew all about it. He had signed the complaint the day before. It was a matter then pending in his mind. The consideration of the release, was the remission of $1,470 from the claim of appellant and the reestablishment of a business and social friendship that had existed for many years.

It is not at all likely, that if appellant knew he was about to be sued for $30,000 for slanderous words, growing out of, and in fact a part of the very transaction under consideration, he would have reduced his claim against respondent practically one-half. There was ample consideration for the release. The cause of action for slander, at the time the release was executed, was of very doubtful value.

We agree with the law as laid down in the case cited by counsel, Van Slyke v. Van Slyke, 80 N.J. Law 382 (78 A. 179, 31 L.R.A. (N.S.) 778, Ann. Cas. 1912A, 498):

"In determining the effect of an instrument, containing words, that ``taken by themselves operate as a general release, all the provisions of the instrument must be read together; if on such reading, an intent to limit the scope of the release appears, it will be restricted to conform to such intent.'"

This is simply the general rule applied to the interpretation of any written instrument. It must be construed by its contents as a whole in order to give it the construction the parties intended.

In Simons v. Johnson and Moore, 3 B. A. 175, decided one hundred years ago, Lord Tenterden, Chief Justice, said in passing on the case:

"It is said we must look to the recital of the release, and find something there sufficient to confine the effect of the general words. If I do so here, I find that this was intended to operate as a qualified release. It states that disputes are subsisting between Simons and Johnson about which actions at law have been brought, and that it has been agreed, in order to put an end thereto, that each of them shall execute a release of all actions and causes of action, claims and demands, brought by him against the other. I cannot read this without seeing that the release which follows was intended to apply to the matter recited, namely, the actions then depending, and that the object was to put an end to them."

Counsel refers to "this very abbreviated general provision in the release." It is easily understood by the laymen, even if it does lack some of the grandiose redundancy of legal phraseology which might add lustre to the erudition of the attorney who prepared it, but is of little value as a means of conveying information to the person for whom it is intended.

The petition for rehearing will be denied.

It is so ordered.