Cook v. City Transport Corp. , 272 Mich. 91 ( 1935 )

I can see no application of Robinson v. Godfrey, 2 Mich. 408, and Morgan v. Butterfield, 3 Mich. 615, to the case at bar. Each of the cases dealt with an agreement made by all contracting parties, not to sue on the contract, for a limited time. In discussing the effect of an agreement never to sue, the court treated it as a new contract, superseding the original, and, therefore, destroying and releasing it. The court recognized that when made with one of several joint debtors, a covenant not to sue is a collateral undertaking and not a release. In no sense are the cases authority for the proposition that an agreement not to sue one of several joint tortfeasors is a release of the liability of one and, therefore, of all.

The distinction between a release and an agreement not to sue is finespun and seems overtechnical. However, the whole law of joint tortfeasors is of like character and, as indicated by Mr. Justice POTTER, the overwhelming weight of authority draws the distinction and denies the effect of an agreement not to sue one as a release of other joint tortfeasors. The distinction was not mentioned in the briefs nor considered inMoffit v. Endtz, 232 Mich. 2, nor has the point in suit been passed upon by this court.

I think we should follow the weight of authority, not because I approve the distinction, except as a mental exercise, but because such effect of an agreement not to sue offers a way for a party to buy his peace and allows an opportunity to compromise a doubtful claim without requiring an injured party to forego the right of full compensation against known wrongdoers.

On motion, the court dismissed the suit as to the City Transport Corporation because of the agreement not to sue. Defendant [appellant] claims it thereby gave the agreement the effect of a release rather than of a collateral undertaking and, plaintiff not having appealed therefrom, it operated to discharge defendant Lindeman. Plaintiff had a right to elect whom he should sue and to dismiss as to a defendant and he could accept the ruling of the court as the equivalent of a voluntary dismissal of City Transport Corporation by himself, which would not have discharged Lindeman. Moreover, the dismissal did not change Lindeman's liability.

Affirmed, with costs.

NORTH, BUTZEL, BUSHNELL, and EDWARD M. SHARPE, JJ., concurred with FEAD, J.