Wouldridge v. Zimmerman

[658]

Opinion

DRAPER, P. J.

Plaintiff, vendee of land, seeks damages from the sellers and their agents for false representations inducing the sale. After commencement of trial to a jury, defendant sellers paid plaintiff $10,000 and received a dismissal with prejudice as to sellers only. Later, defendant agents moved to dismiss upon the ground that dismissal of the sellers discharged all defendants. Dismissal was entered, and plaintiff appeals. It is undisputed that: respondent agents made representations that the first jury found to be false (new trial was granted after that verdict); the dismissal was given before verdict at the first trial; and sellers and their agents were “tortfeasors claimed to be liable for the same tort.”

Such a release “shall not discharge, any other such tortfeasor from liability unless its terms so provide, but it shall reduce the claims against the others ... in the amount of the consideration paid for it” (Code Civ. Proc., § 877).

Defendants-respondents, however, point to another provision (Code Civ. Proc., § 875), which establishes a right of contribution among tortfeasors. Subdivision (d) of the section provides that “There shall be no right of contribution in favor of any tortfeasor who has intentionally injured the injured person.” Respondents quite properly assert that misrepresentations charged against all defendants necessarily were intentional. They argue that if the claims against them be reduced, as required by section 877, by' the $10,000 paid by the owners, a “contribution” will be made among intentional tortfeasors, thus violating section 875, subdivision (d). Thus, they argue, we must look to the common law rule that release of one joint tortfeasor releases all.

We cannot agree. Sections 877 and 875 were adopted at the same time (Stats. 1957, ch. 1700) and as part of a comprehensive statutory' plan. Thus there is even more reason than in the usual situation to seek a construction which will reconcile the several provisions, and avoid a conflict obviously not intended by the Legislature;

It is only in a strained sense that the

pro tanto

reduction approximates contribution. The purpose of the rule requiring such reduction is to avoid the double recovery and unjust enrichment which a plaintiff would enjoy if he were able to collect part of his total claim from one, and all from another (see