Real Del Monte Consolidated G. & S. M. Co. v. Thompson

Crocker, J. delivered the opinion of the Court—Norton, J. concurring. This is an action brought by the plaintiffs, a corporation, against C. D. Thompson and the other owners or claimants of the Paul Thompson Quartz Lode, to recover damages for an alleged trespass in working a lode claimed by the plaintiffs, and for an injunction against future trespasses. The summons was issued and served on Thompson alone, who appeared and filed an answer. The case was tried and judgment rendered for the defendant; from which, and from an order overruling a motion for a new trial, the plaintiffs appeal.

On the trial the defendant offered one Trainovitch as a witness, who testified that at the commencement of the suit he was a member of the company that sunk the shaft complained of, but had sold out three or four months before; that he had agreed to pay his proportion of the expenses of the suit, according to the quantity of ground he held; that the company had deeded to him the portion of ground they had agreed to, twenty-five feet, of which he had sold to one Castro, and had taken Castro’s note for a part of the purchase money, and had agreed that if he did not give him a good title he would give him up his note. Thereupon the defendant, Thompson, executed to witness a release from all actions and all liability which might accrue to him by reason of any judgment which might be obtained against him in the action. The plaintiff objected that the witness was incompetent on the ground of interest; the objection was overruled and the witness allowed to testify, and this is now assigned as error. The witness was not a party to the action. The statement that the action was brought against “ C. D. Thompson and the other owners or claimants of the Paul Thompson Quartz Lode,” only made Thompson defendant, unless other persons were brought in and made parties by proper proceedings under the direction of the Court, which was not done in this case. It is urged, [545]however, that the witness agreed with the other owners to pay his proportion of the expenses; that he was therefore liable to his coowners, and the release by Thompson did not release him from that liability, and therefore he still continued interested to that extent in the result of the suit. It is evident that the agreement was not between the witness and the other owners, but between the defendant, Thompson, who was the person legally liable for the costs and expenses, being the sole defendant to the action, and the other owners, including the witness, and therefore Thompson’s release effectually discharged the witness from his liability under that agreement.