Memphis and Little Rock Railway Company v. Stringfellow.

aside; but if not so, it should not be disturbed. Upon a careful study of all the evidence and the law applicable thereto, we are unable to say that there is a very strong preponderance of evidence against the verdict. There were many facts and circumstances connected with the case which it was the peculiar province of the jury to weigh and consider, and from which it was their prerogative to draw such inferences as in their good judgment they might legitimately and fairly draw. For instance, we think that the question as to whether the defendant was guilty of negligence in stopping the train so near to the station in the night-time, without notifying the passengers in this car that they had not reached it, considering the imminency of the approaching freight train, was one which the jury might properly consider and pass upon. Penn. Company v. Hoagland, 78 Ind. 203; Lewis v. Eastern Railroad, 60 N. H. 187; Robinson v. New York Cent. & H. R. R. Co., 20 Blatchf. 338. And as different minds would doubtless arrive at different conclusions, and that too with entire honesty and fairness, upon the evidence as to that question, it would be simply substituting the court for the jury if it should say that they were not warranted in finding that there was negligence on the part of the defendant from this one fact. And the same is true with regard to several other facts which appeared in evidence, namely, allowing the freight train to pass the station when the passenger train was due, thereby necessitating the stoppage of the latter so near to the station, with knowledge on the part of the defendant that passengers were in the habit of leaving the train on both sides thereof the moment it arrived at the station, and that when the trains were long, as frequently was the case, passengers in the smoking car would be obliged to alight upon the ground for want of sufficient length of platform, and this too where there were no lights. These facts, together with others of more or less importance, were before the jury for consideration under the instruction of the court as to the law applicable thereto, and they arrived at the conclusion that the defendant was guilty of negligence. And it is quite immaterial that the court, if originally acting as the triers of this question of fact, might have come to a different conclusion. It is immaterial even that another jury might arrive at a different conclusion upon the same proof so long as no claim is made that the jury that tried the case was actuated by improper motives, or was not a fit and proper jury in every respect to try the

same.

"As to the claim made by defendant, that the accident resulted from the plaintiff's carelessness, it seems to us that the only reply which the court need make is that while unquestionably there was evidence tending to prove this, yet it was for the jury to say whether it was proved as matter of fact under the law as given by the court; in other words, that the evidence of carelessness on his part was not so conclusive and free from doubt as to warrant the court in deciding as a matter of law that he was guilty of contributory negligence, or that the finding of the jury upon that question was against the strong preponderance of the evidence.

In Hoyt v. City of Hudson, 41 Wis. 105; s. c., 22 Am. Rep. 714, it was held that if the plaintiff's evidence merely tends to show negligence on his part, is for the jury to say whether it existed. See also Manufacturing Co. v. Mər

Memphis and Little Rock Railway Company v. Stringfellow.

rissey, 40 Ohio St. 151; s. c., 43 Am. Rep. 669; Fassett v. Roxbury, 55 Vt. 552, 555; Longenecker v. Penn. R. Co., 105 Penn. St. 328; Dahlberg v. Minneapolis Street Ry. Co., 32 Minn. 404; s. c., 50 Am. Rep. 585; Scott v. D. & W. Ry., 11 Ir. C. L. 377; Beisiegal v. New York Cent. R., 34 N. Y. 622; Bowers v. Union Pac. R. Co., 20 Rep. 58; Hoye v. Chicago, etc., R. Co., 20 Rep. 62. Several of the cases cited by defendant as bearing upon the question of the plaintiff's carelessness, namely, Ormsbee v. Boston & Prov. R. Corp., 14 R. I. 102, ante; Wheelwright v. Boston & Albany R., 135 Mass. 225; Stubley v. London & Northwestern Ry. Co., L. R., 1 Exch. 13; Ernst v. Hudson River R. Co., 36 How. Pr. 84, and Whart. Neg., § 384, are cases in which the persons injured were not passengers on the trains from which they received the injury, but simply travellers in the act of crossing or walking upon the railroad track. But as a very different rule of responsibility obtains where an accident occurs during the existence of the relation of passengers and common carriers from that which obtains under the former circumstances, we do not think that these cases have much bearing upon the one under consideration. The case of Bridges v. North London Ry. Co., L. R., 6 Q. B. 377, cited on defendant's brief, would seem greatly to strengthen their position; but as this case was subsequently reversed by the House of Lords (see Bridges v. Directors, etc., of North London Ry. Co., L. R., 7 H. L. 213), it is not an authority.

"Mr. Justice BRETT, one of the judges summoned by the House of Lords to give an opinion in the case, said, among other things: 'What men of ordinary care and skill would or would not do under certain circumstances is matter of experience, and so of fact, which a jury only ought to determine. It seems to me that it will aid the consideration of what is the proposition or rule of law which is to govern the determination of a judge whether there is or is not evidence fit to be left to a jury, to consider what duty with regard to facts is cast upon the judge after the jury has found a verdict. He must undoubtedly determine whether the verdict is against the weight of the evidence. Here again I think that a definite rule of conduct, or in other words, a definite proposition for legal application, which is, I think, a proposition of law, to be applied to the facts in evidence, should be laid down. That proposition cannot be whether the judge agrees in opinion with the jury. If so, the judge has left to the jury evidence which he has already decided to be such as it is not unreasonable to act upon, and yet when it is acted on he overrules it. I do not speak here of the cases in which a judge may, for precaution's sake, leave matter to the jury, reserving for more careful consideration by the court the question whether there was evidence fit to be left to the jury. The proposition or rule of conduct to be applied to the consideration of the verdict seems to me to be identical with that to be applied to the evidence before leaving the case to the jury. It is, again, not whether the judge would have decided in the same way, but whether the verdict is such as reasonable and fair men might not unfairly arrive at, or in other words, whether the decision is such as would be clearly wrong in the judgment of the great majority of ordinarily reasonable and fair men.' The following named cases cited by the defendant, namely, Penn. R. Co. v. Zebe, 33 Penn. St. 318; Gonzales v. New York & Harlem R. Co., 38 N. Y. 440; Chicago, R. I. & P. R. Co. v. Dingman, 1 Bradw. 165; Bancroft v. Boston

Gordon v. Moore.

& Worcester R. Corp., 97 Mass. 275, in so far as the facts were similar to those in the case at bar, are analogous, and seem to support the position taken by the defendant. But as the facts and circumstances in cases of this sort are so well nigh infinite in their variety, and as each case must depend almost entirely upon the facts which appear in connection therewith, authorities, however pertinent, are useful mainly only in so far as they settle general propositions of law, and assist the court in applying these propositions to the particular facts of the case before it. While therefore not assuming to say that the law as applicable to the facts in said cases respectively was not correctly enunciated, still we are not prepared to say that the law is so applicable to the facts in the case at bar as to control in the decision thereof.".

A creditor's acceptance of a smaller sum in satisfaction of a debt, accompanied by the execution of a formal and absolute release under seal, is valid and irrevocable.

A release of one of two sureties releases the other from one-half the debt.

ETITION to vacate judgment. The opinion states the case. The petition was denied below.

PET

Tappan & Horner, for appellant.

Stephenson & Trieber, for appellee.

EAKIN, J. On the twenty-fourth day of May, 1883, Moore recovered, by default, a judgment against Gordon for $2,293.20, being for the balance, with interest, due upon a certain promissory note executed to Moore by Robinson, Childress and Gordon on the twelfth day of January, 1881, and due at twelve months.

On the seventh of April following, Gordon filed this petition in the Circuit Court under section 4692 of Gantt's Digest, setting forth, as amended, that Moore had sued Robinson and Childress upon the same note in the District Court for the northern district of Mississippi at Oxford, and at the December term thereof, in 1882, had recovered a judgment against them for the same balance, which appears then to have been $2,202.90. He alleges, that in

Gordon v. Moore.

March, 1883, this judgment was discharged and satisfied upon the payment by Childress to Moore of the sum of $450, which operated as a discharge of the claim as to petitioner also; that in consideration of said payment, Moore had executed to Childress a release, as follows:

"Know all men by these presents, that I, John P. Moore, of the county and State aforesaid, in consideration of the sum of $450 paid to me by D. C. Childress of Coahoma County, Mississippi, I have this day released said Childress from any and all liability to me upon a certain judgment rendered in my favor against said Childress, by the United States Court for the northern district of Mississippi, at Oxford, in said State, at the December term thereof, 1882, and hereby authorize the clerk of said court to enter satisfaction as to said Childress upon said judgment, in accordance herewith.

"Witness my hand and seal this nineteenth of March, 1883. "JOHN P. MOORE."

This instrument was filed with the clerk of the said District Court, who made the following indorsement upon the margin of the recorded judgment:

"This judgment is satisfied as to D. L. Childress, and is here so entered by authority of plaintiff on file, March 23, 1883.

"G. R. HILL, Clerk."

The petitioner states that Moore well knew all these facts when the judgment by default was obtained, but that they had not come to his own knowledge until after the adjournment of the term. He therefore prayed that the judgment rendered against him in the Phillips Circuit Court be vacated, and that he be allowed a new trial, with other appropriate relief.

Moore, in response, admitted the recovery of the Mississippi. judgment against Robinson and Childress, and the payment to him by Childress of the sum of $450, which should have been entered as a credit upon the balance, but which had been inadvertently omitted. He consents that the judgment in the Phillips court against petitioner may be to that extent modified. For the

Gordon v. Moore.

rest he says that Robinson was the principal in the note, and that Childress and Gordon were only his sureties, and denies that the release executed to Childress was intended, or did operate to discharge his claim against the principal, Robinson, or the other surety, Gordon. He says that petitioner was insolvent, and that he sued the principal with Childress in Mississippi, hoping to make his money there, but soon learned that Childress was insolvent also. The most that could be got out of him was the sum of $450, and that only by an agreement to release him from the judgment. submits that petitioner was not released by the transaction.

He

Upon hearing by the court, the suretyship of Childress an Gordon was shown. Childress testified, in explanation of the release, that he then owned a half interest in the Brown and Childress place in Mississippi, which he desired to mortgage for a loan of money, and was obliged, in order to get a perfect abstract of title, either to pay off the judgment debt of Moore, or to have it released as to himself. He never saw Moore about the matter, but transacted the business through others. A Mr. Carter made the trade with Moore, and a Mr. Brown paid Moore the money, and witness settled with Brown for it afterwards.

The honorable Circuit judge, confessing some doubt, expressed the opinion, that notwithstanding some slight differences, the facts of this case come within the principles announced by this court in the cases of Cavaness v. Ross, 33 Ark. 572, and that of Coblentz, 40 Ark. 180; and upon the authority of those cases he held that the agreement for a release, and the release itself, was nudum pactum, not operating as a release of the whole judgment nor as a release of Gordon.

A judgment was thereupon rendered modifying the former judgment by allowing a credit of $450, the amount paid by Childress. The motion for a new trial was overruled. A bill of excep

tions was properly taken, and Gordon appeals.

The general principle announced in Cavaness v. Ross, is well settled, being this, that the payment of a less sum of money will not be good in satisfaction of a larger sum actually liquidated and clearly due and payable, unless there be in the transaction some other element of consideration of real or supposed benefit to the creditor or detriment to the debtor. The question arose upon a compromise, made pendente lite, by which the plaintiff accepted a less sum and dismissed the suit. Held, no discharge as to the balance.