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WENGER v. ZIEGLER (01/04/67)

decided: January 4, 1967.

WENGER
v.
ZIEGLER, APPELLANT



Appeal from order of Superior Court, Oct. T., 1966, No. 149, affirming order of Court of Common Pleas of Lebanon County, March T., 1965, No. 97, in case of John K. Wenger v. Victor K. Ziegler.

COUNSEL

Philip S. Davis, with him Richard W. Davis, and Davis & Katz, for appellant.

L. Ehrman Meyer, with him Meyer, Brubaker & Whitman, for appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Cohen. Mr. Chief Justice Bell concurs in the result.

Author: Cohen

[ 424 Pa. Page 270]

On March 12, 1965, appellee confessed judgment against appellant on a certain installment sales contract dated February 1, 1960. Ten days thereafter appellant filed a petition to open judgment, averring, inter alia, a previous action in trespass arising out of the same facts brought by appellant against appellee and the discontinuance of that action together with the delivery of a release from appellant to appellee in the amount of ten thousand dollars ($10,000). The Superior Court affirmed the order of the court below refusing the petition to open judgment. We granted allocatur.

This matter grows out of a contract whereby appellant agreed to purchase from appellee 11 dairy cows for $4,816 to be paid in agreed installments. When the unpaid balance had been reduced to $1,543, appellant learned that his dairy herd had been infected with Brucellosis as a result of contact with a Brucellosis reactor cow purchased from appellee. The spread of the disease forced appellant to dispose of most of his dairy herd as beef cattle at a substantial loss. Appellant instituted the aforementioned suit in trespass against appellee.

Appellee argues that having received and retained a monetary consideration in settlement of the trespass action and having executed a release discharging appellee "from all claims, demands, damages, actions, causes of action, or suits at law or in equity, of whatsoever kind or nature" for all tortious acts, appellant is precluded from pleading as a defense to a judgment by confession, the same tortious acts. We do not agree.

The right to assert a defense survives the releasor's execution of a release unless that instrument expressly purports to preclude the assertion of defenses. This

[ 424 Pa. Page 271]

    conclusion is inescapable when one considers the mischief that would occur if every time a tortfeasor were released from liability he could turn matters around and sue the releasor for personal injury or property damage which was caused through no fault of the releasor, who would be precluded from asserting any defenses he might have.

Furthermore, under the rule mandating strict construction of an instrument whereby a party surrenders rights to which he might otherwise be entitled, we reach a similar result. In General Mills, Inc. v. Snavely, 203 Pa. Superior Ct. 162, 199 A.2d 540 (1964), the Superior Court held that a release ordinarily covers such matters as may be said fairly to have been within the contemplation of the parties when it was given and that the language of a release will be given its ...


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