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Mitchell v. Weiger

OPINION FILED DECEMBER 20, 1977.

JACK J. MITCHELL, PLAINTIFF-APPELLANT,

v.

RALPH WEIGER ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. DANIEL P. COMAN, Judge, presiding.

MR. JUSTICE PUSATERI DELIVERED THE OPINION OF THE COURT:

Plaintiff, Jack J. Mitchell, filed suit against defendants, Ralph Weiger, William B. Johnson, Stanley E.G. Hellman, Illinois Central Industries, Inc., and its subsidiary Abex Corporation, and Signal Stat Corporation. The suit was predicated on three counts for compensatory and punitive damages resulting from the allegedly malicious and wrongful interference of plaintiff's contractual business relationship with Paul Journee, S.A. (Journee), a French corporation. Plaintiff appeals from a judgment of the circuit court of Cook County dismissing his cause of action against defendants pursuant to section 48(f) of the Civil Practice Act. (Ill. Rev. Stat. 1975, ch. 110, par. 48(f).) The issues for review are whether the document entitled "Release" must be construed as a covenant not to sue and whether the release of contractual claims between contracting parties constituted a release of separate tort claims against defendants who were not parties to either the contract or the "Release."

On March 24, 1972, plaintiff entered into a contract with Journee, a manufacturer of accessories for automobiles, bicycles and motorcycles. Under the contract, plaintiff had the exclusive right to sell and promote Journee products within North America. In October 1972, defendants Weiger and Johnson allegedly represented to plaintiff that Illinois Central Industries, Abex Corporation and Signal Stat Corporation had purchased Journee. Plaintiff further alleged those representations were false and that all defendants conspired to interfere with his contractual rights with Journee.

On December 12, 1973, plaintiff and Journee entered into an agreement entitled "Release." This document, drafted by counsel for Journee and reviewed by plaintiff's attorneys, provided in part:

"WHEREAS, the parties hereto are in dispute regarding the termination of the Agreement; and

WHEREAS, the parties hereto desire to settle and terminate any and all disputes and controversies and to release each other from all claims or demands which either of them may now have, or might subsequently have, as a result of any act, omissions to act or transactions relating to such Agreement.

NOW, THEREFORE, in consideration of the premises and the mutual promises and covenants herein set forth, the parties hereto agree as follows:

1. Mitchell * * * does hereby release and forever discharge Journee, * * *, from all claims and liabilities of every kind and nature which now exist or which may in the future come into existence which arise from or relate to the Agreement and the relationship between Journee and Mitchell pursuant thereto or any promises, agreements, acts, omissions to act, transactions, suits or proceedings relating thereto, including, without limiting the generality and scope of the foregoing, all claims, obligations and liabilities under the Agreement, or which in any way relate or pertain to said Agreement or to any of the acts, omissions to act or transactions referred to in the Agreement. * * *

2. * * * Journee * * * [does] hereby release and forever discharge Mitchell * * * from all claims and liabilities of every kind and nature which now exist or which may in the future come into existence which arise from or relate to the Agreement and the relationship between Journee and Mitchell pursuant thereto or any promises, agreements, acts, omissions to act, transactions, suits or proceedings relating thereto.

3. The Agreement and all other agreements, understandings or promises between the parties, except those embodied and contained in this Release are hereby cancelled and terminated.

6. Anything to the contrary herein notwithstanding, nothing herein shall be deemed in any way to be a release by Mitchell of Illinois Central Industries, Abex Corporation, Signal-Stat Corporation or any other direct or indirect subsidiaries of Illinois Central Industries from any right or claim which Mitchell has or may have against them or any of them.

7. In final settlement of all claims, rights and obligations between the parties to this Release as herein before mentioned, Journee hereby agrees to pay Mitchell Thirty Three Thousand Dollars ($33,000) * * *."

• 1 Plaintiff contends that the instrument entitled "Release" must be construed as a covenant not to sue, to give effect to the language in paragraph 6 of the document, which reserves a right to proceed against parties other than Journee. Defendants assert the strict common law rule that a release of one tortfeasor releases all tortfeasors despite a manifested intention to the contrary. That rule enunciated in Rice v. Webster (1857), 18 Ill. 331, and Benjamin v. McConnell (1847), 9 Ill. 536, and relied on by defendants has been discredited. Rice v. Webster and Benjamin v. McConnell were effectively overruled by the case of Parmelee v. Lawrence (1867), 44 Ill. 405, in which the court stated:

"We would further add that the weight of the modern authorities is against these cases, and in favor of the more reasonable rule, that where the release of one of several obligors shows upon its face, and in connection with the surrounding circumstances, that it was the intention of the parties not to release the co-obligors, such intention, as in the case of other written contracts, shall be carried out, and to that end the instrument shall be construed as ...


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