Clapp, Jayne and Schettino. The opinion of the court was delivered by Clapp, S.j.a.d.
In Adolph Gottscho, Inc. v. American Marking Corp. , 18 N.J. 467, 470-471 (1955), the Supreme Court expressed its disapprobation of the common law rule that a release of one joint tortfeasor, stated in absolute terms, automatically discharged his co-tortfeasors. The court then went on to make this pronouncement:
"Dean Prosser * * * forcefully suggests the desirable rule to be 'that a plaintiff should never be compelled to surrender his cause of action against any wrongdoer unless he has intentionally done so, or unless he has received such full compensation that he is no longer entitled to maintain it.'" See Prosser, Torts (2 d ed.), 245.
The appellant here invokes the approved rule, which was apparently not followed by the court below.
The matter comes before us upon an appeal by the plaintiff from a summary judgment, dismissing his complaint. Plaintiff is a real estate broker who had been engaged by Norman Levine to sell certain property of Levine's located in Teaneck. He interested defendant in the property; Levine then withdrew it from the market, selling it to defendant after waiting a year. Learning of the sale, plaintiff made a demand upon Levine for commissions. After extensive litigation (involving two trials and one appeal, Breen v. Levine , 32 N.J. Super. 525 (App. Div. 1954)), Levine ultimately paid plaintiff $900 in exchange for a
general release under seal, running in Levine's favor. The release is in the usual form, with this clause added:
"and more particularly this Release is given for the purpose of releasing and discharging any claim held by or accruing to the said John J. Breen , individually, and trading as BANKERS REALTY CO., growing out of the sale of premises formerly owned by Norman Levine, commonly designated as 1032 East Lawn Court, Teaneck, New Jersey, to Harry G. Peck, or for any real estate commissions, charges, claims or demands, growing out of any sales, brokerage, commission claims or otherwise up to the date of these presents." (Italics added)
Plaintiff claims in one count of the complaint that defendant and Levine tortiously conspired to deprive him of the commission he would otherwise have obtained. After scrutinizing the affidavits submitted on the motion for summary judgment, it seems to us that defendant has not established that palpably there was no genuine issue as to whether there was such a conspiracy. In another count plaintiff charges defendant alone with having tortiously interfered with his right to earn the commission. However we need not deal with this count; in the first place, defendant has not established from the affidavits that palpably there was no such interference, and in addition, obviously, the release to Levine would not bar plaintiff's action to recover from the defendant for damages resulting from the latter's sole tort.
We concern ourselves then only with the charge of conspiracy. Some argument is made by plaintiff that since the release was given on the settlement of the above-mentioned litigation, and since the litigation involved solely claims contractual in nature, being a suit for commissions, therefore the release should be construed as inapplicable to a claim, such as the present one, sounding in tort. However, as patently indicated by the italics we have inserted, the terms of the instrument are broad and contain no such qualification.
Such being the effect of the release so far as Levine is concerned, what then is its collateral effect upon defendant,
the alleged co-tortfeasor. That, as indicated in the opening of this opinion, is the principal issue here. Our courts are committed to the view that joint tortfeasors are severally liable for their torts, or at least jointly and severally liable therefor. Malinauskas v. Public Service Interstate Transp. Co. , 6 N.J. 269, 274 (1951); Ristan v. Frantzen , 14 N.J. 455, 460 (1954), affirming 26 N.J. Super. 225, 230 (App. Div. 1953); Newman v. Fowler , 37 N.J.L. 89 (Beasley, C.J., Sup. Ct. 1874); Restatement, Torts § 875; Harper and James, Torts § 10.1 (1956). It might therefore seem, if we were to consider the logic of the matter, that a release to one tortfeasor could hardly be said to discharge his co-tortfeasor from a ...