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WEEMS et al. v. FREEMAN et al.
HALL, Justice.
Injunction. DeKalb Superior Court. Before Judge Henley.
Plaintiff-landowner sued an adjacent. owner of industrial property, a contractor, and certain engineers, for injunctive relief and damages which plaintiff claimed to have sustained when the adjacent property was developed, "increasing the surface water runoff and siltation into the Conley Creek area above plaintiff's property [and causing] said creek to overflow its banks onto plaintiff's property, thus creating a trespass and nuisance." During the trial, the landowner and contractor defendants reached an oral agreement with the plaintiff, which they termed a covenant not to sue, whereby they each paid plaintiff $15,000. They agreed that the suit would continue against all the named defendants as though no settlement had taken place, and that if a verdict were rendered against all defendants the engineers, the only remaining actual defendants, were to pay only one-third of the damages. The engineers made numerous objections and motions regarding the settlement and further proceedings. All were overruled and the jury rendered a verdict of $50,000 damages and $10,000 attorney fees in favor of the plaintiff against all defendants. The engineers bring this appeal.
The basic enumeration of error is that the trial court erred in failing to grant appellants' motion for directed verdict on the ground that the settlement agreement released all defendants from liability. We agree and reverse the judgment of the trial court.
This type settlement is in reality an agreement not to enforce the judgment against any defendant who is a party to the agreement.
Code 39-604 provides: "An agreement for a valuable consideration never to enforce a judgment or execution shall release the judgment or execution." in Powell v. Davis, 60 Ga. 70, this court held that a release of judgment against two defendants in favor of one of them, without the knowledge or consent of the other, acted as an absolute release of both, even though the plaintiff stipulated that said release was not to affect collection from the one not a party thereto. The controlling factor was that a judgment had been rendered against both defendants, creating a joint liability and the agreement between the plaintiff and one defendant was inadmissible to discredit the veracity of the record. it was also relevant that the other defendant did not consent to the discharge. That case is similar to the case at bar in that in both a judgment was actually rendered against all defendants. The stipulation made prior to delivery of the verdict in the present case was unknown to the jury and can only be interpreted as an agreement releasing the defendants involved from judgment when rendered. Where there is a covenant not to sue, it is important that the parties to the covenant not be sued in fact or in fiction after the agreement has been executed. Otherwise, the substance of the agreement will be construed to be a release from judgment and will act to release all joint tortfeasors.
The trial court erred in overruling appellants' motion for a directed verdict. All other enumerations of error are moot.
Gambell, Russell, Killorin, Wade & Forbes, David A. Handley, Jack O. Morse, Robert B. Wedge, for appellants.
Friday May 22 11:07 EDT

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