Opinion
NETERER, District Judge.
It is primer law that a court of admiralty is without equitable jurisdiction to set aside a contract, either on the ground of mistake of law or of fact, or on the ground that it was obtained by fraud.
Andrews v. Essex Ins. Co., Fed. Cas. No. 374: Brown v. Lull, Fed. Cas. No. 2018; Suffolk Bank v. Lincoln Bank, Fed. Cas. 13,590; Kynoch v. S.C. Ives, Fed. Cas. No. 7,958; The Eclipse, 135 U.S. 599, 10 Sup.Ct. 873, 34 L.Ed. 269; The Owego (D.C.) 289 F. 263; Simmons Trans. Co. v. Alpha Portland Cement Co. (D.C.) 286 F. 955; United Trans., etc., Co. v. New York & Balt. T. Line, 185 F. 386, 107 C.C.A. 442; The Sappho (D.C.) 89 F. 366; Meyer v. Pacific Mail S.S. Co. (D.C.) 58 F. 923.
It is also the rule in this circuit that a party seeking to be relieved from the effect of a release obtained by fraudulent representation must first offer to return the money received as the consideration for the release. Hill et al. v. N.P. Ry. Co., 113 F. 915, 51 C.C.A. 544; Mahr v. U.P. Ry. Co., 170 F. 699, 96 C.C.A. 19. It is, I think, by creditable authority held that a receipt in full in the nature of a release for injury sustained, but not under seal, will not defeat an action at law in a federal court, where fraud inducing the settlement pursuant to which it was given is charged, and does not require the maker to resort to equity for cancellation. Such v. Bank of State of New York (C.C.) 127 F. 450.
The execution of an agreement not to sue one joint tort-feasor, unless the claim is satisfied, does not operate as a release of the other joint tort-feasor. City of Chicago v. Babcock, 143 Ill. 358, 32 N.E. 371; Robertson v. Trammell, 37 Tex.Civ.App. 53, 83 S.W. 258; Hunt v. N.Y., etc., R.R. Co., 212 Mass. 102, 98 N.E. 787; Betcher v. McChesney, 255 Pa. 394, 100 A. 124.
In the instant case the instrument challenged is not a release. It specifically sets out that it is not intended to affect in any way any claim that the libelant may have against any party other than the Western Stevedore Company. A release is a relinquishment of the claim, and is essentially different from a covenant, which merely agrees not to enforce the claim against the particular party but does not prohibit suit against the other party. Such agreement will not be construed a release. Tuthill v. Babcock, 24 Fed.Cas. 392, No. 14,275; Scriba et al. v. Dean, 21 Fed.Cas. 870, No. 12,559.
The party who holds the covenant must be left to his action upon the covenant. Matthey v. Gally, 4 Cal. 63, 60 Am.Dec. 595; Foster v. Purdy, 5 Metc. (Mass.) 442.
The libelant did not sue the Western Stevedore Company. The respondent vessel, under rule 56, brought it in as an additional party, which it had a right to do. There is no merit in the exceptions of either of the respondents, and each is denied.
Othilia G. C. Beals, of Seattle, Wash., for libelant.
Bogle, Merritt & Bogle, of Seattle, Wash., for claimant and petitioner.
Stephen V. Carey and Donworth, Todd & Higgins, all of Seattle, Wash., for respondent Western Stevedore Co.