Tbe direction to tbe jury to enter a verdict that tbe settlement with "Williamson was a bar to this action against Sherrod was a finding by tbe court as a matter of law, that tbe receipt given by tbe plaintiff to Williamson was a release of tbe cause of action as against tbe defendant. And this presents tbe only point in this appeal.
It is true that tbe former action was brought against Williamson and tbe defendant Sherrod (no complaint being filed against tbe latter) in which there was a first cause of action set up -against Williamson for tbe injury to tbe plaintiff and bis horse and buggy, and a second cause of action against Williamson only for tbe. assault. Tbe plaintiff in this action put on testimony that having ascertained that Williamson was merely a passenger and nowise liable for tbe injury caused by tbe collision, be took a nonsuit as to both causes of action and compromised with Williamson as to the' second cause of action as to tbe assault for which Williamson only was liable.
However, that may be, tbe plaintiff is not estopped by bis pleadings in tbe first action, for there was no judgment, but merely a voluntary nonsuit.
Tbe correctness of tbe judge’s ruling that tbe receipt given to Williamson is a bar to this action against Sherrod depends upon tbe construction given to that settlement.
It is true that where there are joint tort feasors, there can be but one recovery and a settlement with one is a release of tbe other. Sircey v. Rees, 155 N. C., 297; 24 A. & E., 306. There is an exception when there is not a release, but merely a “covenant not to sue” is given to one tort feasor, in which latter case tbe amount paid is simply a credit to be entered on tbe total recovery. Mason v. Stephens, 168 N. C., 370.
But this action is against tbe owner of tbe automobile alone, and tbe motor company of which he is president, and tbe paper-writing is a release to Williamson of tbe second cause of" action in tbe former suit only, which was against Williamson alone, upon an assault and battery committed upon tbe plaintiff after tbe collision and tbe injury done to bis horse and buggy, in which assault tbe defendant Sherrod was in no wise concerned. Tbe plaintiff admits in tbe receipt that Williamson was in nowise liable for tbe injury to tbe horse and buggy from tbe collision. *349But if be bad been jointly liable therefor, tbe receipt embraced only tbe assault as to wbicb Williamson alone was liable, for tbe receipt given Williamson recites in tbe last clause: “Tbis receipt is not intended to cover any claim wbicb tbe undersigned might bave against tbe owner of tbe automobile wbicb was in said collision for injuries to borse and wagon, tbe plaintiff being at tbis date of opinion tbe said Williamson or Moore are not responsible for said collision.”
Tbe receipt on its face states that tbe settlement was with Williamson and Moore only, and that tbe plaintiff did not deem that Williamson or Moore were in any wise responsible for tbe collision. It was error to instruct tbe jury that such receipt was a settlement for tbe damages sustained by the collision contrary to such statement in tbe receipt. There was evidence by Mr. Glidewell: “Tbe settlement was with tbe distinct understanding that nothing was settled except tbe assault.” Also that be told tbe defendant Sherrod that be was “going to settle with Mr. Williamson for tbe assault and bold him (Sherrod) liable for thp collision.” Tbe instruction of tbe court to find tbe third and fourth issues to tbe contrary was an instruction to tbe jury to disregard tbis evidence as erroneous.
In tbe strongest light for tbe defendant, tbe issues 3 and 4 should bave been submitted to tbe jury. It may be we might grant a partial new trial upon those two issues, but tbe defendant in tbis court, appearing for himself, states in bis brief that it is agreed that if tbis court held there was error in tbe instruction of tbe judge that tbe legal effect of tbe receipt was to bar tbis action, that judgment might be entered here in favor of tbe plaintiff for $150, as found by tbe jury in answer to tbe fifth issue, as tbe damages sustained by reason of tbe collision.
Judgment will, therefore, be entered accordingly in tbis court.
Eeversed.