¶1dissenting:
¶2I respectfully disagree with the conclusion of the majority that the instrument here in question operates as a release and extinguishment of the claim of the plaintiff against both of the defendants.
¶3My reasons are summarized as follows:
¶4First: The opinion violates the fundamental canon of contract construction that the court must give effect to the manifest intent of the parties. The instrument here held by the majority to be a release is in form and substance an unambiguous covenant not to sue, the intent to reserve the right of the plaintiff against the remaining defendant not a party to the contract being clear.
¶5Second: The ruling of the majority rests on artificial reasoning. Its basis is that the covenant not to sue does not operate to extinguish the right, but merely removes the remedy so that when the covenant may be pleaded in bar of a suit against its terms it becomes a release contrary to its express terms. This is 19th century hair splitting. Whether the covenant destroys the right or the remedy is of little consequence. The important thing is that the paying defendant who holds an effective covenant has satisfied his liability and is out of the case. Why belabor the question whether he can plead the covenant as a bar or must sue independently if the payee violates the contract and sues him notwithstanding the payment. What court would refuse to recognize a covenant evidencing payment? Is it possible to con*275ceive that a plaintiff who has been paid would be allowed to recover again contrary to a covenant and that the settling defendant would be relegated to a doubtful contract remedy merely to satisfy ancient formalism? I think not.
¶6Third: It is artificial in the extreme in that it places all the emphasis on legal draftsmanship even to the extent of taking away important substantive rights. Inadvertent insertion by an unsophisticated lawyer of certain magic words will transform a covenant into a release.
¶7Fourth: The majority proceeds on the assumption that a tort action is indivisible. This is contrary to the fundamental and generally recognized principle that the liabilities of several defendants are several in character so that any one of them can be held for the entire consequence of the wrong. The “indivisible” concept is therefore without a basis aside from the historical one.
¶8Fifth: The attempted distinction between the covenant not to sue and the release is itself questionable. It seems to me that the covenant is a device which has evolved because of the reluctance of the court to overthrow altogether the release rule. Would it not be better to forthrightly recognize partial releases as such where the parties express this intention by so declaring and by reserving remaining rights?
¶9Sixth: The consequence of the majority opinion is to render the “covenant not to sue” and the “reservation of right” as impractical settlement methods. They will no longer be used because if they can’t be pleaded they become ineffectual and no sensible defendant will accept one with all of its attendant risks. Thus, although the majority purports to approve the covenant, in reality it repudiates it and adheres to the common law rule.
¶10The numerous cases holding contrary to the majority ruling illustrate more fully the absence of any basis, logical, equitable or historical, in support of the ruling. A study of these decisions establishes that the majority *276decision represents a diminishing minority viewpoint. The cases which hold that there is no release can be classified into three different groups which include:
¶11a. Those which hold that the discharge rule should be abolished.
¶12b. Those which construe a release with a reservation of right as a covenant not to sue; and
¶13c. Those cases which look to the intention of the parties and to whether the plaintiff has received satisfaction.
¶141. The view that the release rule should he repudiated. McKenna v. Austin (Ct. of App., D.C., 1943), 134 F. (2d) 659 is the leading authority which holds that the release rule is ill-founded and should be repudiated. The artificiality of the rule is cogently discussed in the opinion of the late Justice Rutledge as follows:
“In determining the character as well as the effect of such an agreement, we are unwilling to concede so much potency to mere verbalism. The matter does not require the formalism of conveyancing. Whether words of ‘release’ or of ‘covenant’ are used, the effect should be the same. Wide acceptance of the distinction notwithstanding its want of substance, and the decisions that in applying its intention should control, point the way to reexamination of the rule and its foundations.
“The rule’s results are incongruous. More often than otherwise they are unjust and unintended. Wrongdoers who do not make or share in making reparation are discharged, while one willing to right the wrong and no more guilty bears the whole loss. Compromise is stifled, first, by inviting all to wait for the others to settle and, second, because claimants cannot accept less than full indemnity from one when doing that discharges all. Many, now knowing this, accept less only to find later they have walked into a trap. The rule shortchanges the claimant or overcharges the person who settles, as the recurring volume and patter of litigation show. Finally, it is anomalous in legal theory, giving *277tortfeasors an advantage wholly inconsistent with the nature of their liability.”
¶15The historical foundations of the rule are also there examined with respect to the concept that a tort obligation is so indivisible as to prevent separate settlement. Justice Rutledge points out that this is a vestige of an old principle which was applied in the law of property and contracts where indivisibility was actually present. He states that there was never any basis for treating tort liability in this manner — that tort liability has in modern times been regarded as several for the purpose of suit and for the purpose of satisfaction.
¶16Justice Rutledge also shows that the rule has no practical value — that any protection against excess recovery which it might have once provided can be obtained merely by trying the question of full satisfaction in court. Unreleased defendants will be credited with the amount paid by the released defendant and if this appears to fully compensate the plaintiff, he will not recover anything additional.
¶17In pointing out that there is no basis for the presumption that a settlement is a full satisfaction, the Court said:
“ … Ordinarily the claimant will not secure complete indemnity from one or less than all, unless the others are judgment proof. Such a settlement usually would not be advantageous to the settling wrongdoer. The presumption of fact therefore generally would be against full satisfaction and discharge. It would seem conclusive when rights against those not released are reserved explicitly or intention otherwise appears to keep these claims alive. Whether the settlement is made and accepted as obtainable compromise for the settler’s liability is the crucial issue, and ordinarily one of fact. If however the agreement’s terms leave no room for doubt, the decision should be made as a matter of law. … "
¶18In the McKenna case the agreement contained a reser*278vation of right, together with a release of the settling part and also provided that “these presents may be pleaded as a defense to any action or other proceeding which may be brought, instituted or taken by the undersigned.”
¶19The view expressed in the McKenna case that a joint tort feasor is not released by release of his fellow alleged wrongdoer even though the release is a surrender of rights against the settling defendant and even though the document does not contain a provision reserving rights is followed in several recent authoritative decisions. Though there is reservation of right in at least some of these cases, the presence or absence of such a reservation is held unimportant and the courts refuse to participate in the covenant not to sue fiction. Breen v. Peck, 28 N.J. 351, 146 A. (2d) 665; Judson v. People’s Bank and Trust Co., 17 N.J. 67, 110 A. (2d) 24; Gottscho v. American Marking Corp., 18 N.J. 467, 144 A. (2d) 438; Steenhuis v. Holland, 217 Ala. 105, 115 So. 2; Louisville Gas & Electric v. Beaucond, 188 Ky. 725, 224 S.W. 179; Fitzgerald v. Union Stockyards, 89 Neb. 393, 131 N.W. 612. These cases hold that the settlement with the one defendant is not a bar to a proceeding against other defendants but “it is only pro tanto a bar to an action against the wrong doers.” Ellis v. Esson, 50 Wis. 138, 6 N.W. 518.
¶20In the Judsoncase, supra, the New Jersey Court held that a dismissal against one defendant with a reservation of right to continue against the remaining defendants did not result in release of the others — that this was neither a release nor a covenant. The terms of the dismissal were examined with a view to ascertaining the parties’ intent and the conclusion was reached that this dismissal did not constitute a satisfaction. Speaking through Justice Brennan the Court noted that the release rule is “rooted in the sound and just principle that there may be but one satisfaction for a tortious wrong, …
¶21In the Breencase the New Jersey Court went even *279further in that there the document was an outright release but the court refused to construe it as a discharge of the remaining tort feasors since it failed to express this intent. This opinion is valuable because it shows that the viewpoint adopted by the majority in this case was repudiated by the English courts in 1892. Duck v. Mayeu (1892), 2 Q.B. 511 (C.A.), recognizing a reservation of right as a covenant. The case also contains a summary of authors’ viewpoints and this part of the opinion is quoted as follows:
“… In the United States the English release rule has been under vigorous attack for many years. In 1923 Dean Wigmore referred to it as a surviving relic which was based on false logic and, although accepted by many courts, was fortunately being repudiated in some states by judicial decisions and in others by legislative action. See Wigmore, ‘Release to One Joint-Tortfeasor,’ 17 Ill. L. Rev. 563 (1923). In his 1930 edition of Cooley on Torts, Professor Throckmorton referred to the growing tendency on the part of American courts to replace it with the ‘sound and reasonable’ rule that unless the parties so intended a release should not absolve strangers thereto. See Throckmorton’s Cooley on Torts, §80 (1930). In 1941 Dean Prosser referred to the rule as ‘at best an antiquated survival of an arbitrary common law procedural concept’ and suggested 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, 1109, 1110 (1941); Prosser, Torts, 244-245 (2d ed. 1955). Cf. Prosser, ‘Joint Torts and Several Liability,’ 25 Calif. L. Rev. 413, 424 (1937). In 1951 Professor Corbin’s work on contracts included devastating comments on the English release rule in the field of torts as well as contracts (4 Corbin, Contracts, §§931-935 (1951)), and in 1956 Professors Harper and James joined in advocating the modern view that the legal effect of a release on *280strangers thereto should justly be determined by the intent of the parties to the release and the extent of the compensation paid to the releasor rather than upon outmoded concepts of ancient times. See 1 Harper & James, Torts, 711-712 (1956). See also Notes, 22 Minn. L. Rev. 692 (1938; 18 U. Cin. L. Rev. 378 (1949); 33 Notre Dame Law. 291 (1958).”
¶222. The view which construes and applies as a covenant an instrument which contains a reservation of right.
¶23The English viewpoint that the instrument of release will be construed as a covenant not to sue where it contains a reservation of right against the remaining defendant or defendants has been followed with substantial consistency in the United States since the turn of the century. Thus in Carey v. Bilby (8 cir. 1904), 129 F. 203, the Court per Thayer, J., said:
“ … Other courts hold, however, that such an instrument should be given effect according to the obvious intent of the person executing it, and that it should not be treated as a technical release operating to destroy his cause of action as against all of the joint tort feasors, but rather as a covenant not to sue the party in whose favor the instrument runs. Gilbert v. Finch, 173 N.Y. 455, 66 N.E. 133, 61 L.R.A. 807; Matthews v. Chicopee Mfg. Co., 3 Rob. 711, 712; Ellis v. Esson, 50 Wis. 1386 N.W. 518; 36 Am. Rep. 830; Hood v. Hayward, 124 N.Y. 1, 16, 26 N.E. 331; Sloan v. Herrick, 49 Vt. 327; McCrillis v. Hawes, 38 Me. 566; Miller v. Beck, 108 Iowa 575, 79 N.W. 344, 345; Price v. Barker, 4 El. & Bl. 760, 776, 777.
“We are of opinion that the doctrine enunciated in the cases last cited is supported by the greater weight of authority, and is founded upon the better reasons. It has the merit of giving effect to the intention of the party who executes such an instrument, which should always be done when the intention is manifest and it can be given effect without violating any rule of law, morals, or public policy. Besides, we are not aware of any sufficient reason which should preclude a person who has *281sustained an injury through the wrongful act of several persons from agreeing with one of the wrongdoers, who desires to avoid litigation, to accept such sum by way of partial compensation for the injury as he may be willing to pay, and to discharge him from further liability without releasing his cause of action as against the other wrongdoers. The law favors compromises generally, and it is not perceived that an arrangement of the kind last mentioned should be regarded with disfavor. The release which was read in evidence in the case at bar plainly shows that the sum paid by Hysham was not accepted by the plaintiffs as full compensation for the injury which they had sustained; that it was not in fact full compensation for the injury; and that they had no intention of releasing their cause of action as against Carey. Why, then, should it be given an effect contrary to the intent of the one who executed it? We perceive no adequate reason for giving it such effect, and accordingly agree with the lower court that it did not release Carey.”
¶24An even earlier American case interpreting a release with a reservation of right as a covenant not to sue is Gilbert v. Finch, (1903), 173 N.Y. 455, 66 N.E. 133, where it is pointed out that such a release had been considered a covenant by an American court of equity as early as 1822 in Kirby v. Taylor (opinion by Chancellor Kent), 6 Johns. Ch. R. (N.Y.) 251. In the Gilbert case it was said:
… It thus appears that the decisions of this court are in accord with the English rule, and in harmony with our statute in reference to joint debtors. Code Civ. Proc. §§1942, 1944. They give force and effect to the intention of the parties to the instrument, which, we think, is more just, and the wiser and safer rule. Where the release contains no reservation, it operates to discharge all the joint tort feasors; but, where the instrument expressly reserves the right to pursue the others, it is not technically a release, but a covenant not to sue, and they are *282not discharged. It follows that the release, so called, did not operate to discharge the defendants.”
¶25The cases adhering to this rule that the reservation of right shows the intention of the parties not to release the non-settling defendant, and that it should be considered a covenant not to sue when it has such a reservation are legion. They are collected in the notes 50 A.L.R. 1099, 66 A.L.R. 214, 104 A.L.R. 862, 124 A.L.R. 1316. See also Natrona Power Co. v. Clark (1924), 31 Wyo. 284, 225 Pac. 586, a fully reasoned opinion, and the numerous authorities there cited. And see Black v. Martin (1930), 88 Mont. 256, 292 Pac. 577, construing an instrument which was an outright release but which contained a reservation of right and holding: “ … Such an instrument is to be considered according to its intention. …”
¶26An early Massachusetts decision, Matheson v. O’Kane (1912), 211 Mass. 91, 97 N.E. 638, 39 L.R.A. (N.S.) 475, is exactly like the instant case on its facts, in that the released defendants were authorized to plead the instrument in bar to any action filed by the plaintiffs. The Court held, however, that this did not constitute a release of other defendants and said:
“ …' * But where it is evident that the consideration paid to the plaintiff was not intended to be full compensation for his injuries, and the agreement signed by him although in form a release was clearly intended to preserve the liability of those who were not parties to it, many of the courts have sought to give effect to a covenant not to sue and not a technical release. As stated by A. L. Smith, L.J., in Duck v. Mayeu [1892] 2 Q.B. 511: ‘A rule of construction for such a document was laid down by the Court of Queen’s Bench in Price v. Barker, 4 El. & Bl. 760, at page 777, where it was held that, in determining whether the document be a release or a covenant not to sue, the intention of the parties was to be carried out, and, if it were clear that the right against a joint debtor was intended to be preserved, inasmuch as such right would not be preserved if the document were *283held to be a release, the proper construction where this was sought to be done, was that it was a covenant not to sue, and not a release.’ And, see, Edens v. Fletcher, 79 Kan. 139, 98 Pac. 784, 19 L.R.A. (N.S.) 618; McAllester v. Sprague, 34 Me. 296; Gilbert v. Finch, 173 N.Y. 455; 66 N.E. 133, 61 L.R.A. 807, 93 Am. St. Rep. 623; Bloss v. Plymale, 3 W. Va. 393, 100 Am. Dec. 753; Ellis v. Esson, 50 Wis. 138, 6 N.W. 518; 36 Am. Rep. 830, Carey v. Bilby, 129 Fed. 203, 63 C.C.A. 361. The lack of harmony in the cases is partly due also to distinctions sometimes drawn between the effect of a release under seal and one not under seal; and between settlements made where the damages are certain or subject to computation, and where they are uncertain and a mere matter of opinion. But we are not concerned with this controversy in the present case, as the writings given by this plaintiff were admittedly nothing more than agreements not to sue.
“The discontinuance of the action against the other defendants in itself does not affect the liability of the defendant O’Kane. The plaintiff at her election might have sued one or. two or all of the tort-feasors. The discontinuance simply placed Horgan and Townsend in the same position they occupied before the litigation began. Sloan v. Herrick, 49 Vt. 328; Bloss v. Plymale, 3 W. Va. 393, 100 Am. Dec. 753, 58 L.R.A. 303, and cases collected in note. …”
¶274 Restatement, Torts, §885 (1939) is modeled after the last cited cases. It adopts the less extreme rule which provides that a release will be construed as a covenant not to sue where the right- to proceed against the remaining tort feasors is expressly reserved. It also emphasizes the importance of the expressed intent of the contracting parties. It provides:
“(1) A valid release of one tort-feasor from liability for a harm, given by the injured person, discharges all others liable for the same harm, unless the parties to the release agree that the release shall not discharge the *284others, and if the release is embodied in a document, unless such agreement appears in the document.
“ (2) A covenant not to sue one tort-feasor for a harm does not discharge any other liable for the harm.”
¶28The comment emphasizes the desirability of giving effect to the intention of the parties:
“ … Furthermore, the tendency is to give effect to the intent of the parties to a transaction rather than to regard as controlling the formalities with which the transaction is executed. The law. has now developed so that it is possible to carry out the intent of the parties as expressed in the document by which the releáse is given.
“If however, there is language in the release which manifests that the releasor intended to preserve his rights against the others, effect is given to this manifestation. …”
¶293. The viewpoint that the issue of intent of the parties and sufficiency of the satisfaction should govern.
¶30The opinion of the Minnesota Court in Gronquist v. Olson, 242 Minn. 119, 64 N.W. (2d) 159 is somewhat similar to the expressions in the McKenna case in that it abandons the attempted distinction between the covenant not to sue and the release and thus eliminates what everyone recognizes as a legal fiction. At the same time it does not have the effect of undermining the release itself, and this is a criticism which can be leveled against the McKenna case. The Gronquistrule requires a manifestation in the document of intent not to release remaining defendants. It places emphasis on the intention of the parties as shown by the release and would not allow a party to impeach in court an unequivocal release. In this fully reasoned opinion by Mr. Justice Nelson the standards of intent and full compensation are explained as follows:
“ … We believe that the factors determinative of whether a release of one of several joint tortfeasors will *285operate to release the remaining wrongdoers should be and are: (1) The intention of the parties to the release instrument, and (2) whether or not the injured party has in fact received full compensation for his injury. If we apply that rule, then, where one joint tortfeasor is released, regardless of what form that release may take, as long as it does not constitute an accord and satisfaction or an unqualified or absolute release, and there is no manifestation of any intention to the contrary in the agreement, the injured party should not be denied his right to pursue the remaining wrongdoers until he has received full satisfaction. See City of Covington v. Westbay, 156 Ky. 839, 162 S.W. 91. Where the intention of the parties is clear from the contents of the instrument, it ought not to be necessary to resort to legal fiction in order to reach just and proper results. See, 22 Minn. L. Rev. 692. Since each tortfeasor is liable for the entire damage, if one sees fit to secure acquittance for himself by compromise with the injured person, he does no wrong to the other tortfeasor jointly liable with him. How can the appellant complain if the other party jointly liable has paid part of the damages? He has not been prejudiced by the settlement but on the contrary has been benefitted, for he is entitled to have the amount of the judgment reduced by the amount paid by his cotortfeasor. Furthermore, it must be noted that in most jurisdictions there is no right of contribution between joint wrongdoers, and although Minnesota does allow contribution to a joint tortfeasor whose liability is based, only on simple negligence, there is no right of contribution in this state between tortfeasors such as in the instant case where the tort was proved intentional and the tortfeasors were held liable for a known and meditated wrong. See Warren v. Westrup, 44 Minn. 237, 46 N.W. 347.
“We are not aware of any compelling reason to justify precluding a person who has sustained an injury through the wrongful act of several persons from agreeing with *286one of the wrongdoers who desires to avoid litigation to accept a sum by way of partial compensation and to discharge that wrongdoer from further liability without releasing his right of action as against the other wrongdoers for the remainder of the judgment. Compromises are favored generally in the law, and it would be inconsistent to regard such arrangements with disfavor …”
¶31The above analysis seems highly sensible and realistic and also satisfies the criticisms of the release .rule. It recognizes the rule only in a case where the release fails to set forth an intention to reserve rights against other defendants. Use of the standards would serve to prevent multiple or unjust recovery and at the same time would prevent loss of a part of the plaintiff’s right by reason of inadvertent drafting. See the excellent comment on this case in 1 Harper and James, Torts, 1956, pp. 711-714.
¶32Although the instant case could be solved merely by adoption of the Restatement or English viewpoint which construes as a covenant a release with a reservation of right, I prefer the forthright approach of the Gronquistcase.
¶334. The rule that a covenant which can be pleaded in bar operates as a complete release.
¶34I have commented sufficiently (perhaps too much) on the unjust and illogical aspects of the majority opinion. It remains to point out that it has little support in the cases and undoubtedly will have less support as time goes on. Tennessee, Washington and Florida seem to be the only jurisdictions which adhere to this. See Rust v. Schlaitzer (1933), 175 Wash. 331, 27 P. (2d) 571, 20 A.L.R. (2d) 1044; Clark v. Union Electric Light & Power Co. (1919), 279 Mo. 69, 213 S.W. 851; Roper v. Florida Public Utilities Co., 131 Fla. 709, 179 So. 904; Byrd v. Crowder, 166 Term. 215, 60 S.W. (2d) 171.
¶35In the Clark and Ropercases the instrument was in the form of a release and not in the language of a covenant not to sue. A further distinguishing feature in the Clark case is a finding by the Court that the plaintiff *287there acknowledged full satisfaction. So also in the Ropercase there were strong indications that the plaintiff had been fully compensated. The Rustcase and the other Washington decision which is relied on by the majority appear to hold like the majority that a provision which allows the instrument to be pleaded in bar of a suit by the plaintiff against the settling defendant transforms a covenant into a release and extinguishment.
¶36With the exception of Byrd v. Crowder, most of the cases relied on by the majority are not as extreme as the majority in presuming a document to be a release. All of them recognize the importance of the question whether the plaintiff has been satisfied. Byrd v. Crowder and the majority opinion stand alone in strictly construing covenants not to sue as releases contrary to the expressed intention of the contracting parties.
¶37I must concede that the relatively recent pronouncement of this Court in Morris v. Diers, 134 Colo. 39, 298 P. (2d) 957 supports the opinion of the majority. That decision is subject to the criticisms which the majority opinion here is subject to and it should be, in my opinion, repudiated.
¶38I would reverse the judgment and remand the cause for further proceedings.
¶39Mr. Justice Day and Mr. Justice Frantz concur in this dissent.