The opinion
George Rose Smith, Justice, dissenting. I think that Murray’s motion for a summary judgment should have been granted, on the basis of the letters that were exchanged between the lawyers representing the parties.
On April 8, Mrs. Parris’s attorney offered to settle the case if “Arthur Murray and Sam Osborne will refund a total of $4,150 to Mrs. Parris,” with $2,000 to be paid in cash and the rest in monthly installments of $100. Murray promptly rejected that suggestion of joint liability by making this counteroffer: “Mr. Sam Osborne has agreed to make the settlement of $4,150.00 to Mrs. Parris. We are advancing Mr. Osborne the sum of $2,000.00 which he has on deposit in escrow with us in order to enable him to complete the settlement terms with you. Accordingly, any note or agreement providing-for the payment of the balance of $2,150.00 to Mrs. Par-ris will be executed by Mr. Osborne alone and we will not be a party to such an agreement. Please confirm your understanding of the above as soon as possible so that I may forward you the check for $2,000.00.”
By return mail Mrs. Parris’s lawyer hastened to say: “I understand that Mr. Sam Osborne ... is the one who has agreed to make a settlement of this matter for $4,150.00.” (My italics throughout.) Upon that assurance Murray’s counsel forwarded a check for $2,000.
Mrs. Parris now contends that the exchange of letters may be construed to mean that the parties did'not intend for Osborne alone to be responsible for paying the remaining $2,150 that was involved in the settlement. In other words, the argument is made that Murray would still have forwarded the $2,000 even if Mrs. Par-ris’s final letter had said: “We will accept your offer of a check for $2,000, but please be warned that we are not releasing you from liability and will expect you to pay the remaining $2,150 if Osborne fails to do so.” In my opinion the exchange of correspondence is not fairly susceptible of the interpretation that the majority are placing upon it. I would reverse and dismiss.
Brown, J., joins in this dissent.