The Opinion of the Court was delivered by
Purple, J.
The appellees sued the appellant by petition and summons, upon a promissory note, as follows:
“On demand, for value received, we promise to pay Murray McConnell and Holloway Vansyckel, or order, two hundred and four 14o0 dollars, without defalcation, discount or set-off. December 4, 1839.
C. Benjamin & Co.”
Benjamin only was served with process, although the writ issued against both him and Delahay. Appellant pleaded,
1st. Payment;
2nd. That appellant and Delahay made the note as partners; that on the 27th day of March, A. D. 1844, appellees made an agreement in writing with Delahay, and filed the same of record in the Scott Circuit Court, in a Chancery suit then pending in that Court, between McConnell, Vansyckel and James A. McBougall, complainants, v. Mark W. Delahay, defendant, by which agreement Delahay was discharged from the payment of the note, and the same, as against him, was released and canceled. That by this agreement, it was expressly provided, that the same should not operate to release Benjamin, nor be considered as canceled as to him. The plea further shows, that this agreement was made upon a compromise and settlement of said Chancery suit;
3rd. That on the 4th day of December, 1839, the firm of C. Benjamin & Co. executed a paper of which the following is -a copy: “Charles Benjamin and Mark W. Delahay, trading and doing business under the name, firm and style of C. Benjamin & Co., to McConnell & Yansyckel, successors of McConnell, Ormsbee & Co., Dr.
1839, Jan’y 1. To balance as per acc’t rendered, $287-37.
Dec. 4. 11 months interest on same, 25-00.
252-37.
Dec, 4. By their acc’t rendered,$43-22.
Interest from Jan’y 1, 4-75. 47-97Ó
To balance, 204-40.
For and in consideration of the above account, and for value received, we promise to pay to Murray McConnell & Holloway W. Yansyckel, or order, two hundred and four irdollars, without defalcation, discount or set-off.
December 4, 1839.
C. Benjamín & Co.”
and the said defendant having examined the note set forth in plaintiffs’ petition and summons, says, that the said note is a mutilated part of the note and account above set forth; therefore defendant avers, that the note set forth in plaintiffs’ petition and summons is not his note, and that he did not make and execute the same in manner and form as stated in the plaintiffs’ petition. The truth of this plea was sworn to by Benjamin.
4th. J\Pil debet3 under which the appellant gave notice, that he would offer in evidence upon the trial, the proceedings and record in the Chancery suit, and the facts relative to the release and discharge of Belahay from the payment of the note sued on, as stated in and referred to in appellant’s second plea.
To the first and fourth pleas the appellees replied generally, and issues on each were joined to the country. Demurrers were filed to the second and third pleas, which were sustained by the Court.
The Court, on the trial, permitted the record of the Chancery suit before mentioned, containing the contract releasing Delahay from the payment of the note sued on in this case, to be read in evidence. After the evidence was closed, the appellant’s counsel requested the Court to instruct the jury, that “if the jury believed from the evidence, that the facts stated in the notice under the general issue are proven, they must find for the defendant Benjamin;” which instruction the Court refused, and the defendant excepted. The jury returned a verdict for appellees—appellant moved for a new trial, which motion was overruled, and appellant excepted.
The agreement releasing Delahay from the payment of the note, which the second plea alleges is the note sued on in this case, constitutes a portion of the decree entered in the said Chancery suit, which decree is recited at length in said plea, and is as follows:
“This day came all the parties to this suit in open Court, and by consent of the parties, it was ordered as follows, (to wit:) The said complainants hereby release all claims to all and each of the demands and notes, (that is, the balance due thereon,) mentioned and set forth in the bill filed in this cause, and all of which notes are hereby released and canceled as against him, the said Delahay. Provided, that this shall not operate so as to release C. Benjamin from a note given by him under the firm of C. Benjamin & Co., on the 4th day of December, 1839, which last mentioned note is not cancelled, or is the said Delahay bound therefor. The said Holloway W. Yansyckel hereby agrees to pay all the costs made by the complainants, or either of them in this case, and all the costs made by them, or either of them, in the case taken to the Supreme Court. It is further ordered and decreed by consent as aforesaid, that the said Delahay hereby releases and conveys to the said McConnell and Yansyckel, all his rights and claims to all the property and real estate mentioned in the hill filed in this case, and the sale of the Master in Chancery of the same, is hereby confirmed; and to all the rents, and profits, and proceeds of all of said property, at all and any time growing out of the same, to this date, he, the said Delahay, surrenders his claim, and it is ordered by consent, that the costs made in the Supreme Court by taking this case there, by the said Delahay, is to be entered upon the fee book of this Court in this case, and the said Delahay agrees to pay the costs made by him, both in the Supreme Court and in this Court, in this cause, and that fee bills including all said costs against each of said persons, issue from this Court, for the costs made by each of them respectively. 27th March, 1844.
M, McConnell,
H. W. Vansyckel, Mark W. Belahay.35
The errors relied on by appellant, question the correctness of the judgment of the Court in sustaining the demurrer to the second and third pleas, and in refusing the instruction asked by the counsel for appellant. There is no direct assignment that the Court erred in sustaining the demurrer to the second plea, but the questions involved by the demurrer to said second plea, and the refusal to give the instruction asked are the same, whether the release set up presents a good bar to the appellees3 cause of action in this suit. It is manifest from an inspection of this plea, and also from an examination of the decree set out in the Chancery suit, and read in evidence upon the trial, that the release by McConnell and Vansyckel to Belahay, was for a valuable consideration. It was made upon the settlement and compromise of a contested suit, pending between the parties.
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The Opinion of the Court was delivered by
Purple, J.
The appellees sued the appellant by petition and summons, upon a promissory note, as follows:
“On demand, for value received, we promise to pay Murray McConnell and Holloway Vansyckel, or order, two hundred and four 14o0 dollars, without defalcation, discount or set-off. December 4, 1839.
C. Benjamin & Co.”
Benjamin only was served with process, although the writ issued against both him and Delahay. Appellant pleaded,
1st. Payment;
2nd. That appellant and Delahay made the note as partners; that on the 27th day of March, A. D. 1844, appellees made an agreement in writing with Delahay, and filed the same of record in the Scott Circuit Court, in a Chancery suit then pending in that Court, between McConnell, Vansyckel and James A. McBougall, complainants, v. Mark W. Delahay, defendant, by which agreement Delahay was discharged from the payment of the note, and the same, as against him, was released and canceled. That by this agreement, it was expressly provided, that the same should not operate to release Benjamin, nor be considered as canceled as to him. The plea further shows, that this agreement was made upon a compromise and settlement of said Chancery suit;
3rd. That on the 4th day of December, 1839, the firm of C. Benjamin & Co. executed a paper of which the following is -a copy: “Charles Benjamin and Mark W. Delahay, trading and doing business under the name, firm and style of C. Benjamin & Co., to McConnell & Yansyckel, successors of McConnell, Ormsbee & Co., Dr.
1839, Jan’y 1. To balance as per acc’t rendered, $287-37.
Dec. 4. 11 months interest on same, 25-00.
252-37.
Dec, 4. By their acc’t rendered,$43-22.
Interest from Jan’y 1, 4-75. 47-97Ó
To balance, 204-40.
For and in consideration of the above account, and for value received, we promise to pay to Murray McConnell & Holloway W. Yansyckel, or order, two hundred and four irdollars, without defalcation, discount or set-off.
December 4, 1839.
C. Benjamín & Co.”
and the said defendant having examined the note set forth in plaintiffs’ petition and summons, says, that the said note is a mutilated part of the note and account above set forth; therefore defendant avers, that the note set forth in plaintiffs’ petition and summons is not his note, and that he did not make and execute the same in manner and form as stated in the plaintiffs’ petition. The truth of this plea was sworn to by Benjamin.
4th. J\Pil debet3 under which the appellant gave notice, that he would offer in evidence upon the trial, the proceedings and record in the Chancery suit, and the facts relative to the release and discharge of Belahay from the payment of the note sued on, as stated in and referred to in appellant’s second plea.
To the first and fourth pleas the appellees replied generally, and issues on each were joined to the country. Demurrers were filed to the second and third pleas, which were sustained by the Court.
The Court, on the trial, permitted the record of the Chancery suit before mentioned, containing the contract releasing Delahay from the payment of the note sued on in this case, to be read in evidence. After the evidence was closed, the appellant’s counsel requested the Court to instruct the jury, that “if the jury believed from the evidence, that the facts stated in the notice under the general issue are proven, they must find for the defendant Benjamin;” which instruction the Court refused, and the defendant excepted. The jury returned a verdict for appellees—appellant moved for a new trial, which motion was overruled, and appellant excepted.
The agreement releasing Delahay from the payment of the note, which the second plea alleges is the note sued on in this case, constitutes a portion of the decree entered in the said Chancery suit, which decree is recited at length in said plea, and is as follows:
“This day came all the parties to this suit in open Court, and by consent of the parties, it was ordered as follows, (to wit:) The said complainants hereby release all claims to all and each of the demands and notes, (that is, the balance due thereon,) mentioned and set forth in the bill filed in this cause, and all of which notes are hereby released and canceled as against him, the said Delahay. Provided, that this shall not operate so as to release C. Benjamin from a note given by him under the firm of C. Benjamin & Co., on the 4th day of December, 1839, which last mentioned note is not cancelled, or is the said Delahay bound therefor. The said Holloway W. Yansyckel hereby agrees to pay all the costs made by the complainants, or either of them in this case, and all the costs made by them, or either of them, in the case taken to the Supreme Court. It is further ordered and decreed by consent as aforesaid, that the said Delahay hereby releases and conveys to the said McConnell and Yansyckel, all his rights and claims to all the property and real estate mentioned in the hill filed in this case, and the sale of the Master in Chancery of the same, is hereby confirmed; and to all the rents, and profits, and proceeds of all of said property, at all and any time growing out of the same, to this date, he, the said Delahay, surrenders his claim, and it is ordered by consent, that the costs made in the Supreme Court by taking this case there, by the said Delahay, is to be entered upon the fee book of this Court in this case, and the said Delahay agrees to pay the costs made by him, both in the Supreme Court and in this Court, in this cause, and that fee bills including all said costs against each of said persons, issue from this Court, for the costs made by each of them respectively. 27th March, 1844.
M, McConnell,
H. W. Vansyckel, Mark W. Belahay.35
The errors relied on by appellant, question the correctness of the judgment of the Court in sustaining the demurrer to the second and third pleas, and in refusing the instruction asked by the counsel for appellant. There is no direct assignment that the Court erred in sustaining the demurrer to the second plea, but the questions involved by the demurrer to said second plea, and the refusal to give the instruction asked are the same, whether the release set up presents a good bar to the appellees3 cause of action in this suit. It is manifest from an inspection of this plea, and also from an examination of the decree set out in the Chancery suit, and read in evidence upon the trial, that the release by McConnell and Vansyckel to Belahay, was for a valuable consideration. It was made upon the settlement and compromise of a contested suit, pending between the parties. Belahay, in consideration of this release, and other matters set out in the decree, also released to McConnell and Vansyckel, “all his rights and claims to all the property and real estate mentioned in the bill33 of complainant, and agreed that the sale of the Master should be confirmed, &c.; and the whole contract was, by the consent of the parties, made the decree of the Court, and entered of record as such. That this agreement, thus solemnly made, completely and forever discharged Belahay from all liability to pay any portion of the note in controversy, there cannot be a doubt. It was as much binding and obligatory upon McConnell and Vansyckel, as the release on the part of Belahay was upon him. As to Belahay, the cause of action was extinguished. It may, perhaps, not be improper to remark here, that the statute does not give to a defendant, the right to plead specially, and also give notice of the special matter relied- on as a defence under the general issue; and when this is done, the proper practice would be for the Court, on motion, to direct him to elect how he will proceed. This, however, is a matter of discretion.
But it is contended, that inasmuch as there is a special proviso in this agreement, that the contract shall not operate to discharge Benjamin; and inasmuch as the same is not executed under the seals of the parties, that his liability still remains. This is a proposition which the law must settle. In the construction of a contract, where the language is ambiguous, Courts uniformly endeavor to ascertain the intention of the parties, and to give effect to that intention. But where the language is unequivocal, although the parties may have failed to express their real intentions, there is no room for construction, and the legal effect of the agreement must be enforced. A proviso in a contract totally repugnant to the contract itself, is void. “If two are bound in an obligation, and the obligor releases to one of them, with a proviso that the other shall not take advantage of it, this proviso is void.” 6 Bac. Abr. 702, G. The doctrine has long been considered as settled, that a release to one of two or more joint, or joint and several obligors or promissors, is a release of all. 5 Bac. Abr. 702, G; 2 Salkeld, 574; 6 Vesey, Jun. 146; and “a personal action, once suspended by the voluntary act of the party entitled to it, is forever gone and discharged.” Thomas v. Thompson, 2 Johns. 473; 18 do. 478; 9 Wend. 336; 17 Mass. 581; 13 do. 148; 7 Johns. 207.
In the case of Hall v. Rochester, 3 Cowen, 374, an action was brought on a joint and several promissory note against them; two of the defendants appeared and pleaded that the note was fraudulently obtained. The plaintiff entered a nolle prosequi as to them, and took a default against the other defendant. This was held to be error. In Tolman v. Spaulding, 3 Scam, 14, this Court say: “It is well settled, that in actions ex contractu against several, the plaintiff, to entitle himself to recover, must prove a promise as to all of file defendants, and he is not permitted to take a judgment against part of the defendants, and enter a nolle prosequi as to the rest, unless a defence personal to them is interposed.35 The same principle is re-affirmed in the case of Wann v. McNulty, 2 Gilrn. 355, and also in the cases before referred to. But it is objected, that this release or contract is not under seal, and, therefore, is ineffectual to bar the action as against Benjamin. Our answer to this, is found in the authorities above quoted: “That if it is a release as to one, it is equally so as to all.33 Another is, that is evidenced by an act, which, in legal contemplation, is of higher authority than any instrument under seal—a decree of a Court of record, the validity of which cannot be assailed, nor its verity questioned. And thirdly, where a consideration is expressed in a release, or otherwise proved to have passed between the parties, it is, in the opinion of the Court, totally immaterial whether the instrument is sealed, or otherwise. A seal but imports, or furnishes evidence of a consideration; and, except in cases where the release is designed to affect a conveyance or transfer of real estate, or some interest in, or concerning it, which can only pass by deed, may, without infringing any rule of law, he dispensed with. A release without a seal and without consideration is void. 13 Johns. 87; 1 Cowen, 122. So is any other contract. The rule applies as well to bonds, promissory notes and all other instruments in writing, as to releases. The distinction is, that when the consideration is not implied or expressed, it must be proved. I have not been able to find one authority, that a release not under seal, when made for a good or valuable consideration, is not of binding force.
In the present case, Belahay has been wholly released from the payment of this note. On his part there is no longer any liability. Benjamin cannot he sued alone. If an action is brought against them jointly, Belahay can interpose no plea founded on this agreement, personal to himself. The release, when set up, is an effectual bar to the cause of action, and destroys the right to maintain the suit. The contract is entire; whatever discharges one, releases the other.
The Court is also of opinion, that the appellant’s third plea presents a substantial bar to the appellees’ cause of action. If true, and this is admitted by the demurrer, the alteration is material. The note and the account stated, constitute together one contract; by separating the one from the other, the proof of the consideration for which the note is given, is placed beyond the power of the appellant; and this might, in a suit upon the note, seriously affect his interests. Chitty on Bills, 182.
The Circuit Court erred in sustaining the demurrer to the second and third pleas, and in refusing the instruction asked by the counsel for the appellant.
The judgment of the Circuit Court is reversed with costs, and the cause remanded for further proceedings.
Judgment reversed.