Cock Assignee v. Taylor

2 Tenn. 49

Opinion

Overton J.

By no possible rule of construction, can the instrument relied on in the plea, be considered as a release of the one declared on. In the first place, John Bean had assigned to the plantiff, before the release was given. The paper pleaded us a release, refers to an article, that he Taylor entered into with me, meaning John Bean. In the conclusion of the instrument, John Bean who give it, acknowledges that he had no other article or instrument on the defendant Taylor. Can this language fairly be made to release an obligation given to Stephen Bean, which happened to pass through. John Bean’s hands, but was not then in his possession ? By no means. Nor does the latter clause help the defendant ; John Bean might well say, that he had no instrument on the defendant ; for he had not, at that time, any other article, or instrument by assignment or otherwise for aught appears ; on the defendant. Besides this latter clause does not vary the meaning of the first, as to the description of the instrument intended to be released. It is true, as stated by the defendant’s counsel, that though the plea may be defective, yet if it appear from the declaration, that the plantiff is not entitled to recover, there must be judgment, for the defendant ; but the declaration is sufficient, therefore there must be judgment for the plantiff.

Demurrer sustained.