Sneed, J.,
delivered the opinion of the court.
The plaintiff as administrator de bonis non of the estate of M. F. DeGraffenreid brought this action against the defendant McLemore in the Circuit Court of Williamson county on a promissory note executed by the defendant McLemore and one W. F. DeGraf-fenreid to Daniel et al., former administrators, for [587] $1,000, dated 30th November, 1870, and due 25th December, 1871. The note was given for the lease of a plantation — -jointly leased by the defendant McLemore and said W. F. DeGraffenreid for five years, at $1,000' a year, the note in controversy being the first of the five notes given for the lease and the first to mature. A few days after the maturity of this first note, the-payee thereof, Daniel, being then the sole administrator,, agreed to bargain and sell the plantation to the defendant McLemore for the sum of $19,000, upon condition that the cq lessee, W. F. DeGraffenreid, would! surrender his interest in the lease for the remainder-of the term. The said co-lessee and obligor in the-note, W. F. DeGraffenried, in his testimony, gives this-account of the transaction: “ I am one of the makers of the note filed in this case. I do not know what day my lease was surrendered, but know it was at the time of the sale to McLemore of the leasehold.. W. M. Daniel came to me in the presence of Mc-Lemore, in the town of Franklin, and wanted me to-consent to the sale of said property.I. agreed to the sale, and asked the question, ‘But what about our notes?’ Daniel replied ‘They shall never-trouble you.’ My understanding was that I was released from all liability, and so understanding, I agreed' to allow the sale. McLemore did not offer any objection to this release of witness upon the $1,000 note-at the time. Both he and Daniel seemed desirous-that witness should relinquish the lease.” The defendant McLemore testifies that in his negotiation with-Daniel, the payee of the note for the purchase of the-[588] land, Daniel remarked that he would have to release DeGraffenried on the notes to induce him to consent to the sale and to relinquish his lease. Whereupon the witness replied: “ I will not consent to release DeGraffenreid. I am willing to pay my half of the note, but you must look to him for his half.” Daniel then went with witness to DeGraffenreid, and Daniel ■asked DeGraffenreid to relinquish his lease, to which he consented on condition that he should be released from liability on the notes. Daniel thereupon told DeGraffenreid he should never be # troubled about the notes. The witness never consented to the release of his co-obligor, but always told Daniel that he would not consent, although he said nothing on the subject at the time of the conversation with DeGraffenreid referred to. The land had been offered to him at •$20,000, which he refused to give. He finally bought it at $19,000, but the note of $1,000 was no part of ■the purchase money, and the price of the land was not changed on account of said note. The plaintiff’s attorney testified that after the interview between Daniel, DeGraffenried, and the defendant McLemore, the ■latter came with Daniel to his office to have the contract of sale drawn, and that nothing was said about the release of DeGraffenreid on the note. The witness never heard of defendant claiming a release upon such ground until his pleas in this ease were filed. That after the suit was brought McLemore asked witness why DeGraffenreid was not sued on the note with him, claiming that DeGraffenreid was also bound •on the note. The witness gave as his reason for not [589] embracing DeGraffenreid in the suit that the latter was in West Tennessee, or some such reason. Mc-Lemore did not at that time claim that he was released from liability on said note.”
After the court had charged the jury, and they had retired to consider of their verdict, they came into court and asked the instruction of the court upon the following proposition: “ If the jury shall find that the plaintiff released the joint obligor DeGraffenreid from the payment of the note, and that the defendant was present at the time, knew of the release and did not object or say anything, would that discharge the defendant?” The court upon this inquiry said to the jury: “ If you find from the proof that the plaintiff released DeGraffenreid, the joint obligor, from the payment of the note, and the defendant was present and made no objection thereto, the defendant would not thereby be released. He should have made known his objection; but the fact of silence must be taken in connection with all the facts proven in the case before and after the release, tending to prove assent or dissent of the defendant, and which was known to the plaintiff and defendant to ascertain the purpose of the parties and their understanding.”
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Sneed, J.,
delivered the opinion of the court.
The plaintiff as administrator de bonis non of the estate of M. F. DeGraffenreid brought this action against the defendant McLemore in the Circuit Court of Williamson county on a promissory note executed by the defendant McLemore and one W. F. DeGraf-fenreid to Daniel et al., former administrators, for [587] $1,000, dated 30th November, 1870, and due 25th December, 1871. The note was given for the lease of a plantation — -jointly leased by the defendant McLemore and said W. F. DeGraffenreid for five years, at $1,000' a year, the note in controversy being the first of the five notes given for the lease and the first to mature. A few days after the maturity of this first note, the-payee thereof, Daniel, being then the sole administrator,, agreed to bargain and sell the plantation to the defendant McLemore for the sum of $19,000, upon condition that the cq lessee, W. F. DeGraffenreid, would! surrender his interest in the lease for the remainder-of the term. The said co-lessee and obligor in the-note, W. F. DeGraffenried, in his testimony, gives this-account of the transaction: “ I am one of the makers of the note filed in this case. I do not know what day my lease was surrendered, but know it was at the time of the sale to McLemore of the leasehold.. W. M. Daniel came to me in the presence of Mc-Lemore, in the town of Franklin, and wanted me to-consent to the sale of said property.I. agreed to the sale, and asked the question, ‘But what about our notes?’ Daniel replied ‘They shall never-trouble you.’ My understanding was that I was released from all liability, and so understanding, I agreed' to allow the sale. McLemore did not offer any objection to this release of witness upon the $1,000 note-at the time. Both he and Daniel seemed desirous-that witness should relinquish the lease.” The defendant McLemore testifies that in his negotiation with-Daniel, the payee of the note for the purchase of the-[588] land, Daniel remarked that he would have to release DeGraffenried on the notes to induce him to consent to the sale and to relinquish his lease. Whereupon the witness replied: “ I will not consent to release DeGraffenreid. I am willing to pay my half of the note, but you must look to him for his half.” Daniel then went with witness to DeGraffenreid, and Daniel ■asked DeGraffenreid to relinquish his lease, to which he consented on condition that he should be released from liability on the notes. Daniel thereupon told DeGraffenreid he should never be # troubled about the notes. The witness never consented to the release of his co-obligor, but always told Daniel that he would not consent, although he said nothing on the subject at the time of the conversation with DeGraffenreid referred to. The land had been offered to him at •$20,000, which he refused to give. He finally bought it at $19,000, but the note of $1,000 was no part of ■the purchase money, and the price of the land was not changed on account of said note. The plaintiff’s attorney testified that after the interview between Daniel, DeGraffenried, and the defendant McLemore, the ■latter came with Daniel to his office to have the contract of sale drawn, and that nothing was said about the release of DeGraffenreid on the note. The witness never heard of defendant claiming a release upon such ground until his pleas in this ease were filed. That after the suit was brought McLemore asked witness why DeGraffenreid was not sued on the note with him, claiming that DeGraffenreid was also bound •on the note. The witness gave as his reason for not [589] embracing DeGraffenreid in the suit that the latter was in West Tennessee, or some such reason. Mc-Lemore did not at that time claim that he was released from liability on said note.”
After the court had charged the jury, and they had retired to consider of their verdict, they came into court and asked the instruction of the court upon the following proposition: “ If the jury shall find that the plaintiff released the joint obligor DeGraffenreid from the payment of the note, and that the defendant was present at the time, knew of the release and did not object or say anything, would that discharge the defendant?” The court upon this inquiry said to the jury: “ If you find from the proof that the plaintiff released DeGraffenreid, the joint obligor, from the payment of the note, and the defendant was present and made no objection thereto, the defendant would not thereby be released. He should have made known his objection; but the fact of silence must be taken in connection with all the facts proven in the case before and after the release, tending to prove assent or dissent of the defendant, and which was known to the plaintiff and defendant to ascertain the purpose of the parties and their understanding.”
It is insisted that the charge is erroneous, and that the jury were misled by it in finding a verdict for the plaintiff. Upon the application for a new trial seven of the jurors made affidavit that they were governed in arriving at their verdict by the first proposition of the said supplemental charge. The practice of permitting the introduction of the affidavits [590] of jurors after verdict as to their understanding and •construction of the charge of the court has very often been reprobated. If the charge be sufficiently clear to be comprehended by men of ordinary understanding, if it be not involved in such confusion and obscurity that it is apparent a common jury of the country was misled by it, and no further error of law ■appears, a revising court cannot set aside a verdict based upon it, and in no case will it submit itself to the guidance of the jury in the construction of the charge. We cannot, therefore, consider these affi•davits. In this case it is clear that if there was a release to the defendant’s co-obligor, it was founded •on a valid consideration, and it is a question of intention, under our law, whether the effect of it was to discharge him from the joint liability for his co-obligor’s half of the obligation. The effect of the release did not depend upon the fact whether or not the defendant did or did not object to the release at the time it was given. It is an elementary principle •of the common law that the release of one. co-obligor by a party authorized to grant the release, based upon .a valuable consideration, releases all the other obligors. 1 Par. Con., (25-27. And by the strict rule of the •common law this was so whether the parties intended it or not. Story Prom. Notes, 5425; Evans v. Pigg, 3 Cold., 395. Our statute has, however, modified this doctrine, and provided that “releases shall have •effect according to the intention of the parties. Code, •sec. 3789. The question in such case would be not whether defendant consented to the release only, but [591] •whether he consented thereto and agreed to continue bound; and if so, did he agree to be bound for the whole debt or only so much thereof as he was in ■conscience liable for, and the liability in either degree must be affirmatively shown by the party seeking to enforce it — either by the admissions of the defendant or by some action or course of conduct equivalent thereto. The charge, as a whole, is obscure, and calculated to mislead the jury, and is not a full exposition of the law as applied to the facts, because the court does not give the defendant the benefit of the question of intention as to the extent to which he agreed to be bound after the release of his co-obligor. The defendant and his co-obligor had jointly enjoyed the use and occupation ■ of the land; and the co-obli-gor, so far as we are advised, had received his full share of the consideration of the note. The result fixes the whole amount upon the defendant, while it deprives him of all remeby by contribution against his co-obligor. If this was the intention of the parties it is all right, but the jury must judge of that under proper instructions.
Reverse the judgment.