Swift, Ch. J.
It is a well established rule, that where there are general words, all alone in a release, they shall be taken most strongly against the releasor but where there is a particular recital, and then general words follow, the general words shall be qualified by the, particular recital., 5 line. Mr. 710. (Wils. edit.) As where there was a release of an equity of redemption, and of all actions and demands, it was holdcn that the equity of redemption only was released,. Thorpe v. Thorpe, 1 Ld. Raym. 235. This construction must have been founded on the presumption that such, was the intent of the parties j for though the general words would comprehend all demands, yet the particular recital shewed that nothing else was contemplated by the parties. This rule, when simpliiicd, amounts to this, that with respect to a release, we are not bound to give a construction according to the literal import of the words, when such con struetion would contravene the manifest intent and object oí the parties j and this results from the great rule, that contracts arc to be construed according to the intent of the parties.
This note is dated the 18th day of June 1813, payable in one year, and is executed by Edward and Richard Try on On the 1st of October 1813, Edward Try on gave a note to Elisha Hart, for 480 dollars, payable- in two years. At this time, both these notes must have been valid ; and there is no allegation that the note in suit was included in the last note.. On the 22d of November 1813, Edward Tri/on executed a mortgage deed to Elisha Hart to secure the note for 480 dollars, and Hart gave him a writing acknowledging it, and declaring that the note, when paid, would be in lull of all demands.
It appears, then, at the time of giving tine receipt set forth ¡n the plea in bar, there were two valid notes, which liad beet; previously given, of different dates, payable at different times, and against different parties, and that nothing was then done but to execute a mortgage deed to secure one oi them, and to give the receipt in question. Under these cir [123]*123⅛:instances, ir can never-be presumed, or supposed, to have been the undemanding and meaning' of the parties, that the taking of t he mortgage deed as a collateral security for one of these /Kites, should operate as a consideration for the discharge of the other. This would be the most preposterous thing imaginable. If, then, the general words made use of, would release the note in suit, on a literal construction ; yet such construction ought not to be given, because it would be against the plain intent of the parties.
But I apprehend, on a just construction of the writing itself, it does not amount to a release ; for there is no con sidcration to give it that effect. The only consideration expressed, is the reception of a mortgage deed predicated on a certain note. This could be no ground for a discharge of all demands ; nor is it so expressed ; nor is it expressed, that the note itself was received in full of all demands. The writing contains no words which express or imply a release. It is no more than a written declaration or ac knowledgment, made subsequent to the giving of the note, that when paid, it would be in full of all demands. It cannot, there foi e, be pleaded as a release ; but the defendant might have alleged, that at the time of giving the note, the parties came to a settlement of all demands, and that the note for 480 dollars, was given for the balance due in full of all demands; and then this writing would have been proper evidence as an acknowledgment of the fact by the plaintiff, in such case, however, it would not have been conclusive evidence : but it would have been competent for the plaintiff ro have shewn, that the note in suit was not embraced in the settlement. For though a complete discharge, on good consideration, is conclusive; yet the mere acknowledgment or declaration of the party respecting a fact, is not conclusive ; it is proper evidence, liable to be rebutted, or explained, like any other testimony.
I am of opinion that there is no error in the judgment complained of.
In this opinion Truhbuu, Edmond, Brainahd and Goddard, Js. severally concurred.
Smith, J.
We are presented with two questions in this ease : first, Is this a release of all demands against Tryon so [124]*124as to bar a suit on this note, were it given by him solely l if 30⅜ then secondly, Docs a general release to one joint ob-ligor bar an action on a joint obligation ?
As to the first question, it would seem to me, that no person cou^ mi(l over fhe writing in question, without seeing in it a release of all demands. It begins by mentioning the mortgage, and then the note on which it is predicated. Had the note been first mentioned, and then the mortgage, the meaning would be the same; and by the terms “ which, when-paid*' the debt is intended, which is secured both by note and mortgage, Nothing to my mind is more obvious than that the parties must have made a full settlement of all their concerns, and that the note and mortgage were given to secure the balance that was due.
But it has been argued, that the general words in full of nil demands,” must be construed to mean nothing but the note and mortgage $ and the rule is relied on, that general words in a release may be restrained to the particular subject matter, which the parties appear to have had solely in view. That the thing received, however, as the consideration of a general release, should be construed to restrain the general words, is, 1 believe, quite novel; and in the release itself, no particular debt is mentioned, and nothing but a general release of all demands is to be found. The debt secured by the note and mortgage, mentioned in the release, is the only one not released by it : for that, by the express terms of the release, is to be paid.
It appears to me, therefore, that this is a release to Edward Tryon, one of the defendants, of all demands. Will then such a release to one of two joint obligors bar an action against them both i If it is a bar to a demand against Edward Tryon, it must, of course, be a bar to a demand against both j because judgment cannot be rendered against one, without including the oilier also.
Baldwin, J. was of the same opinion.
Gotjld, J.
In my opinion, the judgment is erroneous.— The exception, taken to the manner, in which the release is pleaded, was not much urged at the bar ; and I believe, not ultimately relied upon. But whether it was, or not, it is, in my judgment, not well founded. For, if the alleged repug [125]*125nancy actually exists, it is wholly immaterial; and the words, i£ then and there,” may be treated as surplusage : the plea being good without them. But there is really no repugnancy in the plea, either substantial, or formal. The note, recited in the release, may have been dated on one day, and delivered on another ; and the fact is plainly averred to have been so, if the allegation in the plea is taken, as it must be, in connex-ion with the recital.
The only question, then, is, what is the true construction, and legal effect, of the instrument, pleaded in bar of the original action ? Upon this point, there can be no doubt, that a general release of
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Swift, Ch. J.
It is a well established rule, that where there are general words, all alone in a release, they shall be taken most strongly against the releasor but where there is a particular recital, and then general words follow, the general words shall be qualified by the, particular recital., 5 line. Mr. 710. (Wils. edit.) As where there was a release of an equity of redemption, and of all actions and demands, it was holdcn that the equity of redemption only was released,. Thorpe v. Thorpe, 1 Ld. Raym. 235. This construction must have been founded on the presumption that such, was the intent of the parties j for though the general words would comprehend all demands, yet the particular recital shewed that nothing else was contemplated by the parties. This rule, when simpliiicd, amounts to this, that with respect to a release, we are not bound to give a construction according to the literal import of the words, when such con struetion would contravene the manifest intent and object oí the parties j and this results from the great rule, that contracts arc to be construed according to the intent of the parties.
This note is dated the 18th day of June 1813, payable in one year, and is executed by Edward and Richard Try on On the 1st of October 1813, Edward Try on gave a note to Elisha Hart, for 480 dollars, payable- in two years. At this time, both these notes must have been valid ; and there is no allegation that the note in suit was included in the last note.. On the 22d of November 1813, Edward Tri/on executed a mortgage deed to Elisha Hart to secure the note for 480 dollars, and Hart gave him a writing acknowledging it, and declaring that the note, when paid, would be in lull of all demands.
It appears, then, at the time of giving tine receipt set forth ¡n the plea in bar, there were two valid notes, which liad beet; previously given, of different dates, payable at different times, and against different parties, and that nothing was then done but to execute a mortgage deed to secure one oi them, and to give the receipt in question. Under these cir [123]*123⅛:instances, ir can never-be presumed, or supposed, to have been the undemanding and meaning' of the parties, that the taking of t he mortgage deed as a collateral security for one of these /Kites, should operate as a consideration for the discharge of the other. This would be the most preposterous thing imaginable. If, then, the general words made use of, would release the note in suit, on a literal construction ; yet such construction ought not to be given, because it would be against the plain intent of the parties.
But I apprehend, on a just construction of the writing itself, it does not amount to a release ; for there is no con sidcration to give it that effect. The only consideration expressed, is the reception of a mortgage deed predicated on a certain note. This could be no ground for a discharge of all demands ; nor is it so expressed ; nor is it expressed, that the note itself was received in full of all demands. The writing contains no words which express or imply a release. It is no more than a written declaration or ac knowledgment, made subsequent to the giving of the note, that when paid, it would be in full of all demands. It cannot, there foi e, be pleaded as a release ; but the defendant might have alleged, that at the time of giving the note, the parties came to a settlement of all demands, and that the note for 480 dollars, was given for the balance due in full of all demands; and then this writing would have been proper evidence as an acknowledgment of the fact by the plaintiff, in such case, however, it would not have been conclusive evidence : but it would have been competent for the plaintiff ro have shewn, that the note in suit was not embraced in the settlement. For though a complete discharge, on good consideration, is conclusive; yet the mere acknowledgment or declaration of the party respecting a fact, is not conclusive ; it is proper evidence, liable to be rebutted, or explained, like any other testimony.
I am of opinion that there is no error in the judgment complained of.
In this opinion Truhbuu, Edmond, Brainahd and Goddard, Js. severally concurred.
Smith, J.
We are presented with two questions in this ease : first, Is this a release of all demands against Tryon so [124]*124as to bar a suit on this note, were it given by him solely l if 30⅜ then secondly, Docs a general release to one joint ob-ligor bar an action on a joint obligation ?
As to the first question, it would seem to me, that no person cou^ mi(l over fhe writing in question, without seeing in it a release of all demands. It begins by mentioning the mortgage, and then the note on which it is predicated. Had the note been first mentioned, and then the mortgage, the meaning would be the same; and by the terms “ which, when-paid*' the debt is intended, which is secured both by note and mortgage, Nothing to my mind is more obvious than that the parties must have made a full settlement of all their concerns, and that the note and mortgage were given to secure the balance that was due.
But it has been argued, that the general words in full of nil demands,” must be construed to mean nothing but the note and mortgage $ and the rule is relied on, that general words in a release may be restrained to the particular subject matter, which the parties appear to have had solely in view. That the thing received, however, as the consideration of a general release, should be construed to restrain the general words, is, 1 believe, quite novel; and in the release itself, no particular debt is mentioned, and nothing but a general release of all demands is to be found. The debt secured by the note and mortgage, mentioned in the release, is the only one not released by it : for that, by the express terms of the release, is to be paid.
It appears to me, therefore, that this is a release to Edward Tryon, one of the defendants, of all demands. Will then such a release to one of two joint obligors bar an action against them both i If it is a bar to a demand against Edward Tryon, it must, of course, be a bar to a demand against both j because judgment cannot be rendered against one, without including the oilier also.
Baldwin, J. was of the same opinion.
Gotjld, J.
In my opinion, the judgment is erroneous.— The exception, taken to the manner, in which the release is pleaded, was not much urged at the bar ; and I believe, not ultimately relied upon. But whether it was, or not, it is, in my judgment, not well founded. For, if the alleged repug [125]*125nancy actually exists, it is wholly immaterial; and the words, i£ then and there,” may be treated as surplusage : the plea being good without them. But there is really no repugnancy in the plea, either substantial, or formal. The note, recited in the release, may have been dated on one day, and delivered on another ; and the fact is plainly averred to have been so, if the allegation in the plea is taken, as it must be, in connex-ion with the recital.
The only question, then, is, what is the true construction, and legal effect, of the instrument, pleaded in bar of the original action ? Upon this point, there can be no doubt, that a general release of all demands, made to one of two joint, or joint and several, debtors, is a complete discharge to both. Litt. s. 376. Co. Litt. 232. a. Hob. 10. Salk. 574. Nor is there any ground for saying, that the release, to have this effect, must refer, in terms, to the specific debt, or demand, in question. The rule of law requires no such reference.
But it is contended, that the general words, “ in full of all demands,” are restrained, in the present case, by the pre vious particular iecital. There are cases, in which such general words of release are thus restrained; but none, in which they are virtually erased, by being, as they are in the judgment before us, absolutely rejected. In all those cases, there is a particular duty, or demand, recited, upon which the subsequent general words arc left to operate, and in discharging which they have their full and proper effect, according to the apparent intention of the parties. Such was the case of Knight & al. v. Cole & ux. 3 Lev. 273. S. C. 3 Mod. 277. S. C. Carth. 119.; and such, without exception, has been every other case, in which general words of release have been restrained by a previous recital. In every instance of the kind, to be found in the books, it has been an acknowledged rule, that the release must be so expounded, as to give some effect to the general words. The single anomalous determination, cited by Tanjleld, 2 Rol. Abr. 409., I lay out of the question ; as the existence, as well as the authority of it, has been questioned,(1 Show. 155. Bar,. Mr. Release, K.) ; and as the case of Brace v. Catlin, 1 Day's Ca. 275. determin - ed in this Court, is directly opposed to it. Even in that determination, however, (if it was ever made) the same rule of construction was, according to Tanjleld’s statement, fully recognized, though evidently misapplied. But in the pres[126]*126ent case, there is nothing previously recited, upon which the general words can possibly operate. To restrain them, then, to the subject of the recital, would be, in effect, to strike them out of the instrument. For, as they, confessedly, do not discharge the note, or mortgage, previously mentioned — which, by the way, are the only subjects recited, and arc manifestly introduced merely as the consideration of the instrument, it follows, demonstrably, that unless they discharge demands not recited, they can have no effect whatever. To say, that by the words, “ which, when paid, is in full of all demands,” nothing more is meant, than that when the note, before referred to, is paid in full, such payment shall be in full of the note itself, would be but little short of serious trifling. It seems impossible, then, to restrain the general words, unless the object of construction is to defeat, instead of effecting, the intention of parties, and to destroy instruments, instead of expounding them.
Hosmbr, J. gave no opinion, having been of counsel in the cause.
Judgment affirmed,