Browning & Co. v. Grady

GOLDTHWAITE J. 1. The evidence which the plaintiffs put to the jury in this cause, was probably intended to show their understanding and agreement with Dennis Grady, that the receipt and discharge executed to him by their attorney, was personal to him alone, and was not intended to operate as a discharge to his partner of the same debt. The charge of the circuit court assumes that this receipt, if ratified by the plaintiffs, has the legal effect to discharge the other partner, although the plaintiffs, when ratifying the act of their attorney, were under the impression it discharged Dennis Grady only, and that it did not affect their right against the other partner. We are somewhat at a loss to discover whether the court intended to be understood as asserting the proposition that the discharge of one partner by a creditor is under such circumstances a discharge of all the partners, or that a receipt in this form is incapable of explanation by pa-rol evidence, so as to let in proof of the reservation of the right as to the debtor not named, against the absolute and unqualified terms of the instrument; but we infer the first was the point intended, as the other matter is not adverted to, and there is nothing in the evidence to show any authority to give more than a personal discharge, or even the ratification of any act which produced this result. If the discharge of one partner capnot be made without producing the [1003] release of all, then the plaintiffs may be said to have ratified the act done, but in no other sense, as there is no pretence the particular form of the receipt was communicated to them. Indeed, it is very clear also, if the testimony of the agent is credited, that the precise agreement was, that the discharge was not to affect the plaintiffs in their pursuit of the other partner, and was to be considered as personal to him alone who made the arrangement. Considering it in this view, we think the charge cannot be sustained. Ordinarily the discharge of one partner is a discharge of all, because it is impossible to know what are the engagements between the partners themselves, and the release of one prevents the others from holding him liable to any extent whatever, but if the partner himself agrees that the release to himself shall not affect the rights of the creditor as to others, it is virtually an agreement also, that the rights of his partners against him shall remain unchanged. If he stipulates that the creditor may proceed against other parties to the joint contract, he certainly will not be permitted to deny their demands on himself, which are in effect induced by his own consent. [18 Vesey, 20; Smith v. Winter, 4 M. & W. 454.] It is very possible the plaintiffs are entitled to prevail here, on the principle that nothing but a technical release, or payment, will discharge a principal debtor, as was held under very similar circumstances to those presented here in Row-ley v. Stoddard, 7 John. 206, but we prefer to rest our decision on the ground previously stated, as there are decisions which hold the giving of additional security as equivalent to a release. [Booth v. Smith, 3 Wend. 62.] 2. It is unnecessary to examine the refusal to give the charges asked by the plaintiff, further than to state the principle, that no general charge is proper — that the one or the other party is entitled to a verdict when there is any conflict of proof. Judgment reversed and cause remanded.