Benjamin v. Mcconnell

• Court: Supreme Court of Illinois
• Citation: 4 Gilman 536,46 Am.Dec. 474,1847 WL 3888,9 Ill. 536
• Parties: CHARLES BENJAMIN, impleaded with Mark W. Delahay,v.MURRAY MCCONNELL et al.
• Decision Date: 31 December 1847

4 Gilman 536
9 Ill. 536
1847 WL 3888 (Ill.)
46 Am.Dec. 474

CHARLES BENJAMIN, impleaded with Mark W. Delahay,
v.
MURRAY MCCONNELL et al.

Supreme Court of Illinois.

December Term, 1847.

DEBT, originally brought in the Pike circuit court by the appellees against the appellant and Mark W. Delahay, whence the venue was changed by the consent of parties, to the Scott circuit court. The cause was heard before the Hon. SAMUEL D. LOCKWOOD and a jury. Verdict for the appellees.

The pleadings and evidence are stated in the opinion of the court.

D. A. SMITH, for appellant.

I. The plea of non est

[9 Ill. 537]

factum sworn to, shows that the note sued on in this case, was not merely a mutilation or spoliation of the original note, but that its terms were changed by the insertion of the words “ on demand.” It is, in effect, admitted by the demurrer that if the alteration in the note be in a material part, the plea is good. It can not be pretended that the statement of the account is no part of the note. The parties have chosen to make it so, by referring to it as being the consideration of the note. It is a material part of the instrument to the makers, because it affords proof as a voucher of the settlement of accounts with the appellees as successors of McConnell, Ormsbee & Co. It may well be insisted upon for the appellant, that the note would never have been given in any other form than the one in which it was given, only for purposes of peace, and to effect a settlement of long, difficult, and mutual accounts, and that it was his right, on payment of the note, to hold it not merely as discharged, but as evidence of such settlement. To use the note in the way attempted in this suit, is to suppress his only voucher, and is, therefore, a fraudulent invasion of his clear and absolute right.

But suppose the mutilation of the instrument, and the interpolation of the words “on demand,” be considered immaterial, it by no means follows that the instrument is not thereby made void. When an instrument is altered, it is incumbent on the party claiming under it to explain the alteration. The law, to prevent fraud, and to preserve the identity and integrity of contracts, as being the sole repositories of the agreements of the parties, is exceedingly jealous of any alteration of a written instrument, without the privity of the party to be bound thereby. The special plea of non est factum sworn to, put in issue the identity of the instrument sued on, and devolved on the appellees the obligation to explain to the satisfaction of the jury, the mutilation and alteration, or interpolation of that instrument. See 1 Greenl. Ev. § 564-8 a, inclusive.

[9 Ill. 538]

II. The refusal of the charge relied upon as the third error, involves the position, that in this case there was a joint subsisting contract against Benjamin and Delahay, by virtue of the note sued on in this case. Unless there was, the suit being on a joint contract, there should have been no recovery against Benjamin. He had a right to show that the cause of action was suspended and gone as to Delahay, and if so, by operation of law, he, Benjamin, was discharged from the obligation of the note. Thomas v. Thompson, 2 Johns. 474. Where there are several joint debtors, whatever extinguishes or merges the debt as to one, merges or extinguishes it as to all. Suspension of the right of action as to one, releases, discharges, and extinguishes the action as to both. Robertson v. Smith, 18 Johns. 478-9-81. See, also, 3 Scam. 14. I maintain that the appellees by their positive and unequivocal act of record, and for consideration, released Delahay, and if so, Benjamin is also released. It will doubtless be admitted, that if the agreement of the 27th of March, 1844, which was entered as the decree of the court at May term 1844, had been a sealed paper, that that would have been such a technical release as would have discharged Benjamin. I insist that that decree is a matter of record, of more solemnity and of higher consideration than a mere sealed release. Contracts or obligations are of three sorts; 1. By parol, or in writing, as contra-distinguished from specialties; 2. By specialty, or under seal; 3. Of record, such as judgments, recognizances, etc. These last are of superior force, because they have received the sanction of, and are founded on the authority of a court of record. Chitty on Contracts, pages 1, 2.

“A release is giving or discharging of a right of action which a man hath or may claim against another, or that which is his.”“Releases are distinguished into express releases, or releases in deed, and those arising by operation of law; and are made of lands and tenements, goods and chattels, or of actions real, personal and mixed.” Bac. Abr. Release.

A release may be by act of parliament. “An express release must regularly be in writing and by deed according to common rule, eodem modo quo oritur, eodem modo dissolvitur;

[9 Ill. 539]

so that a duty arising by record, must be discharged by matter of as high nature; so, of a bond or other deed.” Bac. Abr. Release, A. 1.

“An award that all suits shall cease, hath the effect of a release, and the submission and award may be pleaded in discharge as well as a release.” Strangford v. Green, 2 Mod. 228; Bac. Abr. Release A. 2.

“If two or more are jointly and severally bound in a bond, a release to one, discharges the other; and such case the joint remedy being gone, the several is so likewise.” Bac. Abr. Release G. and authorities there cited.

“Also if two are bound in an obligation, and the obligee releases to one of them, proviso that the other shall not take advantage of it, this proviso is void.” Lit. Rep. 190; Bac. Abr. Release G. This principle annihilates the sly and false proviso inserted in the release to Delahay. It was the palpable intention of the appellees, as to him, to release and cancel the note sued on in this case. Stronger language could not well be selected for that purpose. And if the judgment in this case is sustainable, it involves the dilemma of having Delahay made a party to it, notwithstanding he has been solemnly released by act of record.

We are not driven to rely upon a mere technical release under seal. A discharge by operation of law is sufficient. Hob. 70; Cro. Eliz. 762. If a release may be by act...