Milliken v. Brown

• Decision Date: 15 June 1829
• Parties: MILLIKEN and another v. BROWN.
• Court: Pennsylvania Supreme Court

1 Rawle 391

MILLIKEN and another v. BROWN.

Supreme Court of Pennsylvania.

June 15, 1829

APPEAL.

A receipt, not under seal, to one of several joint debtors, for his proportion of the debt, discharges the rest.

APPEAL from the decision of the Chief Justice, holding a Circuit Court for Mifflin county, on the 15th of April, 1829.

In the Court of Common Pleas, the plaintiffs, Foster Milliken and David Milliken, trading under the firm of Foster Milliken & Co., had, on the 4th of February, 1819, recovered judgment against John Brown, William Brown, jr. and Dr John Watson, trading under the firm of John Brown & Co., by award of arbitrators, for five thousand eight hundred and eighty-nine dollars and ninety-six cents. In order to obtain the legal stay of execution, the defendants had procured security to be entered for the debt interest, and costs, under the act of the 21st of March, 1806. But, long before the expiration of the stay, David Milliken, one of the plaintiffs, had issued a Fieri Facias upon the judgment, on which a return of " nulla bona " was made by the sheriff of Mifflin county. Within two days after, he also procured a Testatum Fieri Facias, directed to the sheriff of Lancaster county. With this Testatum, David Milliken proceeded to Lancaster county, where Dr. Watson resided. Upon seeing the execution, Watson paid to Milliken four hundred dollars, and afterwards sixteen hundred dollars more, and took the following receipts, viz.

" 27th of March, 1819.--Received of Dr. John Watson, four hundred dollars, in part of a judgment Foster Milliken & Co. v. John Brown & Co.

David Milliken. "

" May 4th, 1819.--Received, by the hands of Christian Haldeman, from Dr. John Watson sixteen hundred dollars, a balance of two thousand dollars his part of a judgment Foster Milliken & Co. v. John Brown & Co. For Foster Milliken & Co.

David Milliken. "

The consequence of this proceeding of David Milliken, as it respected the surety in the recognisance, and the ultimate decision of this court upon it, may be seen in the case of Milliken and others v. Brown, 10 Serg. & Rawle, 188.

It was alleged, that the taking from Watson the two thousand dollars in full of his third of the debt, operated as an entire discharge of John Brown and William Brown, jr., and upon this ground the Court of Common Pleas opened the judgment so as to let in a defence. Issue was joined upon the plea of payment. A release was also pleaded, to which there was a replication of non est factum. The defence, upon the trial in the Circuit Court, was carried on by John Brown alone; William Brown, jr. having confessed judgment for one-third of the claim, on an agreement, that no effect was thereby to be produced on the case as respected John Brown. In addition to the facts before mentioned, John Brown proved upon the trial, that at the times of the return of the nulla bona by the sheriff of Mifflin county, and of taking out the Testatum Fieri Facias, the defendants in the judgment owned, and were in possession of real and personal estate, consisting of a forge, furnace, stills, & c. in Mifflin county. He also gave in evidence, further to enforce and explain the written receipt, the deposition of Christian Haldeman, who testified as follows:--

" 27th of March, 1819, Dr. Watson and David Milliken called upon the witness, and Watson stated that Milliken had an execution against him, Watson, for about six thousand dollars. They then came to an agreement, and Dr. Watson agreed to pay two thousand dollars, his part of the judgment, and that four hundred dollars was paid by Watson on that day. Watson left in the hands of the witness sixteen hundred dollars, to be paid to the plaintiffs, which was done by Mr. Elder in the absence of the witness, & c."

To the following question put by the defendant:--" Do you remember what the purport of the verbal agreement was between Dr. Watson and David Milliken? " the witness answered:--" Dr. Watson was to pay Milliken four hundred dollars then, and sixteen hundred dollars in ten or fifteen days: if Dr. Watson would do that, then he, David Milliken, would exonerate him from his part of the judgment. I think you will find the receipt to say the same thing, or words to that effect." Sundry cross-questions were put by the plaintiffs, which are not material, except that, from the answer to one of them, it appeared, that the receipt for sixteen hundred dollars had been drawn up, or the form for it given, by Watson himself. The following questions may also be excepted:-- Question 8th. " At the time of the verbal agreement between Dr. Watson and Milliken, did Milliken say, that if he could recover the balance of the judgment from the property of the company, or the other partners, he would not look to Dr. Watson for it?" Answer. " I do not know of any such agreement, or conversation." Question 9th. " What did you understand by the word exonerate, as applied to the verbal agreement between Dr. Watson and Milliken? " Answer. " " I considered it was in full for his part of the judgment for about six thousand dollars." Question 10th. " Did you believe that it was intended to exonerate either John Brown or William Brown, jr.?" Answer. " I did not, but to exonerate the doctor only."

Upon this evidence His Honour, the Chief Justice, charged the jury, that the acts, the receipt of two thousand dollars, and the agreement of David Milliken, amounted to a release to John Watson and to the present defendant; and that in point of law, the plaintiff could not recover. The verdict being for the defendant, a motion was made for a new trial, which was refused, and this appeal thereupon brought by the plaintiffs, alleging error in the charge of the Chief Justice.

Hale and Blythe, for the appellants.

The plaintiffs might have levied their whole debt upon the property of any one of their joint debtors, and in receiving a part from one, and looking to the others for the residue, they did no more than agree to do that, which, without agreement they might lawfully have done. Even a release under seal to one of two obligors, may not in equity operate as a discharge to the other. Parties are bound only so far as they intend to be so. Kirby v. Taylor, 6 Johns. Ch. Rep. 242. But it is settled by many authorities, that any thing short of a technical release under seal to one of several joint debtors, does not exonerate the rest. The ground upon which the old cases go is, that a technical release is satisfaction, but a receipt of less than the whole debt, without a release, is not satisfaction. Cumber v. Wane, 1 Stra. 426. A receipt in full is not conclusive, but may be explained. Putnam v. Lewis, 8 Johns. 304. And if a note of a third person be taken for goods sold and delivered, it is no payment, unless the vendor specially agrees to take it absolutely as such. It ought to have been left to the jury to determine whether the money was received in satisfaction of the debt. Johnson v. Weed, 9 Johns. Rep. 310. Tobey v. Barber, 5 Johns. Rep. 68. A receipt for part of the debt from one joint debtor, and an agreement not to look to him for the remainder, is a covenant not to sue, and not a release, and, therefore, does not discharge the other joint debtor. A release of one must be a technical release under seal, in order to discharge both. Rowley v. Stoddard, 7 Johns. Rep. 207. Harrison v. Close, 2 Johns. Rep. 448. 17 Johns. Rep. 174. 20 Johns. Rep. 78, 462. Here the plaintiffs did not even discharge Dr. Watson; they might still have gone against him; but admitting he was discharged, there was nothing in the agreement to prevent either of the Browns from having recourse to him, in the event of their being obliged to pay the money.

Potter and Blanchard, contra.

The money having been received from Dr. Watson before the stay of execution had expired, and consequently before the debt was payable, there was a valuable consideration for the discharge, though it was not under seal; for it is well settled, that payment before the day, of a less sum, is good satisfaction. Cro. Eliz. 45. Pinel's Case, 5 Co. 117. A release to one of two joint and several obligors, discharges both. 5 Bac. Ab. 713. Co. Lit. 232, 236. 2 Salk. 374. Needham's Case, 8 Co. 270. 2 Roll. 411. Heckinote's Case, 9 Co. 52. Cro. Eliz. 161. 6 Co. 218. Barrington v. The Bank of Washington, 14 Serg & Rawle, 425. So, satisfaction received from one, or a release executed to one of several joint trespassers discharges all, though the liability of the others be specially reserved. Rulh v. Turner, 2 Hen. & Munf. 38. In trespass the jury cannot sever the damages. Hill v. Goodchild, 5 Burr. 2792. And a release by one of several partners is good against all. Piersons v. Hooker, 3 Johns. Rep. 70. Upon the same principle, that satisfaction from one joint and several debtor exonerates the other, a judgment obtained against one partner, is a bar to a suit against a dormant partner. Smith v. Black, 9 Serg. & Rawle, 142. The judgment was a lien on the property of the partners. The execution could not have been levied on the interest of the two Browns in the partnership property, for instance, in the stock in the iron works which they carried on as partners. Nor could a Scire Facias issue on the judgment against the two Browns omitting Watson. It follows, that all must have been bound, or none were bound. In substance, the paper given by the plaintiffs to Watson was a release. That it was not under seal, did not diminish its legal effect. In equity, a parol release is valid. The intention being every thing, the mode of discharge is immaterial. In Pennsylvania, a seal is by no means necessary to the efficacy of a release. This has been determined in relation to so solemn an instrument as a mortgage,...