Powell v. Davis

• Decision Date: 31 January 1878
• Citation: 60 Ga. 70
• Parties: PowEll. v. Davis et al.
• Court: Georgia Supreme Court

60 Ga. 70

PowEll. v. Davis et al.

Supreme Court of the State of Georgia

(January Term, 1878.)

[Bleckley, Judge, having been of counsel in this case, did not preside. Hon. Martin J. Crawford, Judge of the Chattahoochee circuit, was designated by the governor to preside in his stead.]

Judgments. Debtor and creditor. Contracts. Evidence. Before Judge Clark. City Court of Atlanta. June Term, 1877.

Arnold & Arnold; P. L. Mynatt; W. T. Newman, for plaintiff in error.

N. J. Hammond, for defendants.

Crawford, Judge.

This suit was brought upon a foreign judgment, obtained in the circuit court of Knox county, Tennessee, against H. B. Davis, one of the original defendants, and George W. * Adair, administrator of Wm. G. Peters, deceased. The defendant, Davis, was not served; Adair was; he appeared, and in defense to this suit pleaded several pleas, only one of which it is necessary to notice, as the case, both in the court below and in this court, turned upon that wherein he sets up and insists upon a release, of which the following is a copy:

"Memorandum of agreement made and entered into this 24th day of March, 1865, by and between H. B. Davis, of Bradley county, Tennessee, and C. Powell & Co., of the city of Knoxville, Knox county, Tennessee.

"Whereas, heretofore, to-wit: at the February term of the circuit court of Knox county, 1865, the said C. Powell & Co. recovered a judgment in said court against the said Davis and Wm. G. Peters, for something over fifteen hundred dollars, besides costs; and whereas the said Davis has paid to the said Powell & Co. the sum of five hundred dollars, in consideration thereof the said Powell & Co. hereby release and discharge said Davis from paying any more on said judgment; that C. Powell & Co. consider his, the said Davis', liability as of a technical character, only having acted as agent for said Peters, the said Peters, being the real party liable, upon which the said judgment was recovered. It is further agreed by the said Powell & Co., that when said judgment is collected off of said Peters, after first retaining a sufficient amount to pay and satisfy said judgment, including the five hundred dollars paid by the said Davis, then the said five hundred dollars is to be refunded to said Davis out of the amount collected off of the said Peters, otherwise the said Davis is to receive nothing. It is further agreed between said parties that this agreement is in no wise to affect the collection of said judgment off of the said Peters, and the said five hundred dollars is not to be considered as a credit or payment on said judgment so far as Peters is concerned.

"Attest: (Signed) C. Powell,

Geo. Brown. H. B. Davis."

*The court below held that the legal effect of this paper was to release Davis from all further liability on the joint judgment which C. Powell & Co. had against Davis & Peters, and that such release was also a discharge of Peters. This ruling was excepted to and assigned as error.

It is admitted, as we understand, by counsel for the plaintiff in error, that a release to one joint debtor, without reserving the remedies to the plaintiff against the other joint debtor, works to the latter a discharge, but that where they are reserved, then the liability still exists, and the debt may be enforced.

In some of the earlier decisions, a deed of release with reserve of remedies, was construed simply as a covenant not to sue, in order that effect might be given to what was supposed to be the intention of the parties, and the right of further recoursepreserved. But even then it was held, that where the release was so positive as that it could not be so construed, it was an absolute discharge, unless with the consent of the joint debtor. And the courts since have uniformly held to that view of the law so far as we have been able to ascertain. Indeed, Addison in his Law of Contracts, vol. 3, p. 151, § 1133, whilst discussing the subject of "Release, " says: "From some of the expressions of Lord Eldon, it would seem that a creditor might release one of his joint debtors, and yet, by using some language of reservation in the agreement between himself and such debtor, keep his remedy entire against the others, even without consulting them; but Lord Eldon\'s authority upon this point has been expressly overruled." In support of this principle he cites the case of Nicholson v. Revill, 4 Ad. & E., 683, wherein Lord Denman, C. J., in delivering the opinion, says: "We give our judgment on the principle laid down by Lord C. J. Eyre, in Chatham v. Ward, 1 B. & P., 630, as sanctioned by unquestionable authority, that the debtee\'s discharge of one joint and several debtor is a discharge of all. * * * This view cannot, perhaps, be made entirely consistent with what is said by Lord Eldon in the *case ex parte Gifford, 6th Ves. Jun, 808, where his lordship dismissed a petition to expunge the proof of a surety against the estate of a co-surety. But the principle to which we have adverted was not presented to his mind in its simple form; and the point certainly did not undergo much consideration. Some of the expressions employed would seem to lay it down that a joint debtee might release one of his debtors, and yet, by using some language of reservation in the agreement between himself and such debtor, keep his remedy entire against the others, even without consulting them. If Lord Eldon used any language which could be so interpreted, we must conclude that he either did not guard himself so cautiously as he intended, or that he did not lend that degree of attention to the legal doctrine connected with the case before him which ...