Schock v. Miller

• Decision Date: 21 May 1849
• Citation: 10 Pa. 401
• Court: Pennsylvania Supreme Court
• Parties: SCHOCK <I>v.</I> MILLER.

10 Pa. 401

SCHOCK v. MILLER.

Supreme Court of Pennsylvania.

May 21, 1849.

IN error from the Common Pleas of Lancaster.

Smith, for plaintiff in error.—The obligee has the privilege of treating the bond, by the terms of the contract, as the several obligation of each of the parties: 8 W. 450; 2 W. 204. If it is so treated, the release of one does not discharge the obligation of the other: 3 Pa. 57; 5 Co. 44. If the intent was only to discharge the liability which existed as between the released obligor and his co-debtor, the other is not discharged: 1 Poth. on Obl. by Evans, 275; 1 Stor. Eq. p. 498, n. But this release was not under seal, which is essential to have the effect contended for: 22 Pick. 305. So far as respects the unpaid moiety, it was without consideration and void: 5 W. & S. 486; 7 Barr, 100. As a release, it is no discharge in equity: 6 Ves. 805; 3 Bligh. 591; 6 John. C. 242; 1 Stor. Eq. §§ 498, 1370-71. The same principle is adopted in contracts between husband and wife. None of the reasons apply on which sureties are discharged by acts of the creditor: Pitm. on P. and Surety, 40; L. L. 178; 9 W. & S. 43; 3 Pa. 43. The true question is, was the liability of the co-surety increased? Mortland v. Himes, 8 Barr, 265.

Ford, contrà.—The meaning and effect of the written instrument cannot be altered or gathered from parol testimony. But here was a parol release for a consideration received, which discharged the released party, and consequently all other parties to the contract: 1 S. & R. 312; 3 Penna. 405; 1 Barr, 451; 2 Burr. 979: 1 Bin. 289; 1 Dal. 17. And this is the effect in equity, as well as at law: 1 Atk. 294; 4 Ad. & El. 675; 1 Bos. & Pul. 630; Pitm. on P. and Surety, 192; 1 Raw. 391; 1 Gilp. 621.

May 21. ROGERS, J.

Where the effect is to increase the responsibility of those who are not included in its terms, the release of one or more joint, or joint and several debtors, operates as a discharge of all the others from the obligation of the debts. But, when the effect will be, not to increase the responsibility of the other obligors, it operates as a release pro tanto only. Thus, a release of the principal debtor discharges the sureties, because it throws the burthen of the debt on the sureties, who, as between the obligors, are not liable for the debt, and is, therefore, an injury to them; but the release of one or more of the sureties does not discharge the principal debtor, for the plain reason that he is primarily liable for the debt, and the release of the surety may injure the creditor, but cannot, by any possibility, prejudice him. These principles are supported by reason and authority. Thus, the release of a principal debtor will discharge a mere surety, but the release of one co-surety will exonerate the other only to the extent which the releasee would otherwise be compelled to pay: Ex parte Gifford, 6 Ves. 805. And in Mortland v. Himes, 8 Barr, 265, which recognises Ex parte Gifford, it is ruled on the principle above stated, that a release of the surety does not exonerate the principal debtor. Mr. Justice Bell, who examines the cases bearing on the point, puts the question on the only rational principle: that whether the release of one joint, or joint and several debtor, discharges the others, depends on the question whether the effect will be to increase the responsibility of the other debtors. If not, though effective as a release, it is never permitted to work a dissolution of the contract as to the party not released. In Pitman on Surety, 40 Law Lib. 178, the law is thus stated: "As the reason for discharging a surety from his liability when time has been given to the principal debtor, is, that the creditor has done an act by which the surety is or may be injured, any agreement entered into between the creditor and the principal, by which the remedies of the sureties are not determined or effected,...