Baker v. Hunt

88 Mo. 405 | Mo. | 1885

Sherwood, J.

Action on two promissory notes. Defence to the action based on two similar papers signed by the intestate in the following form:

“ Pisg-ai-i, Mo., December 8, 1877.

“In consideration of the one dollar to me in hand paid by William B. Hunt, the receipt of which is hereby acknowledged, I the undersigned hereby agree to release William B. Hunt from any further liability incurred. by him on account of said William B. Hunt having signed a promissory note conjointly with Jonathan Hunt, David A. Jones and Daniel Hunt for the sum of seven hundred dollars. Said note was dated October 30, 1867, payable one day after date to my order. Said note has four credits placed on its back since given.

“R. D. Bousefielb.”

Section 666, Revised ■ Statutes, 1879, is as follows : “It shall be lawful for every creditor of two or more debtors, joint or several, to .compound with any and every one or more of his debtors for such sum as he may ¡see fit, and to release him or them from all further liability to him for such indebtedness, without impairing his right to demand and collect the balance of such indebtedness from the other debtor or debtors thereof, ¡and not so released.; provided, that no such release shall impair the right of any debtor of such indebtedness not so released to have contribution from his co-debtors as is by law now secured to him.”

With such statutory provisions before us it is needless to look to common law precedents and authorities when inquiring what force and effect shall be given to ■the papers above relied on as a defence herein. The .statute is plain and unambiguous in its language, and is, therefore, its own interpreter. Its terms apply to “every creditor of two or more debtors” and it makes it “lawful” for such creditor to compound with any and every one or more of his debtors for such sum as he ■may see fit, and to release him or them from all further liability for such indebtedness. It is too clear for argument that the requirements of this section have been ■fully met by the papers executed by the plaintiff ’ s intestate. This section applies to all debts howsoever, they -may be evidenced, whether by note or otherwise.

' The section in question has been on our statute book for over thirty years, yet so far as I am able to discover, has never been passed upon. The case of McAllister v. Dennin et al., 27 Mo. 40, was decided without any reference to the statute, but was correctly decided even had the statute been invoked; for there judgment had been obtained in favor of McAllister & O’Flaherty, partners, against Lowrie, Dennin and Rees.' Subsequently McAllister for himself and his deceased co-partner for the consideration of five hundred dollars released Lowrie alone from all further liability on the judgment. Afterwards and on the foregoing facts Dennin and Rees moved the court to enter satisfaction of the judgment. The statute does not apply to a case of that sort. When complianpe is had with its terms the effect is to discharge the particular debtor who is released and to debar the creditor from suing him; but the release goes no further than • this; rights of contribution and the particular debtor' and his co-debtors are still expressly preserved.

The case of Willis v. Gammill, 67 Mo. 730, is not any more in point for three reasons: 1. The statute was not invoked nor commented on. 2. There were three makers on the note and the agreement made was not for the release of the two makers who paid a certain sum, but for the absolute discharge of the debt, the note evidencing the debt being surrendered to them. 3. The agreement was made with the administratrix of the deceased payee and she was held incompetent in the circumstances to “forgive the debt.” Nor do the decisions of this and other courts apply when the question is simply whether the payment by a single debtor of a part of his debt will release the residue. The statute only becomes operative when the conditions which it prescribes exist and meet' with compliance. Therefore, judgment affirmed.

All concur.