129 Ill. App. 208 | Ill. App. Ct. | 1906
delivered the opinion of the court.
No question of pleadings is made on the record. No question of fraud is presented by the pleadings or the evidence. The principal question presented is the effect of the receipt or release signed by appellee at the time appellant paid the money to appellee and received the certificate with the indorsement thereon from appellee.
The evidence and the circumstances surrounding the transaction convince us that it was the intention of both parties at the time the money was paid and the certificate was surrendered to make a full settlement of the claim of appellee against appellant under the certificate, and to release appellant from all further liability thereon.
The paper purports on its face to be more than a mere receipt for money. It covenants,or contracts in addition that the sum of money is received “in full of all claim and demand existing under the within certificate,” and it is executed under seal.
In Parsons on, Contracts (6th ed.), vol. 2, p. 872, the learned author in speaking of a release as a good defense to an action says: “'No special form of words is necessary, if it declare with entire distinctness the purpose of the creditor to discharge the-debt and the debtor. And if it have necessarily this effect, although the purpose is not declared, it will operate as a release. ’ ’
While the paper does not contain the usual words of release and discharge, it clearly declares the purpose of appellee to discharge the debt and to discharge appellant from the debt. If any effect is to be given to the clause above quoted, the document necessarily has the effect to discharge the debt. It is under seal, and therefore a sufficient consideration for a release is hnported.
Another view of the case which leads to the same result finds support in the authorities. Appellee delivered up the certificate on which suit was brought to appellant upon receiving the money, or warrants for the money, and the agreement of appellant to pay the balance of the face of the certificate. This was the obligation of appellant which appellee held. She delivered up the certificate, we think, with the intention and for the purpose of discharging the debt. This operated in law as a release and discharge of the liability on the certificate.
In Larkin v. Hardenbrook, 90 N. Y., 333, it is said:
“The rule seems to be well settled by the authorities that where an obligee delivers up the obligation which he holds against another party, with the intent and for the purpose of discharging the debt, where there is no fraud or mistake alleged or proved, that such surrender operates in law as a release and discharge of the liability thereon; nor is any consideration required to support such a transaction when it has been fully executed.” Citing Bouv. Law Dic., title Release; Albert’s Exrs. v. Ziegler’s Exrs., 29 Penn. St. 50; Beach v. Endress, 51 Barb. 570; Doty v. Wilson, 5 Lans. 10.
Appellee would not have indorsed upon the certificate itself the satisfaction thereof under seal and delivered up the. certificate to appellant, with the advice of her counsel who was present at the time, had it not been her intention to discharge and cancel the debt. Under the above authorities we hold that by operation of law the liability on the certificate was released and discharged by the delivery and surrender of the certificate to appellant under the circumstances shown by the evidence.
It follows from the view we take of the release, and the legal effect of the surrender of the certificate, that the court erred in refusing* to instruct the jury at the close of the evidence to find the issues for the defendant as requested by appellant.
The judgment of the Circuit Court is reversed with finding of fact.
Reversed.
