89 Ill. 176 | Ill. | 1878
delivered the opinion of the Court:
It is enough to say of the last agreement of release that it is upon the express condition that it shall not be binding unless assented to by all the creditors, and the evidence shows that it was not thus assented to. It is unimportant that some or all of the creditors not thus assenting have since received their pro rata part. It does not appear that they have ever assented to the terms of the release or that they accepted the amounts paid them in discharge of their claims against Abend, and, in the absence of such proof, we perceive nothing to prevent their recovering judgment against him for the balances still due them respectively. What has been paid them was not paid pursuant to the terms of the release, but in disregard of its terms.
The signature of plaintiff in error to the first instrument is followed by these words: “Expressly understood that the securities are not released.” We are of opinion that these words, though not appearing in the body of the instrument, arc competent evidence of the condition upon which he was willing to become a party to it. Chitty on Bills (8 Am. ed.) 160; Story on Promissory Notes, § 23; 2 Parsons on Bills and Notes, p. 539.
Assuming the evidence to have been admissible, it is very clear that the sureties were not released, for an agreement which preserves the right of the creditor to proceed against the surety, or the right of the surety to proceed against the principal, will not discharge the surety. Rucker v. Robinson, 38 Mo. 154; Morse v. Huntington, 40 Vt. 488-496; Price v. Barker, 4 Ellis & Blackburn, 760, (82 Eng. Com. Law 760); Kearsley v. Cole, 16 Meeson & Welsby, 128; Vieley v. Hoag, 24 Vt. 46; Hubbell v. Carpenter, 1 Selden, 171.
It is impossible to point out how, by Mueller subscribing the release upon the condition expressed, the sureties have been prejudiced. They were left free to sue the principal, and there was nothing inhibiting him from doing so if it Were material to preserve the liability of the sureties.
The court erred, therefore, in our opinion, in giving the instructions asked by defendants in error and in overruling the motion of plaintiff in error for a new trial.
The judgment is reversed and the cause remanded.
Judgment reversed.