1 Lyman v. Clark, 9 Mass. 235; Rich v. Lord, 18 Pick. 325; McIntyre v. Williamson, 1 Edw. Ch. 34; Payler v. Homersham, 4 M. & S. 426; Jackson v. Stackhouse, 1 Cow. 126; Dunbar v. Dunbar, 5 Gray, 103; Noble v. Kelly, 40 N. Y. 415; Lyall v. Edwards, 6H. & N. 337. Thus in a deed under § 192 of the English Bankruptcy Act of 1861, made between the debtor of the one part, and all of his creditors of the other part, the debtor covenanted severally with all his creditors to pay a certain composition, in consideration whereof the creditors released the debtor from all actions, debts, contracts, etc. And it was held that the general words of the release were to be restrained by the general provisions of the deed, and the deed was held valid. Gresty v. Gibson, Law R. 1 Exch. 112 (1866). See also Johnson v. Barratt, Ib. 65, for the construction of a release under the same section. Tetley v. Wanless, Law R. 2 Exch. 21 & 275 (1867); Braun v. Weller, Ib. 183; Bailey v. Bowen, Law R. 3 Q. B. 133 (1868); Latter v. White, Law R. 5 Q. B. 622 (1870); Haselgrove v. House, Law R. 1 Q. B. 101. A general release of all demands may operate to discharge debts due to the releasor as executor, although the release is not the meaning of the parties.1 But a release from "all claims, demands, actions, and causes of action which I now have against" another, "whether in my own name or in the name of other persons, held by me or owned by me, and particularly from the debt and costs in two specified actions which are to be entered 'neither party,' " is a general release.2
§ 1393. There are some classes of contracts the performance of which may be waived, and the contracts thereby discharged by parol without consideration. For example, an entire contract may as such be discharged by the acceptance of part performance, as if a house agreed to be built and completed for a certain price should be accepted in a half-finished state, and the work paid for. This would bar an action for a breach of the original contract. So, too, if a person should agree to purchase stock for another when it fell to a certain point, and, before the purchase was made, he should request him not to buy at all, this would excuse performance of the contract. But these cases, it is believed, will all resolve themselves into cases where no liability has yet arisen;3 and the contract of a person thus situated may be discharged without deed or consideration. If, however, the party's liability has once arisen, either by a breach or by the very nature of the engagement, as in the case of a promissory note or bill of exchange, it should seem that any discharge must be under seal or based upon a legal consideration.4 signed as such, unless the general words of the release are restrained and limited by the circumstances to other demands. Sherburne v. Goodwin, 44 N. H.271 (1862).
1 Rice v. Woods, 21 Pick. 30; Henry v. Henry, 11 Ind. 236; Hoes v. Van Hoesen, 1 Barb. Ch. 379.
2 Dunbar v. Dunbar, 5 Gray, 103 (1855).
3 The more usual expression is where there has been no breach: but this is inaccurate. There is no breach of the contract of the maker of a promissory note before maturity; and yet this contract, it is submitted, cannot be discharged without consideration, though the great weight of Mr. Baron Parke's opinion is contrary. See Foster v. Dawber, 6 Exch. 839, 851.
4 See Bender v. Sampson, 11 Mass. 42; Jackson v. Stackhouse, 1 Cow. 122; Crawford v. Millspaugh, 13 Johns. 87. But see Foster v. Dawber, 6 Exch. 839, which goes to the length of holding that the maker of a note may be discharged by mere "word of mouth" (1 Smith's L.
§ 1394. A release given by one of several creditors, each having an entire control over the whole debt, as in the case of an executor or partner, discharges the debtor from all liability to other creditors upon the debt, in respect of which the release is given.1 But if the creditors have a several interest, a release by one will not discharge the liability of the debtor to the other.2 So, also, if a trustee or nominal plaintiff fraudulently release the action, to the injury of his beneficiary, the court will set aside the release,3 upon distinct proof of fraud.4
§ 1395. In like manner, a release under seal, if given to one of several debtors, jointly liable, enures to the benefit of all; even though it should appear that the release was given at the express instance of the other debtors, who thereupon agreed to remain liable.6 But a covenant not to sue one of several joint and several debtors would not operate to release the others.6 So a release by parol to one debtor, not being a
C. 310, 6th Eng. ed.). This is suggested by Parke, B., to rest upon the authority of the civil law; but it is so little consonant with the fundamental principles of the English law, that it may deserve further consideration.
1 Barker v. Richardson, 1 Younge & Jerv. 362; Bacon, Abr. Release, E.; Murray v. Blatchford, 1 Wend. 583; Decker v. Livingston, 15 Johns. 479; Austin v. Hall, 13 Johns. 286; Halsey v. Whitney, 4 Mason, 206; 3 Kent, Comm. 47, 48; Napier v. McLeod, 9 Wend. 120. So a release by two of three joint obligees is a bar to a suit by the third, brought in the name of the three, for one-third of the benefit of the contract. In such joint action the plaintiffs cannot set up that such release was a fraud on one of their number, and thus deprive the defendant of a legal defence to the claim of the three. Myrick v. Dame, 9 Cush. 248 (1852).
2 Bacon, Abr. Release, E.
3 Manning v. Cox, 7 Moore, 617; Barker v. Richardson, 1 Younge & Jerv. 362; Crook v. Stephen, 5 Bing. N. C 688; 7 Scott, 848; Legh v. Legh, 1 B. & P. 447; Innell v. Newman, 4 B. & Ald. 419; Herbert v. Piggott, 2 Dowl. P. C. 393; 2 C. & M. 384.
4 Jones v. Herbert, 7 Taunt. 421; Eastman v. Wright, 6 Pick. 316; Loring v. Brackett, 3 Pick. 403.
5 See ante, § 33 k, and cases cited; Cocks v. Nash, 9 Bing. 345.