Opinion
7 Div. 541.
March 24, 1927.
Appeal from Circuit Court, Clay County; E. S. Lyman, Judge.
Walter S. Smith, of Lineville, for appellant.
It was error to give the affirmative charge at plaintiff's request. Eggleston v. Wilson, 208 Ala. 167, 94 So. 108. A release of one partner discharges his copartners also. Gray's Ex'rs v. Brown, 22 Ala. 262; Elliott v. Holbrook, 33 Ala. 659; Carroll v. Corbitt, 57 Ala. 579; Johnson v. Collins, 20 Ala. 435. The affirmative charge requested by defendant should have been given. Authorities, supra.
E. P. Gay, of St. Petersburg, Fla., for appellee.
Brief of counsel did not reach the Reporter.
The decisive question presented by the record is whether or not plaintiff's release of Wyatt Green from his individual liability to pay the notes in suit operated as a release also of his copartner, this defendant.
The common-law rule as to the effect of a creditor's release of one of several joint debtors has been qualified in this state by statute:
"All receipts, releases, and discharges in writing, whether of a debt of record, or a contract under seal, or otherwise, must have effect according to the intention of the parties thereto." Code 1923, § 7669; Code 1852, § 2282; Carroll v. Corbitt, 51 Ala. 579; Long v. Gwin, 202 Ala. 358, 80 So. 440.
From the authorities it seems that, even under the statute, without a reservation, express or implied, of recourse against another or others — without a showing that the release is of the individual debtor merely, and not of the debt — will operate as a release of the debt, and hence of all the joint debtors. Gray's Ex'rs v. Brown, 22 Ala. 262; Roberts v. Strang, 38 Ala. 566, 569, 82 Am. Dec. 729; Browning Co. v. Grady, 10 Ala. 999; Home Tel. Co. v. Fields, 150 Ala. 306, 43 So. 711; Long v. Gwin, 202 Ala. 358, 360, 80 So. 440; Wright v. McCord, 205 Ala. 122, 127, 88 So. 150. See, also, Hale v. Spaulding, 145 Mass. 482, 14 N.E. 534, 1 Am. St. Rep. 475; Yates v. Donaldson, 5 Md. 389, 61 Am. Dec. 283.
We think the intention of the creditor, fairly deducible from the written release here exhibited, was to release merely the personal obligation of Green to pay the partnership debt, and not to discharge the debt itself, recourse upon the debt being impliedly reserved.
Moreover, the statutory answers of plaintiff, elicited and introduced by defendant, show that the settlement and release were limited to plaintiff's claim against Green individually.
On the undisputed evidence, there was a balance due on the notes of $1,824.15, and it was, at least, not prejudicial error for the trial judge to state that fact to the jury. Woods v. Moten, 129 Ala. 228, 30 So. 324. He did not instruct the jury to find for that amount.
The evidence showing without dispute that a large balance was due, the instruction, with hypothesis, to find a verdict for plaintiff, was properly given. It follows, of course, that the several instructions, contra, requested by defendant, were properly refused.
The question to defendant, Orr, excluded by the trial court and made the basis of the sixth assignment of error, is of obscure application to the issues being tried; but upon its face it appears to call for an opinion or conclusion merely, and we could not pronounce its exclusion erroneous. Moreover, it is not sufficiently argued to escape the imputation of waiver.
There being no error in the record, the judgment will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BROWN, JJ., concur.