Brown v. Pacific Coast Agency

NOURSE, J.

This is an appeal from an order setting aside an order directing that execution issue. Plaintiff, on September 20, 1911, obtained a judgment against Jacobi, Rothchild, Conant, and Muller, joint guarantors on a promissory note. The judgment called for $9,231.57 and $1,000 attorneys’ fees and costs of suit. On December 29, 1911, the defendants Rothchild and Conant paid on said judgment $8,500, taking a satisfaction "of judgment to that extent and a release which contained the express reservation that it should “not operate to release said I. L. Jacobi and said Otto Muller from the payment of the balance of said judgment. ’ ’

On October 7, 1920, the balance of the judgment being still unpaid, plaintiff obtained an order directing that execution issue and the judgment be enforced. Thereafter, on motion of defendant Muller, this order was set aside on the ground that the partial satisfaction of December, 1911, released Muller also under the provisions of section 1543 of the Civil Code, because he was a mere guarantor. From the order granting Muller’s motion plaintiff brings this appeal.

The order is attacked upon two grounds: (1) That the reservation in the release protected plaintiff’s rights against Muller; and (2) that he was not a “mere guarantor” under section 1543 of the Civil Code.

This section of the code was enacted in 1872, being copied

verbatim,

from section 743 of Field’s draft of the New York Civil Code. It reads: “A release of one of two or more joint debtors does not extinguish the obligations of any of the others, unless they are mere guarantors; nor does it affect their right to contribution from him.” By the

[790]

English common law a general release of one of two or more joint debtors released as to all. But a qualified release, expressly providing that the joint debtors not mentioned in the release were not discharged, was recognized in the English courts and in New York by statute as early as 1838 (Laws N. Y. 1838, c. 257). Section 1543 of our Civil Code gives the same effect to a release in general terms as was given to the qualified release by the English courts.