
    Sarah M. Joslyn vs. James H. Capron.
    The defendant, dealing with the plaintiff, a woman in feeble health, and having got possession of two notes, for $200 and $260, given 'by him for moneys borrowed in 1863 and 1864, and carried them away against her will and protest, and getting up a dispute and altercation with her, in respect to an alleged payment of $110 on said notes, which she affirmed had never been made, finally coerced her into agreeing to receive one-half the amount, and upon the payment of that sum procured her to sign the following receipt: “ Reckoned and settled with J. H. C., and received full payment of all demands, either in law or equity, up to this date.” Seld that a receipt thus obtained against right, and the clear evidence in the case, and the finding of the referee on the question of fact, should not in law operate to discharge a debt of the defendant evidenced by his promissory note then running to maturity but not yet due.
    
      Held, also, that if the paper was regarded as a mere receipt, it would be open to explanation, and limited to the subject matter in controversy between the parties, at the time it was given, viz., the 8110 claimed, and denied to be due upon the two notes of 1863 and 1864. That such controversy or dispute was compromised; and the $56 then paid must be considered as received in accord and satisfaction of such claim.
    
      Held, also, that there was nothing “ reckoned and settled,” at the time, except the plaintiff’s claim that $110 was unpaid upon the notes; and the words “ received payment” could only relate to the $55 received in discharge of such claim; the plaintiff having no other claim against the defendant, then due.
    
      Held, further, that such receipt did not include, or cut off the plaintiff’s claim upon a note of the defendant, then running, but not maturing until several months afterwards.
    The modern cases in our courts have been relaxing more and more, the former strict rules in regard to receipts and releases of this kind, and hold them, generally—whatever may be their form or language—open to explanation, and subject to be construed and limited by parol proof of the facts' and circumstances to which they relate, and thus prevent them from being used as instruments of fraud, imposition and injustice. Per E. D. Smith, J.
    APPEAL, by the plaintiff, from a judgment entered upon the report of a referee.
    This action was brought upon a promissory note for .$200, dated March 15, 1865, payable, with interest, two years after date. ' The case was tried by a referee, who found the making of the note, its delivery, and that the same had never been paid;'buthe dismissed the complaint on the ground that said note was discharged or released by a receipt or release signed by the plaintiff in the words following:
    “Verona, Dec. 10, 1866.
    Reckoned and settled with J. H. Capron, and received full payment of all demands, either in law or equity, up to this date.
    (Signed,) H. Joslyn,
    Ephraim Joslyn,
    Sarah M. Joslyn,
    By A. B. Caq-win.”
    
      The referee finds that prior to March, 1865, the defendant had borrowed money of the plaintiff, and she held two notes against him, given for money lent; one for $200, and one for $250; one dated in 1863, and one in 1864; that in March, 1865, she lent him the further sum of $200, and took his note for it payable in two years, with interest, which is the note suit.
    That in the fall of 1866 the defendant called on the plaintiff to pay the two oldest notes, and they were produced to him for that purpose, when, instead of paying the sum of $450, the principal and interest on such notes, he paid only the sum of $359, insisting that he had previously paid on the same $110, and took and carried away the said notes, notwithstanding the plaintiff protested,' and claimed that he still owed her the said sum of $110 of principal, on said notes. After the defendant had gone away, the plaintiff made search for the $200 note, of March, 1865, and could not find it, and has never since found it; and it had never been paid to her.
    That about a week afterwards, the defendant came to the plaintiff’s house for the purpose of settling with her in regard to her claim on the said notes of 1863 and 1864, and it was then—after some dispute and discussion about that claim—agreed that the defendant should pay the plaintiff $55 further, in full of those notes. The defendant then paid the plaintiff the said sum of $55, and drew up the receipt aforesaid, which she signed or caused to be signed.
    The plaintiff asked the defendant if he was going to pay half of the $200 note of 1865, and he said he was not, and denied that there was any such note ; said if she could find it, he would pay it, &c.
    Upon these facts, the referee found, as a conclusion of law, that the plaintiff was not entitled to recover against the defendant; and ordered the complaint to be dismissed.
    
      
      Johnson & Prescott, for the appellant.
    I. The only question in this case is, whether the paper is per se conclusive, and operated at once to discharge all claims whether disputed or not; whether due or not; or whether it is only to be held as operative as to demands which were the subject of negotiation or dispute.
    If it is—as we claim—a receipt, merely, the authorities of this State, in England and the U. S. courts are conclusive, that it is open to explanation or contradiction by parol, and is no bar. In White v. Parker, (8 Barb. 69,) it is held: “That a receipt may be explained or even contradicted by any evidence competent to establish a fact, is a proposition settled by judicial decisions, which are too numerous and too uniform to justify a re-examination of the principles on which it is founded, or a reference to the authorities in its support. This is the English doctrine, the doctrine of the U. S. courts, and was adopted by our own Supreme Court in 1799, in the case of Ensign v. Webster, (1 John. Cas. 145,) and has been steadily adhered to ever since.” Up to the time of the decision of the court for the correction of errors in McCrea v. Purmort, (16 Wend. 460, et seq.,) the courts of this State had not been agreed as to a sealed receipt—as in case of a deed—but in that case all the authorities were examined and discussed, and it was held that a sealed receipt was open to examination and contradiction by parol, and not a bar. (Opinion of Court, Cowen, J., 465, et seq.) Since that decision the cases have been uniform. In Filkins v. Whyland, (24 N. Y. 338,) the cases were again reviewed, and the same rule laid down by the Court of Appeals. (See also 12 N. Y. 509; 19 id. 330; 2 Keyes, 41; 38 N. Y. 289; 42 id. 316.) From these cases it will be seen that the tendency of our courts has been to “throw open the doors” and admit all the light that any evidence will give to the litigation, and the court of last resort has gone the length of declaring that a deed, absolute on its face, may be shown, by parol, to have been intended for a mortgage. (Van Dusen v. Worrell, 36 How. 286.)
    II. But it is claimed that the paper is not a receipt, but is a release, and instantly extinguished any and all claims we had, whether due or not; whether contemplated or not. That was the view taken by the referee. To that we say: It is not a release. It is not under seal, a technical release is always sealed, and, that imports a consideration. If it was in form a release, and without seal, it would only be a parol agreement to release. (DeZeng v. Bailey, 9 Wend. 336.) Again; if it is claimed°to be a release, it is void. In Frink v. Green, (5 Barb. 455,) a writing in due form was offered in evidence, releasing one of the parties from three $50 notes; it was objected to as void for not expressing a consideration, and not being under seal. It was held void as a release, not being under seal, and no consideration having been expressed on its face. In this case the paper is not sealed, and expresses no consideration, and all the evidence there is in the case goes to show that there was no consideration for a release of the $200 note in suit; on the contrary, there was a disputed claim, and that was settled; the note in suit was not a claim ; it was not due until March, 1867. In Crawford v. Millspaugh, (13 John. 87,) it was held that a writing in the form of a release, but without consideration, was void, in the nature of a mere nudum pactum. (See also Seymour v. Minturn, 17 John. 169 ; Dewey v. Derby, 20 id. 462; Barnard v. Darling, 11 Wend. 28.) The paper is not even a release in form; it lacks all the elements and indicia of a release. The words remise, release and forever quit-claim, are always used in a technical release ; although words of equivalent import may be used, as renounce, acquit and discharge. A release by its own operation, at once and forever extinguishes a pre-existing right; a receipt never has that effect, it is only evidence of the payment; it is the payment which discharges. In this case, the payment was $55, to compromise a claim for $110, and as to that claim it is conclusive.
    III. If this paper is claimed to be a general release, then it is subject to the rule that “a general release shall be confined to what was under consideration at the time of giving it.” (See McIntyre v. Williamson, 1 Edw, Ch. 34.) In Jackson v. Stackhouse, (1 Cowen, 122,) where a release acknowledged the receipt of $1, in full of a certain judgment, and also in full of all debts, demands, judgments, executions and accounts whatsoever ; it was held that it was restrained to the judgment only, and did not operate upon a mortgage between the parties. In Cole v. Gibson, (1 Vesey, Sr. 507,) Lord Hardwick said: “ It is common to restrict a general release to what was under consideration at the time of giving it,” and in Ramsden v. Hylton, (2 id. 310,) he again said : “ It is certain that if a release is given on a particular consideration, notwithstanding the release concludes with general words, yet the law, in order to prevent surprise, will construe it to relate to the particular matter which was in contemplation of the parties, and intended to be released.” (See also Illinois Central R. R. Co. v. Welch, 53 Ill. 183; S. C., 4 Am. R. 593.)
    It is also held, that “if a release acknowledges the receipt of £10, and thereof acquits and discharges the person of whom it is received, and also of all actions, debts and demands;” yet, by the release nothing is discharged but the £10. (2 Roll. Ab. 409. 3. Mod. 277. 1 Ld. Raymond, 235. 4 Bos. & Pull. 113. Jackson v. Stackhouse, 1 Cowen, 122 Eish v. Jesson, 2 Verm. 144.) In Colburn v. Lansing, (46 Barb. 37,) a paper as following: “We, the subscribers, respectively have received from C. E. L. and M. L., surviving executors and trustees of the estate of J. W., deceased, on final settlement of all claims and demands of every name and nature and kind, which we now have, or ever have had, against the estate of J. W., deceased, or against the executors and trustees of said estate,” was held to be open to explanation, and not conclusive. In Kirby v. Taylor, (6 John. Ch. 351,) the chancellor says: “But equity will not give a release an operation beyond the intention of the parties and the justice of the case.” And again, (p. 353,) he says : “I approve of the principle that releases are to be construed according to the intention of the parties.”
    IV. It is found by the referee that the defendant has never paid the note in suit, and that it was not due at the time this paper was given; the debt is not satisfied, therefore, in any way, and unless the court can see that it was the intention of the parties to include this note, not then due or payable, this paper will not be held conclusive. (See Ryan v. Ward, 48 N. Y. 204.)
    V. The note was not due—not a claim—it was not payable until March, 1867, and a full release .would not effect it. At that time we had no legal claim on the defendant upon the note; could not claim it. In Carthage v. Manby, (2 Shower, 90,) which was founded upon, an action of covenant of money at a future day, the defendant pleaded a release made before that day, of “all debts, dues, actions and causes of action, bills, obligations, writings,” &c. There was a demurrer to this, and after argument, judgment was given for the plaintiff, on the ground that “a release in general terms of all claims and demands whatsoever, does not discharge an obligation, not then due, or a covenant not then broken.” (See also, Roche v. Morgell, Schoales & Lefroy’s Rep. 727, and authorities in Comyn’s Digest Release, Eq. Pl. 1.) This seems to be a joint receipt, given by H. Joslyn, Ephraim Joslyn, Sarah M. Joslyn, by A. B. Cagwin, and it is submitted that this joint paper, made by all the parties, is not a release of a note of $300 owned by the plaintiff alone, which was not dne until March of the next year.
    
      W. Ballou, for the respondent.
    I. The parties met for the purpose of settling disputed claims. The plaintiff insisted that the defendant owed her $310; the defendant insisted that he owed her nothing but offered to give her $55 by way of compromise, if she would give him a receipt in full of all demands she had or claimed to have against him; the plaintiff accepted the offer, received the $55, and gave the discharge demanded. This mnst be considered in the nature of a release, as conclusive evidence of a satisfaction of all claims of the person making it. It is a good accord and satisfaction of all of the plaintiff’s claims against the defendant, and extinguished all right of action existing at the time. (Vedder v. Vedder, 1 Denio, 257.) The defendant was willing to pay $55 in settlement of the disputed endorsement, but exacted as one of the terms of a settlement of that claim, that the plaintiff should give him a receipt in full for all demands which she had against him. Upon this basis the parties settled; and the plaintiff is bound by her act, notwithstanding she yielded reluctantly, and notwithstanding she was not fully aware of the legal effect of making and executing the agreement. (S. C., per Beardsley, J. Therasson v. Peterson, 2 Keyes, 636.) The payment of a less sum than a demand or an account, is always held a good accord and satisfaction, when the account or demand was disputed. (Pierce v. Pierce, 25 Barb. 243, 253. Palmerton v. Huxford, 4 Denio, 166.)
    ' II. The paper in question is more than a mere receipt for money; it is evidence of an agreement and settlement between the parties, and it cannot be contradicted or explained, by parol evidence. (Milton v. Hudson River Steamboat Co., 4 Lans. 76. Cowen & Hill's Notes, 14, 39. Coon v. Knap. 402, 407. Kellogg v. Richards, 
      14 Wend. 116. Stearns v. Tappin, 5 Duer, 294. McCrea v. Purmort, 16 Wend. 474. Renard v. Sampson,, 2 Kern. 561. 30 N. Y. 480.) This would be the effect of the paper, although nothing had been said about the $200 claim at the time of the compromise of the other demand. (1 Denio, 257.)
   By the Court, E. Darwin Smith, J.

Upon the findings of the referee upon the facts, it is very clear that the plaintiff has an honest debt against the defendant, for the amount of the note in suit for $200 and interest, and that the same has never in fact been paid.

It is quite clear, also, from the referee’s report of the evidence in the case, that the defendant, dealing with a woman in feeble health, and having got possession of the two notes of $200 and $250, given by him for moneys borrowed in 1863 and 1864, and carried them away against her will and' protest, and • getting up a dispute and altercation with her in respect to an alleged payment of $110 on said notes, which she affirmed had never been made, finally coerced her for the sake of avoiding a legal controversy between relations, into agreeing to receive one-half of such amount, and upon the payment of such sum, procured the receipt of which a copy is above given. The question is, whether a receipt thus obtained against right and the. clear evidence in the case, and the finding of the referee on tlie question of fact, must, in law, operate to discharge the plaintiff’s debt, evidenced by the promissory note in suit in this action.

If the receipt in question was regarded ■ as a mere receipt, it would unquestionably be open to explanation, and would be limited to the subject matter in controversy between the parties at the time it was given—the $110 claimed and denied to be due and unpaid upon the two promissory notes of 1863 and 1864. That controversy or dispute was unquestionably compromised, and the $55 then paid must be considered as received in accord and satisfaction of such claim.

The modern cases in onr own courts have been relaxing more and more the former strict rules in regard to receipts and releases of this kind, and hold them, generally, whatever may be the form or language of the same, open to explanation, and subject to be construed and limited by parol proof of the facts and circumstances to which they relate, and thus prevent them from being used as instruments of fraudj imposition and injustice. To construe the receipt in this case as a contract and release, as matter of law, so as to cut off and hold discharged and released in this case the promissory note in controversy, would be to allow or make it clearly an instrument of palpable injustice and wrong, and to give it a force and effect never intended by the plaintiff, and clearly not within the mutual understanding of the parties. It doubtless is a question of law, what is the true inteipretation of written instruments, as a general proposition, but all such instruments should be construed so as to carry out the intent of the parties ; and when there is room for doubt on this point, the court must look to the circumstances and contemporaneous facts attending the making and execution of such instruments, and take proof in respect to such facts, and interpret the instrument in the light of such facts ; and the question of fact upon such proofs must or may be submitted to a jury. The case of the Illinois Cent. R. R. Co. v. Welch, (4 Am. Rep. and 52 Ill. 183,) illustrates the rule. In that case Welch was a brakeman on the railroad of the company, was injured while in the employ of the company, and gave a receipt for $40, “in full payment and satisfaction, for one month’s time in April, while laid up with injuries received while breaking, and in full satisfaction of all claims, demands, damages and causes of action against said company, hereby forever releasing said company therefrom, as witness his hand and seal.” Being more seriously injured than he supposed, an action was brought for such injuries, when this receipt and release was set up. The court held that the receipt upon its face released the cause of action, but held that if the plaintiff was induced to sign it on the representation that it covered merely his month’s wages, or if he signed it under such a belief, induced by the words or acts of the agent of the defendants, the release would not be a bar; and held that this question should be submitted to the jury. That receipts and releases should be construed in reference to the matter, and general words, “as all claims and demands,” are to be restricted to the subject matter, see McIntyre v. Williamson, (1 Edw. Ch,. 34;) Kirby v. Taylor, (6 John. Ch. 251;) Colburn v. Lansing, (46 Barb. 37;) Filkins v. Whyland, (24 N. Y. 338;) Barker v. Bradley, 42id. 316;) Scovill v. Griffith, (12 id. 509.)

This receipt commences with the words “reckoned and settled.” Now what was reckoned and settled? Certainly nothing but the claim of the plaintiff to the $110 as unpaid, so far as she was concerned in the settlement.

A similar misunderstanding, it appears, existed at the time, with the other parties who signed said receipt, and one half of their respective demands was paid by the defendant, and received at the same time, and the balance relinquished.

The dispute at the time of the giving of the receipt was larger than what related to the plaintiff alone; and next, the words •“ received payment” clearly applied to such demands and the parties who signed such receipt; and as respects the plaintiff, can only relate to the $55 received in discharge of the claim to $110. This was all that was then paid to her. She had no other debt then due. This $200 note now in suit did not fall due till the next spring, and was not then legally demandable. It may be said to have then been not strictly a demand; certainly it was not within the scope and intent of the receipt and of the parties, for nothing was paid on it, or in respect to it.

[Fourth Department, General Term, at Rochester,

April 1, 1873.

Mullin, Talcott and B. JD. Smith, Justices.]

I think the referee should so have found as matter of fact, and given judgment for the plaintiff for the amount of such note and interest.

The judgment should therefore be reversed, and a new trial granted, with costs to abide the event.

Talcott, J., concurred in the result.

Mullin, P. J., did not vote.

New trial granted.  