On the 24th of January, 1879, W. C. Harris, W. R. Forman, and the plaintiff executed and delivered to the defendant their two certain promissory notes of that date, each of which notes was joint and several in form, for the sum of two thousand dollars each, payable one year after date, with interest at the rate of one per cent per month from date until paid, payable monthly or compounded.
Thereafter the defendant commenced an action against said Harris, Forman, and plaintiff herein, to recover the amount due on said notes. The case was tried, and by the court taken under advisement, and while the court had the same under advisement the defendant herein received *7of said Forman the sum of $2,200 and executed and delivered to him a release in writing, of which the court and plaintiff herein were ignorant; and about two weeks thereafter the court rendered its decision and judgment in favor of defendant herein, and against said Harris, For-man, and the plaintiff herein, for the sum of $6,223.41, together with the costs, being the full amount sued for in said action. Thereafter an execution was issued upon said judgment for the amount thereof, less said sum of two thousand two hundred dollars, and certain real and personal property of the plaintiff herein were levied upon and advertised for sale under and by virtue of said execution. For the purpose of preventing the sale of said property and obtaining its release from said levy, plaintiff paid to the sheriff making the levy the sum of $4,315.99, the full amount due upon said execution, with all costs, which was paid to the defendant herein.
The plaintiff recovered judgment against the defendant herein for the amount so paid in satisfaction of said execution, and from that judgment, and from the order denying defendant’s motion for a new trial, this appeal is prosecuted.
The main question presented here is, whether the release of Forman relinquished the obligation of plaintiff.
The code provides that “ a release of one of two or more joint debtors does not extinguish the obligation of any of the others unless they are mere guarantors; nor does it affect their right to contribution from him.” (Civ. Code, sec. 1543.)
That the plaintiff, Harris, and Forman were, upon the face of the notes which they executed to the defendant, joint debtors, is too clear to admit of doubt, and unless the plaintiff was a mere guarantor, his obligation was not extinguished by the release of Forman. But the court, by request of plaintiff, instructed the jury that “a release of one of two or more sureties without the consent of the *8other co-sureties is a release of all the sureties.” This is clearly contrary to the provision of the code relating to the same subject, and “the code establishes the law of this state respecting the subjects to which it relates.”
The instruction being clearly erroneous, the judgment and order must be reversed.
Judgment and order reversed.
Thornton, J., and McFarland, J., concurred.
Hearing in Bank denied.