The plaintiff being the payee and holder, the defendants unless discharged are severally liable as indorsers for the amount remaining due on each of the promissory notes in suit. R. L. c. 73, § 80; c. 173, § 3. But as the maker after maturity has been released by an instrument under seal, wherein no rights were reserved against them, they contend under R. L. c. 73, *355§ 137, which provides that “a person secondarily liable on the instrument is discharged ... by a release of the principal debtor, unless the holder’s right of recourse against the party secondarily liable is expressly reserved,” that a verdict should have been ordered in their favor.
If the holder of negotiable paper unreservedly released the maker without the consent of an indorser, the latter at common law was thereby discharged from all liability. Sargent v. Appleton, 6 Mass. 85. Gifford v. Allen, 3 Met. 255. Sohier v. Loring, 6 Cush. 537. Pierce v. Parker, 4 Met. 80. Phoenix Cotton Manuf. Co. v. Fuller, 3 Allen, 441. Tobey v. Ellis, 114 Mass. 120. The underlying reason is that the releasor, in whom is vested the title, by discharging the maker has impliedly stipulated not to pursue the indorser or to seek satisfaction from him.
It is as well settled by the common law that while the effect of the sealed instrument cannot be cut down by a mere paroi agreement, yet where the indorser, who has not joined in the instrument, consents, the release as to him does not operate as a discharge even if no right of recourse has been therein reserved. Gloucester Bank v. Worcester, 10 Pick. 527. Reed v. Tarbell, 4 Met. 93. Myrick v. Dame, 9 Cush. 248. Hale v. Spaulding, 145 Mass. 482. Chester v. Bank of Kingston, 16 N. Y. 336, 338. Mercantile Bank of Sydney v. Taylor, [1893] A. C. 317. And his assent may be shown by paroi. The evidence is not admitted for the purpose of controlling or affecting the legal meaning of the release, but only to show that, whatever may be its meaning, the indorser has consented that the meaning shall prevail, no matter how he may be affected. Sohier v. Loring, 6 Cush. 537. Creech v. Byron, 115 Mass. 324. Osgood v. Miller, 67 Maine, 174. Chester v. Bank of Kingston, 16 N. Y. 336, 338. Deahy v. Choquet, 28 R. I. 338. Wyke v. Rogers, 1 DeG., M. & G. 408. Woodcock v. Oxford & Worcester Railway, 1 Drew. 521.
The maker, where the holder’s or creditor’s rights against the indorser are expressly reserved in the instrument, is liable to the indorser for whatever sum he may be called upon to pay to make. up the amount remaining due. But if the indorser has consented to the release, he is barred of any right of recourse. Sohier v. Loring, 6 Cush. 537, 547. Potter v. Green, 6 Allen, 442. McKim v. Demmon, 130 Mass. 404, 406.
*356A negotiable instrument is discharged under § 136 by payment in due course by or in behalf of the principal debtor, or by the party accommodated when the instrument is made or accepted for accommodation, or “by any other act which will discharge a simple contract for the payment of money.” It had long been, decided before the law as to negotiable instruments was codified that a simple contract, consisting of a promissory note, which is-the debt itself, could be thus discharged and the maker or principal debtor relieved from all further liability to the holder. West Boylston Manuf. Co. v. Searle, 15 Pick. 225.
But the effect of a release upon parties secondarily liable is found in § 137. It is obvious upon comparison, as well as under our decisions, that the words, “release of the principal debtor,” and “unless the holder’s right of recourse against the party secondarily liable is expressly reserved,” refer to the unconditional discharge of the maker. They have reference only to the first class of cases, where the question whether the indorser is released depends not upon his consent, for he has not consented, but upon the true intent of the agreement. See Vanderford v. Farmers’ Bank, 105 Md. 164. The statute speaks of an express reservation in the instrument. The language is entirely inappropriate to describe .a consent on the part of the indorser, when the release is given at his request, under the second class of cases. The statute therefore should be construed as not intended to preclude the indorser and the holder from entering into an agreement by which the indorser’s liability should continue unimpaired.
The company, of which the defendant Bennett was the treasurer and financial agent, having become financially embarrassed, made a common law assignment for the benefit of creditors to which the plaintiff never became a party. Nor did the plaintiff ever accept the composition apparently offered under the assignment. After a petition in bankruptcy against the company had been filed and dismissed, the creditors effected a settlement which the plaintiff accepted, and thereupon executed the release accompanying the offer. The jury would have been warranted in finding upon the testimony of the plaintiff’s cashier a waiver of demand and notice, and that while the company’s affairs were in process of adjustment the defendants, who severally knew of the terms proposed, requested the plaintiff to accept the settlement, and to *357apply the amount in partial payment. Reed v. Tarbell, 4 Met. 93, 96.
This evidence for reasons previously stated being admissible, the first, second, third and fourth requests were rightly denied. The sixth request, and the requests presented to and accepted by the judge when the instructions were partially completed, having omitted the material qualification, that on the evidence the jury could find the defendants had requested the plaintiff to execute the release with the express understanding that théy should remain responsible, also were rightly refused.
By the fifth request, and the exceptions to the charge, the attention of the judge had been distinctly directed to the pleadings, where the counts on the' oral promise alleged that the plaintiff had become a party to the common law assignment and had received its share of the proceeds, while the evidence showed that the percentage was paid on an independent agreement of compromise. Apart, however, from any question of variance, which could have been cured by an amendment, the jury should have been instructed that the defendants’ liability to pay the amount remaining depended not on their oral promise to make the plaintiff whole for the difference, but on their assent to the acceptance of the compromise and release of the maker. If these conditions were proved their contract of indorsement still subsisted, and the plaintiff could prevail on the counts declaring on the notes which had not been surrendered. Hunt v. Brown, 146 Mass. 253, 254, 255.
But the defendants have not been harmed. It may be that in referring to the application of the statute some of the expressions used by the judge were not technically appropriate, yet the instructions as a whole were sufficient in substance. The jury were correctly and clearly instructed, that unless the settlement had been effected and the release given with their knowledge and . consent, the defendants were entitled to a verdict. It moreover is undisputed, that the amounts recoverable are exactly the same under either form of pleading.
The instructions as to the liability of the defendant Bourget were sufficiently favorable. It was for the jury to determine upon conflicting evidence whether he assented to the release.
The verdict should not be disturbed, for under common law *358Rule 40 of the Superior Court, judgment can be entered on the counts on the notes. West v. Platt, 127 Mass. 367, 371. Pelton v. Nichols, 180 Mass. 245.
Exceptions overruled.