delivered the opinion of the court:
The general replication to the special pleas of release put in issue the question as to whether the release set up in these pleas operated to release the cause of action here sued upon. On the theory that it was not a bar to this cause of action the plaintiff presented to the court a number of propositions of law which were refused, the first and second of which were as follows:
1. “Where there is a particular recital in a release, followed by general words, the latter are qualified by the particular recital, and the court therefore holds that in the release in question the general words of the release are governed and controlled by the recitals contained in said release respecting the differences therein referred to between said parties.
2. “The release offered in evidence by the defendant, though general in its terms, will be limited to those matters set forth in the recital, and will not be considered to include the cause of action set up in the declaration, if, at the time of the execution thereof, the plaintiff was ignorant of the existence of the encumbrance set forth in the declaration and the sale of the premises thereunder, and the defendant had reason to believe he was so ignorant.”
We think the only question for our decision is, what is the fair and proper construction to be placed upon the language of this release? It begins: “That whereas, there is a difference between the parties hereto respecting certain profits in some real estate transactions of said Todd in Chicago, Illinois; and whereas, said Mitchell has lately brought his action against said Todd for an accounting between himself and said Todd; and whereas, said parties hereto have compromised said differences: Now, therefore, in consideration of said differences,” etc. It is clear that the purport of this language is to limit the scope of this release to the matters contemplated in the recital, and they are, first, concerning some profits arising in real estate transactions; second, the accounting; and third, the compromise of these differences between the parties. It relates to these particular matters, and these alone. This construction is aided by the facts of this case, which tend to show that the breach of the covenant of warranty could not have been in contemplation of the parties, because unknown to the appellant at that time as an existing claim. Furthermore, this release, as it shows upon its face, refers only to matters which had been “compromised” by the parties. There is no pretense that this breach of the covenant of warranty had been compromised or adjusted, and such language could not possibly be construed to have reference to that. As is said by Waterman, J., in his dissenting opinion filed in the Appellate Court: “The general words of release will be restrained in effect by the recitals contained in the instrument, as applied to the subject matter,'—and this is true at law as well as in equity,”—citing Lyall v. Edwards, 6 H. & N. 336; Addison on Contracts, 1223; Hazelgrove v. House, 6 B. & S. 975; Blair v. Chicago and Alton Railroad Co. 89 Mo. 383; Paylor v. Hormishan, 4 M. & S. 423; Lyman v. Clark, 9 Mass. 235; Rich v. Lord, 18 Pick. 322.
We are satisfied the first and second propositions asked by the appellant and refused by the court announced a correct rule of law applicable to the case. Viewed in the light of all the evidence in the case, and in the light of the special as well as the general recitals in the release, it clearly appears that the intention was to release only those matters specially recited. This being true, the release was not a bar to this action, and the circuit court erred in refusing the first and second propositions of law submitted. Its judgment, and that of the Appellate Court, will be reversed, and the cause remanded for further proceedings in conformity with the views here expressed.
Reversed and remanded.