dissenting.
It is a familiar rule that the court, in construing an instrument, will place itself in the shoes of the parties by whom it was made, that, viewing the subject-matter from the standpoint which they occupied, it may arrive at a correct understanding of the meaning intended to be expressed by the words made use of.
Applying this rule to the present case, we find that some years prior to the time at which the release under consideration was made, appellee conveyed by warranty deed certain premises to appellant, the title to which afterward failed, leaving appellee liable upon his covenants; that at the time the release in question was made, appellee was aware of such failure, while appellant was entirely ignorant of the same; that one Jacobs, through whose agency appellant had purchased the property in question, was also, and had been for some time, aware of the failure of title to such property, but had failed to inform appellant of the same, and knew that appellant was ignorant in respect thereto.
Jacobs was, just before, and at the time the release was executed, in the midst of transactions with appellant of the greatest importance to him, Jacobs, involving his entire property, so that Jacobs felt it was for his interest, essential that he should come to an amicable understanding and settlement with appellant. Of this Jacobs informed appellee, and also informed him that because of the suit which appellee had commenced against appellant, appellant was very indignant, and believing that Jacobs had instigated the same, refused to come to any agreement or settlement with him, Jacobs. Jacobs thereon told appellee that he wanted his suit withdrawn, so that he, Jacobs, could settle his own matter with appellant, and finally, to induce the withdrawal of said suit, Jacobs gave to appellee his, Jacobs ” note, for $10,000, as a consideration for the withdrawal of said suit.
Appellant knew nothing about the means resorted to by Jacobs to procure the withdrawal of appellee’s suit.
Under these circumstances, with the knowledge on the part of appellee that appellant was entirely ignorant of his just claim against appellee upon his covenants of warranty, the release in question was executed. Prior to the making of this release, appellee consulted his lawyer, Baldwin, as to a release already drawn, asking him if it would cover appellant’s claim for the failure of the title to the Highland Park lots. Baldwin advised appellee that it would, but to make sure, drew up a new release, and inserted therein a mutual release clause, advising Mitchell that such clause would cover the liability on the lots. It is apparent that when the last mentioned release was executed, appellee was well aware that appellant did not and could not intend thereby to release appellee from his liability on the covenants contained in his deed for the Highland Park lots, because appellee well knew that appellant was entirely ignorant of the failure of his title to said lots, and the consequent obligation which appellee was under upon his covenants. Appellee executed and obtained this release, fully believing that thereby he was obtaining from appellant that which he had no intention of giving.
Construing the instrument from the standpoint of the parties, the general words of release must be held to include only what the parties, not one of them, who knew that the other was being deceived, intended, which was to execute a release of the claims which each had in mind, and was informed of. A release, however general in its terms, will be limited to those things contemplated by the parties at the time it is made, and will not be construed to include particular things then unknown and uncontemplated. The circumstances surrounding the parties at the time a release is made, are to be kept in view, as well as the purpose for which it was executed. A release will not be construed so as to include rights of Avhich the releasor was ignorant when he executed it. 20th Am. & Eng. Ency. of Law, 745; Addison on Contracts, 8th Ed., Vol. 2, p. 1223; Leake on Contracts, 1st Ed., 925.
The general words of release will be restrained in their 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. Lyall et al. v. Edwards et al., 6 Hurlstone & Norman, 336; Addison on Contracts, p. 1223; Hazelgrove v. House, 6 Best & Smith, 975; Blair v. Chicago & Alton Ry. Co., 89 Mo. 383-393; Payler v. Homersham, 4 Maule & Selwyn, 423; Lyman v. Clark, 9 Mass. 235; Rich v. Lord, 18 Pickering, 322.
In Simons v. Johnson & Moore, 3d Barnwell & Adolphus, 175, 23 Common Law, 84, the release under consideration was most sweeping in its terms, being “unto the said J. Johnson, his heirs, executors and administrators, and every of them, all and all manner of actions and causes of action, suits, controversies, sums of money, bills, bonds, writings obligatory, accounts, reckonings, damages, judgments, executions, claims and demands whatsoever, both at law and in equity, which against him, J. Johnson, his heirs, executors and administrators, or any of them, or against his, their, or any of their lands, tenements, goods, chattels, or real or personal estate, he, N. Simons, now hath, or he, his heirs, executors or administrators may hereafter claim, for, upon, or by reason of any matter, cause, or thing whatsoever, from the beginning of the world to the day of the date of these presents.”
Tet the court there held that it would look to the recital of the release, and that parol evidence of the nature of the actions mentioned in such recital, was admissible; and so doing, the court found that the release was intended to, and did, apply only to the matter recited, namely, the actions then depending, and that the object of the release was to put an end to them. In the present case, the release contains the following recitals:
“ 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.”
And then goes on to say, that “ therefore, in consideration of said differences, and of one dollar and other good and valuable consideration, the parties do release,” etc.
The general words of the release, as appears to me, are restricted by the recitals, they clearly showing what the parties had in mind, and what it was which they intended to release; which construction is in entire accord with the light thrown upon the transaction by a consideration of the circumstances surrounding when it was made. I am therefore of the opinion that certain propositions of law asked by the plaintiff, and refused by the court, should have been held, and that the judgment of the Circuit Court should be reversed and the cause remanded.