I cannot concur in the majority opinion. While it may be conceded that the undertakings of the signers of the instrument involved here are to be found within the four corners of that instrument, yet under the rules of law applicable they are not one and the same undertaking. Within that instrument is the promissory note, made by its language joint and several. There is also the provision waiving presentment, notice, protest and the like, which is likewise by its language made a joint and several undertaking. The *Page 228 warrant of attorney, while appearing in the same paragraph without punctuation, is another and separate agreement, and the fact that the note and waiver of protest are joint and several does not require that the warrant of attorney be so construed. (Keen v. Bump, 286 Ill. 11; Gee v. Lane, 15 East. 592;Manufacturers' and Mechanics' Bank v. St. John, 5 Hill, 497.) Nor does the fact that the waiver of presentment, notice and protest appear in the same paragraph with the warrant of attorney indicate that the warrant is joint and several because such waiver is so. Since the decision of Osborn v. Farwell,87 Ill. 89, the rule consistently adhered to has been, and is, that in the construction of instruments, punctuation, while it may shed light on the meaning of the parties, is never allowed to change or overturn the plain meaning of the words used. Notwithstanding lack of punctuation in the instrument before us, the warrant of attorney is a separate provision and relates to a matter not the same as the promise to pay nor as the waiver of protest and the like. Keen v. Bump, supra; Mayer v.Pick, 192 Ill. 561; Whitney v. Bohlen, 157 id. 571; Gee v. Lane, supra; Hunt v. Chamberlin, 8 N. J. L. 336; Kahn v.Lesser, 97 Wis. 271.
The majority opinion holds, however, that from the word "undersigned" and the use of the word "severally," in the instrument, it appears that it was the intention of the signers that the warrant of attorney should be several as well as joint. It is said that Mayer v. Pick, supra, is to be distinguished. I am unable to see the claimed distinction, or to follow the argument on which it is based, that the word "undersigned" less definitely indicates but a joint agreement than the words "we" and "us" appearing in Mayer v. Pick, supra. Whether that term means one or more must depend upon whether there was one, or more than one, signer. "Undersigned" cannot be said to refer to one or both if there be but one signer. Quite as clearly, it seems to me, it cannot, where two have signed, mean *Page 229 but one signer any more than it can mean more than one when but one has signed. It appears indisputable that it must be construed, whenever used, to refer to whoever signed, whether one or many. If more than one the warrant is issued to act for all. Surely the word "undersigned," in its use here, is as clearly joint, only, as the word "we" or "us," andMayer v. Pick is not distinguishable. The language of the instrument creating the power to confess judgment is to "confess judgment against the undersigned." The majority opinion holds that this may mean J.E. or Marie Sollars severally as well as both jointly. Treating the word "undersigned" as a word of description, it describes not J.E. Sollars or Marie Sollars but both J.E. and Marie Sollars. It surely cannot be construed to describe both, or but one when both have signed. As was said in Hunt v. Chamberlin, supra, where the language of the power to confess judgment was against "us," "they were willing to stand together in judgment and meet an execution by their joint means and exertions, but it gives no authority for placing one of them in judgment by himself." It was also there said: "A warrant of attorney by two persons may, like an obligation, be drawn joint or joint and several, and it will never do to confound together those which in their nature are so distinct." Marie Sollars was an undersigned — that is, one of the undersigned — but she was not "the undersigned," because there were two, and that designation must relate to both. It cannot be even argued that it relates to Marie Sollars alone in this case without importing, from the provisions of the instrument relating to notice, presentment, protest and the like, the word "severally." Keen v. Bump,supra, states the general rule to be, that "power to confess a judgment must be clearly given and strictly pursued, and a departure from the authority conferred will render the confession void." This rule is generally adopted and applied in the construction of a power of attorney to confess judgment.Mayer *Page 230 v. Pick, supra; Whitney v. Bohlen, supra; Frye v. Jones,78 Ill. 627; Tucker v. Gill, 61 id. 236; Chase v. Dana, 44 id. 262; Roundy v. Hunt, 24 id. 598; Craighead v. Peterson,72 N.Y. 279; Kahn v. Lesser, supra.
Though it were to be conceded that the word "undersigned" in an instrument signed by two may be construed to mean both or one, it must likewise be conceded that it may, therefore, be construed to mean both as readily as to mean one. Since the case of Tucker v. Gill, supra, the rule in this State has been, and now is, that where from the language used it is doubtful whether the makers intended to confer the power to confess judgment jointly and severally the doubt must be resolved against the power. (Frye v. Jones, supra; Whitney v. Bohlen,supra; Keen v. Bump, supra.) To say that the warrant to confess judgment is to be construed from language used in the provision concerning waiver of notice, presentment, and the like, is to describe such warrant by language used to describe an entirely different thing and includes different persons. This neither reasoning nor the authorities permit.
It may be further observed that it is a principle of universal acceptation that an obligation by or a right given to two or more persons is a joint obligation or right, and there should be distinct words of severance to produce a several responsibility or right. Morrison v. American Surety Co.224 Pa. 41; Alpaugh v. Wood, 53 N. J. L. 638; Stage v. Olds,12 Ohio, 158; Turley v. Thomas, 31 Nev. 181; Brady v. Reynolds, 13 Cal. 51; Elliott v. Bell, 37 W. Va. 834.
From the language used in this instrument, as well as the settled rules of law applicable, it seems clear to me that this warrant of attorney is joint and not joint and several. The judgment of the circuit court should be affirmed.
FARTHING and SHAW, JJ., concur in this dissenting opinion. *Page 231