Todd v. Mitchell

1. Release—general words are qualified by precedinq particular recitals. General words of release will be restrained and qualified in their effect by a preceding particular recital in the instrument explaining its object and purpose. 2. Same—release of “all claims and demands” is held not to extend to breach of covenant. A release reciting that “whereas there is a difference between the parties respecting certain profits in some real estate transactions, * * * and whereas, said parties have compromised said difference, now, therefore,” etc., followed by a mutual release of all claims whatsoever, will not extend to a breach of a covenant of warranty of which one party was then ignorant.

Appeal from the Appellate Court for the First District;—heard in that court on appeal from the Circuit Court of Cook county; the Hon. C. G-. Neeley, Judge, presiding. The statement of this case as made by the Appellate Court is adopted here: “This action was brought by appellant, as plaintiff, against appellee, as defendant, to recover damages for a breach of covenants against incumbrances contained in a warranty deed of certain real estate in Highland Park, Cook county, made by appellee to appellant in the year 1877. To the declaration the defendant pleaded non est factum, and also special pleas of release, under seal, of the cause of action mentioned in the declaration, by the plaintiff to the defendant, executed June 10, for a valuable consideration. General replications to the special pleas were filed, and upon issues joined the cause was submitted to the court without a jury. “After the evidence had been heard, but before judgment, the appellant was given leave to file additional replications, setting up that the pleaded release was obtained by fraud, and averring that the fraud consisted in a concealment by appellee, in collusion with others, from appellant, of the existence of the cause of action declared upon, of which they then knew but he did not, by means of which concealment the appellant, by the appellee and those in collusion with him, was led to believe, and did believe, that the release related only .to matters and things involved in a certain chancery suit brought by the appellee against appellant on June 3, 1890. “The breach of covenant that was made to ajDpear arose from the foreclosure by a trustee’s sale made in 1877, under a ‘blanket’ trust deed in the nature of a mortgage, made by the Highland Park Building Company in 1875, covering the lots in question and other premises, the lien of which was prior to the title of appellee, and of which sale or foreclosure it does not appear that appellee knew until in March, 1890, nor that appellant had personal knowledge until in August, 1893, which was more than two years after the release in question was given. Besides the transaction concerning the Highland Park lots the parties seem to have had other relations concerning other real estate, and on said June 3, 1890, when appellant was in Chicago, he being a resident of London, England, the appellee filed a bill in equity for an accounting from him. The appellant at that time having trouble with one B. P. Jacobs, concerning matters between themselves and others, which was in process of compromise when appellee’s bill for accounting was filed, insisted with Jacobs that before he could go, further in the pending negotiations for a settlement of such controversies, he, Jacobs, must procure an acquittance from appellee of all matters involved in his equity suit for accounting, and for the beginning of which suit Jacobs testified that the appellant held him responsible. ,Tbe result was, that without the personal participation of appellant except to execute the paper, the following release was executed by both appellant and appellee: “ ‘This agreement and release, made between Edward C. Mitchell, of Chicago, Illinois, and John W. Todd, of London, England, witnesseth: 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 and in further consideration of one dollar and other good and valuable considerations passing from said Todd to said Mitchell and from said Mitchell to said Todd, the parties hereto do hereby forever release and discharge each other from any and all claims, demands, accounting-, and from any and all profits, dealings, moneys or other value whatever, and in consideration aforesaid do ■ hereby forever release and discharge each other from any and all claims and demands, of any name and nature whatsoever, which either may have against the other. “ ‘In witness whereof said Edward C. Mitchell and John W. Todd have hereunto set their hands and seals this 10th day of June, 1890. Edward C. Mitchell, [Seal.] J. W. Todd. [Seal.]”’ Upon the hearing, which was without a jury, propositions of law were submitted by the parties. The court rendered judgment for the defendant, and the case was appealed to the Appellate Court, where the judgment of the circuit court was affirmed, and plaintiff now comes to this court upon further appeal.