Majority
p. 185Cuyler against Cuyler.
Headnote
A made.a note to B,who indorsed it for his accommodation to C. The note was dated the 13th May, 1803, payable in 9 months,This was an action of assumpsit, tried at the circuit in Montgomery county, the 30th September, 1806, before Mr. Chief Justice Kent. The plaintiff declared on a promissory note, dated the I3th May, 1803, made by the defendant, and payable to the plaintiff nine months after date. The note had been indorsed by the plaintiff, and delivered to one Smith as security for a debt due to him
p. 186
from the defendant; and the plaintiff, as indorser, paid the note to Smith. On the trial, the defendant, pursuant to a notice for that purpose, gave in evidence a writing dated the 10th February, 1804, executed by the plaintiff and one John C. Cuyler, in which they bound themselves to the defendant in the penal sum of ten thousand dollars, with a condition not to institute any suits against the defendant, “unless on a future contract, either as partners, or separately, and that the plaintiff should discontinue his suit, and no more prosecute the same.” The chief Justice charged the jury, that the writing given in evidence by the defendant, would not operate as a release of the note on which the plaintiff had brought his action. The jury accordingly found a verdict for the plaintiff. A motion was now made to set aside the verdict for the misdirection of the judge.
II. Bleeclcer, for the defendant.
Cady, contra.
The note was given for a debt due from the defendant, and indorsed'for his accommodation. When the bond was given, the note was in the hands of Smith, and Cuyler had no right of action on the note. It could not, therefore, operate as a release to a right which did not exist. Again, the bond concerns Jacob Of John C. Cuyler, and can only bar joint debts. Future contracts are expressly excepted, and the claim of the plaintiff is on a contract subsequent to the bond. A covenant not to sue can operate only as a release, and for the reason assigned. It should, therefore, be between the same parties.
and not being paid, B took up the note in the hands of Cand brought his action upon it against A. the 10th Feb. 1804, 33 and D executed a bond to A,by which they bound themselves not to institute any suit against A,unless on a future contract, either as partners or separately. It was held that this bond was equ ¡valent to a perpetual covenant, not to sue A upon 'any demand then existing, and amounted to a release of the note. Aliter, if B had brought an action for money paid for the account of A, subsequent to the execution of the bond.
The bond executed by the plaintiff and John C. Cuyler to the defendant, is equivalent to a perpetual covenant, not to sue the defendant upon any de.-J 1 mand then existing. Such a covenant amounts to an .absolute release. This construction has been adopted
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by courts, to avoid circuity of action. For if in such case the party should sue, contrary to his covenant, the other party would recover precisely the same damages which he sustained by the other suing. (Cro. Eliz. 352. Shower, 43. 5 Bac. Ab. 683.) The plaintiff prosecutes upon the note itself, given by the defendant to him, which bears date nine months before the bond set up as a release. We, therefore, cannot take into consideration the circumstances, that the note was given for a debt due from the defendant to Smith, for which the plaintiff became surety, and was obliged afterwards, and after the date of the bond, to pay to Smith. Had the suit been for money thus paid as surety, the cause of action would have arisen subsequent to the date of the bond, and would not have been affected by it. The bond being given by the plaintiff, and another, will not prevent its application to the present action. They covenant not to sue either as partners or separately. The verdict must, therefore, be set aside, with costs to abide the event of the suit.
New trial granted.