Parker v. Holmes

The question in this case is whether the agreement made between David Holmes and the plaintiff’s intestate is an answer to this action. Without stopping to examine the question whether this defendant can avail himself of a parol contract to which he is not a party as a defence we shall proceed to consider what would have been the effect of the agreement had the defendant been a party to it and had it been under seal.

There are cases in which, a covenant not to sue amounts to a release. But it is very clear that such a covenant is never a bar except in cases where it can be, considered as a release.

Thus when the obligee covenants not to sue the obligor at all, such covenant may to avoid circuity of action be pleaded as a release. 2 Saun. 48, a. note; Cro. Eliz. 623, Hodges v. Smith; 1 D. & E. 446; 2 Johns. 186, Cuyler v. Cuyler; 15 Mass. Rep. 112.

But where there are two obligors, a covenant not to sue one, will not be construed as a release, because that would discharge the other also ; and it cannot be inferred from such a covenant that it was the intention to discharge the debt. 17 Mass. Rep. 584; 8 D. & E. 168, Dean v. Newhall; 6 Taun. 289, Hutton v. Eyre; 2 Johns. 448, Harrison v. Wilcox; 1 Cowen 122.

So a covenant not to sue within a certain time does not amount to a release and cannot be used as a defence. 19 Johns. 129, Chandler v. Herrick.

*99In the case now under consideration it would be most manifestly contrary to the intention of the parties to construe the contract between David Holmes and French as a release, because a release of the debt would discharge the mortgage. If then a contract had been made between French and the defendant by deed that French should look only to the land, it could not have been used as de-fence in this action, but the defendant must have resorted to an action for any breach of the contract ; a fortiore, a parol contract between David Holmes and French is not to be considered^ a release of this action.

It has been urged, that the contract between David Holmes and French may be construed as a release of all remedy on the note and not as release of the debt. But it seems to us that a contract to look to the laud if construed as a release of all remedy upon, the no1e must in law be a discharge of the debt, and we are all clearly of opinion that such a contract is not an answer to this action. Judgment for the plaintiff.