Beach v. Endress, 51 Barb. 570

Beach v. Endress

51 Barb. 570 | N.Y. Sup. Ct. | 1868

By the Court, Johnson, J.

I am clearly of the opinion that the nonsuit was properly, granted. The action is sought to be maintained upon an undertaking which had been receipted in full and delivered up to the obligors, by the obligees, more than three years before such action was commenced, hfo fraud, or mistake of fact, by way of inducement to the obligees, to deliver up the obligation, is alleged or proved. At the time of the redelivery the defendant Endress paid the amount of a certain judgment which had been recovered against the obligees, together with certain motion costs, and the same was receipted on the back of the undertaking, and the receipt in terms specifies that the same is “in full of the obligations of said Endress in the within bond or agreement.” The money was received .by Robinson, one of the obligors, or by the sheriff who held the execution issued upon the judgment against them, and in the presence of their attorney in the action, or with his knowledge and assent, and the receipt was signed by Robinson only. Apparently it was surrendered and delivered bp for the purpose of having it canceled, and as a satisfied and extinguished demand, and nothing whatever is shown to the *578contrary. Upon such a state of facts no action is maintainable upon the obligation. ' Having been delivered back by the obligees to the obligors for the express purpose of relinquishing any and all further claims, it had no longer any vitality or binding force between the parties. It is laid down in Shepherd’s Touchstone, p. 70, “and if a deed (viz. a bond) be delivered up to the party that is bound by it, to be canceled, and it be so; or if he that hath the deed doth by agreement between him and the other cancel the deed; by either of these means the deed (provided no estate passed) is become void.” It is further added : “But if an obligee deliver up an obligation to be canceled and the obligors do not afterwards cancel it; but the obligee happen to get it again, into bis hands, and sue the obligors upon it, the obligor hath not any plea to avoid it, for the deed remains still in force in law, (but the obligee [obligor ?] would be relieved in equity.”)

The law implies the release and discharge of a right of action, where the creditor voluntarily delivers to his debtor the bond, note or other evidence of his claim. (Poth. Obl. n. 608, 609. Bouv. Law Dic. title release.) It has been expressly held by the Supreme Court of Pennsylvania, that the cancellation of a bond, or delivery to the obligor with that intent, discharges the debt. (Licey v. Licey, 3 Barr, 251. Albert v. Zeigler, 29 Penn. Rep. 50.)

Even if the payment made did not fulfill completely the measure of the obligation, it was perfectly competent for the obligees to waive the right to further performance, and surrender it to be canceled. Having thus by the voluntary act of the obligees, become defunct as a subsisting obligation, no subsequent occurrences could revive it in their favor, without the assent of the obligors. This action cannot therefore be maintained, even assuming that the obligees might have retained the undertaking for further indemnity, or security, had they so elected, after the payment of the judgment against them by the obligors.

*579But I am of the opinion that the undertaking only related to the action then pending against the obligees in favor of Appleby. They were in default in their undertaking on account of Marratt having failed to render himself amenable to the process of the court, and had been prosecuted therefor. They might have relieved themselves by paying the judgment against Marratt, or by surrendering him. But they had done neither, and the action had been brought, and it was manifestly against their liability, involved in the then pending action, that the defendants intended and undertook to indemnify and save them harmless. This is apparent, I think, from the whole tenor of the undertaking. S"o other or further liability was contemplated or apprehended, and consequently there was no reason why ‘any other should be provided for. The language of the undertaking is to be interpreted in the light of the state of things then existing. That the parties on both sides so understood it, is clear beyond all peradventure. The action against the obligees resulted in a judgment, and execution was issued against them and placed in the hands of the sheriff, and when one of the defendants went and paid up the execution and all the costs to which the obligees had been subjected in the course of that litigation, the undertaking was receipted in full, and given up to be canceled as an obligation satisfied and fulfilled entirely. bTo one connected with the matter at that time, seems- to have entertained any doubt upon the subject, and no other or further claim was made or hinted at. This ought to be conclusive on this question. It is now said that the plaintiff Beach was not present so as to assent to it. But his assent must be presumed, as he made no objection and took no steps in a contrary direction till after the lapse of several years. And besides, the act of his joint co-obligee was binding upon him, and his assent need not be shown. (Wallace v. Kelsall, 7 Mees, & Weis. 264.) I conclude, therefore, that the defendants *580were entitled to have the fund delivered up as it was, the moment the payment was made, as a paid or fulfilled and satisfied instrument, and that the obligees had no right to retain it for any purpose.

[Monroe General Term, September 7, 1868.

E. D, Smith, Johnson and J. C. Smith, Justices.]

When Marratt failed to render himself amenable to the process to enforce the second judgment, three years and over, after the undertaking in question had been given up, the remedy of this plaintiff and Bobinson, was, to surrender Marratt instead of undertaking to revive the extinct undertaking of the defendants. Their right to surrender was then complete. For although it may have been suspended during the life of the defendants undertaking, for causes existing at that time, or up to the time of giving it, it was fully restored, if indeed it had ever been suspended, as to all subsequent defaults on the part of Marratt.

A new trial should therefore he denied.