208 Mass. 586 | Mass. | 1911
This is an action of tort to recover of the defendants for, certain alleged false representations made by them in regard to the nature of the business carried on by the Mutual Stock Company, of which the defendants were officers and agents, and thereby inducing the plaintiff to enter into various transactions and dealings with that company to her detriment. There was a verdict for the plaintiff and the case is here on the defendants’ exceptions.
The defendants rely on certain releases given by the plaintiff to the Mutual Stock Company, wherein, in consideration of the sums therein recited to have been received by her from the Mutual Stock Company, “ in full for all payments under any and all contracts and transactions ‘ closed ’ to this date,” she releases and discharges “ the said Mutual Stock Company, its principals, stockholders, officers, agents and servants, and each of them, therefrom, and also from any and all right of action, claim or demand under or by virtue of chapter 437 of the Acts of the Commonwealth of Massachusetts for the year 1890, or any act amendatory thereof or supplementary thereto, for any payment or deposit at any time heretofore made, either on the within contract or any other contract or transaction whatsoever, and I covenant never to sue therefor them or either or any of them, or on account of any other cause of action, claim or demand whatsoever.”
The action, it is to be observed, is not for any claim or demand arising under and by virtue of St. 1890, c. 437, now R. L.
Moreover the releases are under seal, and in" regard to them “ the law,” as said in Saunders v. Saunders, supra, “ has always been that only those who were parties to them could sue upon them.” If the defendants could not maintain an action for breach of the covenant not to sue, we do not see how they can avail themselves of it by way of defense or to prevent circuity of action as a bar to the present suit. Perkins v. Gilman, 8 Pick. 229. The reason that they are not parties to the covenant and none of the consideration moves from them is as applicable in one case as in the other. Even if it be assumed in favor of the defendants that if they were parties to them the releases would operate as a bar to the present action, for the reasons stated we think that they must be regarded as inoperative so far as these defendants are concerned.
If the releases cannot be pleaded by the defendants as a bar to the present action for the reasons stated, it is immaterial whether they would also be void, as ruled by the presiding judge, if they were given for the purpose of escaping and evading the statute in regard to wagering contracts (R. L. c. 99), as to which see Wall v. Metropolitan Stock Exchange, 168 Mass. 282.
Exceptions overruled.
