1 Wend. 228 | N.Y. Sup. Ct. | 1828
By the Court,
The defendant in the
court below, the plaintiff in error, pleaded puis darrein continuance, that two of the plaintiffs, since the last continuance, had executed and delivered under their hand and seal to Volkert P. Douw, one of the covenantors set forth in the plaintiff’s declaration, a release ánd discharge from all liability to the plaintiffs aforesaid on said covenant, and of and from all claims and demands of said plaintiffs arising therefrom. To this plea the plaintiffs demur, and assign as a special cause of demurrer, that it was not put in in time.
This is not an objection to be taken on demurrer; it should be by motion to set aside the plea. (Morgan Smith v. Dyer, 10 Johns. R. 161.) The only question then is, whether the plea is good in substance. It alleges a formal technical release, under the hands and seals of the plaintiffs, of one of the covenantors. If the covenant is joint as well as several, then the plea is good. It is well settled, that a technical release to one of several joint obligors, whether they are bound jointly, or jointly and severally, discharges the others and may be pleaded in bar. (7 Johns. R. 207. Coke’s Lilt.
Covenants are to be construed according to their spirit and intent, and where, from the subject matter of the covenant, it is the evident intent of the parties that they should be taken distributively, they may be so taken, although there he no express words of severalty. (Quackenboss v. Lansing, 6 Johns. R. 49. Ernst v. Bartle, 1 Johns. C. 319.)
From the subject matter of the covenant in this case, and its whole phraseology, I am inclined to think it was not.the intention of the parties, that they should be jointly bound for each other. The rule by which the proportion that each ought to pay would be ascertained, is given in the covenant. Each is to pay according to his proportion and interest in the bond. There are fifteen covenantors, and the proportion of each must necessarily be small. The covenant is unskilfully drawn; but 1 think the fair construction of it is, that they mutually engaged to each other, that each would pay to the committee appointed to carry on the contemplated suits, his respective proportion of the costs which might be incurred. If this is so, then the covenant is several only, and the release of one covenantor does not discharge the others, and the judgment of the court below was correct, and must be affirmed.
