3 Mich. 615 | Mich. | 1855
By the Court,
It has. been repeatedly held- that a covenant not to sue for a limited time for a right resting in contract, (and of course a covenant not to sue until certain acts done rests upon the principle,) is no defence to an action brought before the time espires, but merely gives a claim for damages in case of its breach. (Deux vs. Jeffries, Cro. Eliz. 352; Aloff vs. Scrimshaw, 2 Salk. 573; S. C. Carth. 63; Thumbleby vs. Barron, 3 M. &. W. 210; Ford vs. Beech, 11 Ad. & Ell. N. S. 852; Chandler vs. Herrick, 19 J. R. 129; Winans vs. Huston, 6 Wend. 471; Perkins vs. Gilman, 8 Pick., 229; Fullam vs. Valentine, 11 Ib. 156; Foster vs. Purdy, 5 Metc. 442; Mendenhall vs. Lenwell, 5 Black. 125; Lowe vs. Blair, 6
The numerous cases above referred to, all. agree in this,, that a covenant not to sue for a right resting in contract is a distinct and independent, or as it is sometimes expressed, a. collateral undertaking, giving a separate right of action in case of its breach, and not a mere modification of the rights- and obligations of the original contract to which it refers.
Assuming this proposition, the conclusion arrived at -necessarily results, viz: that such a covenant cannot be availed of in defence of an action on the contract, unless where the damages recoverable in that action, and those recoverable for a breach of the covenant, would be equal. Then it may be, upon the principle of avoiding circuity of action.
The cases are not agreed as to the ground upon which the proposition referred to is to be maintained.
The English, and some of the American Courts, tacitly concede that a covenant -not to sue for a limited time, is intended by the parties to suspend the remedy; a concession which implies that it is intended to be a mere modification of the rights and obligations incident to the original contract. But they say that it is a rule of law, that a remedy once suspended by act of the party is gone forever. Therefore, to-construe the agreement as a temporary suspension of the right of action, would make it a release. As the parties never could have intended that it should operate as- a release, it is held not to suspend the- remedy at all, but merely to
On a careful re-examination of the authorities, we are confirmed in the opinion we have before expressed, that there is :no such principle of law as that assxxmed as the basis of this reasoning. . '
It was anciently held that where a creditor appointed his ^debtor his executor, and afterwards died,- the debt was ext/vngxmhed. The reasons given for it were not always uniform and consistent. Some Jxxdges held that by the appointment, it was the intention of the testator to make the debt a legacy to the executor. (Co. Lift. 264, C. note (1) by Butler; 2 Bl. Com. 512; per Powell, J., in Wankford vs. Wankford, 1 Salk. 303; per Jackson, J., in Stevens vs. Gaylord, 11 Mass. R. 266-7; Marvin vs. Stone, 2 Cow. R. 807, 809.) But the explanation oftener given was, that as the executor could not maintain an action against himself, the remedy for the debt was suspended, and that a remedy once suspended by act of the party was gone forever. (Needham's case; 8 Co. 136; Freyer vs. Gildridge, Hob. 10; Dorchester vs. Webb, Cro. Ch. 373; Wankford vs. Wankford, 1 Salk. 299; Thomas vs. Thompson, 2 J. R. 471.) So hard and unjust a rule as that the debt was extinguished in such a case, upon whatever reasons founded, coxdd not stand the test of time.. Struggling against judicial conceits, and the illusions created by the misuse of language, and at last aided by the interposiitioxx of the courts of equity, (2 Will. on Ex. 1123, 1129, and cases there cited,) the rule has come at length to be established, both in courts of law and chancery, that where an executor is indebted to his testator at the time of his decease, the debt is not extvngmshed in the sense in which it was at first supposed to be, but is regarded and must be accounted
In Dorchester vs. Webb, (Cro. Ch. 373,) it was said, and the same remark may have often been repeated in the early cases, that “ where the feme debtee takes the debtor to husband, or if a man debtee takes the debtor to wife, that is a release in law, because they may not be sued, and personal actions once suspended are perpetually suspended.” But I imagine no one will question that the doctrine that the debt is extinguished in such cases has a much broader and deeper foundation in the incidents of the marital relation than this reason indicates. By marriage, the husband at the common law acquires all the wife’s personal property, and the right to reduce her choses in action to possession and ownership. He becomes liable also to pay and perform her ante-nuptial debts and contracts. By that event, therefore, the right to receive and the obligation to pay pre-existing debts from the husband to the wife, and vice versa, are united in the husband.
We think these cases of the debtor husband, wife, and executor, all rest upon this principle, viz: that whenever there is a concurrence of the right of action, and the corresponding obligation in the same person, whether by act of the parties or by act of the law, the rights of the obligation are ipso facto extinguished, not because of the suspension of the remedy, blit because the thing which before was in action, is by that event reduced to possession. Whenever being so reduced to possession, the party becomes a trustee for others, as in the case of a debtor executor, he is liable to account to the cestuy
Now these cases and one or two others strictly analogous and reducible to the same principle, (Lord North vs. Britts, Dyer, 140 a.,) are all the authorities which, so far as I have been able to learn, have ever been cited to sustain the doctrine that a remedy once suspended by act of the party is gone forever. I think it is obvious that they tend in no degree to establish it. I shall not, therefore, stop to examine the numerous other cases, both ancient and modern, which are utterly at war with such' a doctrine. But I will only add that if this conclusion is correct, it is manifest that the rule that a covenant not to sue for a limited time, when between the same parties as the original contract, is a separate and independent undertaking, and will not suspend the remedy upon that contract, is based in the English Courts, upon a radical error.
In Massachusetts, however, the same doctrine has been made to rest upon different ground. The Courts of that State have always been wary of admitting the principle that a remedy once suspended by act of the party is gone forever, but they held that a covenant not to sue for a limited time, is in its nature, and not because to construe it otherwise would make it a release, an independent, or as they term it, a collateral undertaking. See Foster vs. Purdy, 5 Metc. 442, and other cases cited, swpra. And it must be admitted that they are not without much appearance of authority to sustain this view.
Thus, although it has always been held that, as between the parties to it, a covenant never to sue, (between which and a temporary covenant it would be difficult to draw any distinction in respect to the question we are considering,) was a release, yet it has been generally said that this effect was given to it only upon the principle of avoiding circuity of
If these views are correct, the cases relied upon by the courts of Massachusetts, although they assert, do not conclusively establish the principle that a covenant not to sue is always an independent and collateral undertaking. All they decide is, that a covenant never to sue, when made between all the parties to a contract, is in effect a release, and when made with one of several jointly liable, it is not so, but is a collateral undertaking. Neither of these propositions do we propose to controvert.
After this preliminary examination of the authorities cited at the commencement of this opinion, we will proceed briefly to state our own views of the nature and effect of a covenant not to sue.
It will hot be questioned that the rights and obligations incident to a contract may be extinguished or modified by a new agreement between the same parties, plainly expressing or implying an intention ’so ,to extinguish or modify them. (Per Lord Denman, in Goss vs. Lord Nugent, 5 B. & Ad.
And where the new agreement is a modification, either 'express or implied, of any of the express terms or stipulations of the original contract, I am not aware of any instance in which it has been held to be collateral to or. independent of it. It has been held to constitute a new contract, consisting partly of the original contract, and partly of the new agreement engrafted upon it, and has been declared upon or availed of by way of defence as such. Cases of this hind are very numerous. Bailey vs. Johnson, 9. Cow. 115; Cummings vs. Arnold, 3 Metc. 486; are express decisions upon this point. See also, Mead vs. Degolyer, 16 Wend. 640, per Cowen, J.; Richardson vs. Hooper, Robinson vs. Batchelder, Low vs. Treadwell, Jeffrey vs. Walton, cited above.
But the rights and obligations of a contract depend not solely upon its terms or stipulations. They depend also upon the existing law applicable to its construction and enforcement, which law, without any express stipulation of the parties, enters into and forms a part of the contract. The right of the one party is simply a right by means of the established legal remedies to such performance,.or such damages for the breach of the contract as the law gives. The obligation of the other is what the law, through the instrumentality of these remedies, will compel him to pay or perform. The law applied to the contract is the measure of each. Without some law to enforce it, the agreement of the parties would . b.e a mere nudúm paotum. It would not be in legal sense a contract. However binding in conscience, it would confer no right but a mere moral claim, and impose no obligation but a mere. duty. These principles are now too well estab
I do not here propose to examine the authorities direct and. indirect in support of this view. They were fully considered by us in delivering our opinion in the case of, Robinson vs. Godfrey, to which opinion we still adhere.
' But whilé we are of the opinion that the facts set. forth in the defendant’s plea in this case are a good defence to the action, we think they were not well plead in abatement. They go in denial of the plaintiff’s right of action, and matter which is merely in denial of the right of action, is never pleadable in abatement, (Steph. Pl. 47,) but must be pleaded in bar.
The Court bélow should have sustained the plaintiff’s demurrer to the plea upon this ground.
For this reason, therefore, the judgment of the Court below overruling the demurrer, must be reversed with costs.
The other Judges concurred.