Shaw v. Pratt

39 Mass. 305 | Mass. | 1839

Dewey J.

delivered the opinion of the Court. It is contended, that the agreement made by the plaintiff with John B. Pratt, one of the promisors of the note declared upon in the present action, to discharge him from all liability to pay the same, has the effect to release and discharge his co-promisor, the present defendant.

There are, it seems to us, several objections to this instrument as a release of the defendant.

1. It is very doubtful whether it is any thing more than an agreement to discharge, and ■ therefore not to have the effect of a present actual discharge.

2. As an agreement to discharge John B. Pratt, it is accompanied with an express stipulation excluding any such effect as to the defendant.

3. There is another objection entirely fatal to this defence, which we have more particularly considered. The instrument relied upon as a release of all the promisors of the note, is not under seal, and is not therefore a technical release. Nothing but a technical release under seal discharging one of several promisors, can operate to discharge the other promisors from their liability on the contract. This principle is well settled, and sustained by many adjudicated cases. Walker v. McCulloch, 4 Greenleaf, 421 ; Harrison v. Close, 2 Johns. R. 449; Rowley v. Stoddard, 7 Johns. R. 209 ; De Zeng v. Bailey, 9 Wendell, 336.

The only remaining inquiry is, whether the amount received from John B. Pratt, shall be applied in payment of the money already due, or be taken to be in discharge of that part of the note which is payable at a future day. Upon recurring to the facts stated in the case, it appears, that there was no actual payment of money, but a transfer to the plaintiff of a certain mortgage and notes, which notes were not payable, by the terms of them, until a period long after the transfer. Had there been no application of this payment, by the mutual understanding of the parties, the question must have been decided by those general rules which have been adopted in the application of payments in such cases ; but, as it seems to us, in the present instance, the parties have by their own stipulations provided for the application of the amount thus received. The agreement was in terms, that this payment was not to operate in any way to discharge or effect this suit.

This stipulation clearly imports some other and different application of the amount received by the assignment of the notes and mortgage, than in discharge of that part of the note upon which judgment is now asked by the plaintiff. It can have the limited effect stipulated by the parties in the written instrument, only by applying the same in discharge of that part of the note not due, and entering judgment for the plaintiff for so much as remains unpaid of that part of the note which had become payable at the time of the institution of the suit.

Judgment for the plaintiff