24 F. Cas. 392 | U.S. Circuit Court for the District of Massachusetts | 1846
In this case I have come to the same conclusion in respect to Cross and Noble, as in the bill in favor of Smith against these defendants. There is no essential difference in the facts, or the law, except as connected with Tuthill’s visit.ing the premises before the sale was completed, and the declarations he made there and after his return, and the information which was there communicated to him. That Tuthill went there is certain, and that one of his objects was to examine, so as to form some judgment in respect to the quantity of timber, compared with the certificates, and Cross’s representations and proposed guarantees, is also certain. But, at the same time, It appears that he had other objects, such as inspecting the records, and learning something of Cross’s responsibility. It furthermore appears, that he was in the hands of Cross and his agents most of the time while in Maine, conveying letters from Chalmers, a concealed employee of Cross, while professing to be a mere associate with Tuthill in the purchase; was recommended by him to Cross’s certificate-makers, who had been guilty of such gross exaggerations; and actually fell into the company and guidance of his pilot, who has since testified to a hundred millions less timber in fact than those that were before with him on the land certified to, and sixty millions less than he himself had once previously represented. Tuthill was conducted ,-probably over such parts of the town as might be most likely to subserve the interest of those who had formerly hired the pilot, leaving the examination by Tuthill necessarily imperfect, in po-short a time as two days, spent on so iarge a tract, and deceptive, as far as it went; doubtless, from much reliance being placed on what was stated to him by persons in Cross’s interest, and acting with a view to sustain Cross. Again he placed himself in Cross’s company and associations, on his return to Portland. Now. although here were some apparent means to detect the exaggerations. as to the timber, yet almost all the fountains of inquiry were tainted. He was constantly liable to be misled, and manifestly did not make that full examination himself, and that uninfluenced one, on which his judgment must alone or principally have relied. His examination may-liave been some depended on. concerning the general appearance and actual existence of such a township, and some as to the title, and quantity of pine, but as to this last, not in full; and though it may have corrected his previous impressions concerning the quantity, so as with the increasing dullness of such lands in the market, he declined to give nine dollars an acre, and finally concluded the bargain at only six, yet it is obvious, that he had not ascertained the whole truth in respect to them, or he would not have given so much as six dollars. It is obvious, likewise, that he was not in a situation, with such advisers as Chalmers, and such guides as Russell, to ascertain all the truth as to the timber, without spending much more time; and that he was still likely, by their deceits, in connection with what was said by Cross, and others in his interest, and by their superior knowledge of the timber, to rely on them in part, and thus to over-estimate the amount. Cross is liable for assertions as to matters more within his knowledge, though Tuthill should
Since the pleadings and evidence in this ■case have been closed and published, it is stated that the contract made by Miller, and some other of his associates, with the First Boston Company, and which is annexed to Miller’s deposition, is considered by Cross as a release to them, and his counsel ask leave to plead it now, as operating like a release to Cross; and the counsel of the company urge leave to plead the same as a release in respect to them, in the other bill by Smith. On examining that agreement, it appears to be in form a mere covenant not to sue further a portion of the defendants, provided, on a special and new survey of the land, the quantity of timber should turn out to be less than seventy millions of good pine, and those defendants would surrender the notes on receiving a pro rata payment, according to the reduced quantity. This survey has been had, and those notes surrendered, and a discontinuance entered as to those defendants. Now it is a well settled principle, that a covenant not to sue one joint promisoror obligor is not a release even of that one, and cannot be so pleaded. See cases cited in Ferson v. Sanger [Case No. 4,752], For otherwise it would defeat the very object of the parties in resorting to a covenant, .rather than a release, which was not to sue one, but to continue to sue the rest. It would also defeat the justice of the case, where, as here, the consideration for the covenant emanated only from those to whom the covenant is given, and extended, as here, only to the amount of the claims against them or their pro rata share, instead of the claims against the others likewise, or the whole. But much more is the covenant not to be perverted here from its original design, and to be made broader or more comprehensive than was intended by the parties to it, or the reasons for it, because the liabilities here were for separate notes and portions of money, though all were united in one bill, as the notes grew out of one transaction or sale. There would, then, be no use in allowing a special plea of a release to be made after so long delay, when, if made, it would operate merely as a further delay, without the party making it being ht all able, either in point of law or equity, to sustain it by the instrument to which he refers.
