6 Wend. 471 | N.Y. Sup. Ct. | 1831
By the Court,
A question of construction is raised on the agreement pleaded by the defendants. Is the bringing of an action on the bond a violation of the covenant not to seek, have, or receive satisfaction or indemnity for the debt due to the plaintiff? To say- that it is not, it appears to me, would be to disregard that cardinal rule of construction which directs us to look for, and be guided by the intentions of the parties. The plaintiff must have understood, or, at all events, he must have been satisfied, that the defendants understood, that he was not for five years to look beyond the mortgaged premises for the satisfaction of his debt, and that they were not to be otherwise molested on account of it. If the commencement of the suit, the prosecution of it, and the bare recovery of a judgment, is not seeking satisfaction or indemnity, within the meaning of the covenant, yet, by the suit, the credit of the defendants might be seriously affected, and the transaction of their business embarrassed by a judgment, although nothing should be done by way of enforcing it. I have no difficulty in saying that the prosecution of the bond is an act that the covenant was intended to guard against, and that the covenant is broken by the prosecution. This very point, arising on this very covenant, was settled at the last July term, in a suit between the same parties, 5 Wendell, 163.
But can the breach of this agreement be set up as a defence to this suit ? The rule laid down in Chandler v. Herrick, 19 Johns. R. 129, is, that a covenant not to sue an obligor may be pleaded as a release ; but a covenant not to sue him for a given lime, does not amount to a defeasance, and cannot be pleaded as such, but is a covenant only, for the breach of which the obligor may bring his action. Notwithstanding the rule is mentioned in the case referred to, the counsel for the defendants insisted that we ought not to look upon the decision of the court as an express adjudication affirming it, because the covenant in that case was not consid
Judgment for plaintiff.