Matthey v. Gally
Before: Heydeneeldt, Murray
Synopsis
Appeal from the Fourth Judicial District.
Matthey sued defendants on three promissory notes of Delacroix, dated March 1st, 1851, for $610 20 each, with five per cent, per month interest, each indorsed by Gally & David, as partners. The cause was tried without a jury by consent.
[63] * The complaint alleged that Gally & David had waived notice of non-payment of the notes.
The defendants Delacroix and David, answered that the notes had not been presented for payment, and also that, after the maturity of the notes, Matthey, in consideration of payment by Gally, of part of one of them, entered into a written agreement not to sue Gaily or Delacroix, reserving, however, his right against David, and David’s rights against those liable to him.
The facts of the case are substantially the same as alleged in the pleadings.
Defendants moved the Court for a nonsuit and for a new trial, both of which the Court refused and entered judgment for plaintiff, against the defendants Delacroix and David, personally, and against the firm of Gally & David, for $8,302, and interest at five per cent, per month.
Defendants appealed.
A waiver of notice of dishonor is no waiver of presentment. (Story on Prom. Notes, § 272, 293, 366; Bailey on Bills, 244; 17 Maine, 51; 20 Me. 102; 6 Mass. 524.) A covenant not to sue operates in all cases as a full release. (13 111. 72.)
Cited 5 East. 230; Chitty on Contracts, 747; 3 Barn & Aid. 88, 91; 3 Denio, 16; 1 N. T. 186.
Mr. Justice Heydeneeldt delivered the opinion of the Court.
Mr. Ch. J. 'Murray concurred. On the part of the indorsers there is an express waiver of notice of non-payment, the language of which, in the case of each of them, is equivalent to an admission that the notes had been presented, or need not be presented. This is the only construction of which it is susceptible.
The next point is, whether the plaintiff’s agreement not to sue two of the defendants, operates as a release to those two, and if so, whether thas act must invoke the principle that a release of one obligee is a release of all.
*It is well settled that a covenant not to sue [64] operates as a release, but the reason for it is only to avoid circuity of action. If the covenant not to sue be broken, the strict right of the covenantee, is to recover on the covenant, and as the recovery must be the same in both suits, the doctrine of release is resorted to to avoid the circuity. But this doctrine being technical, cannot be extended in its construction, and where the debt is joint and the covenant not to sue is made to a portion only of the debtors, it will not be held as a release to .either, but the party who holds the covenant must be left to his action upon it.
Judgment affirmed.
More from California Supreme Court
- People v. Wende (1979)
- People v. Watson (1956)
- People v. Superior Court (Romero) (1996)
- People v. Kelly (2006)
- Auto Equity Sales, Inc. v. Superior Court (1962)
- Aguilar v. Atlantic Richfield Co. (2001)
- People v. Lewis (2021)
- In Re Estrada (1965)
- Denham v. Superior Court (1970)
- People v. Marsden (1970)