Chandler v. Herrick

19 Johns. 129

• Court: New York Supreme Court
• Decided: May 15, 1821
• Status: Published

Opinion

Spencer, Ch. J.

delivered the opinion of the Court. The only inquiry in this case, is, whether the pleas, or either of them, are sustainable. The replications are admitted to be bad. The first question is, whether the agreement of the 15th of April, 1819, extended the time of payment as stipulated in the condition of the bond; and, if so, whether such agreement can be pleaded in bar. The only thing said about the bond now in suit, in the agreement, is, that two-thirds of the value of the hops delivered in any one year, should be endorsed on the bond, until the same was paid. It is mere matter of inference, that the plaintiff was to forbear suing on the bond, during the five years within which the -defendant was to deliver the plaintiff the hops, raised by him on a certain farm mentioned in the agreement. It is by no means a necessary or certain inference, that such was the intention of the parties $ and as the parties have not stipulated that the plaintiff should forbear to sue on his bond, as the payments became due, I do not know what right _we have to say, that such was their agreement. According to the Civil Law, the intention to make a novation should be positively declared, without which there can be no novation. Pothier says, that in the jurisprudence of France, this principle has not been adopted in so literal a manner as to re* quire, that the creditor should always declare, in precise and formal terms, that he intends to make a novation ; it is student that his intention, in whatever manner expressed, should be so evident as not to admit of doubt; and that unless the intention evidently appears, a novation is not to be presumed. (1 Evans’ Pothier, 385, 386.) If, however, it were to be admitted, that the plaintiff agreed not to sue for his debt within five years, the term within which the defendant was to deliver his hops to the plaintiff, it could have no effect in this case.' It is well settled, that a covenant never to sue an obligor, may be pleaded as a release, to avoid circuity of action ; but a covenant not to sue the obligor for a given time, 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. (2 Saund. 48. a. note 1. and the cases there cited.) The utmost that can he made of the agreement, if we infer°that it was the intention of the parties that the plaintiff should receive payment of the bond in hops, at the price stated, is, that in the mean time the plaintiff would not sue on the bond. The principle, then, directly applies, that such a covenant cannot be set up in bar of a suit, even in violation of the agreement.

Judgment for the plaintiff.