De Zeng v. Bailey

9 Wend. 336

• Court: New York Supreme Court
• Decided: October 15, 1832
• Status: Published

Opinion

By the Court,

Nelson, J.

The first objection taken to the plea demurred to is, that it does not set forth any agreement on the part of Bogue to relinquish to Reynolds his interest as a co-partner with the other defendants ; or that lie did so relinquish at the request of the plaintiff, and that therefore the promise of the plaintiff was without consideration and void. The objection, I think well taken; one or the other of these allegations ought to have been averred to make the agreement between the parties mutual and binding. For aught that appears it was wholly optional with Bogue to perform on his [¡art, and the plea only shows a proposition by the plaintiff unassented to by Bogue. The fact of his afterwards executing the proposition on his part, without any agreement to do so, or request by the plaintiff, cannot vary the principle.

The important question in the case, and the one affecting the merits, is, whether the facts spread in the plea, conceding them to bo well pleaded, constitute a defence to the action. A release by the obligee to one of several obligors, whether bound jointly or jointly and severally, is a discharge of all, and may be pleaded in bar. Rowley v. Stoddard et al., 7 Johns. R. 207. But it is there said, that the release, to have this effect, must be a technical release under seal If tills, latter position is sound, the plea in this case cannot be sustained, as it sets up only a parol agreement to release one of the covenantors. 4 Wendell, 365, 6. 9 Cowen, 37. 2 Johns. R. 448, a. The principle upon which this plea is founded, as will be seen on looking into the cases referred to, is very technical and should not be extended by construction, especially as the party interested in it, has his remedy upon the agreement, if violated.

Judgment for the plaintiff, with leave to the defendants to amend on payment of costs.