Hutchins v. Nichols

64 Mass. 299

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1852
• Status: Published

Opinion

Metcalf, J.

We are of opinion that the agreement of December 21,1848, made with Holt, the promisor, by Blodget and company, the holders, must be construed as a reserve by them of their remedy, after the expiration of nine months, against the defendant, the indorser, for the balance remaining due on the note. The stipulation, that they would not sue the defendant within nine months, necessarily implies that they reserved the right to sue him after that time. Upon any other construction, the agreement to give him time was nugatory. For, after their agreement not to call further on Holt, Blodget and company had no legal claim on the defendant, (Chit, on Bills, 10th Am. ed. 411; Lynch v. Reynolds, 16 Johns. 41;) except by virtue of a reserve, made in that agreement, of their remedy against him. But by reserving that emedy, they saved their claim against him, as was decided in Sohier v. Loring, 6 Cush. 537.

The agreement to give time to the defendant was for the benefit of Holt, with whom the agreement was made; as it saved him from a liability to the defendant, to which he would have been immediately subject, if Blodget and company had refused to compromise with him, and had called on the defendant to. pay the note. And that agreement could not injure the defendant; for he might have voluntarily paid the balance of the note to Blodget and company as soon as he pleased, and thereupon have sued Holt forthwith, if he apprehended that, at the expiration of nine months, he would be less able to pay. The legal effect of Blodget and company’s agreement with Holt was, that he should be discharged from their claim on him, and that they would not, by a compulsory process against the defendant, subject Holt to a claim on him by the defendant, till after the lapse of nine months.

New trial ordered.