Matthey v. Gally

4 Cal. 63

• Court: California Supreme Court
• Decided: January 15, 1854
• Status: Published

Opinion

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.