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4 N.H. 97

Parker v. Holmes

Superior Court of New Hampshire

Decided April 15, 1827

Superior Court of New Hampshire · decided 1827-04-15

Assumpsit on a promissory note dated September 27, 1816, for ,$772,73 payable to Frederick French the plaintiff’s intestate in two years with interest annually. The cause was tried here at October term, 1826, and a verdict taken for the plaintiff by consent subject to the opinion of the court upon the following case.

Key passage — most relied on by later courts

“[W]hen the obligee covenants not to sue the obligor at all, such covenant may to avoid circuity of action be pleaded as a release.”

quoted by 1 later decision, including Pro Done, Inc. v. Teresa Basham & a.

“[I]t cannot be inferred from such a covenant [not to sue one of several debtors] that it was the intention to discharge the debt.”

quoted by 1 later decision, including Pro Done, Inc. v. Teresa Basham & a.

Relies on Shepherd v. Boyce · Cuyler v. Cuyler · Chandler v. Herrick

Good law ✅— No negative treatment on recordhow we know

Decided 1827-04-15

How this case has been cited

Cited by 4 later decisions — most recently May 2019

4 state decisions

2018271830184018501860187018801890190019101920193019401950196019701980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Richardson, C. J.

¶1The question in this case is whether the agreement made between David Holmes and the plaintiff’s intestate is an answer to this action. Without stopping to examine the question whether this defendant can avail himself of a parol contract to which he is not a party as a defence we shall proceed to consider what would have been the effect of the agreement had the defendant been a party to it and had it been under seal.

¶2There are cases in which, a covenant not to sue amounts to a release. But it is very clear that such a covenant is never a bar except in cases where it can be, considered as a release.

¶3Thus when the obligee covenants not to sue the obligor at all, such covenant may to avoid circuity of action be pleaded as a release. 2 Saun. 48, a. note; Cro. Eliz. 623, Hodges v. Smith; 1 D. & E. 446; 2 Johns. 186, Cuyler v. Cuyler; 15 Mass. Rep. 112.

¶4But where there are two obligors, a covenant not to sue one, will not be construed as a release, because that would discharge the other also ; and it cannot be inferred from such a covenant that it was the intention to discharge the debt. 17 Mass. Rep. 584; 8 D. & E. 168, Dean v. Newhall; 6 Taun. 289, Hutton v. Eyre; 2 Johns. 448, Harrison v. Wilcox; 1 Cowen 122.

¶5So a covenant not to sue within a certain time does not amount to a release and cannot be used as a defence. 19 Johns. 129, Chandler v. Herrick.

¶6*99In the case now under consideration it would be most manifestly contrary to the intention of the parties to construe the contract between David Holmes and French as a release, because a release of the debt would discharge the mortgage. If then a contract had been made between French and the defendant by deed that French should look only to the land, it could not have been used as de-fence in this action, but the defendant must have resorted to an action for any breach of the contract ; a fortiore, a parol contract between David Holmes and French is not to be considered^ a release of this action.

¶7It has been urged, that the contract between David Holmes and French may be construed as a release of all remedy on the note and not as release of the debt. But it seems to us that a contract to look to the laud if construed as a release of all remedy upon, the no1e must in law be a discharge of the debt, and we are all clearly of opinion that such a contract is not an answer to this action. Judgment for the plaintiff.

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