Fitch & Buck v. Forman

Thompson, Ch. J. delivered the opinion of the court. It is unnecessary, in this case, to decide xvhether the 2,500 dollars mentioned in the covenant is to be considered as a penalty, or in the nature of stipulated damages. Viewing it in either light, the plaintiffs cannot recover any thing under the present declaration. The breach assigned in the declaration is, that the defendant did not open the mine and sink the shaft, and explore the mine by the first day of December, in the year 1812. But all claims on the defendant for any forfeiture or payment, by reason of the mine not having been opened and explored by that time, were dispensed with by the instrument endorsed upon the back of the covenant, under the hand and seal of Buck, one of the plaintiffs, dated on the 6th day of April, 1813. It purports to .be a release to the defendant for any liability by reason of the said mine not being explored by the fir%t day of December then last past, and a consent that the time for exploring should be extended to the first day of December next. This instrument, thus endorsed, must have the operation, either of an absolute release [175] jpí all liability upon the covenant, or of a modification of it, by an extension of the time within which the mine was to be explored. In either point of view, it must defeat the present action. The want of an,actual" delivery of the instrument to the opposite party, cannot destroy its legal operation. It is endorsed upon the original covenant, and could not be delivered to, and retained by, the defendant. Even if a delivery, pro format was necessary, it ought to be presumed, and that the release was afterwards retained by the plaintiffs, by mutual consent of the parties, knowing that it must necessarily accompany the covenant, wherever it went, being endorsed thereon; besides, no objection on this ground was made at the trial. This instrument haying been signed by only one of the plaintiffs, cannot alter its legal operation. They had a joint personal interest, and- the release or modification by one, would bind the other. (3 Johns. Rep. 70.) (a.) We are accordingly of opinion, that a judgment of nonsuit must be entered pursuant to the stipulation in the case. Judgment of nonsuit. Footnotes [†] 1 Johns. Cases 114. 12 Johns. Rep 421 [(a)] See Austin and others v. Hall, 13 Johns. Rep. 280.