Spencer v. Williams , 2 Vt. 209 ( 1828 )

Prentiss J.

pronounced the opinion of the Court. — The question, as to the right of the plaintiff to sue on the contract declared upon, ought properly, as the matter is apparent upon the record, to have been taken by a demurrer to the declaration, or, after verdict, by a motion in arrest of judgment; but as the question was raised and decided on the trial of the general issue, and has been made a ground of exception, it may be considered as regularly before us. The action is founded on a receipt, or memorandum in writing, executed by the defendants to the plaintiff, in which they acknowledge to have received of the plaintiff certain goods, attached by him as deputy sheriff, on several writs against Jonathan F. Barrett and others, and promise to deliver the goods to the plaintiff on demand. Although the contract is expressed to be made with the plaintiff as deputy sheriff, he appears upon the face of it to have a beneficial interest in its performance. Even an agent may maintain an action upon a. contract made with him as such, where he has a beneficial interest in its completion, or has incurred even aprimafacie liability by contracting,unless the principal has obtained or required a completion of the contract with himself personally. By the attachment, the plaintiff acquired a special property in the goods, and became answerable for them, and, therefore, has a' manifest interest in the subject matter of the contract. [If the goods had been tortiously taken from his possession, he might undoubtedly have maintained an action of trover or trespass for them ; and if so, there would seem to be no good reason, when they are delivered by him on a special undertaking to be returned, why he should not maintain an action for a breach of the contract. Being ultimately liable for the goods, it is certainly just to allow him, for his own security, to enforce the contract; and we are not aware of any principle or rule of law, which forbids his doing it. Indeed, the contract is, in terms, an express undertaking to the plaintiff,jand it grew out of an act which the plaintiff was not bound by ¡aw to perform, and which did not, in strictness, resultjfrom the powers and duties of his office. The bailment of the goods to the defendants, though lawful, was not an official act, done in the execution of authority derived from the sheriff, and necessarily to be deemed the act of the sheriff. But jn tbe Case of Davis vs. Miller, (1 Verm. Rep. 9) in Chittenden , ~ . County, Dec. term, 1826, it was decided, that m the common case °f bailment by a deputy sheriff of property attached, on aft undertaking t0 return it on demand, though it is not an official act* the sheriff may claim the bailment to have been made by himself through the medium of his servant, and avail himself of the benefit of the contract. According, to the decision referred to,- the sheriff, in the present case, might have recognized the act of the plaintiff as done on his behalf, and adopted the contract, and thus have been entitled to sue for a breach of itj but if he had the right, he certainly was not bound to do this, and unless he has obtained or required a performance of the contract to himself, there can be no objection to the plaintiff’s right to maintain an action upon it.

The evidence, that the goods mentioned in the receipt were not actually attached by the plaintiff, nor delivered by him to the defendants, we think, was properly rejected. In Jewett vs. Torreg, II Mass. 219, and also in Lyman vs. Lyman, 11 Mass. 317, and Bridge vs. Wyman, 14 Mass. 190. it was held, that a receiptor cannot allege the want of a sufficient and legal attachment, nor of a delivery to him of the goods, after having acknowledged the same in writing, and in consequence of which the officer has made himself responsible for the goods to the creditor. Of the fitness and justice of this doctrine, as well as of its application to the present case, there can be no question. By the memorandum in writing, the defendants acknowledge the receipt of the goods of the plaintiff as having been attached by him on the writs, and promise to deliver them to him on demand 5 and it appears, that the plaintiff returned the goods as attached, and thus made himself accountable for them to the creditors. Having incurred this liability on the faith of the receipt, the plaintiff is entitled to the benefit of it for his indemnity; and to allow it to be defeated by the defence set up, would be the grossest injustice to him.

The instrument offered in evidence to shew a release of Jaza-riahBarrett, one of the receiptors, and consequently as a discharge of all of them, was, in our opinion, also properly excluded. It is, iio doubt, a well established principle, that a release to one of several joint contractors operates to discharge the others, because the demand is thereby in law satisfied. (Co. Litt. 232, a. — 2 Salk. 574. — 2 Saund. 48, a.) But, then, it must be a technical release, under seal, in order to have that effect. (Rowley vs. Stoddard et al. 7 Johns. Rep. 207. — Fitch vs. Sutton, 5 East, 232.) The instrument offered in evidence, in this case, was not tmder seal $ nor was it a formal and absolute discharge of Barrett. T„ was a mere agreement not to proceed against his body' or' pro • perty ; and while it was meant that neither his person nor effects-should be taken to satisfy the demand, and was so far a discharge-of him, it was intended to retain every right and remedy on receipt, necessary to enforce satisfaction from the other contrac-ors. If it could have effect as such, it could certainly amount to nothing more than an agreement not to sue. Although a covenant not to sue, in general enures as a release, and may be pleaded as such, in order to avoid circuity of action, yet a covenant not to sue within a particular time, or not to sue one of several joint contractors, will not operate as a release. In Lacy vs. Kynaston, 1 Ld. Raym. 690 — 12 Mod. 552, it is said, that if A. and B. be jointly and severally bound to C., and C. covenant with A. not to sue him, that shall not be a release, but a covenant only 5 because he covenants not to sue A., but does not covenant not to sue B.; for the covenant is not a release, in its nature, but only by construction, to avoid circuity of action ; for where he covenants not to sue one, he still has a remedy, and then it shall be construed as a covenant and no more. The same pfínciple is laid down in several other cases, and especially in Dean vs. Newhall, 8 T. Rep. 168. As the agreement entered into by the the plaintiff, with Barrett, could in no view have the effect of a release, it was clearly not available as a defence to the action.

Williams and Royce, for defendants. Rates and Child, for plaintiff.

Judgment affirmed.