#### Fitch and Buck *against*Forman.

NEW-YORK,

May 1817.

Whrere A covenants, a^pñrfominro ""in extends the action or co Tenant, in which the breach as is, the non performanee of the act time! fntoTai srithenot’objecléase,10 tilat r1t theagree? maiíed,andafteSr it, with the for, if a formal deiive were neces presumed’111 to andethaetnitare’ piaintiffr^Vith theofher partyf onfortw^johit btodi”gnton th¡¡ other. Where A. with B. and C. to do a certain act fo> a certain day, and B. afterwards, by writing under Beal endorsed

THIS was an action of covenant, which was tried before Mr. Justice *Yates,*at the *Cayuga*circuit, in *June,*1816.

The plaintiffs declared on an agreement dated the 17th *July,*1811, between the plaintiffs and defendant, by which the latter covénanted to pay the plaintiffs 2,500 dollars, in case a certain copper mine in *Woodbridge,*in the state of *New-Jersey,*on ing opened and sunk twenty-five feet deep, or otherwise ed, should be of such richness and quality as to afford the nary profits of copper mines in *Wales*and *Cornwall,*in Eng-an *land,*which are worth working, to be paid in two equal annual . ° * . *1*instalments from the time the quality of the mine should be o t- *J*certained ; and the defendant also covenanted to open the miné, 7 *sr **and sink the shaft thereof, and otherwise explore the mine, in a reasonable and satisfactory manner, to ascertain the quality thereof, before the expiration of one year from the first of *cember*next after the date of the agreement, or, in case of his neglect, to pay the sum of 2,500 dollars absolutely. The breach assigned was, that the defendant had not explored the mine , . - . , tore the expiration or one year Irom the said first day of Decem-ry *1 * J*^er> whereby he became liable to pay the plaintiffs the sum of 2,500 dollars absolutely.

The defendant pleaded *non est factum,*with notice subjoined, that he would give in evidence on the trial a release under seal, executed by *Buck,*one of the defendants, on the 6th of *April,*1813, in the words following: “I hereby, on my part, release the said *Joshua Forman*from any liability by reason of the said mine not being explored, agreeably to the terms of the above contract, by the first day of *December*last, and do consent that the time for exploring and sinking the same be extended to the first day of *December*next, in consideration of one dollar to me paid.”

*173At the trial, the agreement mentioned in the declaration was produced and read in evidence, and the defendant proved the handwriting of *Buck*to the instrument mentioned in his notice, which was endorsed upon the original agreement. A verdict was taken for the plaintiffs, subject to the opinion of the court, on the case above stated.

*H. Bleecker,*for the plaintiffs.

The release signed by *Buck*was on his own part only; it did not bind *Fitch.*A co-obligee may release on his own account.* It is not a general release, in the names of both the plaintiffs, but of one only for himself. But admitting that a release by one of two joint obligees may be pleaded in bar to a joint action, it must be by *deed,*or a technical release under seal. The plea is *non est factum,*and nothing special can be given in evidence under it. In an action of covenant, there is no general issue to entitle the defendant to give *notice*of special matter to be offered in evidence, pursuant to the statute. But if the *notice*was proper, in this case, it must be treated as a special plea, and it states the writing to be a release under seal, or a deed. Now there was no proof of any delivery, which is essential to a deed. When the covenant was first produced at the trial, this writing or release was found endorsed upon it. There can be no delivery without an acceptance.†

■ Again; the release contains a condition precedent, that the defendant should open and explore the mine before the end of one year from the first day of *December,*or pay the sum of 2,500 dollars *absolutely,*
      *‡*
      **The intent and meaning of the parties must , , „ ^ Jf r be taken from the instrument itseli. By not opening the *J ¡a*mine within the time limited, the engagement of the defendant to pay the 2,500 dollars became absolute.

*E. Williams,*contra.

This action is brought to recover the 2,500 dollars, as if it was an absolute contract to pay that sum, as stipulated damages, in case the mine was not opened by the first day of *December.*But the true construction of the instrument is, that the defendant was to pay the plaintiffs 2,500 dollars, when the valúe*and probable profits of the mine were ascertained, and he binds himself, under a *penalty,*to open the mine for that purpose by the first day of *December.*In *Dennis*v. *Cummins,*
      *§*
      **where the defendant promised, in case he failed to per*174form his covenant, to pay the plaintiff 2,000 dollars damages, this courj considered it as a *penalty,*and not as liquidated damages. So the court of G. B in *Astley*v. *Weldon*
      ***
      *,*on a similar agreement, held the sum stipulated to be paid in case of a failure of the party to perform, to be in the nature of a penalty, and not as liquidated damages.

The breach assigned in the plaintiffs’ declaration, is the failure of the defendant to open the mine by thefirstday of *December.*But the release executed by *Buck*discharged the defendant from all liability for damages for not opening the mine by the first day of *December,*ánd leaves the plaintiffs to their remedy on the other part of the agreement. It has been repeatedly decided, that a release by one joint oxyner, partner, or covenantee, will bind the other.† It is not necessary that it should purport to be a v . 1 * discharge bv both of the covenantees. It is sufficient if it be ° •* • 1 t^ie release °f one of them.

If the technical objection, that the release was never delivered, so as to render it a valid deed, is to be sustained, a new trial ought to be granted, so as to allow the defendant an opportunity to give further evidence of that fact. In *Jackson, ex*dem. *M‘Crea,*v. *Dunlap,*
      *‡*
      **Kent, J. thought there xvas delivery enough of the deed.

*Bac. Abr. Release, (G.)*

*Com. Dig. Conditions (B.1.)*1 *Sound.*320. u. 4. 1 *Str*569. 3 Johns Rep. 388. 3 Bos. and Pul. 571.

3 *Johns. Cases 297.*

**3 Bos. and Pul. 346.

*Pierson*v. *Hooker,*3 *Johns. Rep.*68. Ruddock's *ca*se. 6 Co. *25. 7 Johns. Rep. 207. 210.*

1 *Johns.*Cas. 114.

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.

1 *Johns. Cases*114. 12*Johns. Rep 421*

See *Austin and others*v. *Hall,*13 *Johns. Rep.*280.