The agreement of January 29, 1879, is of no importance here, nor is it claimed to be. The only question then is as to the effect of the subsequent agreement of May 13, 1879; and to make this agreement available to the defendants as a defence, it is conceded by them that it must be given the effect of a technical release under seal, the provision upon which they rely being, "that I will exonerate and save him [Evans] from ever having to pay anything further on said judgment."
But the whole of the agreement must be considered in determining its meaning, and not merely a particular clause; and if any of its terms are of doubtful import, the situation of the parties, the subject-matter, and the object intended to be effected may properly be considered also.
But to ascertain the effect the parties to this agreement intended it should have upon these defendants, it is not necessary to go outside the agreement itself, for, construing its provisions together, it plainly shows that Benton and Evans did not understand that the other debtors were released, or that the right of action against them was in any manner affected. And such must be the legal construction, for it is clear that the provision upon which the *Page 128 defendants rely is nothing more than a covenant of indemnity to, Evans alone, which certainly can have no greater operation than a covenant not to sue (Berry v. Gillis, 17 N.H. 14), which is never technically a release, and, when given to one of several joint debtors, is never construed as a release to the others; and this has been the law from very early times. Lacy v. Kynaston, 2 Salk. 575, 12 Mod. 548, 1 Raym. 688; Dean v. Newhall, 8 T. R. 168; Harrison v. Close, 2 Johns. 450; Rowley v. Stoddard, 7 Johns. 210; Shed v. Pierce, 17 Mass. 627; Goodnow v. Smith, 18 Pick. 415, 416; Parker v. Holmes, 4 N.H. 98; Snow v. Chandler, 10 N.H. 93, 94; Bank v. Messenger, 9 Cow. 87; Walker v. McCulloch, 4 Greenl. 421. Nor is such covenant of itself a release of the covenantee, although it is generally so construed by the law to prevent circuity of action. Durell v. Wendell,8 N.H. 372; 1 Par. Cont. (5th ed.) 28, and authorities cited.
And while formerly a more strict and technical rule prevailed, the weight of authority now is, even though apt and technical words of release are used, that if the parties, taking into consideration the circumstances of the case, their relation to each other, and construing the instrument as a whole, cannot reasonably be supposed to have intended a release of the whole debt, it will be construed as only an agreement not to charge the party to whom the release is given, and will not be permitted to have the effect of a technical release. Bonney v. Bonney, 29 Iowa 448; McAllester v. Sprague, 34 Me. 296; Burke v. Noble, 48 Penn. St. 168: Parmelee v. Lawrence, 44 Ill. 405, 410-413; Couch v. Mills, 21 Wend. 424; Parker v. Holmes, supra; Durell v. Wendell, supra; Kirby v. Taylor, 6 Johns. Ch. 242, 253.
But it is not necessary to go to this extent here, because the intention of the parties as expressed in the agreement, and the legal construction of the language used by them, both unmistakably show that the covenant to Evans cannot be construed as a release, which is an absolute extinguishment of a debt, and therefore obviously differs very essentially in its nature and effect from a mere covenant of indemnity like this, which expressly recognizes the existence of the debt against which the indemnity was given, and, at most, extends merely to prevent its further enforcement against the covenantee to his injury. This being so, it is plain that the agreement released none of the debtors, much less all of them. Indeed, if Evans himself were sued contrary to the covenant, inasmuch as it is one of indemnity only, it is not apparent how he could plead it in bar or set it up as a defence in any manner, nor why he would not be left to his action upon it for redress. Berry v. Gillis, 17 N.H. 13; McAllester v. Sprague, supra; Kirby v. Taylor, supra; Mason v. Jouett's Adm'r, 2 Dana 107. This, however, is immaterial, for it is sufficient now to hold that the defendants cannot avail themselves of it as a bar to the plaintiff's action. *Page 129
The payment made by Evans is to be applied in part satisfaction of the plaintiff's execution, and he will then be entitled to judgment for the remainder.
Case discharged.
All concurred.