Harbeck v. Pupin

• Decision Date: 26 February 1895
• Citation: 145 N.Y. 70,39 N.E. 722
• Parties: HARBECK v. PUPIN et al.
• Court: New York Court of Appeals Court of Appeals

145 N.Y. 70

39 N.E. 722

HARBECK

v.PUPIN et al.

Court of Appeals of New York.

Feb. 26, 1895.

Appeal from supreme court, general term, First department.

Action by Henry Harbeck against Sarah K. Pupin and others, executors of Frederick K. Agate, deceased. From a judgment of the general term (25 N. Y. Supp. 952) reversing a judgment for plaintiff, he appeals. Affirmed.

The lease referred to in the opinion was as follows: ‘Whereas, the late copartnership firm of W. H. Whitaker & Co., of the city, county, and state of New York, are indebted to me, the undersigned, Henry Harbeck, of the city, county, and state of New York, in the sum of thirty thousand seven hundred and fifty-four and thirty-three one-hundredths dollars ($30,754.33), with interest from the twenty-first day of September, 1885, by virtue of a judgment recovered in the supreme court of the state of New York, held in and for the city and county of New York, in an action wherein said Henry Harbeck was the plaintiff and the said late firm were defendants; and whereas, such firm has been dissolved; and whereas, I have agreed with the members of the said late firm of W. H. Whitaker & Co., other than said W. H. Whitaker, to compound or compromise my claim on them individually, in respect of the said indebtedness to me of the said late firm: Now, therefore, this agreement witnesseth: That in consideration of the sum of one dollar and other good and valuable considerations to me, the said Henry Harbeck, paid by the said members of the said late firm of W. H. Whitaker & Co., other than the said W. H. Whitaker, at or before the time of subscribing this release, I, the said Henry Harbeck, do hereby, according to the statute in such case made, release, acquit, and forever, discharge the said members of the late firm of W. H. Whitaker & Co., other than said W. H. Whitaker, and their estate or estates, and that of each of them, of and from all individual liability, claim, and demand whatsoever for or in respect of the said indebtedness to me of the said late firm; provided, however, that this present release is made pursuant to section 1942 of the Code of Civil Procedure, and shall have no greater or other effect than as by the said act and by this release is provided, and shall not release or discharge said W. H. Whitaker or his estate, but shall operate to release and discharge all and every person or persons other than the said W. H. Whitaker of and from any and all liability and obligation growing out of the indebtedness aforesaid. Nothing herein contained shall affect or impair a certain agreement dated August 20, 1885, by which certain claims and demands due the firm of W. H. Whitaker & Co. were to be held in trust for the said Harbeck; all the terms and provisions of the said agreement to remain in force notwithstanding this agreement. In witness whereof, I have hereto set my hand and seal, this 18th day of March, 1886. H. Harbeck. [L. S.]’

J. Treadwell Richards, for appellant.

George C. Holt, for respondents.

FINCH, J.

The fundamental question in this case is the true construction of the release upon which the defendant relies. We regard that release, executed by Harbeck, as broad enough to discharge Agate, assuming that the latter was a dormant partner in the debtor firm. The criticism of the appellant is very narrow and technical, and founded upon one expression in the instrument, with an entire disregard of its manifest scope and meaning. That criticism is that the release, by its terms, only discharges the judgment, and operates upon that, and does not discharge the debt for which the judgment was confessed; and such construction is founded upon the statement in the release that the firm is indebted to Harbeck in the sum named ‘by virtue of a judgment,’ whereby, it is claimed, the discharge granted from the said indebtedness means solely and alone that evidenced by the judgment, and therefore necessarily includes only the judgment debtors, and excludes Agate. But the instrument, by its explicit terms, negatives that construction. It does not run to Battershall and Grainger by name, and purport to release them alone, or confine its terms or its operation to the defendants in the judgment. It acknowledges an agreement of composition, not with Battershall and Grainger merely, but with the members of the firm of Whitaker & Co., other than Whitaker,'-language not confined to two of the judgment debtors, but explicitly embracing all the members of the firm with the one exception. And that agreement is declared to be, not to simply discharge a judgment against two, but, as it reads, ‘to compromise my claim on them individually in respect to the said indebtedness to me of the said late firm.’ That must necessarily be construed to mean the entire debt of the firm, however that firm was composed, or whoever might constitute its members. It then proceeds to release the members of the late firm other than Whitaker from liability for or in respect of the said indebtedness of the said late firm, and very conclusively fixes the intent and meaning of the parties by the further statement that it shall operate to release and discharge ‘all and every person or persons other than the said W. H. Whitaker of and from any and all liability and obligation growing out of the indebtedness aforesaid.’ That was not, as is contended, a mere general clause to be restricted by a narrower and special statement preceding, for there was none of that character, but it was a further explanation of a purpose already stated, entirely consistent with it, and meant to put the meaning of the parties beyond any reasonable doubt. ‘Any and all liability and obligation growing out of the indebtedness aforesaid’ covered the original account, the note which expressed it, and the judgment which secured it, and from that liability, whatever its form, all...