Opinion
March 9, 1910.
Nash Rockwood, for the appellant.
Edward D. Eddy, for the respondent.
This action was brought to recover damages alleged to have resulted from the breach of a contract. The action was commenced September 11, 1906, and tried March 23, 1909.
The contract was dated March 11, 1904, and contained an agreement on the part of the defendant "That he will cause to be satisfied and discharged sundry judgments, and assume and pay certain claims now existing against the said Vincent C. King as follows:
Clarence L. Smith Co., two judgments amounting to about (together) .............................................. $2,700 Kaldenberg Importing Trading Co., judgment amounting to about ................................................ 1,300 Second National Bank of Hoboken, judgment amounting to about ................................................ 1,600 Mechanics Farmers' Bank, judgment amounting to about ................................................... 1,500 Gansevoort Bank, judgment amounting to about ............. 1,700 H.C. Colville, three notes, amounting to about ........... 2,600 First National Bank of Jersey City (in suit), amounting to about ................................................... 3,100 Mercantile National Bank (in suit), amounting to about ... 3,250" =======
The time of performance was not specified in the contract.
The complaint alleges that the defendant has failed and neglected to satisfy and discharge or to cause to be satisfied and discharged four of the judgments and has neglected and failed to assume and pay any of the claims specified in the agreement. It demands judgment for the amount of the judgments and claims that have not been paid, satisfied or discharged by the defendant, and for the sum of $10,000 damages. The answer admits the contract but "Denies that the defendant has neglected to pay and obtain discharges of the several judgments set out and referred to in the complaint, and also denies that the defendant has neglected or failed to assume and pay the claims specified in said complaint." The answer also contains two counterclaims for money loaned, and the amount paid upon a note made by the defendant for the accommodation of the plaintiff.
It appeared upon the trial that these judgments were paid prior to the commencement of the action and were satisfied of record in May, 1907; that the claim of the First National Bank of Jersey City was paid and the plaintiff released before the commencement of the action, and that within sixty days after the execution of the agreement in question the defendant secured the claim of the Mercantile Bank by deeds of real property and received an acknowledgment to the effect that the defendant was discharged as to the plaintiff.
The court found that the defendant had failed to perform the contract upon his part, and had failed, before the beginning of the action and within a reasonable time limited in the contract for performance thereof, to discharge and satisfy of record the judgments specified in the contract; that the damage suffered by the plaintiff on account of the default of the defendant was the sum of $720, and that he suffered no other damages.
The court also found as a fact that the plaintiff was indebted to the defendant in the sum of $675.
The court found as a conclusion of law that the language of the contract properly interpreted meant that the defendant should save the plaintiff harmless from the judgment notes and claims; that the plaintiff was entitled to recover $720 and interest, amounting in the aggregate to the sum of $829.80; that the defendant was entitled to recover $675 and interest, amounting in the aggregate to the sum of $816.43, and that the plaintiff was entitled to judgment for the sum of $13.37.
It will be observed that there is no absolute agreement to cause the docket of the judgments to be canceled and discharged. The agreement of the defendant was to cause to be satisfied and discharged the judgments and claims against Vincent C. King. That was the particular thing which the defendant agreed to do. He had the right to limit his liability, and he did limit it. He did not agree to discharge the judgments of record, and his obligation cannot be extended by instruction or implication beyond the terms of the contract. That the parties only intended that the plaintiff should be discharged from his liability upon the judgment is apparent from a clause in the contract that nothing therein contained shall be construed to prevent either or any of the judgment creditors or holders of the notes from collecting their claims, by legal process or otherwise, against any other persons liable thereon. In view of this provision it is not reasonable construction that the parties intend that the judgment should be discharged of record.
I am, therefore, of opinion that the conclusion reached by the trial court was correct, and that the judgment should be affirmed, with costs.
All concurred, except SMITH, P.J., not voting.
Judgment affirmed, with costs.