#### Jacob Hoover v. John Clark’s Administrators.

~j L From Randolph. J

Action of covenant on a deed, in which the Defendant set forth “ that in “ consideration of 441. to him paid, he had sold to the Plaintiff a note “ of hand upon John Arnold for 501. given by him to one Macshan: “ And if there should any thing fail in the recovery of the note, or if “ Arnold should pay it in paper money without allowing the deprecia* “ tion, then and in that case, the Defendant obliged himself to make “the same good to the Plaintiff; or if Arnold should be allowed a “ receipt by one Dix to him for 181. the Defendant obliged himself to “ make it good.”

This covenant extends to the solvency of Arnold, and the object of it was to secure the Plaintiff against his insolvency, the allowance of the depreciation and the receipt of Dix.

The words “ if any thing should fail in the recovery of the said note,” point to a complete indemnity to the Plaintiff, if from any cause he should not receive the amount of the note: they mean not only that a judgment should be obtained, but that the money should be paid.

A “recovery” signifies, in legal contemplation, the obtaining of anything by judgment or trial at law.

This was an action covenant brought to recover damages for a breach of the covenants contained in the following deed, to-wit:

“ Know all men by these presents, that I, John Clark, of Randolph “ County, and State of North-Carolina, for and in consideration of the sum “ of forty-four pounds, hard money, to me in hand paid, by Jacob Hoover, “ have bargained and sold him one note of hand upon John Arnold, Es- “ quire, given by him to Nehemiah Macshan, for fifty pounds, Virginia “ money; now if there should any thing fail in the recovery of the said “ note, or if tire said John Arnold should pay the said note with paper « money, without allpwing the depreciation, then and in that case, X do *170“ oblige myself to make the same good to the said Hoover; orif the said “ John should be allowed a receipt given by William Dixto him for eigh- “ teen pounds, paper money, I also oblige myself to make it good. Wit~ “ ness my ^ani^ an^ seab tiús 11th day of April, 1793.

JOHN CLARK, (Seal.)”

The declaration assigned for breaches, 1st, That Jacob Hoover, (without his default) did entirely and absolutely fail in the recovery of the said note., or any part thereof, from John Arnold; and that John Clark had not, although often requested, made the' same good to him, nor indemnified him for the loss which he had sustained thereby. 2d. That «pon a settlement with John Arnold, he Avas obliged to allow, and did allow to Arnold, the receipt given by William Dix to Arnold, for eighteen pounds, paper money, Avhich Clark, although requested, had not made good to Hoover.

Upon the trial, the Court non-suited the Plaintiff, on the ground that the covenant did not extend to the solvency of Arnold, but only that a judgment should be obtained ,• that the depreciation should be allowed, and that the receipt of Dix should not be available. A rule for a new trial being obtained, it was sent to this Court.

Taylor, Chief-Justice,

delivered the opinion of the Court:

The words in the covenant declared on are, “ now if “ any thing should fail in the recovery of the said note, or " if the said Arnold should pay the same in paper money, “ without allowing the depreciation, then and in that case, “ I do oblige myself to make the same good to the said “ Hoover : or if the said Arnold should be allowed areceipt “ given by William Dix to him, for eighteen pounds, paper “ money, I do oblige myself to make it good.” If Avords might have been selected to express more clearly the intent of Clark, to secure the Plaintiff against the insoNency of Arnold in relation to the note, yet such intention may be fairly inferred from the terms, employed. It would seem strange that the parties should provide against the depreciation of the money, by an undertaking of Clark’s to make *171it good, and yet the Plaintiff be content to take the risk of Arnold’s inability to pay any part of the sum. The undertaking respecting the receipt of Dix, admits of the same observation, and would, under any other construction than that contended for by the Plaintiff, betray a strange caution and anxiety as to the parts of a sum intended to be secured, when the whole is left at risk. But the words <e if any thing should fail in the recovery of the said note,” point to a complete indemnity to be afforded to the Plaintiff, if from any cause he should not receive the amount. A judgment is of no more value than a note, and a covenant that a judgment shall be recovered, seems an useless undertaking, unless it be also meant that the money shall be paid. If Clark had undertaken simply for the recovery, without any thing more, the legal construction would have been, not only that a judgment should be obtained, but that the money should be paid. But he has not merely stipulated for the recovery of the judgment, but of the note. A recovery signifies, in legal contemplation, the obtaining of any thing by judgment or trial at law.* The recovery of the note must, therefore, signify the obtaining of the money due upon it, by means of a judgment. In my view of the covenant, the apparent intention of the parties is borne out by a technical interpretation, in which all the words are satisfied by an effective meaning. The non-suit must be set aside.

*

Coke Litt. 154,