288 Mass. 522 | Mass. | 1934
This is an action of contract brought against the defendant for breach of a bond executed by Edward T. Murphy, as principal, and the defendant, as surety. The action was tried before a judge of the Superior Court sitting without a jury. He filed a “Report of Facts, Rulings, and Findings.” The case is here on the plaintiffs’ exceptions.
The facts found are in substance as follows: On May 8,
The defendant’s answer is a general denial and an allegation by way of equitable defence that the plaintiffs cannot recover because the bond was given under mistaken belief of the parties in the existence of its subject matter.
The trial judge found that the attorneys for the plaintiffs “assumed said real estate [in the northern district] had been attached, relying on the instructions given [by them] to the attaching officer,” and made no examination of the
The trial judge granted the plaintiffs’ requests for rulings numbered 3 and 4, in substance, that “The truth ... of the facts recited in the bond were matters of public record” which were “available to the defendant” at the time of the execution of the bond; and that the defendant’s mistake “was not induced by any representation of the plaintiffs.” He ruled, as requested by the defendant, that the bond is not a bond of general indemnity but a bond given pursuant to G. L. c. 223, § 125, to obtain by the force and effect thereof “(a) A dissolution of an attachment upon the property described in the bond; [and] (b) A release of the property described in the bond from an attachment”; that “The defendant is not estopped to deny the recital in the bond that an attachment had been made”; that “If there was no attachment but both parties believed there was, the defendant is not estopped to deny the recital in the bond that there was an attachment”; that “If the bond was given solely to discharge or release an attachment, and if no attachment existed, and if the plaintiffs and the defendant mistakenly believed it did exist, there can be no recovery on it”; and that “Upon all the evidence
The main contentions raised by the plaintiffs’ requests for rulings, and argued in their brief, are (1) that the defendant, because of the recitals in the bond, which induced the plaintiffs not to make further or other attempt to attach real estate of said Murphy in the northern district, is estopped to deny that the real estate of said Murphy in the northern district was attached; (2) that the defendant cannot avail itself of the defence of mistake of fact because the mistake, if any, was induced by the negligence of the defendant or the misrepresentation of its principal, (3) that the doctrine of equitable rescission has no application to the furnishing of a bond under G. L. c. 223, § 125, for the reason that the bond “was not voluntarily taken by the plaintiffs in a separate transaction with the defendant and the defendant’s principal, Edward T. Murphy”; (4) that the defendant’s obligation to pay the judgment up to $10,000 was in nowise altered by the nonexistence of the attachment or the mistake in reference thereto; and (5) that since the bond was under seal and there was no misrepresentation by the plaintiffs it is immaterial that Murphy did not receive any consideration for the bond. Other issues raised are whether the defendant was discharged from any obligation under the bond by amendments made by the plaintiffs in the equity suit, and whether there was a breach of the bond in view of the fact that all the plaintiffs did not recover judgments against said Murphy.
The plaintiffs cite Briggs v. McDonald, 166 Mass. 37, 39, and Britton v. Goodman, 235 Mass. 471, 474, in support of their position that the bond “accomplished the substantial purpose for which it was given” and the defendant having “obtained the full fruits of its bargain is not now entitled to avoid its obligation on the ground that no valid attachment was in fact ever made.” In the cases cited property had in fact been taken by attachment and surrendered or released on the giving of the bond, and in each case the
The finding of the trial judge that the bond was executed under a mutual mistake was sound as a legal theory and was supported by the evidence. The bond having been given under a mutual mistake of fact, not induced by fraud or misrepresentations of the defendant, it follows that the defendant should not be estopped to show the falsity of the recitals in the bond. Rogers v. Bishop, 9 Gray, 225. Conant v. Newton, 126 Mass. 105, 108, 109, Blaney v. Rogers, 174
It seems clear from the recitals of the bond that the trial judge’s ruling that the “bond . . . was given pursuant to G. L. c. 223, § 125” was amply justified. The object of G. L. c. 223, § 125, was to enable an owner of attached property to dissolve, by force of the statute, an existing attachment by the filing of an approved bond. It is settled that bonds failing to satisfy the statutory formal requisites have no validity as statutory bonds. Central Mills Co. v. Stewart, 133 Mass. 461, 462. Wall v. Kelly, 209 Mass. 370, 371. Massasoit-Pocasset National Bank v. Borden, 228 Mass. 581, 583. Waverly Lumber Co. v. Piantedosi, 262 Mass. 377. It is plain that the bond failed to dissolve an existing attachment, insuring to Murphy the free use and enjoyment of his property pending the outcome of the equity suit. The plaintiffs contend that the dissolution of the attachment was the immediate occasion for giving the bond and that the ultimate purpose was to prevent the plaintiffs from taking any further proceedings against the property thereafter. The facts do not support the plaintiffs’ contention, and, as above said, the defendant is not estopped to prove the facts outside the recital in the bond. Martin v. Jablonski, 253 Mass. 451. Breed v. Berenson, 216 Mass. 397. Conant v. Newton, 126 Mass. 105. Blaney v. Rogers, 174 Mass. 277. Downey v. Levenson, 247 Mass. 358. Peugh v. Davis, 96 U. S. 332. Bedell v. Wilder, 65 Vt. 406.
The bond in the action cannot be treated as a common law obligation for the reason that the obligor has not received the benefit of the dissolution of the attachment for which he bargained. The evidence would not warrant a finding that the plaintiffs were induced to refrain from making an attachment and thus suffered a detriment or that the defendant received a benefit because the property wag not attached. So to hold would be to decide that the
The rulings of the trial judge are legally supportable, and the plaintiffs’ requests for rulings which were not given were properly denied.
Exceptions overruled.