Curtiss v. Curtiss

182 Mass. 104 | Mass. | 1902

Holmes, C. J.

This is an action on a bond given under St. 1888, c. 325, R. L, c. 181, § 6, upon the removal of summary proceedings for the possession of land to the Superior Court upon the ground that the title was concerned. Pub. Sts. c. 155, § 24. R. L. c. 161, § 19. The condition of the bond is to “ pay to the plaintiff, if the final judgment is in his favor, all rent then due, all intervening rent, and all damage and loss which he may sustain by reason of the withholding of the possession of the demanded premises, and by reason of any injury done thereto during such withholding, together with all costs ” etc. At the trial a ruling was asked that the action could not be maintained, on the ground that although a breach of the condition was admitted, it appeared that the plaintiff had no interest in the property but brought the former suit in his own name when acting merely as agent for the owners. The ruling requested was refused, and an exception to the refusal raises the only question before us.

Obviously the- defendants are too late for the contention which they seek to make. The judgment contemplated by the bond has been rendered, and having been obtained without fraud conclusively establishes, as between the plaintiff and them, that the principal defendant wrongfully withheld possession from the plaintiff. The defendants cannot retry the merits of that suit. In the request no distinction was made between the principal defendant and the sureties, if any such distinction could be taken. Tracy v. Goodwin, 5 Allen, 409. Way v. Lewis, 115 Mass. 26. Cutter v. Evans, 115 Mass. 27. Glover, appellant, 167 Mass. 280, 283. The exceptions must be overruled if the request was wrong as against even one. But if the wrongful withholding was established the court could not say that there was nothing due on the bond, or turn the plaintiff out of court in the present suit. No question of the measure of damages is before us.

Exceptions overruled,.