338 Mass. 797 | Mass. | 1959
Order dismissing report affirmed. This is an action of contract commenced in a District Court in which the plaintiff seeks to recover $2,000 from the defendant, one of the sureties on a bond which was given to dissolve what was described in this bond as an equitable attachment against Shimar, Inc., but which in fact was given to dissolve a temporary restraining order against Shimar, Inc., and the Music Hall Corporation. The original suit in equity was instituted against Shimar, Inc., and the Music Hall Corporation by the plaintiff. In that suit the plaintiff secured an execution against the Music Hall Corporation but not against Shimar, Inc. Due demand was made for payment but the execution was not satisfied. The bond was in the penal sum of $2,000 and the execution was in the sum of $2,205.82. The condition of the bond, which was under seal, was to pay the plaintiff, if he recovered against Shimar, Inc., or the Music Hall Corporation, the sum of $2,000 and, if neither of them paid the plaintiff, the sureties on the bond would pay. The trial judge made special findings as follows: The defendant wdth others executed the bond in the presence of one Victor Fields, an attorney for and a brother of the defendant, and the plaintiff accepted the bond and thus approved it by not seeking a continuance of a restraining order which was then in force in the equity proceedings. The defendant filed four requests for rulings which were properly denied as being “inconsistent with the evidence.” The requests were also inconsistent with the findings of the judge. At the request of the defendant the judge reported the action to the Appellate Division, which after hearing dismissed the report, and the defendant appealed. There was no error.
