279 Mass. 256 | Mass. | 1932
The defendants have demurred to the plaintiffs’ amended declaration in an action of contract. The declaration asserts the liability of the defendants Goldenberg and Guiney as principals, and the defendant The Century Indemnity Company as surety on a bond dated March 25, 1930. The condition of the bond is: “That in case of the foreclosure of mortgage hereinafter mentioned by the above-named Nathan Levin and Israel M. Levin within one (1) year from the date of this bond, said Harold M. Goldenberg and/or Joseph Guiney shall pay to the said Nathan Levin and Israel M. Levin any loss not exceeding five thousand and no/100 ($5000.00) Dollars, occasioned by a legal foreclosure of a certain mort
The plaintiffs started their foreclosure proceedings on March 21, 1931, by making the first publication of notice of the foreclosure sale. That was within one year from the date of the bond. The other two publications were made and the foreclosure sale was held after the period of one year from the date of the bond. The contention of the plaintiffs is that the language of the bond should be construed to mean that if foreclosure proceedings are begun within one year from the date of the bond, the defendants are liable for any loss appearing at the completion of the proceedings after that one year period.
The construction of the bond is for the court. The plaintiffs having brought suit on the instrument as made, not seeking reformation on the grounds of fraud or mistake, the process of construction by the court begins with the determination whether the language used expresses a meaning which is plain and unambiguous. “If the words used in the contract are plain and free from ambiguity, they must be construed in their usual and ordinary sense.” Morse v. Boston, 260 Mass. 255, 262. “It is only when the meaning of the written instrument is not plain, or becomes doubtful in its application to the particular transaction, that extraneous evidence is admissible to explain the significance of terms used or to show the relations and methods of the parties in the light of which their written words are to be interpreted.” Snider v. Deban, 249 Mass. 59, 61. "Where the language used expresses a plain meaning which is applicable to the particular transaction “The contract cannot be construed as meaning something different from what the parties intended as expressed by the language
Order sustaining demurrer affirmed.