289 Mass. 8 | Mass. | 1935
This is an action of contract against the surety on a bond given to dissolve an attachment. It was tried in the Superior Court on an auditor’s report before a judge sitting without a jury. The judge denied the plaintiff’s motion to recommit the auditor’s report because of the admission by the auditor of evidence of an agreement between the plaintiff and the principal on the bond, and allowed the defendant’s motion for the entry of judgment in its favor. The bill of exceptions of the plaintiff presents exceptions to the action of the trial judge on these two' motions.
The second writ was entered on its return day and the case was reached for trial on February 5, 1931. Thereupon counsel for the parties to that action agreed: “1, To have entered the following agreement "for entry: — 'Judgment
Although the bond recites that an attachment had been made of the property of the defendant in a stated sum under the writ dated May 3, no actual attachment of property was made under that writ. This was known to all parties concerned. The auditor found that counsel for the defendant in that writ “had the bond executed and delivered to plaintiff’s counsel in order to prevent an attachment of funds under the new writ [that is, the writ dated May 3]. The plaintiff’s counsel accepted the bond intending it to be in lieu of attachment.” Relying on the bond the plaintiff discharged the trustee attachment which had been made in the earlier action and refrained from making any attachment in the second action. The purpose of the debtor and the surety in giving the bond was accomplished; the debtor obtained what he sought, the right to hold his funds and property free of any attachment based on the plaintiff’s claim. In the circumstances here appearing we think that the surety is estopped to deny that there was an attachment. Briggs v. McDonald, 166 Mass. 37, 39. O. Sheldon Co. v. Cooke,
The agreement between the plaintiff and the principal debtor was rightly admitted in evidence. It did not, as the plaintiff contends, alter the conclusive legal effect of the judgment which was entered. It provided, rather, a method by which that judgment was to be satisfied. It was a contemporaneous, independent agreement binding on the parties thereto which was not merged in or concluded by the judgment. If the agreement had been fully carried out there would have been an accord and satisfaction of the judgment. Since it was not fully carried out the accord remained executory and the judgment unsatisfied. Hunt v. Brown, 146 Mass. 253. Savage v. Blanchard, 148 Mass. 348. It was, however, an enforceable contract between the plaintiff and the principal debtor creating a substantially different obligation from that which arose from the judgment. It was only for the obligation created by the judgment that the present defendant became surety. By the terms of the bond the surety undertook to pay the amount of the final judgment within thirty days from the day of its entry if the principal debtor did not.
By his contract with the principal debtor, made after the bond was executed, the plaintiff bound himself to refrain for a ten-month period following the entry of the judgment from enforcing it. He thereby without the surety’s consent extended the time of payment by the debtor by a valid enforceable agreement which contained no reservation of the plaintiff’s rights against the surety. It is settled that in
Exceptions overruled.