Walker v. Dresser

110 Mass. 350 | Mass. | 1872

Morton, J.

The bond in suit was given to dissolve an attachment of real estate of Dresser made in an action in which he was joined as defendant with McKinstry. There were two counts, one against McKinstry as maker of a promissory note, the other against Dresser as a guarantor.

The causes of action against the two defendants are distinct, and at common law they could not be joined in one action. This is permitted by our statutes. Gen. Sts. c. 129, § 4. But the statute provides for the separate trial of the issues, and that several judgments shall be entered according to the several contracts of the defendants and several executions issued, as the case may require. In all such cases the judgments may be, and in this case they were, for different amounts and rendered at different times. This must be presumed to have been in the contemplation of the parties at the time of signing the bond in suit. The purpose of the bond was to dissolve an attachment of Dresser’» property, which could be held only to respond to the liability of Dresser and not of McKinstry. The obligation of the bond is to pay to “ the plaintiff in said action the amoúnt, if any, that he shall recover therein, within thirty days after the final judgment in said action.” It speaks of final judgment, and not judgments, and we have no doubt it refers to the judgment against Dresser. Construed in the light of the circumstances of the parties, it seems clear that the purpose of the bond was, that it should stand as security for the liability of Dresser, and that by its proper construction the defendants are liable only for the amount of the judgment recovered against Dresser. As this amount has been paid by Dresser, it follows that the condition of the bond has been performed and that the defendants are not liable.

Demurrer sustained.