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Eveleth v. Burnham

Nancy Eveleth v. Webster F. Burnham & others

Eveleth v. Burnham, 108 Mass. 374 (1871)

Court: Massachusetts Supreme Judicial Court · State Highest Courts
Decided: November 15, 1871
Judges: Chatman
Citations: 108 Mass. 374

Cited by 8

Headnotes

In an action against two defendants, in which property of one of them was attached on mesne process, he gave a bond under the Gen. Sts. c. 123, § 104, to dissolve the attach- . ment, reciting that he was the defendant in the writ and not suggesting any other defendant, conditioned to pay within thirty days after final judgment in the action the amount, if any, which the plaintiff should recover therein. Judgment was rendered against both of them; but this defendant obtained a reversal of it against himself on a writ of review. Held, that he was under no liability in the bond, upon the unreversed judgment against the other defendant.

Summary

Contract, brought November 20, 1868, against Webster F. Burnham as the principal, and Moses A. Shackley and Henry C. Poor as sureties, in a bond given to the plaintiff on September 16,1867, in the penal sum of $3000, the condition of which was “ that whereas the said Nancy Eveleth has caused the goods and estate of said Webster F. Burnham to the value of $3000 to be attached on mesne process in a civil action, by virtue of a writ ” dated September 5, 1867, returnable to the superior court at December term of that year, “ in which said writ the said Nancy is plaintiff and the said Webster F. Burnham defendant; and whereas the said defendant wishes to dissolve the said attachment according to the provisions of the Gen. Sts. c. 123, § 104 ; now therefore if the above bounden Webster F. Burnham shall pay to the plaintiff in said action the amount, if any, which she shall recover therein, within thirty days after the final judgment in said action, then the above written obligation shall be null and void, otherwise to remain in full force and virtue.” The case was submitted to the judgment of the court on agreed facts which are stated in the opinion.

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Opinion of the Court — Chatman

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Chatman, C. J.

The bond is to be construed with reference to its real and proper object. The plaintiff had commenced an action against the defendant Webster F. Burnham and one Eli K. Burnham, and attached Webster F. Burnham’s property. She obtained a judgment against both on their default. Webster F. Burnham brought a writ of review, and at March term 1871 of the superior court obtained a reversal of the judgment against him. But her judgment against Eli K. Burnham stands unreversed. To dissolve the attachment of Webster F. Burnham’s property, he on September 16, 1867, gave the bond now in suit. Its condition is, that if he shall pay the plaintiff in said action the amount of any judgment which she may recover therein, within thirty days after final judgment, then the bond to be void. The obvious purport of this language is, that it refers to a judgment against himself. If there should be a judgment against Eli only, and not against himself, there would be nothing for him *376 to pay; and it would require clear and unequivocal language to convince us that either party intended that this bond bound him in that event. Judgment for the defendants.

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Cited by 8 cases

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Relies on it most ⓘ

Mass. Building Finish Co. v. Brenner193 N.E. 355 (Mass. 1934)
Burns Bros. v. Block198 N.E. 164 (Mass. 1935)
Campbell v. Brown121 Mass. 516 (1877)
Central Mills Co. v. Stewart133 Mass. 461 (1882)
Prior v. Pye41 N.E. 353 (Mass. 1895)
Patch v. Robbins159 N.E. 532 (Mass. 1928)

Most recent

Sutherland, Inc. v. Hartford Accident & Indemnity Co.2 Mass. App. Div. 662 (1937)
Burns Bros. v. Block198 N.E. 164 (Mass. 1935)
Mass. Building Finish Co. v. Brenner193 N.E. 355 (Mass. 1934)
Patch v. Robbins159 N.E. 532 (Mass. 1928)
Kolatch v. I. Rome & Sons230 P. 135 (Wash. 1924)
Prior v. Pye41 N.E. 353 (Mass. 1895)

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