Waverley Lumber Co. v. Piantedosi

Wait, J.

The refusal to direct a verdict for the defendant Piantedosi; the failure to give the eleventh, twelfth and thirteenth requests for instructions; the instructions given; and the denial of the motion for new trial, were not erroneous.

There was evidence which would justify findings that the defendants signed the bond in question freely, and with opportunity to understand fully what they were doing. There was no evidence of fraud or undue influence practised upon them, nor of any misrepresentation in regard to the paper they were signing. In such circumstances they are bound, even though they did not comprehend all the legal consequences of their act. Atlas Shoe Co. v. Bloom, 209 Mass. 563, 567 . They must be presumed to know what they have undertaken.-

In principle this case is within the decision in Sampson v. Barnard, 98 Mass. 359 , and Daley v. Carney, 117 Mass. 288 . *382 It is governed by them. In leaving the signed document, as the sureties did, with either the master in chancery or with one of the principals, they could be found to authorize its delivery when completed by the signature of the other principal debtor, either as a bond to dissolve the attachment under the statute, or as a common law bond. The requirement that the bond be filed within a certain time after its approval to make it effective to dissolve the attachment (G. L. c. 223, § 123) does not prevent its use as a common law obligation.

The desire to dissolve the attachment, which the instrument expresses, could be gratified either by filing the completed instrument within the statutory period, or by procuring a discharge in return for its delivery to the creditor. The sureties cannot complain that the second rather than the first method was employed. Daley v. Carney, supra. Here the creditor took the bond and gave a discharge of the attachment. There was evidence for the jury to pass upon. In Dole Brothers Co. v. Cosmopolitan Preserving Co. 167 Mass. 481 , cited by the defendant, the error arose from failing to submit the facts to the jury. Mere lack of knowledge of delivery to the creditor was not held fatal to recovery.

The instructions requested could not properly be given. For the reasons already stated, the evidence justified inferences of authority to deliver. The judge was not bound to instruct in regard to a particular fact when other facts were also to be considered in reaching a conclusion. Tonsman v. Greenglass, 248 Mass. 275 .

The charge, as amended, left to the jury to decide upon the evidence, whether an intent to authorize an effective delivery was made out. The defendant was not prejudiced.

Whether or not a new trial should be granted rested in the discretion of the trial judge. We see no abuse of discretion in the denial. Ryan v. Hickey, 240 Mass. 46, 48 .

Exceptions overruled.