Bond, To dissolve attachment. Contract, What constitutes. Evidence, Of delivery. Surety. Agency, Existence of relation. Practice, Civil, New trial, Requests, rulings and instructions. Fraud.
Failure to file in court within the statutory period a bond given to dissolve an attachment does not prevent its use as a common law obligation. Sureties on a bond given to dissolve an attachment cannot complain that such bond is used to procure a discharge of the attachment by the creditor instead of being filed within the statutory period. At the trial of an action against a surety upon a bond given to dissolve an attachment, there was evidence, which was controverted, that, when the surety, an Italian, appeared before a master in chancery, who was also an Italian, to qualify, the master in chancery explained to the surety the nature of the bond and the surety's obligation; and that the conversation was in Italian; and that an attorney for the principal on the bond explained to the surety that the bond was to take off an attachment. The surety testified that he understood all the master in chancery told him; that he said he would "guarantee" the principals; that he knew that if the principals did not pay "some account or other" he would have to pay it; and that he had never heard of a bond to dissolve an attachment, but was familiar with bail bonds. Held, that (1) Findings were justified that the surety signed the bond freely and with full opportunity to understand what he was doing; (2) There was no evidence of fraud or undue influence practised on the surety, or of misrepresentations in regard to the paper he signed; (3) In such circumstances, the surety was bound even though he did not comprehend all the legal consequences of his act. At the trial of the action above described, there was evidence that the surety signed the bond after examination by the master in chancery; that at that time the signature of one principal appeared on the bond; that there was a discussion in the presence of the surety relative to the bond being left with the master in chancery to secure the signature of the other principal, and relative to the necessity of such signature to complete the bond; that the bond was left with the master in chancery, who, after the other principal had signed within eleven days thereafter, delivered the bond within twenty-six days afterwards to the plaintiff's attorney, who, on the same day, executed a discharge of the attachment which was duly recorded; and that thereafter the plaintiff recovered a judgment against the principals upon which nothing ever was paid. After a verdict against the surety, it was held, that (1) By leaving the signed document with the master in chancery in the circumstances, the surety could be found to have authorized its delivery to the creditor, when completed by the signature of the second principal and the certificate of the master in chancery, either as a bond to dissolve the attachment under the statute, or as a common law bond; (2) The trial judge properly refused to order a verdict for the surety. A trial judge is not bound to instruct the jury in regard to a particular fact when other facts are also to be considered in reaching a conclusion. No abuse of discretion appeared in the denial of a motion for a new trial on the alleged ground that an unintentional mistake of fact by the judge in his charge to the jury caused a failure of justice.
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. 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.