Burdett v. Walsh
| Decision Date | 28 February 1920 |
| Citation | 126 N.E. 374,235 Mass. 153 |
| Parties | BURDETT v. WALSH et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Exceptions from Superior Court, Middlesex County; Loranus E. Hitchcock, Judge.
Action by Fred H. Burdett against David I. Walsh and others, receivers. Verdict was directed for defendants, and plaintiff excepts. Exceptions overruled.
James E. Young, of Boston, for plaintiff.
Ralph H. Willard, of Boston, and L. Roger Wentworth, of Melrose, for defendants.
This is an action of contract, against the administrators of the estate of Stephen Jennings and the receivers of the New England Casualty Company, on a bond given by Jennings as principal and said company as surety.
February 9, 1914, Jennings made a written contract with the plaintiff whereby in addition to the purchase of certain real estate, he agreed to buy from the plaintiff stock in the Record Dry Plate Company for $3,200, ‘payable’ $200 in cash and the balance by ‘note of three thousand dollars ($3,000.00) in one year with interest at six per cent. (6%) secured to the satisfaction’ of the plaintiff. The $200 were paid, the stock was transferred and all the other terms of the contract except that relating to the payment of the $3,000 were performed. March 9, 1914, pursuant to the contract, Jennings as principal and the company as surety executed and delivered to the plaintiff a bond in the penal sum of $3,000. This bond, after reciting the agreement between the plaintiff and Jennings, a copy of which was annexed to it, continued:
‘Whereas, the said Fred H. Burdett has required that the said Stephen Jennings should give him a bond to indemnify him in the event of the failure of the said Stephen Jennings to pay the aforesaid note in accordance with his agreement.’
Its obligation was as follows:
‘Now, therefore, if the said Stephen Jennings, his heirs, executors, administrators, or assigns shall pay to the said Fred H. Burdett, his heirs, or executors, administrators or assigns, the principal of the aforesaid note and interest thereon in accordance with the aforesaid agreement or with the terms of said note, then this obligation to be void, otherwise to remain in full force and effect.’
No note, however, was ever given by Jennings to the plaintiff and the $3,000 have not been paid in whole or in part.
The recitals considered by themselves clearly import an obligation to pay a note, and the bond, instead of providing for the payment of the amount of the indebtedness under the agreement, bound the parties thereto to pay the principal of the note and interest. We think that the existence of a note as provided for in the agreement and clearly recognized by the recitals and the obligation of the bond was a prerequisite to the liability of the surety. The provision that the payment of the principal of the note was to be in accordance with the agreement does not enlarge the liability, as it refers to and identifies the note. The alternative provision as to payment in accordance ‘with the terms' of the note clearly cannot import liability where no note in fact has been given. The fact that the amount payable is precisely the same as if the note had been given cannot make the surety liable for the reason that the liability that it assumed and...
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City of Montpelier v. National Surety Co
... ... The bond of a compensated surety is not to be so ... construed as to extend liability beyond the terms of the ... contract. [97 Vt. 118] Burdett v. Walsh , ... 235 Mass. 153, 126 N.E. 374. The plain intention of the ... parties cannot be nullified by construction. Where the ... meaning of ... ...
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Baldwin v. Anderson, 5653
...190 N.C. 58, 128 S.E. 469; Wainwright Trust Co. v. United States Fidelity & Guaranty Co., 63 Ind.App. 309, 114 N.E. 470; Burdett v. Walsh, 235 Mass. 153, 126 N.E. 374; People v. Southern Surety Co., 76 Colo. 141, 230 P. A judgment which is void on the face of the record is a mere nullity, a......
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Bayer & Mingolla Const. Co. v. Deschenes
...States Fid. & Guar. Co. v. Rice, 148 F. 206, 208 (8th Cir.); Stearns, Suretyship (5th ed.) §§ 5.7, 7.16. See also Burdett v. Walsh, 235 Mass. 153, 155, 126 N.E. 374 (where the court did not enforce a surety company bond when the precise circumstances which would give rise to liability, in a......
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City of Montpelier v. Nat'l, 448.
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