H.F. Livermore Co. v. Fid. & Cas. Co. of New York

• Decision Date: 20 May 1927
• Citation: 259 Mass. 419,156 N.E. 674
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: H. F. LIVERMORE CO. v. FIDELITY & CASUALTY CO. OF NEW YORK.

259 Mass. 419

156 N.E. 674

H. F. LIVERMORE CO.

v.FIDELITY & CASUALTY CO. OF NEW YORK.

Supreme Judicial Court of Massachusetts, Suffolk.

May 20, 1927.

Appeal from Municipal Court of Boston, Appellate Division.

Action by the H. F. Livermore Company against the Fidelity & Casualty Company of New York. Judgment for plaintiff was sustained by appellate division, and report of municipal court dismissed, and defendant appeals. Affirmed.

Attachment k337-Bankruptcy of defendant before entry of final judgment held not to relieve surety on bond given to dissolve attachment of real estate (Bankruptcy Act, s 67 [U. S. Comp. St. s 9651]).

Surety company, giving bond to dissolve attachment of real estate, conditioned on defendant's payment of judgment recovered against him within 30 days, held liable on bond, notwithstanding bankruptcy of defendant before entry of final judgment, nor was surety relieved by provisions of Bankruptcy Act, s 67 (U. S. Comp. St. s 9651).

F. W. Mowatt, of Boston, for plaintiff.

P. A. Guthrie, of Boston, for defendant.

PIERCE, J.

This is an action of contract, brought against the defendant in the municipal court of the city of Boston, on a bond to dissolve an attachment of real estate in an action in the superior court against the North Adams Manufacturing Company. The condition of the bond on which the present action was brought reads:

‘* * * Now, therefore, if the said North Adams Manufacturing Company shall within thirty days after the final judgment in the aforesaid action, pay to the plaintiff therein the amount, if any, which it shall recover in such action, and shall also, within thirty days after the entry of any special judgment, which may be entered in said action in accordance with section twenty-five of chapter two hundred and thirty-five of the General Laws of the commonwealth of Massachusetts, pay to said plaintiff the sum, if any, for which such special judgment shall be entered, then this obligation shall be void; otherwise, it shall be and remain in full force and virtue.’

The trial judge in the municipal court gave judgment for the plaintiff and reported the case to the appellate division of that court, where the decision was upheld and the ‘report dismissed.’ The case is before this court on appeal of the defendant from the decision of the appellate division.

The facts found by the trial judge in substance are as follows: The plaintiff brought an action of contract against the North Adams Manufacturing Company by a writ dated March 18, 1922, returnable to the superior court for the county of Suffolk on the first Monday of April, 1922, and made an attachment of real estate thereon. On May 18, 1922, the defendant was defaulted and the case was continued on motion of the plaintiff for judgment. On June 8, 1922, an involuntary petition in bankruptcy was filed in the United States District Court against the defendant maufacturing company. On October 8, 1923, there was an adjudication of bankruptcy on said petition. The plaintiff's claim was proved and allowed at the first meeting of the creditors on October 24, 1923. The trustee of the North Adams Manufacturing Company was ordered to sell and convey the real estate and give a clear title thereto. The attachment of the plaintiff, together with other attachments, was removed by filing bonds so that the transfer of real estate might not be delayed. At the time the bond in suit was obtained the trustee deposited with the defendant in this action the sum of $1,500 as collateral. On March 1, 1924, the bond to dissolve attachment...