James H. Clark v. Charles L. Sawyer &Amp; Others

• Decision Date: 29 November 1876
• Citation: 121 Mass. 224
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: James H. Clark v. Charles L. Sawyer & others

121 Mass. 224

James H. Clark v. Charles L. Sawyer & others

Supreme Court of Massachusetts

November 29, 1876

Franklin. Contract against Charles L. Sawyer, Erastus O Sawyer, Enoch Washburn, and H. M. Gibbs, upon the following agreement, signed by the two first named defendants, as principals, and by the others as sureties:

"Franklin ss. March 27, 1874. Whereas J. H. Clark, a deputy sheriff in and for the county of Franklin, has this day, by virtue of a writ, wherein Charles L. Sawyer and Erastus O. Sawyer defendants, and Frank T. Swan, plaintiff, attached [Here followed a list of the articles attached]. The attached property, above enumerated and mentioned, is estimated and valued at ten hundred and fifty dollars, as being the present fair cash value thereof, and which said writ is returnable to the Superior Court next to be holden at Greenfield, in and for the county of Franklin, on the second Monday of August next. Now in consideration of the premises, and of said J. H. Clark allowing the above property, so by him attached, to remain in the charge and possession of the said defendants, we hereby jointly and severally promise and agree, that said property is the lawful property of the said defendants, and is of the aforesaid value, and that we will on demand deliver the said property to the said J. H. Clark, in like good order and condition as the same is now in, and of its present value, or in case of our neglecting or refusing to deliver the property as aforesaid, we will pay on demand to the said J. H. Clark, or his lawful representatives, the amount of debt and costs which shall be recovered in the said suit, together with all lawful fees upon such execution or executions as may be placed in the hands of said J. H. Clark or his legal representatives."

The case was submitted to the Superior Court, and after judgment for the plaintiff, to this court, on appeal by the sureties, on an agreed statement of facts in substance as follows:

The facts recited in the agreement are true, and the agreement was executed by the defendants. In the action upon which the property was attached, the plaintiff recovered judgment, execution issued, and a demand was made upon the defendants for the property mentioned in the agreement.

A large part in value of the attached property was, after the attachment, claimed by one Pierce under a mortgage executed to him by the defendants, Charles L. Sawyer and Erastus O Sawyer, and Pierce made a demand upon the plaintiff, to surrender to him the articles; the demand was in all respects properly made, and, by reason of the demand, the plaintiff surrendered the articles to Pierce. After the obligation given by the defendants had been executed and delivered to the plaintiff, and at the time of the surrender by him to Pierce of the articles...