Jennings v. Wall
| Citation | 104 N.E. 738,217 Mass. 278 |
| Parties | JENNINGS v. WALL et al. |
| Decision Date | 23 March 1914 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Geo P. Drury, of Boston, for plaintiff.
E. W Philbrick, of Boston, for defendants.
This is an action of contract on two separate bonds to dissolve the same attachment. The circumstances attending their execution and delivery are these: In 1905 an action was brought by the present plaintiff against one Law, the ad damnum in which was laid at $2,000. An attachment of real estate was made. By agreement of parties later $800 in cash was produced by Law and forthwith attached on special precept, and the attachment of real estate was dissolved. Subsequently Law, in order to procure release of this money from attachment, assigned his interest therein to Wall, the present defendant, for the purpose of indemnifying Wall and one Dinsmore, his cosurety, who thereupon as sureties, with Law as principal, on March 24, 1906, executed and filed a bond to the plaintiff in the penal sum of $800 to dissolve this attachment. Demand then being made for the money payment was refused for the alleged reason that the bond was void, not being in the penal sum of the $900 named in the special precept. The plaintiff does not now rely upon this bond and it is not necessary to discuss it further than to say that it is plain that under these circumstances he could not recover upon both the bonds. On May 11, 1906, a second bond was executed by the same parties and filed after its sureties had been approved. Again demand was made for the money and payment refused on the pretext that its penal sum was not $2,000, the ad damnum laid in the original writ. In the meantime that action went to judgment on December 7, 1908. On December 1, 1908, action was begun by the present defendant as plaintiff against the attaching officer for refusing to deliver to him as assignee the $800 in cash averred to have been released from the attachment by the bond here in action. The present defendant (presumably in July, 1911) prevailed in that action on the ground that as matter of law the giving of the bond of May 11, 1906, dissolved the attachment. Wall v. Kelly, 209 Mass. 370, 95 N.E. 858. Thus the defendant has obtained the money to secure the release of which he signed the bonds now sued upon. He contends, however, that he ought not to be held liable. The result of sustaining this contention would be that the plaintiff would lose all benefit of his original and special attachments, and the defendant would succeed in holding the money which the plaintiff had under valid attachment without being under any liability therefor to the plaintiff. The grounds upon which the defendants found this contention are several and relate to the conduct of the plaintiff after the bonds were given.
1. He argues that the issues here depending are res judicata by Wall v. Kelly, 209 Mass. 370, 95 N.E. 858. That doctrine is applicable only when the same issue has been the subject of judicial inquiry and decision between the same parties or their privies. Old Dominion Copper Mining & Smelting Co. v. Bigelow, 203 Mass. 159, 211-215, 219, 89 N.E. 193, 40 L. R. A. (N. S.) 314. There may be doubt whether the defendant in that action was privy with the present plaintiff. An officer often acts on his official responsibility. Russell v. Walker, 150 Mass. 531, 23 N.E. 383, 15 Am. St. Rep. 239. But assuming in favor of the defendant that the plaintiff was the real party defendant in that action, the defense of res judicata cannot prevail. The issue in that case was whether the attaching officer had money belonging to the present defendant. The affirmative of that issue could be sustained only by showing that a valid bond had been given which dissolved the attachment on the money and left it free. The determination of that action was adverse to the contentions then made by that defendant and in favor of the position then taken by the present defendant. When he prevailed there on the ground that the bond here in suit was valid, it cannot be said that the present plaintiff is precluded by res judicata from asserting the same contention in this action. If that doctrine were applicable at all, it would operate in favor of rather than against the present plaintiff.
2. The defendant further contends that the plaintiff is estopped from maintaining this action, because heretofore he has taken positions in litigation incompatible with that on which he now relies. These facts are true. Apparently with a good deal of persistency he has asserted that the bond now in action was invalid until it was decided otherwise by this court. But it does not appear that the defendant has relied upon the conduct of the plaintiff in this regard or been deceived by it to his harm. On the contrary, he has combated it from the outset and has succeeded on that point. Estoppel in pais generally arises when the words, silence, action or quiescence of one party have misled another to his harm, so that it would be inequitable to permit him to assert rights contrary to those assumed by the other party in reliance upon him. There is nothing of that sort in the case at bar. No policy of the law is contravened by allowing one to proceed in accordance with the law as finally declared touching a matter about which hitherto he has maintained an opposite view. In order that estoppel may have any relation to such a matter, the attitude of the opposing party must have been maintained. See Dudley v. Coburn, 9 Cush. 314; Cassidy v. Old Colony St. Ry., 184 Mass. 156, 68 N.E. 10, 63 L. R. A. 285.
3. It is urged that the plaintiff has made an election which precludes him from maintaining this action. This is based upon the fact that the plaintiff through his attorneys has prevented the attaching officer from paying over the money to the defendant, has undertaken to attach it, and has refused to release the bonds provided the defendant would abandon his claim to the money in the officer's hands. The circumstances were not such as required the plaintiff to act at his peril in selecting his procedure. He had secured a judgment against Law, the amount of which was greater than even the bond, and the bond was larger than the cash deposit. To be in doubt as to the binding force of the bond and yet to try to hold the money on deposit are not as matter of law such irreconcilably inconsistent positions that one must choose his final stand once for all and lose wholly if a mistake is made in this respect. Bingham v. Monroe, 212 Mass. 455, 99 N.E. 165. If there has been abuse of process by the plaintiff, that cannot operate as a defense at this stage of this case. Butler v. Hildreth, 5 Metc. 49; Evans v. Warren, 122 Mass. 303, and very numerous kindred cases relied on by the defendant have no application to these facts
4. For the same reasons it cannot be said that the plaintiff has waived his right to enforce the bond. The action brought by the plaintiff on the judgment against Law was no waiver of a right to sue on the bond. The remedy against the principal debtor and against the sureties on the bond were concurrent and not exclusive one of the other. Watts v. Stevenson, 169 Mass. 61, 47 N.E. 447; Tracy v. Preble, 117 Mass. 4. Moreover, it was one of the agreed facts that counsel who brought the action against Law, whereby it was attempted to attach as his the money in the officer's hands, would testify that he did not know of the assignment of it to the defendant.
5. The letters between counsel do not constitute any defense to this action. Even if brought to the attention of the plaintiff, there is nothing in their substance which constitutes either an election of remedies or a waiver of rights. Failure to answer a letter or to accede to its demands commonly does not amount to an admission of the facts stated in it. Callahan v. Goldman, 103 N.E. 687; Fearing v. Kimball, 4 Allen, 128, 81 Am. Dec. 690. Nor to an election or estoppel. Huntress v. Hanley, 195 Mass. 236, 80 N.E. 946.
6. It has been argued that there was a failure of consideration for the bond, in that the defendant did not forthwith receive the money released from attachment. But the bond being under seal imported a consideration. Page v. Trufaut, 2 Mass. 159, 3 Am. Dec. 41; Hayes v. Kyle, 8 Allen, 300. The discharge of the attachment by operation of law was also a consideration for the bond. This was not affected by the subsequent wrongful detention of the money by the officer. Moreover, this defendant has collected the money of Kelly by action which was founded on the sufficiency and validity of the bond. A different situation might have been presented if the money had been placed beyond the reach of the person entitled to it, or if the defendant had not recovered it.
7. The defendant contends that the failure of the...
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