Lavigne v. Lavigne

• Decision Date: 02 January 1935
• Citation: 176 A. 282
• Parties: LAVIGNE v. LAVIGNE et al.
• Court: New Hampshire Supreme Court

176 A. 282

LAVIGNE

v. LAVIGNE et al.

Supreme Court of New Hampshire. Coos.

Jan. 2, 1935.

Transferred from Superior Court, Coos County; James, Judge.

Action of debt upon a bond by Alice Lavigne against Arthur Lavigne, Jr., and others. Facts agreed, and case transferred without ruling.

Judgment for named defendant.

Debt upon a bond. Facts agreed. Transferred without ruling by James, J.

From the agreed statement, the following facts appear:

The plaintiff, Alice Lavigne, at the September, 1923, term of the superior court for the county of Coos, obtained a decree of divorce from the defendant Arthur Lavigne, Jr., by the terms of which she was awarded the custody of their minor child, and the said defendant was ordered to pay her the sum of $7 per week for the support of said child. On January 22, 1924, the said defendant was cited into court for contempt, was found guilty of willful contempt, and was ordered to be confined in the county jail until such time as he should give a bond to secure the performance of said decree. In accordance with this order he was confined in jail until February 7, 1924, when he furnished a bond in the sum of $1,500, signed by the defendants Irene E. St. Pierre and Arthur Lavigne, Sr., as sureties, and conditioned as follows:

"The condition of this obligation is such that * * * if the said Arthur Lavigne, Jr., having first purged himself of contempt by paying all arrears and all officers' fees relating to the arrest and commitment and shall thereafter pay the sum of seven dollars ($7.00) per week to the said Alice Lavigne for the support and maintenance of their said minor child in the manner provided in the original order of the court relating thereto, unless and until said order shall be annulled or modified by said court, then this obligation shall be void."

Upon August 21, 1931, the defendant Arthur Lavigne, Jr., filed in the superior court a petition for a modification of the order for weekly payments in which the following allegations appear:

"Your petitioner further says that since the said order was made, all payments due thereunder have been faithfully made by him for almost ten years.

"Your petitioner further avers that on October 15th, 1930, he was stricken ill and from that time on has been unable to work; that he has been confined in hospitals and under the care and treatment of physicians; that since said date he has never been in any physical condition to do any work whatever, and has received no compensation for any time; that in an effort to comply with the order of said Court, he borrowed money to continue said payments for a period of several weeks; that it is now impossible for him to comply with said order; that said Alice Lavigne is in good physical condition and able to work if she so desires.

"Wherefore your petitioner respectfully prays that said action may be re-opened; that he may be allowed to submit evidence as to his physical condition, and to his earning capacity, so that said order of this Honorable Court may be temporarily suspended, changed or modified."

The above petition of Arthur Lavigne, Jr., "was never heard due to the fact that for a long time prior to the filing thereof, and up to the date of his death on the 10th day of August, 1932, he was never able to appear in Court, during which period he was confined to hospitals or to his bed suffering from the ailment which caused his death on the date given; and at no time was he in a condition to work or appear as aforesaid."

On October 3, 1931, the present suit was brought against the signers of the bond to recover the amount of the payments then in arrears under the terms of the divorce decree.

"The plaintiff seeks to recover the sum of $609, which was the amount which became due while the said Arthur Lavigne, Jr., was incapacitated, and due and unpaid on the Court's order at the time of his death.

"The said Arthur Lavigne, Jr., left no estate to be administered; the said St. Pierre subsequent to the filing of the bond, went into bankruptcy."

The following question was transferred without ruling: "Under the agreed statement of facts, can the plaintiff recover from the defendant, Lavigne, Sr., the amount due?"

"If so, then there is to be judgment for the plaintiff for $609; otherwise judgment for the defendant."

Coulombe & Coulombe and Ovide J. Coulombe, all of Berlin, for plaintiff.

Matthew J. Byan, of Berlin, for defendant Arthur Lavigne, Sr.

BRANCH, Justice.

The extent of a surety's liability depends upon the terms of his contract. Brown Durrell Co. v. Belisle, 83 N. H. 516, 144 A. 786. "It is possible for a surety to promise to pay whatever debt the principal may owe. On the other hand the surety's promise may be to pay a stipulated sum or render a fixed performance for which the principal also purports to bind himself. If the contract is of the former sort, it is obvious that by the very terms of his contract the surety is liable for nothing if the principal is under no liability." 2 Williston, Contracts, § 1213. In all cases where the surety stipulates merely to guarantee "the performance of the principal's engagement" (Weare v. Sawyer, 44 N. H. 198, 205) it is accurate enough to say that ...