Martiniello v. Robitaille

• Decision Date: 27 January 1936
• Citation: 199 N.E. 534,293 Mass. 200
• Parties: MARTINIELLO et al. v. ROBITAILLE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

293 Mass. 200

199 N.E. 534

MARTINIELLO et al.

v.ROBITAILLE et al.

Supreme Judicial Court of Massachusetts, Middlesex.

Jan. 27, 1936.

Exceptions from Superior Court, Middlesex County; Morton, Judge.

Action of contract by Louis Martiniello and another against Ernest P. Robitaille and others. Verdict for plaintiffs, and defendants bring exceptions.

Exceptions overruled.J. C. Johnston and H. H. Rudofsky, both of Boston, for plaintiffs.

G. Alpert and A. L. Brown, both of Boston, for defendants.

FIELD, Justice.

This is an action of contract, brought against sureties on a bond given to dissolve an attachment in a prior action, to recover the penal sum of the bond. The defendants in their answers allege that the ‘plaintiffs secured their judgment in the original action through fraud and collusion with the principals named in the bond’-the defendants in the original action. A verdict for the plaintiffs in the penal sum of the bond was directed and the defendants excepted.

These facts were admitted: On August 1, 1929, an action was begun by the plaintiffs in the rpesent action (Louis Martiniello and Michael E. Martiniello) against three defendants, Leo B. Greene, James D. Greene and George J. Greene. Attachments were made and were dissolved upon the filing of a bond in the sum of $8,000 by these three defendants as principals and the defendants in the present action, Ernest P. Robitaille and Sophie Shactman, as sureties. In the original action the plaintiffs recovered a judgment by default against the defendants therein and execution issued thereon November 14, 1933, in the sum of $8,479.71 damages and $39.40 costs. The plaintiffs made demand upon the defendants in the original action-principals on the bond-for payment of the execution. Thirty days elapsed from the date of the execution and the judgment remained unsatisfied either in whole or in part. (The bond, which was in statutory form [G.L. (Ter.Ed.) c. 223, § 120], was conditioned to pay the plaintiffs the amount, if any, recovered by them ‘within thirty days after the final judgment in said action.’) Thereafter the plaintiffs, on December 15, 1933, brought this action against the sureties to recover the penal sum of the bond.

On the admitted facts a final judgment was entered against the principals on the bond in the action in which the bond was given for an amount in excess of the penal sum of the bond and payment was not made by the principals within thirty days after such judgment was entered. Therefore, apart from affirmative defences, hereinafter considered, the liability of the sureties had matured before this action was brought against them and the plaintiffs were entitled to the directed verdict. Jennings v. Wall, 217 Mass. 278, 284, 104 N.E. 738. The defendants contend, however, that on the evidence facts could have been found showing (a) that the judgment was not conclusive as to them or (b) that they were released from liability on the bond. The direction of the verdict was not erroneous on either of these grounds.

First. The judgment in the original action against the principals on the bond, though obtained by default, being ‘the final judgment in said action’ (Tapley v. Goodsell, 122 Mass. 176, 182, see Treasurer and Receiver General v. Macdale Warehouse Co., 262 Mass. 588, 594, 160 N.E. 434) and having been entered in the lawful exercise of the power of the court (Salvin v. Sidman, 230 Mass. 278, 279, 119 N.E. 704), was conclusive on the sureties, by reason of their contract with the plaintiffs, as to the debt ascertained by said judgment and required a verdict for the plaintiffs in this action, unless such judgment was procured by collusion between the plaintiffs and the principals or by other fraud upon the sureties. In the absence of such collusion or other fraud, defences which could have been made by the principals in the original action cannot be made by the sureties in the present action but only defences personal to the sureties. Giatas v. Demoulos, 271 Mass. 51, 53, 54, 170 N.E. 921,and cases cited. The defendants, however, do not rely on any defence personal to them which is pleaded. The burden of proving that the judgment was procured by collusion or other fraud was on the sureties. See Cutter v. Evans, 115 Mass. 27, 30;Fall River v. Riley, 140 Mass. 488, 489, 5 N.E. 481. And to impeach the judgment they were required to prove also that it was improper either because the principals were not indebted to the plaintiffs or because the amount for which the judgment was entered was grossly exaggerated for the purpose of defrauding the sureties. Dickerman v. Northern Trust Co., 176 U.S. 181, 192, 20 S.Ct. 311, 44 L.Ed. 423; Freeman on Judgments (5th Ed.) § 465. See, also, White v. Crow, 110 U.S. 183, 187, 4 S.Ct. 71, 28 L.Ed. 113.

The defendants rely on the following evidence to impeach the judgment in the original action. One of the principals on the bond testified as follows: Prior to the entry of judgment he had a conversation with one of the plaintiffs. This plaintiff said that if the witness would ‘give him judgment in the amount of $4,000 that he wouldn't bring suit for two years against the sureties,’ that he ‘wouldn't bother’ with witness or his brothers, ‘he would absolutely leave [them] * * * out, he knew * * * [they] didn't have any money and he didn't want to go to Court to fight the case.’ This witness, in consequence of this conversation did not appear in court and the case was defaulted. At the time of the conversation ‘they went over the figures on the job in trying to determine what was due Martiniello and finally arrived at the conclusion that there was a net balance due Martiniello of $4,044.’ Counsel for one of the present defendants, representing the witness and his brothers, filed a petition to vacate the judgment. Such counsel talked with the witness about obtaining a bond to vacate the judgment, but the witness made no attempt to obtain such a bond. The witness knew that counsel was filing the petition but did not at any time give him ‘all the information and did not tell him about the agreement between himself and Martiniello.’ This witness gave as a reason for not telling counsel about the agreement that ‘Martiniello and I agreed he wouldn't bring suit for two years. I honestly believed I could satisfy his judgment within the two years, I could take care of it myself.’ And the witness testified that ‘he deliberately withheld the information that the agreement had been made.’

The evidence in its aspect most favorable to the defendants was insufficient as matter of law to impeach the judgment in the original action. The mere failure of the principals to make a defence to the original action was insufficient for this purpose. Tracy v. Maloney, 105 Mass. 90;Salvin v. Sidman, 230 Mass. 278, 279, 119 N.E. 704. And there was no evidence that the judgment entered was improper on the ground that the principals on the bond were not indebted to the plaintiffs. The evidence was to the contrary. The judgment was improper, if at all, on the ground that it was grossly excessive in amount, as the evidence tends to show.

1. The evidence, in the opinion of a majority of the...