McNamara v. Mattei

• Decision Date: 27 September 1901
• Citation: 74 Conn. 170,50 A. 35
• Court: Connecticut Supreme Court
• Parties: McNAMARA v. MATTEI et al.

50 A. 35

74 Conn. 170

McNAMARA

v. MATTEI et al.

Supreme Court of Errors of Connecticut.

Sept. 27, 1901.

Appeal from superior court New Haven county; George W. Wheeler, Judge.

Action by George E. McNamara against Lorenzo J. Mattel and others. From a judgment in favor of plaintiff, defendants appeal. Reversed.

William H. Ely, for appellants. Charles S. Hamilton, for appellee.

HALL, J. This is an action against the principal and surety of a recognizance in the sum of $850, taken upon the application of the defendant Mattei, under sections 929 to 934 of the General Statutes, for the dissolution of an attachment by garnishee process of money due him from the city of New Haven in an action in which the plaintiff subsequently obtained a judgment of $1,500. Both counts of the complaint appear to allege that the recognizance was in fact taken to the plaintiff as required by statute, but that by mistake the name of the officer who made the attachment was, in the memorandum of recognizance, signed by the judge before whom it was taken, substituted for that of the plaintiff as the one to whom the bond was taken. The second count also alleged that the officer had assigned his interest in the bond to the plaintiff. Under the first count there was a prayer for the correction of the mistake in the memorandum of recognizance and for damages, and under the second for damages only.

There was first a demurrer to the complaint, the substance of which was that the plaintiff was not entitled to recover upon either count, since the recognizance was invalid because not taken to the plaintiff. It is unnecessary to consider the decision of the court overruling this demurrer any further than to say that it was correct. The exception taken to it is not pursued in the argument. No correction of the so-called "memorandum" was in fact made, and no exception was taken to the subsequent decision of the court that, without correcting it, the plaintiff might prove that the bond was in fact taken to the plaintiff. Upon the trial evidence was offered by both sides upon that question without objection, and, substantially in conformity to the defendants' requests, the court charged the jury that the plaintiff could not recover if the recognizance was in fact taken to the officer, and could only recover upon proof, by a fair preponderance of evidence, that the recognizance was taken to the plaintiff.

In the answer a second defense to both counts of the complaint alleged that at the time of the service of the copy upon the garnishee there was nothing due said Mattei because of a previous assignment by him to the defendant Atwater of all moneys due from the city of New Haven, and that in entering into said recognizance the defendants supposed they were giving a bond to protect the city of New Haven against loss from paying over the money in question. In sustaining the plaintiff's demurrer to this defense the superior court rightly held that the mere secret belief and understanding of the defendants as to the nature and purpose of the obligation into which they were entering could not alter the effect of the plain language of the contract itself, and upon the authority of Birdsall v. Wheeler, 58 Conn. 429, 20 Atl. 607, correctly decided that the defendants were estopped by the language of the recognizance from proving such facts as a complete defense to the action, since, as was held in that case, to permit them to do so would be to allow them to contradict the statement made by them in the bond in order to procure the dissolution of the attachment that the estate of the defendant in the original action had been attached, which statement, it is said in the case referred to, also involves an admission that such defendant had at the time of the attachment an attachable interest in the property or funds which it was sought to have released from attachment. During the trial of the case to the jury the defendants offered in evidence the assignment above referred to from Mattei to Atwater, and also two written contracts between Mattei and the city of New Haven, together with certain papers showing when the money in question was collectible from the city of New Haven, and evidence that Mattei had not completed his contract with the city when the attachment was made, for the purpose, among others, of mitigating the damages by showing that at the time of the attachment the money in question was not due from the city of New Haven, and that it had been previously assigned to Atwater by a valid assignment Upon the plaintiff's objection the court excluded this evidence as evidence in mitigation of damages, upon the ground that by the language of the recognizance the defendant was estopped from proving such facts for that purpose, and the court charged the jury that such evidence could not be considered by them for the purpose of reducing the damages. The claim made in support of this ruling is that, by reason of the language of the recognizance, the plaintiff, under the doctrine of estoppel, is entitled to a judgment for the full amount of the funds in the hands of the garnishee, even though he took nothing by his attachment, and although at that time the defendant Mattei had no...