Shattuck v. Adams

• Decision Date: 22 October 1883
• Citation: 136 Mass. 34
• Parties: Frederick D. Shattuck v. Abel P. Adams
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

136 Mass. 34

Frederick D. Shattuck v. Abel P. Adams

Supreme Court of Massachusetts

October 22, 1883

Worcester. Contract, for the benefit of Louis Phelps and Asa S. Lawton, on a bond, dated November 1, 1877, in the penal sum of $ 5000, executed by the defendant to the plaintiff. Trial in the Superior Court, without a jury, before Staples J., who ordered judgment for the plaintiff for the penal sum of the bond; and reported the case for the determination of this court. The facts appear in the opinion.

Judgment to stand.

E. P Loring, for the defendant.

H. C. Hartwell, (S. Haynes with him,) for the plaintiff.

Morton C. J. Field & W. Allen JJ., absent.

OPINION

Morton, C. J.

The defendant contends that this court has no jurisdiction in this case, because the question as to the sum for which execution shall be awarded has not been adjudicated, but is pending in the Superior Court. The case was before this court at October term 1881, upon a report which was discharged, under the authority of Terry v. Brightman, 129 Mass. 535, because it merely stated evidence and facts, and there was no decision of the court in matter of law, and no finding of the court upon the facts equivalent to a verdict of a jury. In the case as now presented, this objection does not exist, as the Superior Court did make a finding and decision. It found for the plaintiff, and ordered judgment for the penal sum of the bond.

After such finding and decision, the court had the power to report the case, before proceeding to ascertain the sum for which execution should be awarded, under the Pub. Sts. c. 153, § 6, which provides that the court, at any time before judgment in a civil action, "after verdict or decision by the court, may report the case for determination by the Supreme Judicial Court."

The case, however, illustrates the inconvenience of reporting a case before it is fully and finally adjudicated, because upon this report the only question within our jurisdiction is whether there has been any breach of the bond declared on. If there has been, the judgment for the penal sum must stand, and we cannot consider any questions as to the amount of the defendant's liability.

The bond in suit was given in consideration of the sale by the plaintiff to the defendant of the stock of a livery stable, which was subject to two mortgages to Louis Phelps and Asa S. Lawton. The condition is, that the defendant "shall well and truly pay or cause to be paid upon demand the sum of $ 3267.80 of the principal sum now due on a certain note given by said Shattuck as principal, and Louis Phelps and Asa S. Lawton as sureties, to the Worcester North Savings Institution for $ 3500, payable on demand, dated November 28, 1876, and interest hereafter accruing on said sum of $ 3267.80 from this date," and "well and truly indemnify and save said Shattuck as principal, and said Phelps and Lawton as sureties, harmless for the amount of $ 3267.80 of the principal sum due on said note, and interest hereafter accruing on the amount of $ 3267.80."

The obligation of the defendant is not merely to indemnify and save harmless the obligee and his sureties on the note to the savings institution. The bond contains a distinct promise to pay upon demand the sum of $ 3267.80 of the principal of said note, and to pay the interest on said sum accruing...