O. Sheldon Co. v. Cooke

• Decision Date: 04 January 1901
• Citation: O. Sheldon Co. v. Cooke, 177 Mass. 441, 59 N. E. 77 (Mass. 1901)
• Parties: O. SHELDON CO. v. COOKE.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

177 Mass. 441

59 N.E. 77

O. SHELDON CO. v. COOKE.

Supreme Judicial Court of Massachusetts, Suffolk.

January 4, 1901

COUNSEL

Ralph W. Gloag, for plaintiff.

Clarence F. Eldredge, for defendant.

OPINION

LORING J.

There is no merit in these exceptions.The cases relied on by the defendant have nothing to do with the case.The rights of the surety, if he has any, are not now in question.If he has any defense to the claim against him as surety, he can set it up when sued on the bond.Judgment against the principal debtor must be obtained by the plaintiff to charge the surety because the condition of his bond is to pay a judgment if one is obtained against the principal debtor.But the judgment is a judgment against the principal debtor, and is to be disposed of as such, though the surety cannot question it when suit is brought against him.Heard v. Lodge,20 Pick. 53;McKim v. Haley,173 Mass. 112, 53 N.E 152.

There is nothing in the defendant's objection to having judgment entered against him.There is nothing about the fact of an attachment of property for the purpose of giving a bond to dissolve an attachment, and a special judgment founded on the attachment, which distinguishes it from any other fact so far as the question of estoppel is concerned.If the defendant represents to the plaintiff that he admits that an attachment has been made, intending the plaintiff to rely on it, and the plaintiff does rely on it, and, relying on it does not make an attachment, the defendant is estopped to set up that there was no attachment.In this casethe defendant also stated to the plaintiff that he was 'good for any reasonable amount.'That estops him from...