Witt v. Potter

• Decision Date: 10 September 1878
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Ivory Witt v. Major W. Potter & others

125 Mass. 360

Ivory Witt v. Major W. Potter & others

Supreme Court of Massachusetts

September 10, 1878

[Syllabus Material]

Berkshire. Contract against Major W. Potter, Robert Noble and M. M. Gavitt. The declaration was as follows:

"And the plaintiff says the defendants executed to him a bond as follows, to wit: Bond -- Copy. Know all men by these presents: That I, M. W. Potter of Pownal, in the State of Vermont, as principal, and Robert Noble and M. M. Gavitt of Williamstown, county of Berkshire, Massachusetts, as sureties to said Potter, are bound and obliged hereby unto Ivory Witt surviving partner of the firm of Alford & Witt, in the penal sum of eight hundred dollars, to the true payment of which to the said Witt, his executors, administrators and legal representatives, we bind ourselves and each of us, our and each of our heirs, executors and administrators. Sealed with our seals and dated this 28th day of February, a. d 1877. The condition of this bond is such, that whereas said H. W. Potter has filed a petition, or is about to file a petition, in the Superior Court for said county of Berkshire against said Ivory Witt, surviving partner of Alford & Witt, to obtain a review of a judgment rendered March 17, 1876, in the Superior Court for said county of Berkshire against him, the said Potter, for damages $ 321.77 and costs of sui $ 13.37 in an action of contract, and to have said judgment vacated and set aside; now if said judgment shall not be vacated upon said petition, and if the said Potter shall satisfy the same if not vacated and all costs accrued on any execution issued therein, or in case said judgment is vacated, if said Potter shall satisfy any execution which may issue in favor of said Witt on any judgment which may be rendered in the review or in the proceedings under said petition, then this obligation shall be void, otherwise to remain in full force.

"Signed, sealed and delivered in presence of

"K. Danforth.

"H. T. Tallmadge.

M. W. Potter [seal.]

Robert Noble [seal.]

M. M. Gavitt [seal.]

"And the plaintiff says further that the judgment mentioned and described in the condition of the said bond, to wit, the judgment which the said Major W. Potter petitioned to have vacated and set aside by said proceedings in review, was not so vacated and set aside as petitioned by said Potter.

"And the plaintiff says that said Potter has not paid or satisfied the judgment nor the costs of suit to recover the same. And the said Potter has not paid the execution issued on the said judgment, and that said judgment as to both damages and costs still remains unpaid and unsatisfied.

"And the plaintiff says the defendants owe him the amount of said judgment, to wit, the sum of three hundred twenty-one dollars and seventy-seven cents damages and thirteen dollars and thirty-seven cents costs of suit and interest on the same."

The answer contained a general denial; alleged that the judgment mentioned in the declaration had been paid and satisfied; that the judgment had been obtained by the fraud and deceit of the plaintiff; that Potter had fulfilled all the obligations imposed on him by the bond; and "that no legal cause of action is set forth against any one or all of the defendants according to law, and no valid judgment can be rendered by this court thereon."

At the trial in the Superior Court, before Dewey, J., the plaintiff offered in evidence the record of the proceedings upon the petition for review. The defendants objected to the same as not being competent or legal for any purpose under the pleadings, but the judge admitted it. It appeared from the record that the judgment had not been vacated, and that the petition had been dismissed. The plaintiff then offered in evidence a bond, which was admitted by the defendants to be their genuine bond, executed and delivered by...