Graves v. Apt , 233 Mass. 587 ( 1919 )

De Courcy, J.

One Allan W. Allcutt was arrested on mesne process in an action of tort brought by the present plaintiffs. He secured his release by giving a bond, on which this defendant was a surety. Judgment was recovered against Allcutt in the sum of $1,029.02, but the execution issued thereon was returned “unsatisfied;” the officer’s return showing that he was unable to find Allcutt or any property belonging to him. This action is brought against the surety on the bond to recover the amount of said judgment.

Admittedly the bond is not a good statutory bond, as it does not comply with the requirements of R. L. c. 169, § 2. But as it was voluntarily executed by the defendant, and at least impliedly accepted by the plaintiffs, it is a valid bond at common law, on the principle stated in Bank of Brighton v. Smith, 5 Allen, 413, “that although the instrument may not conform to the special provisions of a statute or regulation in compliance with which the parties executed it, nevertheless it is a contract voluntarily entered into upon a sufficient consideration, for a purpose not contrary to law, and therefore it is obligatory on the parties to it in like manner as any other contract or agreement is held valid at common law.” Bell v. Pierce, 146 Mass. 58.

The condition of the bond is that Allcutt “shall appear before the Justices of the said Court to be holden as aforesaid and answer to the plaintiff in said action and shall not avoid.” In determining the obligation of the defendant on this instrument we must, of course, be governed by the ordinary and reasonable meaning of the language the parties employed. The trial judge rightly excluded the proffered testimony that Mrs. Apt before signing the bond, said in substance that she did not in any way desire to make herself liable for the judgment. She could not thus control or vary the obligation of the written contract, which was intended to be the complete and final record of all the terms agreed upon. Assuming that the clause “shall not avoid” is of doubtful meaning, the circumstances in which the contract was executed and the facts to which it related properly could be considered, in order to apply this language in accordance with the intention of the parties; and these facts were all before the court and undisputed. Strong v. Carver Cotton Gin Co. 197 Mass. 53, 59, and cases cited. Warner v. Brown, 231 Mass. 333.

The obligation of the defendant called for something more than the presence of Allcutt at the trial of the original action. That requirement was explicitly provided for by the language “shall appear . . . and answer.” On the other hand, it well may be that the parties did not use the words "shall not avoid” as equivalent to “shall . . . abide the final judgment of the court;” both of which clauses appear in the usual statutory bond provided for by R. L. c. 169, § 2. But we think a reasonable construction of the language is, that it obligated the surety to have her principal in court when judgment should be obtained and execution issued against him. The very object of the parties in executing the bond was to give the plaintiffs a substitute for the body of Allcutt, who was then held under arrest on mesne process. An accepted definition of "avoid” is “to evade or escape.” 6 C. J. 874. Apparently the word is used in that sense in § 7 of the statute, which provides, “'In case of the avoidance of the principal and a return on the execution that he has not been found, ... his bail shall satisfy the judgment.” The early statute, St. 1784, c. 10, § 2, reads: “when the principal shall avoid, so that his goods, lands, or chattels cannot be found to satisfy the execution, nor his body found to be taken therewith, the person for whom judgment was given, shall be entitled to his writ of scire facias from the same court against the bail.” See also 1 Prov. St. 1693-4, c. 1. Indeed to construe the words “shall not avoid” as not covering the failure of the debtor to appear so that execution may be levied upon him would be to defeat the obvious purpose of the bond in question and render it ineffective.

There was no error in the refusal to give the rulings requested by the defendant; nor in directing a verdict for the plaintiff, as the facts were not in dispute.

Exceptions overruled.