Fazzano v. Martin

108 A. 512, 94 Conn. 91

• Court: Supreme Court of Connecticut
• Decided: December 5, 1919
• Status: Published

Opinion

Case, J.

While the statutes provide a convenient method for the compulsory release of property withheld by attachment, they neither exclude nor impair the right of parties to reach the same result by voluntary, mutual agreement. Robertson & Govanne Cont. Co. v. Ætna Acc. & Liability Co., 91 Conn. 129, 99 Atl. 557; Mosher v. Murphy, 121 Mass. 276, 278. That the bond here is not in the form prescribed for proceedings under the statute (§ 5888), is, therefore, without other significance than to leave the scope and extent of the undertaking embraced in it to be gathered from the intent of the parties as disclosed by “the fair import of the language of the guaranty.” Lewis v. Dwight, 10 Conn. 95, 100.

The only claim urged by the" several assignments of error, is that the bond was conditioned upon a judgment against both defendants, and that its condition therefore failed when the plaintiff suffered a nonsuit as to one of them. We cannot so narrowly read the obligation without ignoring its plain purpose. “Attachments are made for the benefit of creditors, but the provision for the discharge of the property attached is made for the benefit of debtors.” Inbusch v. Farwell, 66 U. S. (1 Black) 566, 572. For every purpose of ours, the record fixes the ownership of the property in both the Martins, and, so far as appears, it was applicable to the satisfaction of any judgment recoverable by the plaintiff against either or both. It was plainly to the plaintiff’s advantage to retain this unqualified hold on it which the attachment gave him, while the interest in securing its release was one that the Martins shared equally. It lay wholly with the plaintiff to permit or refuse the substitution of security, but when this exchange was effected by his acceptance of the bond, “the attachment disappeared from the scene, and the bond was held as the only security for the satisfaction of a judgment.” Schunack v. Art Metal Novelty Co., 84 Conn. 331, 337, 80 Atl. 290.

In this situation and in the absence of unusual circumstances, we should expect to find any security so replacing the attachment at the instance of the defendants and for their benefit and convenience, bound to the same extent as had been the attached property, which passed wholly beyond the plaintiff’s reach by his voluntary surrender of his hold upon it. The condition of the bond is somewhat loosely expressed, but its language plainly demands this construction as expressive of the obligation which the parties reasonably intended. This view prevails elsewhere under conditions essentially identical with those presented here. Inbusch v. Farwell, 66 U. S. (1 Black) 566; Gilmore v. Crowell, 67 Barb. (N. Y.) 62; Heynemann v. Eder, 17 Cal. 433; Poole v. Dyer, 123 Mass. 363.

There is no error.

In this opinion the other judges concurred.