Goodyear Dental Vulcanite Co. v. Bacon

20 N.E. 175, 148 Mass. 542, 1889 Mass. LEXIS 318

Opinion

C. Allen, J.

The only question is as to the sufficiency of the plaintiff’s declaration. The averment that the defendant executed to it a bond is in the form given in the statutes for a declaration upon a bond, and implies a delivery of the bond to the plaintiff. Pub. Sts. c. 167, § 94, Schedule of Forms. The bond is a several obligation. If the defendant, knowing that Caduc had not signed it as principal, but intending nevertheless to be himself bound as surety, executed the bond and delivered it as it is, as and for his bond, he may be held liable upon it. Caduc was liable without a bond. Goodyear Dental Vulcanite Co. v. Caduc, 144 Mass. 85. The declaration imports a state of facts which, if proved, will entitle the plaintiff to recover. Herrick v. Johnson, 11 Met. 26.

The objection that the defendant’s signature was not under seal was not specified in the demurrer, and is not now open. Pub. Sts., c. 167, § 12.

Judgment reversed, and demurrer overruled.