Rochford v. Atkins

100 N.E. 640, 213 Mass. 463, 1913 Mass. LEXIS 1008

Opinion

Sheldon, J.

This is an action upon a bond given to dissolve a mechanic’s lien under R. L. c. 197, § 28. The plaintiff is entitled to hold Mrs. Atkins if the bond was executed by her; and the case comes before us, after a verdict for that defendant,

* upon the plaintiff’s exception to a ruling made at the trial that there was no evidence that she had executed the bond.

The original bond had been lost and could not be produced at the trial. The defendant testified that she had no memory of ever signing the bond, that she would rather say that she did not sign it than that she did, that this would be truer, that she had no recollection of doing such a thing. She also testified that at about the date of the execution of the bond she was ill, and that, if her signature was obtained, it was obtained by force or coercion practised upon her by her husband, that her relations with him then were very much strained. There was evidence that she had an interest in the premises on which the lien was1 claimed, and that she was in court at different times in connection with the suit to establish the lien. A lawyer testified that he had been attorney for her in that suit, and had prepared a bond to be given to dissolve the lien. Being shown a certified copy of the bond sued on, he testified that he drew the bond of which that was a copy, and put it into the hands of her husband, who took it away with him. The other signers of the bond purported to be her husband and a Mrs. Clark, to whom before the filing of the bond the defendant had conveyed the property by a foreclosure deed.

W. Hirsh, for the plaintiff. E. F. McClennen & C. S. Hill, (72. G. Kilduff with them,) for the defendant Martha M. Atkins.

The question is very close, but with some hesitation we. are of opinion that it should have been submitted to the jury. The defendant had an interest to give the bond and dissolve the lien which was claimed. It does not appear that any one else except Mrs. Clark, her grantee, had such an interest. She knew of the plaintiff’s claim of a lien, employed counsel, and appeared personally in court to contest it.. The bond was drawn by her attorney, and it is not an unreasonable inference that he acted at her request. She went no'further in denying her execution of it than to say that she did not remember having done so. But she testified without qualification that, if she did sign it, her signature was obtained by the force or coercion of her husband. She did not intimate that he had forced her to sign any other papers or to perform any other act. It might with plausibility be argued that she meant to say that, if she had signed this bond, then she remembered distinctly that her husband had forced her to do so. But this might be regarded as an indirect admission of her signature; for plainly she could not remember that she had done it under duress if she could not remember that she had done it at all. Of course the weight of this argument would have been much lessened if there had been anything to show that her husband had forced her to sign any paper which might have been this bond, or even that he had some interest in obtaining the dissolution of the lien. But there was no such evidence.

If she executed the bond under duress of her husband without any fault or privity of the plaintiff, this would not necessarily afford a defense to the present action. Fairbanks v. Snow, 145 Mass. 153. Phillips v. Chase, 203 Mass. 556, 565.

Exceptions sustained.

The case was tried before Brown, J., who ordered a verdict for the defendant Martha M. Atkins.