Morse v. Mansfield

The opinion of the court was delivered by Hoyt, J. The only question necessary to a decision of this appeal is substantially the same as the one discussed in the case of Spears v. Lawrence, ante, p. 368. Upon the authority of what was therein said the judgment herein must be reversed, unless the bond which was executed by Morse in favor of the appellants was so indefinite that no rights could be founded thereon. We have examined the conditions of the bond, and while they are justly subject to some of the criticisms of the respondent, we are unable to agree with his claim that the intention of the parties cannot be gathered therefrom. It is clear to us from the face of the bond that it was the intention of all parties thereto that the owner of the building should thereby be secured from the enforcement of any liens against the property, or from being held liable on any account growing out of the contract with Jordan. This appearing from the face of the bond it must be presumed that the sureties intended to bind themselves to that end when they signed it, and the respondent Morse having been one of the sureties he could not, in the face of this agreement to protect against liens under the contract, file and enforce one himself. Judgment will be reversed as to all of the defendants except Jordan, and the cause remanded with instructions to dismiss the action as to them. Dunbar, C. J., and Stiles and Scott, JJ., concur.