Blaney v. Rogers

• Decision Date: 20 September 1899
• Citation: Blaney v. Rogers, 174 Mass. 277, 54 N. E. 561 (Mass. 1899)
• Parties: BLANEY et al. v. ROGERS et al.
• Court: Supreme Judicial Court of Massachusetts Supreme Court

174 Mass. 277

54 N.E. 561

BLANEY et al. v. ROGERS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

September 20, 1899

COUNSEL

C.F. Jenney and Blaney & Robinson, for plaintiffs.

Carver & Blodgett, for defendants.

OPINION

MORTON, J.

This is an action to recover damages for the breach of a bond conditioned, among other things, that certain buildings "shall be finished in a good and workmanlike manner."The writ was brought against one James P Rogers, the principal on the bond, and the City Trust Safe-Deposit & Surety Company, as surety.There was no service on Rogers, and the action has been discontinued as to him, and is defended by the surety company alone.The case was heard by the court without a jury.The presiding justice ruled that the action could not be maintained, and found for the defendant.The case comes here on report.If the ruling and finding were wrong, the finding is to be set aside, and judgment entered for the penal sum of the bond, with interest, and execution is to issue for such sum as in the opinion of this courtthe plaintiffs are entitled to recover.

It is evident that, down to the time when Rogers went to the surety company in regard to the bond, the surety company was a total stranger to the dealings and transactions between Rogers and the plaintiffs, either through Mr. Robinson, their attorney or in any other way.It had had nothing to do with the mortgages which the plaintiff had taken from Rogers, or with the misrepresentations that Rogers made to Mr. Robinson, and it was not till after Rogers, of his own volition, had applied to Mr. Robinson for the payment of the balance due on the mortgages, and he had agreed to pay it over on receiving a satisfactory bond from a surety company, that Rogers went to the surety company.It is clear that in going to the surety company Rogers acted in his own behalf, and not as agent of the plaintiffs or of Mr. Robinson.In consequence of representations made by Rogers, the agent of the surety company agreed to execute the bond upon receiving sufficient collateral to indemnify it, and "told Rogers to have Mr Robinson draw the bond, and bring it back to the company, and that it would execute the same as surety."Thereupon Rogers went to Mr. Robinson, "and said that the company was unwilling to prepare the bond; that he did not know how to draw a bond, and requested Mr. Robinson to prepare it for him," which he did, relying on "his own prior knowledge and supposed knowledge of the circumstances and facts, and relying upon his own knowledge of such facts, obtained by former representations of said Rogers and by his own examination made before the mortgages were taken."Mr. Robinson was paid by Rogers, who took the bond to the surety company, and "reported that it had been drawn by the attorneys for the plaintiffs, Messrs. Blaney & Robinson."It was executed in the name of the company by its general agent, who relied, as he testified, "upon the statement of facts contained in the bond, and upon the security which Rogers had given him, and upon the representations made by the said Rogers in relation to the property; and also relying on the fact that the bond was drawn, and the recitals in question were inserted, by the attorneys for the plaintiffs, who had already accepted mortgages upon said premises after an examination, and had advanced all...