City of Providence, for Benefit of Malo. v. Goldenberg

• Citation: 117 A. 225
• Decision Date: 29 May 1922
• Docket Number: Nos. 5621, 5622.,s. 5621, 5622.
• Parties: CITY OF PROVIDENCE, for Benefit of MALO. v. GOLDENBERG. CITY OF PROVIDENCE, for Benefit of MAGUIRE v. SAME.
• Court: Rhode Island Supreme Court

117 A. 225

CITY OF PROVIDENCE, for Benefit of MALO.

v. GOLDENBERG.

CITY OF PROVIDENCE, for Benefit of MAGUIRE

v. SAME.

Nos. 5621, 5622.

Supreme Court of Rhode Island.

May 29, 1922.

Exceptions from Superior Court, Providence and Bristol Counties; Arthur P. Sumner, Judge.

Two actions by the City of Providence, one for the benefit of Adelard Malo, the other for the benefit of Thomas Maguire, p. a., both against Samuel Goldenberg, and tried together. Verdict for plaintiff, and defendant brings exceptions. Exceptions sustained.

George P. Troy, of Providence, for plaintiff.

Charles R. Easton, of Providence, for defendant.

BATHBUN, J. These two cases are actions of debt on bond, brought in the name of the city of Providence, for the benefit respectively of said Malo and Maguire. The instrument upon which each of these actions is brought is termed a "motorbus license bond" and contains all the formal requisites of a bond with the exception that no seal is attached to said instrument.

It appears that one Jacob Goldenberg desired to obtain from the board of police commissioners of said city a license to operate a motorbus within said city for the purpose of transporting passengers for hire; that the instrument in question was executed by said Jacob Goldenberg as principal and by the defendant as surety, and that, by the terms o* said instrument, both principal and surety are bound to said city in the penal sum of $2,000. The obligation clause in said instrument recites that said board of police commissioners has, pursuant to the provisions of the Public Laws of the state and the ordinances of said city, granted to said principal a motorbus license, and that said principal and surety have jointly and severally agreed to pay all damages sustained by any person and caused by any negligent or unlawful act on the part of said principal or his agents in the conduct of the principal's business as a motorbus operator. Said clause further provides that nothing contained in said instrument shall be construed as imposing any liability inconsistent with the law relative to contributory negligence.

The declaration in each case alleges that said Jacob Goldenberg, as principal and the defendant Samuel Goldenberg, as surety, by their written obligation, sealed with their seals, jointly and severally promised to pay to said city the "sum of $2,000 upon the terms and conditions set forth in said bond." The declaration in each case alleges as a breach of the condition of said "bond" that the motorbus of said principal, while employed in the business for which said license was granted, was negligently driven against the person for whose benefit the suit was brought to the injury of said person while he was in the exercise of due care.

The cases were tried together before a justice of the superior court sitting with a jury. The jury apparently found in each case that the negligence of said principal was the proximate cause of the injury, and that the person for whose benefit the first suit was brought was damaged to the extent of $125, and that the person for whose benefit the second suit was brought was damaged to tile extent of $600. The verdict in the first case was as follows:

"The jury find that the defendant did promise and does owe in manner and form as the plaintiff has in his declaration thereof complained against him and assess damages for the plaintiff in the penal sum of $2,000, and the jury chancerize said bond in the sum of $125."

The verdict in the second case was the same, with the exception that the final figures were $600 instead of $125.

The transcript contains the following memorandum:

"(Court received verdict of the jury on chancerization of the bond, and at the same time directed a verdict for the penal sum of the bond. Defendant's counsel thereupon objects and refuses to give his consent to such a verdict being received. Defendant's exception overruled and exception noted.)"

Each case is before us on the defendant's said exception, and also on his exception to the refusal of the trial court to direct a verdict for the defendant.

Did the trial court err in permitting the jury, which rendered the verdict for the penal sum, to chancerize the bond, or, in other words, to determine the amount for which an execution should issue? Sections 3 and 4 of chapter 294, G. L. 1909, provide as follows:

"Sec. 3. In all actions brought for the breach of the condition of a bond, or to recover a penalty for the nonperformance of any covenant, contract, or agreement, when it shall appear, by verdict, default, submission, or otherwise, that the condition is broken or the penalty forfeited, judgment shall be entered in the common form for the penal sum, but execution shall issue thereon as is provided in the following three sections."

"Sec. 4. The court shall award an execution in such case for so much of the penal sum as shall then be due and payable in equity and good conscience, for the breach of the condition, or other nonperformance of the contract; which sum shall be ascertained and determined by the court, unless either party, before the day fixed for hearing thereon, shall move to have it assessed by a jury, or unless the court shall think it proper to have the question so decided, in which case the sum so due shall be assessed by a...