Cutter v. Richardson

• Decision Date: 19 July 1878
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Leonard R. Cutter v. Henry Richardson & another

125 Mass. 72

Leonard R. Cutter v. Henry Richardson & another

Supreme Court of Massachusetts

July 19, 1878

Suffolk. Contract against the sureties on a bond given to dissolve an attachment in an action brought by the plaintiff against Henry F. Howe and others, by writ dated December 22, 1874. Trial in the Superior Court, before Wilkinson, J., who allowed a bill of exceptions in substance as follows:

The first count of the declaration in the original action was on an account annexed, to recover $ 576.50, for the use and occupation of certain premises hired of the plaintiff by the defendants. The account annexed contained two items. The first was for the balance due for rent, November 1, 1874 amounting to $ 270. The second was for $ 306.50, the rent for the month of November, 1874.

The second count was to recover $ 576.50 rent, under a written lease, a copy of which was annexed. By the terms of the lease, rent was reserved at the rate of $ 166.66 a month.

The third count alleged that the defendants on July 1, 1873 hired of the plaintiff a certain house, being the same mentioned in the preceding counts, and agreed to pay the plaintiff $ 83.33 a month, while certain alterations and repairs were being made by the plaintiff, and, at the completion of these alterations and repairs, to pay the plaintiff, monthly, at the rate of $ 3500 a year and a percentage of the cost of the alterations and repairs, and of the abatement on the rent while they were being made; that repairs were made at a certain cost; that the defendants occupied the house under the agreement until February 1 1875, and paid the plaintiff rent monthly until October 1 1874; and that they owed him $ 613, rent for the months of October and November, 1874, less $ 220 paid on account for the month of October.

The fourth count was on a written lease, a copy of which was annexed, from Jonas B. Hitchings to the defendants, of the same premises; and alleged a sale of the reversion to the plaintiff, and an attornment to him by the defendants; an occupation until February 1, 1875; and that rent was due for the months of October and November 1874, at the rate of $ 166.66 a month, as reserved in the lease.

The docket and files of the original action showed that the judge, trying the case without a jury, found for the plaintiff for $ 628.28, of which the plaintiff subsequently remitted the sum of $ 225.56.

It was admitted that judgment was entered for the plaintiff in the original action for the balance; that the execution issued thereon was returned unsatisfied; and that the third and fourth counts were allowed as amendments to the declaration without notice to the sureties on the bond, and without their knowledge.

The defendants asked the judge to instruct the jury as follows "1. The filing and allowing of the amendments to the declaration in the original action, without notice to the defendants in this action, and without their knowledge, discharged them from their liability as sureties upon the bond. 2. The finding in the original action being general, the court cannot say upon which count it was based, no evidence being offered to show upon...