Eastern Tire Co. v. Witter

• Decision Date: 12 January 1933
• Citation: 183 N.E. 894,281 Mass. 523
• Parties: EASTERN TIRE CO. v. WITTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

281 Mass. 523

183 N.E. 894

EASTERN TIRE CO.

v.WITTER.

Supreme Judicial Court of Massachusetts, Worcester.

Jan. 12, 1933.

Appeal from Appellate Division of District Court, Central District; Jacob Asher, Special Judge.

Action by the Eastern Tire Company against Edward W. Witter. The Trial Court found for plaintiff, and the Appellate Division dismissed a report, and defendant appeals.

Order dismissing report affirmed.

L. E. Stockwell, of Worcester, for appellant.

H. Zarrow and M. N. Abodeely, both of Worcester, for appellee.

WAIT, J.

The single question presented upon this appeal is whether a surety upon a bond given to dissolve an attachment is released from liability because, subsequent to the execution of the bond and without notice to him, the writ in the action in which the bond was given was amended by increasing the ad damnum to a sum greater than the penalty of the bond. No contention is made that the court was without jurisdiction, or that as between the parties to the writ the amendment was improper.

The penalty of the bond is $300. The ad damnum originally inserted in the writ was $300. It was increased, on motion duly heard and allowed, to $500. Judgment was entered; and execution issued in $465.66 with interest from November 21, 1930, and fees of a levy. Nothing appears to show that the declaration as originally filed has ever been changed.

The bond was executed on August 10, 1930. It recited an attachment of goods and estate of Henry R. Carter, Inc., to the value of $300 at the suit of Eastern Tire Company by writ dated August 8, 1930, returnable on August 30, 1930, to the ‘Central District Court, of the County of Worcester,’ and the desire of Henry R. Carter, Inc., to dissolve the attachment according to law. The condition, so far as here material, was that the obligation should be void if, within thirty days after final judgment in that action, the Henry R. Carter, Inc., paid Eastern Tire Company the amount, if any, which it recovered in such action. The payment was not made. Suit was brought on the bond. This defendant surety requested a ruling that on all the evidence (in substance the foregoing) the plaintiff could not recover, on the ground that, without notice to him, the ad damnum of the writ in the original case had been increased to a sum in excess of the penal sum of the bond. The trial judge denied the request and found for the plaintiff in the penal sum of the bond with interest from September 12, 1931, the date of the execution. The Appellate Division dismissed a report. It is manifest that the condition of the bond has not been performed. The judgment entered in the action begun by writ of August 8, 1930, has not been paid. The penal sum promised is due unless some rule of law intervenes to prevent. The law will not hold sureties to perform what they have not undertaken. The contention of this surety must be that he did not undertake that his principal should pay a judgment in a greater sum than the penal sum of the bond. Obviously that contention is unsound. By the terms of his bond he undertook himself to pay the penal sum of the bond, $300, if his principal did not pay whatever judgment was legitimately awarded against it in the action referred to in the bond; buy by intendment of the law, he himself could be called on to pay only what was recoverable in the action described in the bond and was justly and equitably due up to, but not exceeding, $300 and interest. That action limits his liability. Whatever cause of action is there, however misdescribed or understated in amount recoverable (Morton v. Shaw, 190 Mass. 554, 555, 77 N. E. 633), is the action for which he makes himself answerable. He cannot, however, be held if a new and different cause of action be interjected into it, even though his principal be subject thereto. If such modification be made by court or parties without notice to him, the bond ceased to be his bond. His liability is ended.

The ad damnum of the writ mentioned in a bond is not in most cases an essential element of the cause of action there referred to. It may be changed without a change in the cause of action. This was definitely decided in Townsend National Bank v. Jones, 151 Mass. 454, 24 N. E. 593. In that case a bond in $6,000 as penal sum was given to dissolve an attachment on a writ which recited $6,000 as its ad damnum. Later the ad damnum was increased to $7,000 and the declaration was amended without any change in the cause of action. The trial judge ruled that this released the surety; but this court held otherwise. It said at page 459 of 151 Mass.,24 N. E. 593, 594: ‘Nor is the surety discharged by a mere change in the ad damnum in the writ. The liability of the surety is for the penal sum in the bond, with interest. In fixing a penal sum in the bond to dissolve an attachment, he has limited his liability to that amount. So long as no new cause of action has been introduced, his rights have not been affected. * * * Unless it is shown that the surety has been, or may have been, injured by the increase of the ad damnum, there is no reason why he should be released from his responsibility.’ That decision is squarely in point here and is controlling. It has been cited frequently and without criticism. The defendant contends that its authority is weakened by language in McNeilly v. Driscoll, 208 Mass. 293, 296, 94 N. E. 273, and Neszery v. Beard, 226 Mass. 332, 334, 115 N. E. 420, which he urges imposes as a limit upon the power to increase the ad damnum that, as increased, it shall not exceed the penalty of the bond. He misapprehends those decisions. In the latter case the reference is to the former. In neither is the matter here...