Frank v. Millen

• Decision Date: 14 February 1917
• Citation: Frank v. Millen, 226 Mass. 71, 115 N.E. 48 (Mass. 1917)
• Parties: FRANK et al. v. MILLEN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

226 Mass. 71

115 N.E. 48

FRANK et al.

v.MILLEN.

Supreme Judicial Court of Massachusetts, Suffolk.

Feb. 14, 1917.

Appeal from Municipal Court of Boston, Appellate Division; Geo. L. Wentworth, Judge.

Action by William Frank and others against Matilder Millen.From an order of the appellate division of the municipal court of the city of Boston dismissing report of the case from the municipal court, plaintiff appeals.Affirmed.

ATTACHMENT k337-BOND TO DISSOLVE-DISCHARGE OF SURETY.

The surety on a bond to dissolve an attachment, conditioned to pay the original plaintiffs the amount of the judgment recovered by them against the principal, was not liable where plaintiffs amended after the bond was executed, by changing the name of one of the plaintiffs and adding a third, and no notice of the amendment was given the surety as required by direct provision of Rev. Laws, c. 173, s 121, since the surety did not agree to pay the judgment recovered by the later plaintiffs.

[Ed. Note.-For other cases, see Attachment, Cent. Dig. ss 1213-1222;Dec. Dig. k337.]

John D. Rooney, of Boston, for plaintiffs.

Josiah Bon, of Boston, for defendant.

CARROLL, J.

This is an action of contract against the surety on a bond to dissolve an attachment.In the action in which the bond was given, the plaintiffs were Morris Frank and Harry Falkson copartners doing business under the name of the American Dry Goods Company.After the bond was executed, the plaintiffs amended by changing the name of one of the partners, from Morris Frank to William Frank, and by adding a third partner, Rose Frank, neé Falkson.By the amendment the three partners were alleged to do business under the same firm name, viz.American Dry Goods Company.No notice of the amendment was given the surety.R. L. c. 173, § 121.

In Mathews Slate Co. v. Sweeney et al., 219 Mass. 285, 106 N. E. 975, the plaintiff was described as Mathews Consolidated Slate Company, and by amendment the Mathews Slate Company was substituted as the plaintiff.They were two distinct corporations.No notice of the amendment was given the surety under R. L. c. 173, § 121.It was there held that as the judgment actually recovered was in favor of a new party, to whom the defendant had not bound himself to pay, he was not liable as a surety on the bond.That case governs the case at bar.The defendant agreed to pay to the partners named, the amount of the judgment recovered by them.Rose Frank was not, at the time, one of the...