Hoffman v. Fidelity & Cas. Co. of New York

• Decision Date: 05 May 1939
• Citation: 6 A.2d 357,125 Conn. 440
• Parties: HOFFMAN v. FIDELITY & CASUALTY CO. OF NEW YORK et al.
• Court: Connecticut Supreme Court

6 A.2d 357

125 Conn. 440

HOFFMAN v. FIDELITY & CASUALTY CO. OF NEW YORK et al.

Supreme Court of Errors of Connecticut.

May 5, 1939

Appeal from Court of Common Pleas, New Haven County; Raymond J Devlin, Judge.

Action by John H. Hoffman against the Fidelity & Casualty Company of New York seeking the reformation of a replevin bond and for damages, wherein the Park City Auto Finance Company was cited as a codefendant on motion of plaintiff. From a judgment for defendants, plaintiff appeals.

No error.

Samuel H. Platcow, of New Haven, and Cornelius J. Danaher, of Meriden, for appellant.

Frank R. Odlum, John M. Bailey, and Frederick H. Waterhouse, all of Hartford, for appellees.

Argued Before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS JJ.

HINMAN, Judge.

This action was commenced against the named defendant subsequently, on motion of the plaintiff, the Park City Auto Finance Company was cited as a co-defendant. The amended complaint alleged that the latter having caused an automobile to be replevied from the plaintiff, and the plaintiff not being satisfied with the recognizance in the replevin writ and demanding a new bond the Finance Company as principal and the named defendant as surety executed a bond, made part of the complaint, of which the prayers for relief claimed reformation so that the same should be in the form prescribed by statute and conditioned like the recognizance in the original writ, also damages.

The finding, with such corrections as we have allowed, includes the following facts deemed of materiality to the considerations which we find decisive. The replevin writ contained a recognizance, as required by § 5945 of the General Statutes and in the form prescribed by § 5946, by which the Finance Company as principal and a personal surety bound themselves to Hoffman as the defendant in replevin in the sum of $1400, that the Finance Company shall prosecute its suit to effect, pay to him any judgment he may recover return to him any property that may be recovered under the suit and pay him all damages that he may sustain by the replevying of the property if the Finance Company fail to establish its right to possession of the same. After service of the writ upon Hoffman his attorney informed the attorney for the Finance Company that he was not satisfied with the financial responsibility of the surety and requested a surety company bond, which the latter agreed to furnish and sent a representative of the Finance Company, with a copy of the replevin writ, to the Casualty Company, informing it by telephone that he would request and pay for a bond. The Casualty Company executed a bond and forwarded it direct to Hoffman's attorney, who, at the time he received it, noted from the backing thereon the amount and that Hoffman was stated to be the obligee, but did not read the bond.

The replevin writ was returned to court but the action was never entered on the docket because of failure to pay the entry fee. More than two years later Hoffman brought this suit against the Casualty Company on the bond alleging, in the original complaint, breach thereof by failure of the Finance Company to prosecute the replevin action to effect. Upon the trial the plaintiff's attorney for the first time discovered that the condition contained in the bond did not cover failure to prosecute to effect. He then moved and was permitted to amend the complaint and add a prayer for relief seeking reformation of the bond, and further hearing was afterward had on that issue. The trial court held that reformation was not warranted, and this conclusion and refusal to render judgment, in any event, against the Finance Company for damages for conversion are the issues on this appeal.

By the bond which was given the Finance Company as principal and the Casualty Company as surety undertook to pay Hoffman as ‘ obligee’ the specified amount but the condition stated was ‘ that if the defendant shall safely keep the property replevied * * * and will deliver the same to the plaintiff if judgment shall be rendered to that effect, and if he shall pay to the plaintiff all just sums of money he may recover in the action, then this obligation shall be void; otherwise to remain in full force and effect.’ As the ‘ action’ referred to necessarily was the replevin suit, the plaintiff therein was the principal in the bond and the defendant was Hoffman. It is apparent therefore that the bond given is inappropriate to a situation where, as in this instance, property is taken and retained by the plaintiff in the replevin action, being that contemplated by the statutes providing for a recognizance accompanying the writ (General Statutes, § 5945) and a further bond if moved for and ordered (§ 5948). It is adapted, instead, to cases in which, under statute in some states, a defendant whose property has been replevied may obtain return of it upon giving such a ‘ redelivery bond.’ E. G., New York, Cahill's Civil Practice (7th Ed.) § 1103; Washington, 2 Rem.Rev.Statutes, § 709; Johnston v. Karjala, 172 Wash. 122, 19 P.2d 948, 90 A.L.R. 967.

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