Kellogg v. Kimball

• Decision Date: 30 June 1886
• Citation: 142 Mass. 124,7 N.E. 728
• Parties: KELLOGG v. KIMBALL and another.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

142 Mass. 124

7 N.E. 728

KELLOGG v. KIMBALL and another.

Supreme Judicial Court of Massachusetts, Suffolk.

June 30, 1886

COUNSEL

S.H. Dudley, for plaintiff.

G.W Morse and J.B. Goodrich, for defendants.

OPINION

C. ALLEN, J.

The decision of the present case involves a further consideration of the pleadings in the much litigated action of the plaintiff against the principal in the bond now in suit which was four times before this court. Kellogg v Kimball, 122 Mass. 163, 135 Mass. 125, 138 Mass. 441 and 139 Mass. 296. It is now contended that the sureties on the bond given to dissolve the attachment in the original action were discharged by the allowance of the amendment to the declaration, adding a new count in place of the first and second counts in the original declaration. To have this effect the amendment must be such as to let in some new demand or new cause of action, and not merely to vary the mode of stating the liability upon the same cause of action. Wood v. Denny, 7 Gray, 540; Smith v. Palmer, 6 Cush. 519; Cutter v. Richardson, 125 Mass. 72 Pub.St. c. 167, § 85, provide that "the cause of action shall be deemed to be the same for which the action was brought, when it is made to appear to the court that it is the cause of action relied on by the plaintiff when the action was commenced, however the same may be misdescribed." The allowance of the amendment is conclusive evidence of the identity of the cause of action as between the original parties, but not as to third persons who have no notice of the application for leave to amend. Id. The same cause of action may be set forth in the count in contract and a count in tort. Pub.St. c. 167, § 2, cl. 5; Mann v. Brewer, 7 Allen, 202. In the present case it is stated on the face of the amended count that it "is for the same cause of action as the first and second counts and the third count in said declaration; it being doubtful to which class said action belongs." The allowance of the amendment shows that the judge who allowed it understood it to be of the same cause of action. The trial proceeded upon the same assumption; the case having been submitted to the jury, and a verdict having been taken upon the original third count and the amended count, as representing one cause of action. The defendants do not now contend, and we do not see, that the amended count was for a different cause of action from that set forth in the original third...