Massachusetts Bldg. Finish Co. v. Brenner

• Decision Date: 03 December 1934
• Citation: 288 Mass. 481,193 N.E. 355
• Parties: MASSACHUSETTS BUILDING FINISH CO., Inc., v. BRENNER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

288 Mass. 481

193 N.E. 355

MASSACHUSETTS BUILDING FINISH CO., Inc.,

v.BRENNER.

Supreme Judicial Court of Massachusetts, Suffolk.

Dec. 3, 1934.

Action of contract upon a bond by the Massachusetts Building Finish Company, Inc., against Benjamin Brenner. Finding for the plaintiff in the penal amount of the bond, $400, and assessed damages in the sum of $263.07. From an order of the Appellate Division dismissing a report by the trial judge, the defendant appeals.

Order dismissing the report affirmed.Appeal from Municipal Court of Boston, Appellate Division; Carr, judge.

H. C. Mamber, of Lynn, for appellant.

B. A. Riemer, of Boston, for appellee.

FIELD, Justice.

This is an action of contract brought in the Municipal Court of the City of Boston against Benjamin Brenner as sole defendant on a bond to dissolve an attachment.There was a finding for the plaintiff and a report to the Appellate Division which was dismissed. The defendant appealed.

The plaintiff declared on a bond of the Massachusetts Live Poultry Company, as principal, and this defendant, as surety, to dissolve an attachment under a writ in an action brought by the plaintiff against said Massachusetts Live Poultry Company and one Mary Riseman on which the goods and estate of the two defendants in that action were attached. The defendant in the present case answered by general denial, payment, that he ‘denies the genuineness of any signature or signatures on any written instrument, and calls upon the plaintiff to prove the same,’ and that ‘if the plaintiff proves that he signed the bond on the obligation in question and because of an amendment filed by the plaintiff, the bond is discharged.’

The plaintiff introduced in evidence a joint and several bond in statutory form (see G. L. [Ter. Ed.] c. 223, §§ 120, 129) running to the plaintiff, in which the Massachusetts Live Poultry Company is described as principal and Benjamin Brenner and Meyer W. Kettlemen are described as sureties, and purporting to be executed by the parties described as principal and sureties. The bond recites that the ‘condition of this obligation is such that whereas the said Mass. Building Finish Co. Inc. has caused the goods and estate of the said Massachusetts Life Poultry Co. * * * to be attached on mesne process by virtue of a writ in favor of the said Mass. Building Finish Co., Inc. against the said Massachusetts Live Poultry Company * * * and whereas the said Massachusetts Live Poultry Company desire to dissolve said attachment according to law. Now Therefore, if the said Mass. Building Finish Co. Inc. shall within thirty days after the final judgment in the aforesaid action, pay to the plaintiff therein the amount, if any, which it shall recover in such action, and shall also, within thirty days after the entry of any special judgment which may be entered in said action * * * pay to said plaintiff the sum, if any, for which such special judgment shall be entered, then this obligation shall be void, otherwise it shall be and remain in full force and virtue.’ The trial judge states in the report that ‘The only evidence offered with reference to the genuineness of the signature on the bond was the answer to the plaintiff's interrogatories, which signature on the answer, was admitted by the defendant, to be that of the defendant in this action, thereupon the Court found that the defendant had signed the bond No other evidence was offered by the plaintiff, as to the genuineness of any other signature on the bond. * * * The defendant objected to the introduction of this bond, the bond was admitted against the defendant's objection, and the defendant at that time requested that the question be reported to the Appellate Division for determination, but the defendant did not save his rights by filing a written request in the clerk's office as required by Gen. Laws, chapter 231, § 108 and so far as it is a question of evidence I do not report it.’

The trial judge found, in substance, that the plaintiff brought an action in the Municipal Court of the City of Boston against the Massachusetts Live Poultry Company and Max Riseman, that after this action was entered the plaintiff filed a motion to amend its writ and declaration in that case by substituting for Max Riseman, as defendant, Mary Riseman, that the motion was allowed, and that a judgment was recovered. No evidence was offered by the plaintiff or the defendant in the present case that any notice was given to the defendant in this action that the writ and declaration in the original action would be amended or that the plaintiff would ask that it be amended so that one defendant might be discharged and another substituted.

At the close of the evidence the defendant requested the following rulings: ‘1. An amendment to a writ and declaration, without notice to the sureties, discharges the sureties. 2. The Court is warranted in finding that the amendment filed was not as to mere form, but as to the substance of the action. 3. The amendment filed in the original case for which this bond was given was not one which would ordinarily be termed a clerical error. 4. On all the evidence the Court should find for the defendant, because of the failure of the plaintiff to prove all of the signatures on the bond.’ The judge refused to rule in accordance with requests numbered 1 and 4, and with respect to requests numbered 2 and 3 ruled ‘immaterial if same cause of action.’ The rulings and refusals to rule as requested were reported to the Appellate Division.

The appeal from the order of the Appellate Division brings before us for revision only the rulings of law made by the trial judge, and reported by him to the Appellate Division, and the action of the Appellate Division thereon. G. L. (Ter. Ed.) c. 231, §§ 108, 109. Duggan v. Matthew Cummings Co., 277 Mass. 445, 449, 178 N. E. 825.

No question, therefore, is before us with respect to variance between allegations and proof, or the sufficiency of the evidence to support the implied finding that the bond introduced in evidence was given to dissolve an attachment in the action in which the plaintiff recovered judgment. Nor is the question before us of the admissibility of the bond. The trial judge did not report this question and-if we assume that the propriety of his not reporting this question is before us-he was right in not reporting it. The statute in force when the case was tried (G. L. [Ter. Ed.] c. 231, § 108; see now St. 1933, c. 255) provided with respect to a report by a judge of the Municipal Court of the City of Boston to the Appellate Division of a ruling on a matter of law that the ‘request for such a report shall be filed with the clerk * * * within two days after notice of the ruling, * * * and when the objection is to the admission or exclusion of evidence, the claim for a report shall also be made known at the time of the ruling.’ The latter provision, as the language clearly indicates, is in addition to, not in substitution for, the former, and both must be complied with to bring an objection to the admission of evidence before the Appellate Division and this court. Spevack v. Budish, 238 Mass. 215, 217, 130 N. E. 191;Krock v. Consolidated Mines & Power Co., Ltd., (Mass.) 189 N. E. 822. The report contains what is, in substance, a finding of fact by the trial judge that the defendant did not, as required by the statute, file with the clerk a request for a report of the ruling on the admissibility of the bond. Finally no question was specificallyraised with reference to the use in the condition of the bond of the name of the plaintiff in the original action instead of the name of the defendant. But, so far as the matter may be involved in the rulings made, we treat this use of the plaintiff's name as an obvious clerical error which did not vitiate the bond nor affect its interpretation. Leonard v. Speidel, 104 Mass. 356, 359;Hewes v. Cooper, 115 Mass. 42.

The questions for our determination are those only which are raised by the disposition by the trial judge of the defendant's requests for rulings. In his disposition of these requests we find no error.

1. As a general statement of law the requested ruling numbered 1 was not accurate. An amendment to a writ and declaration, without notice to the sureties, does not necessarily discharge the sureties on a bond to dissolve an attachment thereunder. See Dalton v. Barnard, 150 Mass. 473, 23 N. E. 218, and Salvin v. Sidman, 230 Mass. 278, 119 N. E. 704, for examples of cases where sureties were not discharged. And the facts of this case as disclosed by the record did not require a ruling that the defendant was discharged as surety.

The only effect of the lack of notice to the defendant of the proposed amendment was that, in the absence of ‘due notice [to the defendant] of the application for leave to amend and opportunity to be heard thereon’ he was not ‘bound by such allowance,’ or precluded thereby from contesting in this proceeding its effect upon his rights. G. L. (Ter. Ed.) c. 231, § 138; Tucker v. White, 5 Allen, 322;Norris v. Anderson, 181 Mass. 308, 314, 64 N. E. 71,92 Am. St. Rep. 420;Mathews Slate Co. v. Sweeney, 219 Mass. 285, 286, 106 N. E. 975;Savage v. Welch, 246 Mass. 170, 179, 180, 140 N. E. 787. Such lack of notice to the surety did not ‘put an end to his responsibility if the amendment does not subject him to a different burden from the one he undertook when he executed the...