Patch v. Robbins

• Decision Date: 04 January 1928
• Citation: Patch v. Robbins , 261 Mass. 496, 159 N.E. 532 (Mass. 1928)
• Parties: PATCH v. ROBBINS et al.
• Court: Supreme Judicial Court of Massachusetts

261 Mass. 496

159 N.E. 532

PATCH

v.ROBBINS et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Jan. 4, 1928.

Exceptions from Superior Court, Suffolk County; Frederick J. Macleod, Judge.

Action by Ella F. Patch against Aimee S. Robbins and others.Finding for plaintiff, and defendants bring exceptions.Exceptions overruled, and judgment entered for plaintiff.

1.Attachment k338-Bond to dissolve attachment, conditioned on payment of final judgment, held to bind sureties to pay judgment entered against only one of defendants sued as partners.

Bond given to dissolve attachment by defendants sued as copartners, which provided for payment of judgment for plaintiff‘within thirty days after final judgment in the aforesaid action,’held to bind sureties for payment of judgment entered against one defendant only, based on amended answer denying partnership; it not being expressly required by bond that judgment should be against all defendants in original action.

2.Attachment k345-Where plaintiff, who made no representations, recovered against single defendant it was no defense to sureties on bond to dissolve attachment that they believed defendants were partners.

It was no defense to sureties on bond to dissolve attachment that they signed bond under mistake of fact and on representation that defendants sued in action were partners, where plaintiff, recovering judgment against one of defendants only, as result of other defendant's having denied partnership, made no representations inducing execution of bond.

3.Attachment k337-Sureties on bond to dissolve attachment held not released by subsequent amendments to declaration relating to same cause (G. L. c. 231, s 138).

In suit against defendants as copartners to recover amount paid for purchase of stock on ground of fraud of defendants' agent, it was no defense to sureties on defendants' bond to dissolve attachment that declaration was amended after execution of bond to show making of other misrepresentations, under G. L. c. 231, s 138, since amendments to declaration related to same cause of action for which suit was originally brought, and sureties were not thereby released.

4.Attachment k337-Sureties on bond to dissolve attachment against defendants as partners, held not released by plaintiff's subsequent consent to amended answer denying partnership (G. L. c. 231, s 138).

Sureties on bond to dissolve attachment in action brought against persons claimed to be copartners held not released by plaintiff's consent to the allowance of the motion of one of defendants to amend his answer so as to deny partnership, since allegation in amendment, though made subsequent to time of execution of bond, could have been made part of the original answer and did not affect nature of claim on which suit was brought or affect legal liability of surety; case being distinguishable from that in which a new party is joined under G. L. c. 231, s 138.

B. E. Eames, of Boston, for plaintiff.

J. F. O'Connell, of Boston, for defendant O'Connell.

R. T. Parke, of Boston, for defendant Robbins.

CROSBY, J.

This is an action on a bond to dissolve an attachment given in the case of Ella F. Patch against Maurice J. Cashman and others.The bond is joint and several and is signed by Cashman and Pond, copartners, as principals, and by the defendants Robbins and O'Connell as sureties.The original action was brought against the defendants Pond and Cashman to recover the amount paid them by the plaintiff for the purchase of certain stocks, on the ground that the defendants made false representations to her.The original declaration alleged certain oral misrepresentations made to the plaintiff by one Annis, an agent of the defendants.Afterwards an amendment to the declaration was allowed which added other counts relating to the same transaction, wherein it was alleged that certain other misrepresentations were made by means of printed circulars exhibited by the defendants to the plaintiff.

Before the trial in the original suit, Pond, by consent of the plaintiff and without notice or knowledge or assent of the defendants Robbins or O'Connell, filed an amendment to his answer, in which he set up for the first time that he was not a partner with Cashman.The original answer and the amendment were filed by Pond after the bond had been executed and delivered.The trial judge in the original action found that Pond was not a partner and judgment was entered in his favor, and against Cashman.

[1] The bond given by Pond and Cashman as principals described themselves as copartners and Robbins and O'Connell as sureties.The condition of the bond is as follows:

‘Now, therefore, if the said Cashman et al. shall within thirty days after the final judgment in the aforesaid action, pay to the plaintiff therein the amount, if any, which she shall recover in such action * * * then this obligation shall be void, otherwise it shall be and remain in full force and virtue.’

The terms of the bond do not expressly require that the final judgment shall be a judgment against all the defendants in the original action, nor can such a construction be inferred.The judgment required to be obtained is a final judgment ‘in such action.’It follows that a final judgment against Cashman alone in that action is sufficient to establish liability against the sureties.

It was said by Colt, J., in Leonard v. Speidel, 104 Mass. 356, at pages 359 and 360:

‘The present case does not show, nor is it perhaps material, what property was attached.The joint property of all, or of any two of the defendants, or the separate property of one or more of them, was subject to attachment.And it may be that only the property of the defendants against whom judgment was rendered was in fact taken.If the separate property of the defendant who eventually prevailed was under attachment, and he wished to escape liability upon any judgment which might be had against his codefendants, then in order to dissolve the lien upon his property he should have given a separate bond, to secure only the judgment which might be recovered against him.’

Campbell v. Brown, 121 Mass. 516, was an action on a bond given to dissolve an attachment similar in form to that in the case at bar.In the original action, brought against Brown and Murphy, their joint property was attached.Brown desired the attachment dissolved and gave a bond for that purpose in which Murphy did not join, and the property was delivered to Brown who obtained judgment in his favor, and judgment was obtained against Murphy on default.It was held that Brown was liable on the bond; and it was said at page 519:

‘By its proper construction, the bond rendered the obligors liable to pay any judgment which the plaintiffs might recover whether against Brown or Murphy, or both.’

[2] The contention of the sureties that they signed the bond as sureties in consequence of the representation made to them that Cashman and Pond were partners, and that having signed it under a mistake of fact they cannot be held liable, cannot be sustained.This defense is not open to them as there is no evidence to show that the plaintiff or...