Werlin v. Equitable Sur. Co.

• Decision Date: 25 May 1917
• Citation: Werlin v. Equitable Sur. Co. , 227 Mass. 157, 116 N.E. 484 (Mass. 1917)
• Parties: WERLIN v. EQUITABLE SURETY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

227 Mass. 157

116 N.E. 484

WERLIN

v.EQUITABLE SURETY CO.

Supreme Judicial Court of Massachusetts, Suffolk.

May 25, 1917.

Report from Superior Court, Suffolk County; Charles U. Bell, Judge.

Action by Jacob Werlin against the Equitable Surety Company upon a surety bond.On report.Judgment for defendant.

Jos. Michelman and Sawyer, Hardy, Stone & Morrison, all of Boston (E. C. Stone, of Boston, of counsel), for plaintiff.

Adams & Blinn, Amos L. Taylor, and C. P. Richardson, all of Boston, for defendant.

DE COURCY, J.

By the express language of the bond in suit the Equitable Surety Company became bound ‘unto New Boston Biscuit Company, a corporation of Malden, Massachusetts (hereinafter called the ‘obligee’) in the sum of two thousand ($2,000) dollars.'And one of the express conditions precedent to the right of recovery was:

‘Fourth.That no right of action shall accrue upon or by reason hereof, to or for the use or benefit of any one other than the obligee herein named.’

In the application for the bond, the requirement ‘give exact title of firm organization or individual to whom bond is given’ was answered ‘New Boston Biscuit Company, a corporation of Malden, Massachusetts.’The amended declaration alleged that ‘the defendant executed and delivered to the plaintiff[Jacob Werlin], who was doing business under the name of the New Boston Biscuit Company, a corporation of Malden, Massachusetts, and who in fact is the obligee named * * *’ in the bond in question.

As matter of construction there is no uncertainty or ambiguity as to who is the obligee named in this bond.The defendant contracted with the New Boston Biscuit Company, a corporation.Plainly this plaintiff could not sue as obligee if the corporation was an existing one.Flynn v. North American Life Ins. Co., 115 Mass. 449;Penn. Match Co. v. Hapgood, 141 Mass. 145, 7 N. E. 22;Mathews Slate Co. v. Sweeney, 219 Mass. 285, 106 N. E. 975;Frank v. Millen, 226 Mass. 71, 115 N. E. 48;Jordan Marsh Co. v. Beals, 201 Mass. 163, 87 N. E. 471.According to the testimony of the plaintiff there was no such corporation as the New Boston Biscuit Company in existence.In connection with this fact, however, the following facts must be taken into consideration: The defendant's agent, Byrne, who executed the bond in suit, testified that he believed in behalf of the defendant at the time of the execution and delivery of the bond, that the surety company, was making a contract with a corporation duly organized and existing under the laws of the state of Massachusetts, and not with the plaintiff individually, and that had he been informed that the New Boston Biscuit Company as a corporation did not exist, but that J. Werlin personally was the proprietor of the business, and that he was dealing with the plaintiff as an individual he would not have executed the bond in behalf of the defendant, at least not without further investigation; and he stated reasons why it was more desirable for a surety company to make contracts with corporations.This testimony was not rebutted, and was admitted rightly.Blaney v. Rogers, 174 Mass. 277, 54 N. E. 561.Further, although the bond was handed to the plaintiff in October, 1913, in the office of Mr. Byrne, and remained in his possession until he gave it to his attorney, he never notified the defendant of any mistake in the obligee named, or sought to have such mistake corrected.It further appears that in the Omaha Machine Works contract and in the letters to the defendant written by the plaintiff's counsel, the contracting party is referred to always as the New Boston Biscuit Company and not as J. Werlin; and Byrne testified that until after this action was brought he never was informed that the plaintiff claimed to be the actual obligee named in the bond.In these circumstances it does not appear that there was any contract between the individual plaintiff and the defendant.Sanders v. Filley, 12 Pick. 554.SeeBoston Ice Co. v. Potter, 123 Mass. 28, 30,25 Am. Rep. 9;Stevenson v. Donnelly, 221 Mass. 161, 165, 108 N. E. 926.Indeed it is difficult to see why the plaintiff is not estopped as against this defendant from now claiming that the New Boston Biscuit Company was not an existing corporation.O. Sheldon Co. v. Cooke, 177 Mass. 441, 443, 59 N. E. 77;...